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Showing papers on "Common law published in 1979"


Journal ArticleDOI
TL;DR: The Marriage of Marxism and Feminism has been like the marriage of husband and wife depicted in English common law: marxism and feminism are one, and that one is MARXism.
Abstract: The “Marriage” Of Marxism and Feminism has been like the marriage of husband and wife depicted in English common law: marxism and feminism are one, and that one is marxism.1 Recent attempts to integrate marxism and feminism are unsatisfactory to us as feminists because they subsume the feminist struggle into the “larger” struggle against capital. To continue our simile further, either we need a healthier marriage or we need a divorce.

1,164 citations


Journal ArticleDOI
TL;DR: In this article, the authors present a new analysis of the concept of legitimate authority and give a detailed explanation of the legal positivist's approach to law, emphasizing its moral importance.
Abstract: This book is concerned with the nature of law and its relation to morality, concentrating on the proper moral attitude of a citizen towards the law of his country. The author begins by presenting a new analysis of the concept of legitimate authority and then gives a detailed explanation of the legal positivist's approach to law. Within this framework the author examines several areas where legal analysis is often thought to be impregnated with moral values, namely the social functions of law, the ideals of the rule of law, and the role of the courts. The last part of the book is devoted to some key substantive problems. The author argues that there is no obligation to obey the law. He provides a new analysis of respect for law, emphasizing its moral importance. The author maintains there is no right to civil disobedience in a liberal state (though actos of civil disobedience may occasionally be justified even in such a state) and he argues for a right of conscientious objection in certain areas.

751 citations


Book
01 Jan 1979

633 citations


Journal Article
TL;DR: Blackstone's work is the only systematic attempt that has been made to present a theory of the whole common law system as mentioned in this paper, except from Chancellor Kent's Commentaries on the Law of the United States, published between 1820 and 1825.
Abstract: J don't intend to provide any background information on Black? stone, except to say that he published his treatise in England be? tween 1765 and 1769, and that aside from Chancellor Kent's Commentaries on the Law of the United States, published between 1820 and 1825, Blackstone's work is the only systematic attempt that has been made to present a theory of the whole common law system. Duncan Kennedy.1

162 citations


ReportDOI
TL;DR: The authors examines the question whether adjudication can be viewed as a private good, i.e., one whose optimal level will be generated in a free market, and concludes that the public courts do not automatically generate efficient rules.
Abstract: This paper examines the question whether adjudication can be viewed as a private good, i.e., one whose optimal level will be generated in a free market. Part I focuses on private courts, noting their limitations as institutions for dispute resolution and rule creation but also stressing the important role that the private court, in its various manifestations, has played both historically and today. Part II discusses a recent literature which has argued that the rules generated in the public court system, in areas of the law where the parties to litigation are private individuals or firms and the rules of law are judge-made, are the efficient products of purely private inputs. Our analysis suggests that this literature has overstated the tendency of a common law system to produce efficient rules, although areas can be identified where such a tendency can indeed be predicted on economic grounds. Viewed as a contribution to the emergent literature on the positive economic theory of law, our finding that the public courts do not automatically generate efficient rules is disappointing, since it leaves unexplained the mechanisms by which such rules emerge as they seem to have done in a number of the areas of Anglo-American judge-made law. However, our other major finding, that the practices and law governing private adjudication appear to be strongly influenced by economic considerations and explicable in economic terms, is evidence that economic theory has a major role to play in explaining fundamental features of the legal system.

148 citations


Journal ArticleDOI
TL;DR: For most of the history of the common law, Anglo-American courts did not encourage guilty pleas but actively discouraged them, and it generally met with strong disapproval on the part of appellate courts as mentioned in this paper.
Abstract: For most of the history of the common law, Anglo-American courts did not encourage guilty pleas but actively discouraged them. Plea bargaining emerged as a significant practice only after the American Civil War, and it generally met with strong disapproval on the part of appellate courts. This practice nevertheless became a dominant method of resolving criminal cases at the end of the nineteenth century and beginning of the twentieth, and it attracted significant attention and criticism as a result of crime commission studies in the 1920s. In recent years, American criminal courts have become even more dependent on the guilty plea, but the good press that plea bargaining currently enjoys in legal and social science circles is a very recent development. This article explores changes in guilty plea practices and in attitudes toward the guilty plea from the Middle Ages to the present.

