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JURISDICTIONAL COMPETITION AND THE EVOLUTION OF THE COMMON LAW: A H YPOTHESIS * DANIEL KLERMAN Historians explain the development of the common law in many ways. Some emphasize the internal logic of legal concepts,1 while others focus on external factors , such as political, social, or economic conditions.2 A few point to the influence of philosophy3 or other legal systems. 4 For many, the institutional structure of the legal system is the central, whether it be the role of juries,5 the changing dynamics of pleading and post-trial motions, or innovation by lawyers in the service of their clients. 6 Among the institutional factors which influenced legal development, many historians point to competition among courts as an agent of legal change. 7 While references to jurisdictional competition are common in the * Daniel Klerman, Professo r of Law and History, USC Law School, University Park MC-0071, 699 Exposition Blvd, Los Angeles, CA 90089-0071, USA [email protected]. Phone: 213 740-7973. Fax: 213 740-5502. The author thanks Lisa Bernstein, Hamilton Bryson, David Crook, Barry Cushman, John de Figueiredo, Richard Epstein, Thomas Gallanis, Joshua Getzler, Gillian Hadfield, Richard Helmholz, Ehud Kamar, Peter Karsten, Timur Kuran, Gregory LaBlanc, Doug Lichtman, James Lindgren, Edward McCaffery, James Oldham, Richard Posner, Jonathan Rose, Eric Talley, Steven Yeazell, Todd Zywicki, and participants in the University of Virginia Law School Faculty Workshop and Australia and New Zealand Legal History Society 2002 annual meeting for comments and suggestions. Unfortunately, many of their ideas and criticisms are not yet reflected in this essay. The author hopes that, as research progresses, their suggestions and concerns will be addressed. -
Catalogue of the Earl Marshal's Papers at Arundel
CONTENTS CONTENTS v FOREWORD by Sir Anthony Wagner, K.C.V.O., Garter King of Arms vii PREFACE ix LIST OF REFERENCES xi NUMERICAL KEY xiii COURT OF CHIVALRY Dated Cases 1 Undated Cases 26 Extracts from, or copies of, records relating to the Court; miscellaneous records concerning the Court or its officers 40 EARL MARSHAL Office and Jurisdiction 41 Precedence 48 Deputies 50 Dispute between Thomas, 8th Duke of Norfolk and Henry, Earl of Berkshire, 1719-1725/6 52 Secretaries and Clerks 54 COLLEGE OF ARMS General Administration 55 Commissions, appointments, promotions, suspensions, and deaths of Officers of Arms; applications for appointments as Officers of Arms; lists of Officers; miscellanea relating to Officers of Arms 62 Office of Garter King of Arms 69 Officers of Arms Extraordinary 74 Behaviour of Officers of Arms 75 Insignia and dress 81 Fees 83 Irregularities contrary to the rules of honour and arms 88 ACCESSIONS AND CORONATIONS Coronation of King James II 90 Coronation of King George III 90 Coronation of King George IV 90 Coronation of Queen Victoria 90 Coronation of King Edward VII and Queen Alexandra 90 Accession and Coronation of King George V and Queen Mary 96 Royal Accession and Coronation Oaths 97 Court of Claims 99 FUNERALS General 102 King George II 102 Augusta, Dowager Princess of Wales 102 King George III 102 King William IV 102 William Ewart Gladstone 103 Queen Victoria 103 King Edward VII 104 CEREMONIAL Precedence 106 Court Ceremonial; regulations; appointments; foreign titles and decorations 107 Opening of Parliament -
Common Law Pleadings in New South Wales
COMMON LAW PLEADINGS IN NEW SOUTH WALES AND HOW THEY GOT HERE John P. Bryson * Advantages and disadvantages para 1 Practice before 1972 para 17 The Texts para 21 Pleadings after the Reform legislation para 26 The system in England before Reform legislation para 63 Recurring difficulties before Reform legislation para 81 The Process of Change in England para 98 How the system reached New South Wales para 103 Procedure in the Court in Banco para 121 Court and Chambers para 124 Diverse Statutes and Procedures para 126 Every-day workings of the system of pleading para 127 Anachronism and Catastrophe para 132 The End para 137 Advantages and disadvantages 1. There can have been few stranger things in the legal history of New South Wales than the continuation until 30 June 1972 of the system of Common Law pleading, discarded in England in 1875 after evolving planlessly over the previous seven Centuries. The Judicature System in England was the culmination of half a century of reform in the procedures and constitution of the courts, prominent among rapid transformations in British economy, politics, industry and society in the Nineteenth Century. With the clamant warning of revolutions in France, the end of the all- engrossing Napoleonic Wars and the enhanced representative character of the House of Commons, the British Parliament and community shook themselves and changed the institutions of society; lest a worse thing happen. As well as reforming itself, the British Parliament in a few decades radically reformed the law relating to the procedure and organisation of the courts, the Established Church, municipal corporations and local government, lower courts, Magistrates and police, 1 corporations and economic organisations, the Army, Public Education, Universities and many other things. -
