Showing papers on "Common law published in 1974"

Nuisance Law and the Industrial Revolution

Abstract: NUISANCE law protects peace and quiet, clean air, sanitation, and good neighborly relations in general. It is an ancient branch of the law, far older than negligence, but while still alive today it is not altogether well. Scant attention has been paid to it in the last century and a half, and most of that has been directed to the allegedly aberrant field of escaping nuisances where it is known as the rule in Rylands v. Fletcher. A nuisance, in brief, is an actionable annoyance which interferes with the ability of another to use or to enjoy his land. Its realm is the stinking privy, the urban hog-sty, the fouled or diverted stream, the polluting chimney. The liability it asserts at the beginning of the nineteenth century is a strict one. Damage, not conduct, is the focus of inquiry. One might therefore have thought that nuisance law would have played a crucial role in regulating the affairs of Victorian England, in civilizing the cities and in protecting the countryside. That was emphatically not the case. The problem as I pose it is therefore this: why was industrialization not hampered by the common law of nuisance? What accounts for the ineffectuality of nuisance in dealing with environmental amenity, especially the pollution of the air and water?

Mastered for Life: Servant and Wife in Victorian and Edwardian England

Abstract: During the f1rst half of the nineteenth century, an increasing proportion of the working population was employed as factory labor. Factories and workshops were growing larger. At the same time the nature of farm labor changed as the yearly hiring was gradually replaced by a more casual monthly contract and young, unmarried farm servants no longer lived in their employer's household. Integral to this fundamental change to a more limited contract, was the long and sometimes savage conflict over the abolishing of the Law of Master and Servant and its replacement by the Employer and Workman Act of 1875.1 At about the same time, there began a very gradual shift in the conception of the married woman's relationship to society (a process that is by no means complete even now), a move to make marriage a contract, voidable like other contracts involving two legal personalities.2 This basic change, too, was reflected in some of the legislation that made inroads into the ancient common law concept of couveture: "the husband and wife are one and the husband is that one," Blackstone. Despite all the political and social ferment these changes generated, the impassioned debates in Parliament and in the press, there were two groups who, almost unnoticed, were hardly touched by the new order. Domestic servants and working-class married women continued, up to the First World War and beyond, in their pre-industrial, almost 13iblical, subordination to their masters and husbands. Regulation by Factory and Workshops Acts, Trades Boards or investigations into sweated labor passed them by. Trade Union organization proved to be unworkable for servants, untllinkable for wives. Insurance schemes left them aside. Enfranchisement was not for them for they had neither domicile nor property of their own. Their legal definition and, in signiElcant ways, their real situation was closer to the age-old common law doctrine of potestas: children, wives and servants are under the protection and wing of the Master.3 He is the intermediary to the

"Convincing Empirical Evidence" on the Six Member Jury

Abstract: The United States Supreme Court has recently been increasing its references to what it likes to call "empirical" data. A genuine issue is occasionally documented by such data, for example the "unusual" character of capital punishment in Furman v. Georgia.' In some cases, however, the intent of such references is merely to ornament an already determined result; the famous footnote 11 in Brown v. Board of Education2 is an example. The Court generally cites "empirical" studies as lawyers cite cases, treating their summary conclusions as if they were holdings in prior cases. Applied to empirical research, this treatment encourages the notion that empirical findings, like case law, are infinitely mutable. The courts are thus diverted from using empirical studies for their intended purpose: to shed light on hitherto unknown facts. A more critical use of empirical data would better inform the courts and force them to face openly those instances in which their decisions are based on theory and merely ornamented by the "facts." Assurance of critical examination in the courts would also force researchers more carefully to connect their summary conclusions with the results of their studies. In two recent decisions concerned with replacing the traditional twelve-member jury with the six-member jury, the Supreme Court admitted that there was a crucial empirical issue: whether the reduction in jury size would affect trial results. In both opinions the Court cited empirical data as proof that there was no such effect. In Williams