140 citations


Journal ArticleDOI
TL;DR: In this paper, it was shown that the level of care taken by litigants affects the information available to the court, but does not directly influence the legal standard, and that the unique, stable equilibrium is efficient.
Abstract: Recent studies of the role of law in distributing accident costs have led to the pessimistic conclusion that because judges lack the information to discover the efficient level of care, efficiency cannot be achieved by common law tort rules. We show that judges have enough information to revise the legal standard via the mechanism of precedent so that the standard adopted tends toward efficiency. This optimistic conclusion results from changing previous models so that the level of care taken by litigants affects the information available to the court, but does not directly influence the legal standard. We model a sequence of court decisions by differential equations and show that the unique, stable equilibrium is efficient.

99 citations


Journal ArticleDOI
TL;DR: In 1845, a master of English commercial law wrote that there was no part of the history of English law more obscure than that connected with the maxim that the law merchant is part the law of the land.
Abstract: In 1845 a master of English commercial law wrote that there was “no part of the history of English law more obscure than that connected with the maxim that the law merchant is part of the law of the land.” Since then there have been detailed studies of the medieval law merchant and of the later development of English mercantile law, but the precise status of the law merchant in England and the nature of the process by which it supposedly became fused with the common law remain as obscure as they were in 1845. The obscurity begins with the very concept of the “law merchant,” which has been differently understood by different writers and continues to be used in widely divergent senses. Some have regarded it as a distinct and independent system of legal doctrine, akin in status to Civil or Canon law, and perhaps derived from Roman law. Others have supposed it to be a particular aspect of natural law, or the universal ius gentium, and as such akin to international law.

68 citations


Journal ArticleDOI
John H. Langbein1
TL;DR: Alschuler as discussed by the authors found significant evidence of the practice in either England or America until the nineteenth century, when the rise of adversary procedure and the law of evidence injected vast complexity into jury trial and made it unworkable as a routine dispositive procedure.
Abstract: As late as the eighteenth century, ordinary jury trial at common law was a judge-dominated, lawyer-free procedure conducted so rapidly that plea bargaining was unnecessary. Thereafter, the rise of adversary procedure and the law of evidence injected vast complexity into jury trial and made it unworkable as a routine dispositive procedure. A variety of factors, some quite fortuitous, inclined nineteenthcentury common law procedure to channel the mounting caseload into nontrial plea bargaining procedure rather than to refine its trial procedure as contemporary Continental legal systems were doing. Alschuler (supra) has undertaken to document that plea bargaining was unknotvn during most of the history of the common law. Only in the nineteenth century does he find significant evidence of the practice in either England or America. These findings beckon to the legal historian for explanation. In modern times, plea bargaining has become the primary procedure through which we dispose of the vast proportion of cases of serious crime. How then could common law procedure function for so many centuries without' a practice that is today so prevalent and seemingly so indispensable?