Legal Fictions As Strategic Instruments
Legal Fictions as Strategic Instruments Daniel Klerman1 USC Law School Preliminary Draft August 14, 2009 Abstract Legal Fictions were one of the most distinctive and reviled features of the common law. Until the mid-nineteenth century, nearly every civil case required the plaintiff to make a multitude of false allegations which judges would not allow the defendant to contest. Why did the common law resort to fictions so often? Prior scholarship attributes legal fictions to a "superstitious disrelish for change" (Maine) or to a deceitful attempt to steal legislative power (Bentham). This paper provides a new explanation. Legal fictions were developed strategically by litigants and judges in order to evade appellate review. Before 1800, judicial compensation came, in part, from fees paid by litigants. Because plaintiffs chose the forum, judges had an incentive to expand their jurisdictions and create new causes of action. Judicial innovations, however, could be thwarted by appellate review. Nevertheless, appellate review was ordinarily restricted to the official legal record, which consisted primarily of the plaintiff's allegations and the jury's findings. Legal fictions effectively insulated innovation from appellate review, because the legal record concealed the change. The plaintiff's allegations were in accord with prior doctrine, and the defendant's attempt to contest fictitious facts was not included in the record. 1 The author thanks Tom Gallanis, Beth Garrett, Dick Helmholz, Mat McCubbins, Roger Noll, Paul Moorman, Pablo Spiller, Matt Spitzer, Emerson Tiller, Barry Weingast, and participants in the USC- Caltech Symposium on Positive Political Theory and the Law for helpful criticism, assistance, and suggestions. -
Fact & Fiction in the Law of Property
University of North Carolina School of Law Carolina Law Scholarship Repository Faculty Publications Faculty Scholarship 2007 Fact & Fiction in the Law of Property John V. Orth University of North Carolina School of Law, [email protected] Follow this and additional works at: http://scholarship.law.unc.edu/faculty_publications Part of the Law Commons Publication: Green Bag 2d This Article is brought to you for free and open access by the Faculty Scholarship at Carolina Law Scholarship Repository. It has been accepted for inclusion in Faculty Publications by an authorized administrator of Carolina Law Scholarship Repository. For more information, please contact [email protected]. FACT & FICTION IN THE LAW OF PROPERTY † John V. O r t h O MODERN AMERICANS “legal fiction” brings to mind the novels of John Grisham or Scott Turow, but to an earlier generation of lawyers the phrase meant a different kind of make-believe. Essentially, legal fiction (in the old Tsense) meant an irrebuttable allegation of a fact without regard to its truth or falsity. The object could be to secure access to a form of procedure that was speedier, cheaper, or simply more likely to pro- duce the desired result. The old action of trover, to recover the value of personal property wrongfully withheld, began with an alle- gation that the property at issue had been lost by the plaintiff and found (trouvé in Law French) by the defendant who converted it to his own use.1 Of course, it was really immaterial how the defendant came to possess the item in question; it could have been purchased, or received as a gift, or actually found. -
PLEASE NOTE This Is a Draft Paper Only and Should Not Be Cited Without
PLEASE NOTE This is a draft paper only and should not be cited without the author’s express permission THE SHORT-TERM IMPACT OF THE >GLORIOUS REVOLUTION= ON THE ENGLISH JUDICIAL SYSTEM On February 14, 1689, The day after William and Mary were recognized by the Convention Parliament as King and Queen, the first members of their Privy Council were sworn in. And, during the following two to three weeks, all of the various high offices in the government and the royal household were filled. Most of the politically powerful posts went either to tories or to moderates. The tory Earl of Danby was made Lord President of the Council and another tory, the Earl of Nottingham was made Secretary of State for the Southern Department. The office of Lord Privy Seal was given to the Atrimming@ Marquess of Halifax, whom dedicated whigs had still not forgiven for his part in bringing about the disastrous defeat of the exclusion bill in the Lords= house eight years earlier. Charles Talbot, Earl of Shrewsbury, who was named Principal Secretary of State, can really only be described as tilting towards the whigs at this time. But, at the Admiralty and the Treasury, both of which were put into commission, in each case a whig stalwart was named as the first commissioner--Lord Mordaunt and Arthur Herbert respectivelyBand also in each case a number of other leading whigs were named to the commission as well.i Whig lawyers, on the whole, did rather better than their lay fellow-partisans. Devonshire lawyer and Inner Temple Bencher Henry Pollexfen was immediately appointed Attorney- General, and his cousin, Middle Templar George Treby, Solicitor General. -