Origins of the Common Law

Abstract: Written for the beginning student as well as the experienced scholar, this introductory analysis of the origin and early development or the English common law provides and excellent grounding for the early study of legal history Between 1154, when Henry II became king, and 1307, when Edward I died, the common law underwent spectacular growth The author begins with a discussion of the relationship between the early rules of common law and the social order they serve during this period and concludes with an extended commentary on the durability and continued growth of the common law in modern times

Somerset: Lord Mansfield and the Legitimacy of Slavery in the Anglo-American World *

Abstract: At Westminster on June 22, 1772, Lord Mansfield, Chief Justice of King's Bench, the highest common law court in England, delivered a brief oral opinion in the case of Somerset v. Stewart. James Somerset, a black alleged to be the runaway slave of Charles Stewart, had sought a writ of habeas corpus to prevent Stewart from seizing and detaining him in England for shipment to Jamaica to be sold. The "more" that Mansfield so enigmatically mentioned may have been only the value of slave property in England or it may have been the legitimacy of slavery itself. Somerset is a fascinating milestone in Anglo-American legal history for reasons other than its tantalizing obscurity and protean potential. It had a lasting impact on American conflict of law theory. To counter Sharp and Hargrave, the West India Interest procured publication of several pamphlets defending the legitimacy of slavery in England.

Rules, Adjudications, and Other Sources of Law in an Executive Department: Reflections on the Interior Department's Administration of the Mining Law

Abstract: Professor Strauss presents in this article a detailed case study of policymaking by the Department of the Interior in its administration of mining law. The antiquated nature of the General Mining Law of 1872, essentially unchanged since its enactment, has placed a great responsibility for "writing" the law of mining claims upon the Department, highlighting the problems that exist with the Department's internal allocation of its policymaking flfnction. 7he foculs of this piece is a study of those problems and an examination of possible remedies. Professor Strauss criticizes, in particular, the inaccessibility of Depart,ment "law" and the Department's excessive reliance upon adjudication rather than rltlemaking to make policy. Even thoulgh rulemaking would create a more accessible body of agency policy and procedure, increase public participation and advance other jurisprttdential values, bureaucratic obstacles currently discourage resort to this vehicle. Moreover, the Department's rulemaking branch has virtually no control over the adjudicatory body, leaving essentially unfettered policymaking power in the hands of a body whose own procedures make it unsuited for the task; this bifurcation of the rulemaking and adjudicatory fulnctions within the Department has also resulted in an incoherent and inconsistent overall departmental policy.

Empiricism in mental health law.

Abstract: Justice Louis Brandeis wrote in 1932. "It is one of the happy incidents of the federal system that a single ... State may. if its citizens choose. serve as a laboratory .... "1 Brandeis was writing here in the context of statutory change. Experiments. however. mean little unless meaningful data are collected which establish the results or effects brought about by changes in the law or in any other arena. Brandeis. of course. knew this. and consistent with it. in a brief which he prepared for the State of Oregon before the U.S. Supreme Court regarding the limitation to a ten-hour work-day for women. he presented two pages of legal argument and over 100 pages of empirical data relating to working conditions and legislative responses to them.2 His distinguished contemporaries. Roscoe Pound and Felix Frankfurter. shared this view and produced. for example. a large-scale empirical study of the criminal justice system in Cleveland in 1922.3 Given the intensive legal activism and changes in mental health law in recent years. it is my view that empirical follow-up of the impact of these changes on the health and quality of people's lives is essential. Mental health law. after all. governs people's lives in a very direct and telling fashion. and the people affected are already disabled and often helpless. These ideas of Brandeis. Pound and Frankfurter were a reaction to. or at least are in contradistinction to the prevailing American legal philosophy of the fifty years prior to their writing. The so-called "Harvard School" had dominated American legal theory and education during the last quarter of the nineteenth and first quarter of the twentielh centuries.4 The central figure of this school had been Dean Langdell of the Harvard Law School. He taught that the law was a science. internally consistent and with a growing body of principles and rules articulated in particular in the evolution of the Common Law and derived from the study of printed judicial opinions.~ Actually. related themes go back to the beginnings of American law. Perry Miller. in his brilliant historical account of post-colonial and nineteenth century American legal thinking. describes the considerable battle that took place with respect to the adoption here of English Common Law.6 In 1823. William Sampson. an exiled Irish patriot. exhorted this noble new country to stop treading "the degrading paths of Norman treachery."7 On the other hand. equity-chancery law. which was generally regarded as less bound by precedent. more pragmatic. permitting greater discretion for the judiciary and more empirical. also had its vigorous opponents in this country. Chancery was not