65 citations


Book
01 Jan 1979
TL;DR: In this paper, the authors present a summary of the appropriate judicial approach to interpret the United States Constitution in the context of the case of George W. Bush v. Gore, and discuss the common law tradition of reasoning by example in common law.
Abstract: 1. What Legal Reasoning Is, and Why It Matters. An Overview of Law and Politics. A Definition of Law. A Definition of Legal Reasoning. Sources of Official Legal Texts. The Choices That Legal Reasoning Confronts. Illustrative Case. Questions About the Case. 2. Change and Stability in Legal Reasoning. Sources of Unpredictability in Law. Is Unpredictability in Law Desirable? The Other Side of the Coin: Stare Decisis as a Stabilizing and Clarifying Element in Law. Illustrative Cases. Questions About the Cases. 3. Common Law. Origins of Common Law. Reasoning By Example in Common Law. Keeping the Common Law Tradition Alive. The Common Law Tradition Today. Illustrative Case. Questions About the Case. 4. Statutory Interpretation. What Are Statutes? Four Misguided Approaches to Statutory Interpretation. Purpose: The Key to Wise Statutory Interpretation. Stare Decisis in Statutory Interpretation. A Summary Statement of the Appropriate Judicial Approach to Statutory Interpretation. Illustrative Case. Questions About the Case. 5. Interpreting The United States Constitution. "The Supreme Law of the Land." Conventional Legal Reasoning in Constitutional Interpretation. Judicial Review and Democratic Theory. The Turn to Individual Dignity. Illustrative Case. Questions Abut the Case. 6. Law and Politics. Legal Reasoning as Liberal Justification. Legal Reasoning as a Public Language. Conclusion. Illustrative Case. Appendix A: Introduction to Legal Procedure and Terminology. Appendix B: Bush v. Gore. Credits. Index. Index of Cases.

62 citations


Journal ArticleDOI
John H. Langbein1
TL;DR: Plea bargaining is such a recent and transparent evasion of our cherished common law tradition of criminal trial that its well-meaning practitioners and proponents feel a deep need for reassurance that what they are doing is not so bad as it looks as discussed by the authors.
Abstract: As the death grip of adversary procedure has tightened around the common law criminal trial, trial has ceased to be workable as a routine dispositive proceeding. Our criminal justice system has become ever more dependent on processing cases of serious crime through the nontrial procedure of plea bargaining. Unable to adjudicate, we now engage in condemnation without adjudication. Because our constitutions guarantee adjudication, we threaten the criminal defendant with a markedly greater sanction if he insists on adjudication and is convicted. This sentencing differential, directed towards inducing the defendant to waive his right to trial, makes plea bargaining work. It also makes plea bargaining intrinsically coercive. I have elsewhere had occasion to point to the host of irremediable deficiencies moral, juridical, practical that inhere in the plea bargaining system.' Plea bargaining is such a recent2 and transparent evasion of our cherished common law tradition of criminal trial that its well-meaning practitioners and proponents feel a deep need for reassurance that what they are doing is not so bad as it looks. Rather lately, apologists for American plea bargaining have been sounding a theme purportedly derived from comparative law. As a corollary to the proposition that plea bargaining is not really so bad, the claim is advanced that everybody else does it too. Plea bargaining is said to be universal, at least in the legal systems of advanced industrial countries. 3

Book
01 Jan 1979
TL;DR: From abandonment to zealous witness and beyond, this fourth edition has been updated and incorporates almost five years of change on all sectors of the legal front as mentioned in this paper, providing students with a guide to the specialized vocabulary of English Law, and includes full references to cases and statutes.
Abstract: From abandonment to zealous witness and beyond, this fourth edition has been updated and incorporates almost five years of change on all sectors of the legal front It provides students with a guide to the specialized vocabulary of English Law, and includes full references to cases and statutes It aims to provide a comprehensive explanation of the principles, practics and procedure of English law and concise definitions of legal words and phrases, including Latin terms It has been updated to include the developments in recent legislation, case law and legal practice and cross-references