Early Bills in Equity
EARLY BILLS IN EQUITY. "The first attempt to clear up the story of the Bill as we find it in the -early Year Books, resulted in the conviction that the Bill as it was known in those early times had been respectfully neglected by all our writers upon the early law." These words, written some years agb, were the result of a prolonged search through all the authorities for some reference to the early pro- cedure by bill instead of by writ: It was then found that the story of the Bill, as we begin how to be able to tell it, was not told in any of the histories of the law, or in any of the treatises upon equity. These bills were dimly suggested in the cases found in the early Year Books, but they were only suggested,, and any inquiry only led to the answer that the bill in question must be the Bill of .Middlesex. But it was clear that the Bills in ques- tion had nothing to do with the custody of the Marshall; they plainly bore no relation to the Bill of Middlesex. Crabb alone among historians seemed to have some faint idea of this other bill, for he says, "There were other modes of proceeding, of more anciefit date than that by writ, which were more adapted to the extraordinary jurisdiction exercised by our kings at an early period, in the administration of justice. One of these proceedings was by bill." 1 Reeves, in his "History of English," shows that he knows something about bills, but has no authority to give for his knowledge, and he refuses to answer the questions about them which had evidently been put before him. -
Treason and Power in Tudor England
W&M ScholarWorks Dissertations, Theses, and Masters Projects Theses, Dissertations, & Master Projects 1983 Thomas, Lord Seymour of Sudeley: Treason and power in Tudor England Diane Lucille Dunkley College of William & Mary - Arts & Sciences Follow this and additional works at: https://scholarworks.wm.edu/etd Part of the European History Commons Recommended Citation Dunkley, Diane Lucille, "Thomas, Lord Seymour of Sudeley: Treason and power in Tudor England" (1983). Dissertations, Theses, and Masters Projects. Paper 1539625224. https://dx.doi.org/doi:10.21220/s2-yqse-f028 This Thesis is brought to you for free and open access by the Theses, Dissertations, & Master Projects at W&M ScholarWorks. It has been accepted for inclusion in Dissertations, Theses, and Masters Projects by an authorized administrator of W&M ScholarWorks. For more information, please contact [email protected]. THOMAS, LORD SEYMOUR OF SUDELEY: TREASON AND POWER IN TUDOR ENGLAND A Thesis Presented, to The Faculty of the Department of History The College of William and Mary in Virginia In Partial Fulfillment Of the Requirements for the Degree of Master of Arts by Diane L. Dunkley 1983 ProQuest Number: 10626443 All rights reserved INFORMATION TO ALL USERS The quality of this reproduction is dependent upon the quality of the copy submitted. In the unlikely event that the author did not send a complete manuscript and there are missing pages, these will be noted. Also, if material had to be removed, a note will indicate the deletion. uest, ProQuest 10626443 Published by ProQuest LLC (2017). Copyright of the Dissertation is held by the Author. All rights reserved. -
Universidad Autónoma De Madrid Facultad De Derecho
UNIVERSIDAD AUTÓNOMA DE MADRID FACULTAD DE DERECHO TESIS DOCTORAL CONSPIRACY. A CONCEPTUAL GENEALOGY (THIRTEENTH TO EARLY EIGHTEENTH CENTURY) Autor Víctor Manuel Saucedo Maqueda Directores Carlos Petit Calvo Jesús Vallejo Fernández de la Reguera Madrid, 2017 1 TABLE OF CONTENTS Table of Contents .......................................................................................................................... 2 Abbreviations ................................................................................................................................ 8 Introducción ................................................................................................................................ 11 Getting Ready for Work ............................................................................................................. 13 The Mystery of Conspiracy ....................................................................................................... 13 Frames ...................................................................................................................................... 16 Prototype Theory ...................................................................................................................... 19 Mappings, Mental Spaces and Blends ...................................................................................... 21 The Law of Conspiracy ............................................................................................................. 31 1. The Historiography of the Law of -
