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Showing papers on "Common law published in 1980"


Book
01 Jan 1980
TL;DR: In this paper, the authors present an overview of educational administration in the United States, focusing on the role of teachers and their role in the formation and enforcement of school policies and policies.
Abstract: Each chapter concludes with "References." Preface. About the Authors. I. The Context for Schooling in the United States. 1. Public Values and School Policy: The Roots of Conflict. Defining the Context. Policy Instruments. Public Values and School Policy. Competing Values and Images of Schooling. A Value-Added Approach to Equity and Excellence. What Does Research Reveal About School Effects? Three Theories of Leadership. The School as a Moral Community. 2. Issues Shaping School Policy and Administration. School Autonomy and Governmental Control. Local Autonomy. Legislated Learning and Bureaucratic Teaching. Balancing Democratic and Professional Authority. Different Theories of Change. Maintaining Public Confidence. Managing Public Confidence. II. Introduction to Educational Administration. 3. Educational Administration: An Overview. Policy and Policy in Use. Administration Defined. Critical Responsibilities of Administrators. Evaluating Administrators. Dimensions and Measures of School Effectiveness. Critical Administrative Processes. Critical Administrative Skills. Educational Administration as Educational Leadership. Managerial, Political, and Educational Roles. Qualitative Aspects of Leadership. The Substance of Leadership in Education. 4. Educational Administration as an Emerging Profession. The Importance of Instructional Leadership. Background. Recent Pressures to Reform. The Dark Side of Professionalism. The Changing Focus. The New Standards for Leadership. Appendix 4.1. 5. The Development of Thought in Educational Administration. Models of Administrative Practice. Setting the Stage: Managers of Virtue. Major Strands of Thought in Administration. Concern for Efficiency. Concern for the Person. Concern for Politics. Concern for Culture. Educational Administration as an Applied Science. A Reflective-Practice Perspective. Educational Administration as a Moral Craft. 6. Administrative Work, Roles, and Tasks. The Work-Activity School. The Nature of Managerial Work: Mintzberg. Variations in Administrators' Work. The Seven Basic Competencies. 7. Women in Administration. Women in the Superintendency. Women and the School Principalship. Women's Presence in Successful Schools. The Woman's View. III. Teachers, Principals, and Superintendents. 8. Students and Teachers Today. The Role of Students. The Role of Teacher. Two Conceptions of the Teacher's Role. Instruction, Management, and Politics. The Workplace for Teachers. The Impact of Teacher Isolation and Uncertainty. The Importance of Collaborative Work. 9. The Principalship Today. History of the Role. Who Principals Are Today. How They See Their Jobs. The Role Today. The Role in the Future. New Definitions of the Principal's Role. 10. The Superintendency Today. The History and Evolution of the Role. Who Superintendents Are Today. The Three Dimensions of the Role. The Myth of Heroic Leadership. The Superintendent as Teacher. Superintendents and Political Conflict. IV. Introduction to Governance in Education. 11. Schools as Political Systems. System Shock. Decisional Power. Politics and School Policy. Politics, Government, and Challenge. A Paradigm of Educational Policy Making. The Apolitical Myth of Schooling. A Look Ahead. 12. The Local System of Policy Making. Individual Access to Decision Making. Referenda and Policy Making. The Pressure Group Context of Local Schools. Superintendents, Pressures, and Outcomes. The School Board Context of Policy. Micropolitics Within Local Schools. The Principal: Pressure and Leadership. 13. The State Level of Policy Making. Growth of the State System. State Differences in School Policy. The Policy-Making Process of States. Pressure Groups. Policy Authorization. Evaluation of State Reform. Political Culture and State Results. 14. The Federal Level of Policy Making. The History of Federal Educational Policy. Sputnik to 1972. The Last Quarter-Century. Federal Education Policies. The Politics of Federal Aid. The Limits of Federal Aid. Courts, Politics, and Policy. Courts in Action: Desegregation. V. Legal and Financial Considerations. 15. The Legal Foundation for Public Education: An Overview. Federal Constitution. State Constitutions. Federal Legislation. State Legislation. Federal Agencies. State Agencies. Local School Boards. Contract Law. Common Law. The Three-Tiered State Judicial System. The Three-Tiered Federal Judicial System. Preventive Law. 16. Leading Public Schools: Legal Considerations. Legal Principles. Promoting Fairness in Government Actions. Safeguarding Individuals From Discrimination. Protecting Individual Liberties. Distinguishing Private Actors from Government Actors. Privacy Rights: Search and Seizure. Sexual Harassment. Students' Free Expression Rights. Religious Activities and Observances in Public Schools. Liability for Negligence. Liability for Impairments of Federally Protected Rights. 17. School Finance. Criteria for Evaluating Taxes. Tax Sources. Nontax Sources of Revenue. Equalization Models. Voucher Systems. Charter Schools. Private Management of Schools. Equity Litigation. Adequacy Litigation. Special Urban and Rural Issues. Adequately Financing Schools in an Era of Accountability. Index.