Book
29 Jun 1979
TL;DR: The distinction between the forest and the trees is fundamental to this study, for the royal forest of medieval England was a complex institution with legal, political, economic, and social significance.
Abstract: The distinction between the forest and the trees is fundamental to this study, for the royal forest of medieval England was a complex institution with legal, political, economic, and social significance. To protect the "beasts of the forest" and their habitat, initially for the king's hunting and later for economic exploitation, an elaborate organization of officials and courts administered a system of "forest law" that was unique to medieval England. The subject can first be studied in detail in the records and chronicles of the Angevin kings, which reflect the restless activity of Henry II and his growing corps of officials that led to the expansion of the area designated as royal forest. At its height in the thirteenth century, an estimated one-fourth of the land area of England and its riches came under the special jurisdiction of forest law. Barons whose holdings lay within the royal forest were restricted in their use of the land, and the activity of all who lived or traveled in the forest was circumscribed. Until the institution of new taxes overshadowed the economic importance of the forest and the king divested himself of large areas of forest in 1327, the extent of the royal forest, with its special jurisdiction, was often a source of conflict between king and barons and was a major political issue in the Magna Carta crisis of 1215. This is the first general history of the royal forest system from its beginning with the Norman Conquest to its decline in the later Middle Ages. The author pays special attention to the development of forest law alongside common law, and the interrelationship between the two types of law, courts, and justices. The preservation of extensive unpublished records of the forest courts in the Public Record Office makes possible this intensive study of the legal and administrative aspects of the royal forest; chronicles and the records of the Exchequer, among other sources, shed light on the political and economic importance of the royal forests in medieval England. The author's ultimate objective is to show the influence of the royal forest upon the daily lives of contemporaries-both the barons who held land and the peasants who tilled land within the royal forests.

Journal ArticleDOI
TL;DR: In Thaler v. Thaler as mentioned in this paper, a 1977 New York divorce case awarding alimony to the husband, the judge had occasion to summarize the nineteenth-century shift in the legal status of married women.
Abstract: In Thaler v. Thaler, a 1977 New York divorce case awarding alimony to the husband, the judge had occasion to summarize the nineteenth-century shift in the legal status of married women. At common law, he asserted, "the husband and wife were orne and the husband was the one .... But with the advent of the married woman's property acts ... any previous justification for this one-way support duty faded."' In the same year, however, an unemployed Brooklyn construction worker aired his reservations about his wife's employment by evoking the old common law image of marriage. "When you get married," he said, "you figure it's gonna be like one. Only it's always the husband's one."2 The first of these comments suggests the focus of this essay: challenges to the common law doctrine of marital unity during a pivotal era of American law, roughly 1820-1860.3 The second comment reflects its emphasis: the uncanny persistence of that doctrine far beyond its Christian and common law origins. The judge in Thaler v. Thaler based his decision, in part, on an 1848 statute extending to married women the right to own their own property. He interpreted the statute as a significant legal alteration in the patriarchal family and implied that like the many other statutes passed in common law jurisdictions during this period, it marked the beginning of legal equality between wives and husbands.4 By contrast, this essay contends that the married women's property acts failed to make such a significant alteration. Admittedly, if one defines patriarchy in the husband-wife relationship as the reduction of the wife to the status of property owned and controlled by the husband, one could argue that it never existed in its purest form in the Anglo-American legal tradition.5 Yet, basic elements of that patriarchal construct underpinned all of Anglo-American domestic relations law, and they continued to exist long after the enactment of the married women's property acts of the mid-nineteenth century.


Journal ArticleDOI
TL;DR: In both England and the United States, about 85% of defendants charged with indictable criminal offenses plead guilty,1 and it would seem that the proportion is even higher (see, e.g., Newman, 1966; Blumberg, 1967; President's Commission, 1967) as mentioned in this paper.
Abstract: Underlying the common law theory of evidence and procedure in criminal cases is an assumption that guilt will be determined by means of a formal adversarial process in which evidence is presented to an impartial jury. It has long been recognized, however, that courts and legal practitioners, in both England and the United States, operate according to a quite different assumption: that the right to be tried by jury will only exceptionally be exercised and that the great majority of cases will be settled by a plea of guilty. The available statistics for both countries show that this latter assumption is well founded. In England, about 85 percent of defendants charged with indictable criminal offenses plead guilty,1 and in the United States it would seem that the proportion is even higher (see, e.g., Newman, 1966; Blumberg, 1967; President's Commission, 1967). The recognition of the importance of the guilty plea has led American researchers to devote considerable attention

Journal ArticleDOI
TL;DR: In this article, the authors discussed the relationship between the formation of a contract and the obligations of parties to a contract in English law and the situation is somewhat different from the situation in continental codes.
Abstract: In 1978, in completing the Draft Convention on Contracts for the International Sale of Goods, UNCITRAL provided for the marriage of two sets of rules that had lived separately for over four decades: rules on the formation of contract and rules on the obligations of parties to a contract. This significant step calls for explanation. Sale and formation of a contract of sale are closely related. In Continental codes the two appear as a unit. The situation is somewhat different in English law: The Sale of Goods Act 18931 includes only a few provisions dealing with the formation of the contract;2 in most respects formation of the contract has remained under the common law.