Duress as a Vitiating Factor in Contract

Abstract: The notion that a real consensus ad idem is necessary in the formation of a contract valid at common law is currently an unfashionable one. It is, perhaps, for this reason that in recent years little attention has been paid to the effect of duress on the validity of contracts.

Fact Finding in the English Court of Chancery: A Rebuttal

Abstract: In a recent article in this Journal Harold Chesnin and Geoffrey Hazard presented a breathtaking thesis: The English Court of Chancery lacked the power to "decide fact issues itself . . . until some time after 1800, at least a decade after the effective date of the Seventh Amendment."1 By "fact issues" the authors mean "contested issues of fact."2 "The authors hypothesize that the office of the Lord Chancellor was not originally endowed with the power to decide questions of fact, though it assumed that power by the nineteenth century."3 This might mean that the Seventh Amendment requires a federal court sitting in equity to submit disputed questions of fact to a jury.4 Because their thesis is couched as an interpretation of the right to jury trial under the American Constitution, it has a potential for mischief in our courts and requires a swift rebuttal. Section I of this article shows that the historical sources contradict the authors' contentions. First, the Court of Chancery did indeed have and exercise fact finding power. Second, when the court delegated factual disputes for trial at law, the verdict was advisory and nonbinding. Section II points to the larger context of the relations between equity and law for an understanding of the Chancery's practice of referring issues of fact to common law trial.

The sterilization of mentally retarded persons: the issues and conflicts.

Abstract: In this report on the issues and conflicts involving the sterilization of the mentally retarded it is noted that in the first half of this century 32 states had laws providing compulsory sterilization of the mentally retarded and other groups of people. Recently a number of states have repealed or modified their sterilization laws so that only 23 states have such laws today. The author believes that recent developments in the law of privacy indicate that if the Supreme Court were to review a compulsory sterilization statute today it would declare it unconstitutional. In the absence of statutes providing for sterilization parents of mentally retarded people have sought court orders for sterilization. Courts in Kentucky and Texas have denied them this right. Doctors fearful of lawsuits under the common law rule which requires a patients informed consent to surgery are reluntant to perform sterilizations without the backing of law. An Alabama judge Frank M. Johnson Jr. recently issued stringent legal guidlines that must be followed before institutionalized mentally retarded persons can be sterilized. These include the consent of the patient or if the patient is not legally competent a review committee. Protection for noninstitutionalized mentally retarded people is seen in the ruling of federal judge Gerhard Gesell that federal funds may not be used to sterilize minors and mentally incompetent adults. He said that no mentally incompetent person can possibly give his "voluntary" consent nor can the consent of a representative be considered to represent voluntariness. While the courts and many legislatures seem to be moving in the direction of greater safeguards for the mentally incompetent Arkansas in 1969 enacted the first compulsory sterilization law for mental incompetents since 1942. Similar measures have been intoduced in other state legislatures but none has been passed.