English Courts of the Present Day W
Kentucky Law Journal Volume 9 | Issue 4 Article 3 1921 English Courts of the Present Day W. Lewis Roberts University of Kentucky Follow this and additional works at: https://uknowledge.uky.edu/klj Part of the Courts Commons Right click to open a feedback form in a new tab to let us know how this document benefits you. Recommended Citation Roberts, W. Lewis (1921) "English Courts of the Present Day," Kentucky Law Journal: Vol. 9 : Iss. 4 , Article 3. Available at: https://uknowledge.uky.edu/klj/vol9/iss4/3 This Article is brought to you for free and open access by the Law Journals at UKnowledge. It has been accepted for inclusion in Kentucky Law Journal by an authorized editor of UKnowledge. For more information, please contact [email protected]. ENGLISH COURTS OF THE PRESENT DAY. W. Lmis ROBERTS Professor of Law, University of Kentucky. The English Judicature Act of 1873 and the supplementary act of 1875 provided for a thorough reorganization of the courts of England and of English judicial procedure. We are all familia with the fact that cases in the common law courts decided before the former Vate are found either in the King's or Queen's Bench reports, in the Exchequer reports or in the Common Plea's relports; but that common law cases decided after that date are found in the reports of the Queen's Bench Division. Few of us, however, ever stop to think that sweeping changes lay behind this departure from the old way of reporting English law cases. Today the superior courts of England consist of the House of Lords, the Judicial Committee of the Privy Council, the Supreme Court of Judicature, and the Central Criminal Court. -
Parti PELES, Issues Arising From, Or out PELFRE, Pelfra.'] in Time of War
130 PENAL LAWS. title of Lady; though in law they are Commoners. In a writ ofparti tion brought by Ralph Howard and Lady Anne Powes, his wife, the Court held that it was a misnomer, and that it ought to have been by Ralph Howard and Anne his wife late wife of Lord Powes deceased. Dy. 79. A Countess or Baroness may not be arrested for debt or trespass; for though, in respect of their sex, they cannot sit in Parliament, yet they are Peers of the Realm, and shall be tried by their Peers, &c. But a capias being awarded against the Countess of Rutland, it was held that she might be taken by the Sheriff; because he ought not to dispute the authority of the Court from whence the writ issued, but must execute it, for he is bound by oath so to do; and although by the writ itself it appeared, that the party was a Countess, against whom a capias would not generally lie, for that, in some cases, it may lie, as for a contempt, &c. therefore the Sheriff ought not to examine the judicial acts of the Court. 6 Rep. 52. It hath been agreed, that a Queen Consort, and Queen Dowager, whether she continue sole after the King's death, or take a second husband, and he be a Peer or Commoner; and also, all Peeresses by birth, whether sole or married to Peers or Common'ers; and all Mar chionesses and Viscountesses are entitled to a trial by the Peers, though not expressly mentioned in the stat. -
The Case of Sodomy, in the Tryal of Mervin Lord Audley, Earl of Castlehaven, for Committing a Rape
The case of sodomy, in the tryal of Mervin Lord Audley, Earl of Castlehaven, for committing a rape. And sodomy with two of his servants, viz. (Laurence Fitz Patrick and Thomas Brodway) who was try'd and condemn'd by his peers on the 25th of April, and beheaded on Tower-Hill, May 14th, 1631. With his articles of belief, sent in a letter to his son; the letter he writ to his four sisters, and his speech at the place of execution. Likewise the tryal and condemnation of Laurence Fitz Patrick and Thomas Brodway, ... Page 1 The CASE of SODOMY, IN THE TRYAL OF MERVIN Lord Audley, Earl of Castlehaven, FOR Committing a RAPE. And SODOMY with two of his Servants, viz. (LAURENCE FITZ PATRICK and THOMAS BRODWAY) who was Try'd and Condemn'd by his Peers on the 25th of April, and Beheaded on Tower-Hill, May 14th, 1631. WITH His Articles of Belief, sent in a Letter to his Son; the Letter he writ to his four Sisters, and his Speech at the Place of Execution. LIKEWISE The Tryal and Condemnation of LAURENCE SITZ PATRICK and THOMAS BRODWAY, who were Executed at Tyburn, July 6th. With their Dying Speeches. Printed from an Original Manuscript. LONDON, Printcd for John Morphem near Stationer's Hall. 1708. Page 2 THE TRYAL OF Mervin Lord Audley, Earl of Castlehaven for Sodomy, h.c. April 25th, 1631. THE Lord Coventry Lord Keeper of The @ the Great Seal of England, was ap-ment. pointed Lord High Steward for that Day, who having Orders for the said Tryal from his Majesty, gave Directions for the same.