Book
01 Jan 1979
TL;DR: Nelson's "Americanization of the common law" remains one of the standard works on the transformation of law in America from the late colonial period to the end of the early republic.
Abstract: "Americanization of the Common Law" remains one of the standard works on the transformation of law in America from the late colonial period to the end of the early republic. In a straightforward manner, William E. Nelson analyzes the profound ideological movement that grew out of the American Revolution and caused substantial structural change in the legal and social order of Massachusetts and, by extension, in the nation at large. The Revolution, Nelson argues, transformed a hierarchical and communitarian legal and social order into an egalitarian and individualistic one.For this edition, Nelson has written a new preface in which he discusses the book's initial reception and the relevant historiographical issues that have arisen since it was first published in 1975.

Journal ArticleDOI
TL;DR: The basic law of this country, the common law, has dealt very little with the complex issues of human rights presented by randomization.
Abstract: The basic law of this country, the common law, has dealt very little with the complex issues of human rights presented by randomization. The fundamental legal approach to this subject would start w...

Journal ArticleDOI
TL;DR: In this article, the authors examined the role of the trial judge in plea bargaining and found that the judge is often an important or crucial actor in the construction of plea agreements, a finding that contradicts much of the legal and social science literature.
Abstract: The trial judge's role in plea bargaining is examined, using national survey data supplemented by observations and interviews. We analyze the frequency with which judges participate in plea discussions and the organizational, social, and legal contexts that affect the judicial role. Our data suggest the trial judge is often an important or crucial actor in the construction of plea agreements, a finding that contradicts much of the legal and social science literature. Several variables directly influence what role a judge will adopt, including self-perceived skill at negotiating and whether the state has a court rule or case law prohibiting or discouraging judicial participation. Future research should focus upon the impact of judicial participation in plea bargaining.


Journal ArticleDOI
TL;DR: Parole and probation also evolved from the common law practice of suspending sentence into a more formal program involving probation officers who made written reports to the court, and supervised the convict's compliance with the restrictive conditions of probation as mentioned in this paper.
Abstract: Criminal law in the early nineteenth century was based on the penology of Beccaria, Bentham, and other utilitarian philosophers. Because the primary goal of punishment was deterrence, sentences were to be determined according to the offense rather than the offender. By the end of the century a "new penology" had emerged, based on a philosophy of individualized sanctions that sought to reform (later to rehabilitate) the offender. In an effort to make the punishment fit the individual a variety of new procedures were introduced, such as "indeterminate" sentences, prison classification systems, juvenile courts, different penalties for youthful offenders, and presentence investigations (Vasoli, 1965:405). Parole and probation also developed during this period; the latter evolved from the common law practice of suspending sentence into a more formal program involving probation officers who made written reports to the court, and supervised the convict's compliance with the restrictive conditions of probation. For example, California's probation law, Penal Code ? 1203, although enacted in 1872, was substantially rewritten in 1903 to create probation in its more modern form. Between 1903 and 1923 the statute was amended eight times to refine probation as an alternative in sentencing. Not everyone accepted these penal reforms, however, and public reaction in the 1920s called for greater severity in sentencing. Roscoe Pound noted unhappily that before these penal innovations could fully be implemented and "experts"