273 citations


Journal ArticleDOI
TL;DR: The economic analysis of law has a descriptive and a normative limb as discussed by the authors, and the normative failures of the economic analysis are so great that they cast doubt on its descriptive claims, unless these descriptive claims can be embedded within a very different normative theory.
Abstract: IN this essay I consider and reject a political theory about law often called the economic analysis of law. (That name is the title of an extended book by Professor Richard Posner,' and I shall be concerned largely, though not entirely, with arguments that Posner has himself presented.) The economic analysis of law has a descriptive and a normative limb. It argues that common law judges, at least, have on the whole decided hard cases to maximize social wealth, and that they ought to decide such cases in that way. I shall discuss the normative limb of the theory mainly, although at the end of the essay I shall argue that the normative failures of the theory are so great that they cast doubt on its descriptive claims, unless these descriptive claims can be embedded within a very different normative theory. The concept of wealth maximization is at the center of both the descriptive and normative aspects of the theory. But it is a concept that is easily misunderstood, and it has been misunderstood, in a certain way, by its critics. "Wealth maximization" is a term of art within the theory, and is not intended to describe the same thing as "Pareto efficiency." In this introductory section, I shall try to explain each of these terms, to show why it misunderstands the economic analysis of law to suppose, as critics have, that the lawyer's definition of the former is a botched attempt to capture the meaning of the latter. Wealth maximization, as defined, is achieved when goods and other resources are in the hands of those who value them most, and someone values a good more only if he is both willing and able to pay more in money (or in the equivalent of money) to have it. An individual maximizes his own wealth when he increases the value of the resources he owns; whenever he is able, for example, to purchase something he values for any sum less than the most he would be willing to pay for it. Its value to him is measured by the money he would pay if necessary; if he is able to pay, say $4, for what he would pay

214 citations


Journal ArticleDOI
TL;DR: In this article, it was shown that the standard of negligence in liability law would evolve towards efficiency if judges amend it according to a simple calculation of benefits and costs, and that litigants who benefit from an efficient rule invest more in the litigation than those who favor an inefficient one.
Abstract: Is the common law "efficient"? Do actual tort liability rules minimize the sum of accident costs and accident-prevention costs? Do actual nuisance rules lead to optimal levels of output, optimal location patterns, and optimal use of "clean" technologies? At the least, have common law rules improved (on an efficiency scale) over time? These questions have been raised explicitly and implicitly by the growing literature on law and economics.' Three justifications for the statement that the common law tends towards efficiency have been offered: (i) judges actively seek efficiency;2 (ii) inefficient rules are litigated more often than efficient rules (differential litigation);3 and (iii) litigants who benefit from an efficient rule invest more in the litigation than those who favor an inefficient one.4 The first justification relies upon judicial insight to improve the law, whereas the second and third justifications do not. Certainly the law can improve over time due to judicial insight. For example, it can be shown that the standard of negligence in liability law would evolve towards efficiency if judges amend it according to a simple calculation of benefits and costs.5 However, it is difficult to contend that

191 citations


Journal ArticleDOI
TL;DR: The authors formulate an economic theory of public law adjudication, corresponding to the economic theories of the common law propounded by Richard Posner and others, and provide an account of rationally self-interested judicial behavior that might explain the observed regularity.
Abstract: THE aim of this essay is to formulate an economic theory of public law adjudication, corresponding to the economic theory of the common law propounded by Richard Posner and others.' Posner claims that judicial resolutions of private disputes not governed by enacted law conform to the dictates of economic efficiency, not perfectly, but with a regularity so impressive that "the rules of the judge-made law are best explained as efforts-however unwitting-to bring about efficient results."2 Along with this empirical claim of an economizing regularity in the common law, Posner has tentatively offered an account of rationally self-interested judicial behavior that might explain the observed regularity-roughly, that judges serve their own interests best by gaining approbation from publics whose interests are, in turn, well served by efficient law.3 The empirical and explanatory theses together constitute a complete, positive economic theory of the common law.