The Grand Jury--Prosecutorial Abuse of the Indictment Process

Abstract: the community believed to be guilty of criminal offenses.7 At one time the grand jury determined the guilt of the accused as well as made accusations, but eventually the accusatory and guilt* J. D., 1960, University of Chicago School of Law; Member, Hawaii and Illinois Bars. 1 See, e.g., Wood v. Georgia, 370 U.S. 375, 390 (1962), where the Supreme Court stated that the grand jury: has been regarded as a primary security to the innocent against hasty, malicious and oppressive persecution; it serves the invaluable function ...of standing between the accuser and the accused,... to determine whether a charge is founded upon reason or was dictated by an intimidating power or by malice and personal ill will. See also Dewey, Grand Jury, The Bulwark of Justice, 19 THE PANEL 3 (1941), where the grand jury is described as the "bulwark of protection for the innocent and the sword of the community against wrongdoers." 2 See, e.g., United States v. Dionisio, 410 U.S. 1, 17 (1973); People v. Sears, 49 Ill. 2d 14, 33, 273 N.E.2d 380, 390 (1971); Calkins, Abolition of the Grand Jury Indictment in Illinois, 1966 ILL. L.F. 423 (1966); Campbell, Eliminate The Grand Jury, 64 J. CRIm. L. & C. 174 (1973); Schwartz, Demythologizing the Historic Role of the Grand Jury, 10 AMER. CRIM. L. REv. 701 (1972); Shannon, The Grand Jury: True Tribunal of the People or Administrative Agency of the Prosecutor?, 2 N. MEX. L. REV. 141 (1972). a See Calkins, Abolition of the Grand Jury Indictment in Illinois, 1966 ILL. L. F. 423, 424 n.6 (1966); Harno, Some Significant Developments in Criminal Law and Procedure in the Last Century, 42 J. or CRIM. LAW 422, 451 (1951). 4 See Lumbard, The Criminal Justice Revolution and the Grand Jury, 39 N.Y.S.B.J. 397, 400 (1967), where the author states: We should not forget that our District Attorneys are elected officials, that they must stand for election at stated intervals, and this makes them subject to pressures and temptations if they have the power to act alone, and there are some cases where it would not be in the public interest to give them the sole power to determine when charges should be brought. I See, e.g., Judge Frank's statement in In re Fried, 161 F.2d 453, 458-59 (2d Cir. 1947): The government further argues that an indictment founded upon illicit evidence will do the applicant no harm, since such evidence will not be admitted at the trial which follows the indictment. This is an astonishingly callous argument which ignores the obvious. For a wrongful indictment is no laughing matter; often it works a grievous irreparable injury to the person indicted. Prosecutors have an immense discretion in instituting criminal proceedings which may lastingly besmirch reputations. .... 6See generally G. ADAMS, THE ORIGINS OF THE ENGLISH CONSTITUTION 106-35 (2d ed. 1935); G. EDWARDS, THE GRAND JURY 1-44 (1906); I. W. HOLDsWORTH, A HISTORY OF ENGLISH LAW 321 (7th ed. 1956); Schwartz, Demythologizing the Historic Role of the Grand Jury, 10 AMER. CRmI. L. REv. 701 (1972). 7 See I. W. HoLDSWORTH, A HISTORY OF ENGLISH LAW 321 (7th ed. 1956); T. PLUCKNETT, A CONCISE HISTORY OF THE COMMON LAW 112 (5th ed. 1956).

The Birth of the English Common Law

Abstract: Preface to the second edition Preface to the first edition 1. English courts from the Conqueror to Glanvill 2. Royal writs and writ procedure 3. The jury in the royal courts 4. English law and the Continent notes to the text index of persons, places and subjects.

The right to treatment and the right to refuse treatment--recent case law.

Abstract: Perhaps no other area of constitutional law has been expanding as rapidly as that pertaining to the rights of the incarcerated. The right to treatment has received the most judicial attention; one ...

The common law and Zambia

Abstract: Like most other countries formerly tied to England, Zambia is recognized as a common law jurisdiction. The description is supported by the history of the country as well as by current statutory guidelines and judicial declarations. While there is a consensus that Zambia falls within the common law camp, however, there is little agreement as to what this actually means either in theory or in practice, and still less as to what it should portend for the future. As used in dilferent contexts or by different people, the term, \"common law\", is remarkably flexible—and correspondingly ambiguous. So are most of the lesser constituent terms associated with it, such as \"stare decisis\" and \"binding\" or \"persuasive\" precedent. These terms can and do encompass a wide range of possible meanings. Thus, it is entirely possible for societies with equal claim to common law status to manifest widely different judicial attitudes that reflect altogether different approaches to the law.