Journal ArticleDOI
TL;DR: The positive economic theory of the common law as mentioned in this paper has been widely accepted as a sound theory of law and it has been used in the legal community for a long time to provide an organic, historical pedigree for a plausible, intelligible, and trenchant evaluative criterion on which scholars can base critical studies of legal rules and doctrines.
Abstract: I, like Professor Posner, find economic analysis of law most interesting in its guise of a positive or descriptive theory about the making and content of law-positive as opposed to normative or prescriptive, "making and content of law" as opposed to "impact of law on conduct generally."' I also agree, although for reasons of my own, with Posner's insistence that the positive economic theory of law "deserves to be taken seriously."2 His reason for thinking so is the prima facie case he makes for the theory's empirical validity. I would say that, whatever its validity (which certainly is not nil), the theory must be taken seriously because it is exerting and is destined to exert a strong influence on legal criticism. It does so by offering to provide, through objective empirical research, an organic, historical pedigree for a plausible, intelligible, and trenchant evaluative criterion on which scholars can proceed to base critical studies of legal rules and doctrines. It is some years now since Arthur Leff shrewdly pointed out how economic analysis might serve as the answer to the modern legal scholar's prayer for an objectively defensible critical standard. Since I have elsewhere4 discussed the ways in which we can all too easily pass "from descriptive law to legal norm"-"from the perception of a pervasive and simplifying regularity in law to a belief that law ought to conform to the perceived regularity"-I shall not dwell on those matters here, although I shall return to them briefly later on. I further agree with Professor Posner that the positive economic theory of the common law is a pretty tough nut to crack empirically and that a number of the challenges to it have been misdirected. In order to offer him this friendly support, however, I must also emphasize the modesty of the theory as it is circumspectly displayed in this

Journal ArticleDOI
TL;DR: The U.S. Supreme Court has in effect issued at least a partial bill of reproductive rights for minors as mentioned in this paper, including the right of teenagers to consent for their own birth control and other reproductive health care.
Abstract: Since January 1976, when we last reviewed state laws and policies affecting the right of teenagers to consent for their own birth control and other reproductive health care, 1 the U.S. Supreme Court has in effect issued at least a partial bill of reproductive rights for minors. In three landmark cases-two involving abortion and one dealing with contraception-the Court has laid down a federal constitutional framework with which all future laws and regulations must comply. In so doing, the Court has rendered obsolete many of the laws we previously described that had restricted access of young people to fertility control services, and has clarified the rest. Thus, out of the old patchwork of statutes, case law, attorneys generals' opinions and administrative rulings there is finally emerging a coherent body of law based on two fundamental principles: * the constitutional right of mature minors to obtain reproductive health services on their own consent, and * the constitutional right of all minors to have an alternative to parental involvement in implementing their decisions about such health care. By 1976, liberalization of state laws and reduction of the age of majority had established the right of unmarried women aged 18 or older to consent for most aspects of their own medical care in at least 45 states and the District of Columbia. In 48 states and the District, they could consent for most pregnancy-related health services, including abortion. In a number of states, however, minors still encountered obstacles to obtaining contraceptive services or terminating unwanted pregnancies without the consent of their parents. Mature minors have the right to consent to their own reproductive health care; and all minors must be given an alternative to parental involvement in decisions about such care.

Journal ArticleDOI
TL;DR: In this paper, the authors argue that the common law is based on a unifying principle: courts behave rationally as if to achieve economic efficiency, and propose evolutionary models where efficiency is most likely to result if the opposing parties have symmetric, ongoing interests.
Abstract: THE past twenty years have produced a substantial literature suggesting the relevance of economic principles to the analysis of legal processes.' A seminal line of inquiry has evaluated the proposition that the common law, despite its diversity, is founded upon a unifying principle: courts behave rationally as if to achieve economic efficiency.2 To explain why these efficient outcomes are likely, Rubin,3 Landes and Posner,4 and Goodman5 have proposed evolutionary models where efficiency is most likely to result if the opposing parties have symmetric, ongoing interests in cases of the sort being disputed.6 Disputes between competitors, characterized by the law as "unfair competition," would appear to be an area where the litigants would have the kind of ongoing interest which provides economic incentive to litigate to an efficient outcome. But in apparent contradiction to this expectation, the common law relating to false advertising has been criticized as being inefficient. Assume, for example, that firm A makes false claims about its product and, due to the deception, some consumers purchase the product. Although each consumer may well have a legal action against the seller, no


