Contributions in Legal Studies – serie

Gerard W. Gawalt has collected essays that explore the critical period in the development of the legal profession from 1865 to 1900, when law replaced religion as the controlling element in American society and lawyers clearly established themselves as the formulators, advocates, and arbiters of the law. The authors of these essays explore the extent of the legal profession's involvement in the growth of industrial America, focusing on the state of the profession in various geographic regions and on the profession's institutions and plans for education, regulation, reform, and practice in the period after the Civil War. They address the central question of how the nature and structure of the legal profession was molded by the growth of urban-industrial society and argue that the profession not only adapted, but pioneered and adopted many of the aspects of the new industrialism.

This volume is a comprehensive comparative study of the development of systems for naming judges in two nations, over a period of three centuries. It is designed to confront the origins, both normative and political, that affected the evolution of the systems now used in the United States and France. This book places in normative and historical context discussions about how best to recruit judges, and it explores shifts in priorities for judicial offices and their implications.

This is the first booklength survey of the Anglo-American common law contract over its 800-year history, from genesis in 12th-century England to the present form in contemporary America. The volume presents a technically accurate yet readable analysis that focuses on how the form assumed by contract law was tempered by the reasoning of lawyers and judges, and procedural, economic, intellectual and social considerations throughout the period. Of perennial interest to lawyers is the changing nature of law and how a sophisticated legal system allows that change. Teeven suggests that contract law is an ideal focus for studying the evolution of common law because it is a microcosm of the process of the development of common law.Early chapters study how the Plantagenet royal courts rationalized the use of a trespassory action to fill a void in the actions available to plaintiffs for contract enforcement and analyze how the law of proof influenced contract law's evolution. Teeven assesses the influence of law merchant on contract law as reflected in the decisions of Lord Mansfield and the case law of Colonial America, and he surveys the reception of English contract law by the American colonies. Later chapters consider the American form of contract law of the 19th century and discuss the influence on contract law of the burgeoning merchant class. The last two chapters analyze 20th-century modernization of contract law in the context of an urban, industrialized society; reviews public policy, consumerism, and codification; and poses questions about the future direction of contract law. Containing essential source material within the arguments of lawyers for plaintiffs and defendants and the logic of common law judges, A History of the Anglo-American Common Law of Contract is an important resource for legal historians and other researchers, and for practicing lawyers and law students, both English and American.

A concise, well-written examination by a lawyer-historian of the judicial restraint philosophies of President Truman's four appointees to the Supreme Court: Harold Burton, Fred Vinson, Tom Clark, and Sherman Minton. Rudko's analysis of the four men's opinions in criminal procedure, loyalty-security, racial discrimination, and alien rights cases show that Truman was far more successful than most presidents in choosing justices whose view of the judicial role matched his own. ChoiceMuch of the debate surrounding the Supreme Court can be traced to the notion that the Court is primarily a political rather than a judicial institution. When the Court is viewed from an ideological standpoint, it becomes tempting, for example, to equate judicial restraint with conservatism, and activism with a liberal political perspective. In her study of the Truman Court, Rudko demonstrates the fallacy of the political approach. Focusing of the record of President Truman's four liberal appointees, she looks at the judicial philosophy underlying important decisions involving the rights of individuals and shows how judicial issues--especially the balance between restraint and activism--have determined the decision-making process.

This study draws on critical historical analysis and contemporary language theory to illuminate John Marshall's jurisprudence and political philosophy in new ways. It challenges both liberal and conservative views and it defines Marshall's constitutional interpretations, political ideology, and pragmatic interests anew. It shows how his pragmatism and republican revisionism impacted decisions about matters of property, contract, and debt. Legal scholars, political scientists, and historians interested in law and language, 19th-century history, and republicanism will find this study especially interesting.

The Fifth Amendment is typically equated in both popular and legal discourse with the privilege against self-incrimination. This concept, Garcia reminds us, represents an incomplete view of the amendment. Often forgotten are the other two criminal clauses embodied in the text of the amendment: the right to a grand jury indictment for a serious crime and the freedom from double jeopardy for the same offense.Garcia emphasizes the relationship among these criminal protections. Historical developments suggest that these seemingly disparate provisions have common threads: to provide constitutional protection for all trial-related rights. Underlying these constitutional provisions is the need to check the potential abuse of governmental power over the individual. Indeed, this theme permeated the historical backdrop to the Fifth Amendment. Finally, Garcia examples the practical ties of these clauses. The right to a grand jury indictment, the privilege against self-incrimination and the protection against double-jeopardy represent points in the continuum of the criminal justice process. An important resource for scholars and students involved with Amerian constitutional law, criminal justice, and criminology.

The first attempt to address comparative property law in a common integrative framework, this study discusses German, Italian, French, American, and British property law as mere variations based upon a few fundamental themes through which these nations developed legal systems to provide responses to common economic problems and to set legal foundations for working markets. Basic Principles of Property Law was produced to offer a common framework for the discussion of the law of property within countries in transition, thus it has its basis, not on just one legal system, but on the institutional commonalties that make western property law a working market institution. It offers a major challenge to conventional thinking that in property law the differences between common law and civil law are so important that common core research is impossible.Mattei hopes to guide the reader to think comparatively about property by shedding many preconceived formalistic abstractions. The substance of property law, he argues, is much more common throughout the Western legal tradition than legal scholars would have us believe. Through a set format and accessible writing, this book looks at national legal traditions as responses to common economic problems. It sets the foundations for further much needed integrative comparative legal research in the domain of property law.

A Kansas farm boy, who talked his way into law school despite his lack of a high school diploma, Charles E. Whittaker was admitted to the bar before graduation and became the stereotype of a demanding, workaholic attorney. In a thirty-year practice representing Midwest corporations, he became universally admired among Missouri lawyers, and the American Bar Association called him one of the best selections ever made for the Supreme Court. Yet the very characteristics that made Whittaker one of the most acclaimed choices ensured that his service would be catastrophic both for the Court and for him. By the time he left that bench, legal scholars considered his performance on the Court as one of the saddest.Whittaker was apolitical, yet won judicial appointments requiring strong support from politicians of national strength. He was a hard-line law and order judge who was horrified by the death penalty. During the turbulent 1960s, he called for rational discussion of public issues, yet gave inflammatory speeches linking the civil rights movement to Communism. He was the epitome of his era's Main Street conservatism. Most biographies of justices deal with those who had great influence on law and society. From an institutional standpoint, however, this study of a justice who failed sharpens our understanding of how the U.S. Supreme Court differs from other judicial bodies and fills a surprising gap in the Court's history.

While other books deal with the contemporary issue of the right to die, no attempt has been made to demonstrate substantially the historic nature of this question beyond the borders of the United States. Whiting demonstrates that the right to die controversy stretches back more than two thousand years, and he explains how current attitudes and practices in the U.S. have been influenced by the legal and cultural development of the ancient western world. This perspective allows the reader to understand not only the origins of the controversy, but also the different perspectives that each age has contributed to the ongoing debate.Whiting discusses the development of legal rights within both western culture and the United States, then applies these developments to the question of the right to die. In an environment of public debate that features such emotional events as the exploits of Jack Kevorkian, the publication of how to suicide manuals, and the counterattacks of Right to Life groups, the United States is left with very few options.