Journal ArticleDOI
TL;DR: The use of the feoffment to uses, ancestor of the modern trust, enjoyed a popularity at least from the reign of Edward III (1327-1377).
Abstract: As a means of avoiding feudal incidents and of evading the common law rule prohibiting devises of freehold land, the feoffment to uses, ancestor of the modern trust, enjoyed a popularity at least from the reign of Edward III (1327-1377).' The holder of freehold land-the feoffor-would convey land during his lifetime to feoffees to uses. They in turn held it for the benefit of the feoffor, or sometimes of a third party-the cestui que use-under instructions to convey the land to persons to be named in the feoffor's will.2 Enforcement of the feoffor's directions, however, long posed a problem. What of the feoffee who refused to carry out those directions after the feoffor's death? What of the situation where the directions were ambiguous or contradictory? Except in special circumstances, the common law courts would neither enforce nor interpret the use, and the Chancery's jurisdiction over uses developed only gradually during the second quarter of the fifteenth century.4 How can so important and so widespread an institution have existed without legal sanction? Can its effectiveness really have rested solely on the conscience and good sense of the feoffees prior to the time the Chancellor began to intervene? This seems implausible. Yet it is the answer that historians of the law have had to give. Professor J.M.W. Bean, the latest and most thorough investigator of the medieval use, suggests some informal checks on the potentially dishonest feoffee, but in the end he is obliged to leave the

Book
26 Oct 1979
TL;DR: The authors describes how the Massachusetts legal system differed from England's and how equity and an adapted common law became so useful to ordinary individuals, and gives a new interpretation to the witchcraft prosecutions of 1692.
Abstract: Distinguished by the critical value it assigns to law in Puritan society, this study describes precisely how the Massachusetts legal system differed from England's and how equity and an adapted common law became so useful to ordinary individuals. The author discovers that law gradually replaced religion and communalism as the source of social stability, and he gives a new interpretation to the witchcraft prosecutions of 1692.Originally published 1979.A UNC Press Enduring Edition -- UNC Press Enduring Editions use the latest in digital technology to make available again books from our distinguished backlist that were previously out of print. These editions are published unaltered from the original, and are presented in affordable paperback formats, bringing readers both historical and cultural value.


Journal ArticleDOI
TL;DR: In the first part of a larger study devoted to the compensation of damages caused by pollution, this paper reviewed the existing sources of compensation in the United States: the common law of torts, federal and state statutes, and various forms of commercial insurance coverages.
Abstract: This article, the first part of a larger study devoted to the compensation of damages caused by pollution, reviews the existing sources of compensation in the United States: the common law of torts, federal and state statutes, and various forms of commercial insurance coverages. It shows how the rules of nuisance law have remained flexible in response to changing customs and public policies, how for a long time prevailing attitudes favored industrial development and economic growth over physical comfort, and how increasing concerns about the long-term health effects of environmental pollution have created a trend in the opposite direction. The author also points out that the existing system of liability and compensation, which relies on individual actions and case-by-case adjudication, is not ideally suited for dealing with the effects of large-scale pollution or for the —primarily political—task of evaluating and balancing all of the interests and values, present and future, economic and noneconomic, that need to be considered before decisions can be made that are bound to affect the health and economic well-being of a large part of the population beyond the immediate parties to a lawsuit. This indicates a need for a comprehensive approach that would not only coordinate the rules concerning liability and those concerning insurance and other sources of compensation but would also make the compensation of pollution damages an integral part of a thoroughly rational and consistent environmental policy. The various possibilities of constructing such a comprehensive compensation system will be discussed in the second part of the study, to be published in a forth-coming issue of the American Bar Foundation Research Journal.