177 citations




Journal ArticleDOI
TL;DR: The authors argued that the hierarchical model of the federal judiciary reflected an "upper-court myth" and therefore provided an unsatisfactory explanation of the Supreme Court's relationship with the lower courts.
Abstract: EGAL SCHOLARS traditionally analogized the federal judiciary to a pyramid, with the Supreme Court at the apex, the courts of appeals in the middle, and the district courts at the base. The scholars focused their attention upon the Supreme Court, because they believed that this was where the authoritative decisions were made. For them, the study of public law revolved around analysis of Supreme Court decisions; it was essentially the study of constitutional law. The scholars did not focus much of their attention upon the lower courts, because they assumed that these courts obeyed the dictates of the Supreme Court. In short, the scholars subscribed to a hierarchical model to explain the Supreme Court's relationship with the lower courts. But beginning in the 1950s, and continuing through the 1960s and 1970s, revisionist scholars criticized this model. They said it reflected an "upper-court myth"' and therefore provided an unsatisfactory explanation of the Supreme Court's relationship with the lower courts. Jerome Frank wrote, "In legal mythology one of the most popular and most harmful myths is the upper-court myth, the myth that upper courts are the heart of courthouse government .... In considerable part, this belief arises from the fallacious notion that the legal rules, supervised by the upper courts, control decisions."2

65 citations


Journal ArticleDOI
TL;DR: In this paper, the authors analyze the economic aspects of a system of strict liability and conclude that efficiency is impossible as a goal for tort law, and that both the normative and positive justifications for the efficiency approach to tort law must be rejected.
Abstract: THE economic efficiency approach to the analysis of the common law, particularly the law of torts, has been growing rapidly in recent years and shows no sign of abatement. Nevertheless, some very fundamental analytic problems have not even been recognized in this literature, much less solved. It is the purpose of this essay to raise these problems in the context of the perennial conflict between negligence and strict liability. The first and major part of this paper will consist of a detailed study of the efficiency rationale for negligence law. Next, we shall analyze some of the economic aspects of a system of strict liability. The overall conclusion is that efficiency, as normally understood, is impossible as a goal for tort law. The law cannot and should not aim toward the impossible. Consequently, both the normative and positive justifications for the efficiency approach to tort law must be rejected. Our reasons for this conclusion can be divided into static and dynamic considerations. The most important by far, however, are the dynamic factors: Precisely because we live outside of general competitive equilibrium and in a world of unpredictable flux, the efficiency case for negligence must fail. In such a world, it is impossible to compare alternative liability systems in terms of judicial cost-benefit analysis or "fine tuning." Instead, they must be analyzed in terms of institutional efficiency-the certainty and stability that these rules impart to the social framework. A static world of general equilibrium would make an efficient tort law possible, and yet render it unnecessary; in such a world, markets would be universal. A dynamic world, however, demands the certainty and simplicity of static law.

63 citations


Journal ArticleDOI
TL;DR: Holdsworth as mentioned in this paper argued that the common law had come to recognize that ownership was an absolute right as against all the world, and not merely the better right of a plaintiff as against the defendant to possession.
Abstract: advanced in seventeenth-century legal dictionaries suggests two important developments.' The first is the emergence of a definition of absolute individual ownership, resting on the notion of "the greatest interest" attributed to the person who had the property. The second is the erosion of the distinction between real and personal property. It may be worthwhile to supplement this account by reference to a controversy generated by Holdsworth's remarks on the emergence of a concept of ownership in the seventeenth century, which brings together the two points about "the greatest interest" and the distinction between realty and other property. Holdsworth's thesis was that the concept of ownership changed in the seventeenth century, as a result of developments in the actions of trover and ejectment. In trover and ejectment, he claimed: "the common law had come to recognize that ownership was an absolute right as against all the world, and not merely the better right of a plaintiff as against the defendant to possession".2 The argument put forward to explain this is as follows. Both trover and ejectment were relevant actions when the plaintiff was out of possession (when another had his goods or was on land to which he was entitled). The plaintiff alleged a claim superior to that of the defendant in order to recover. But it was now open to the defendant to attack the plaintiff's claim to the land or goods by saying that it belonged to a third party. Holdsworth placed the change of opinion which allowed such a response, and thus the change in what the plaintiff might need to show, in the period towards the end of the seventeenth century. The consequences of this, in Holdsworth's view, were profound: If the plaintiff need only prove a better right than the defendant's, then, modern English law would, like mediaeval law, have continued to refuse to recognize anything like an abstract dominium or ownership which is good against all the world. If, on the other hand, the plaintiff, in order to succeed in this action must prove an absolute right, then it would be true to say that through this action the conception of an abstract dominium or ownership, which is good against all the world, has come into English law.3

54 citations


Journal ArticleDOI
TL;DR: In this paper, the authors discuss theories of the content of common law rules, rather than the particularistic theories of small sets of cases that lawyers devise each day to predict judicial decisions.
Abstract: T HIS paper discusses theories of the content of common law rules. Its principal subjects are the general, comprehensive theories of the composite set of common law rules rather than the particularistic theories of small sets of cases that lawyers devise each day to predict judicial decisions. Lawyers may predict with some success the outcome of a dispute from the observation of earlier similar cases, just as today's weather allows a reasonable prediction of tomorrow's. But the "theories" or working hypotheses' upon which such predictions are based do not address either the pattern of the earth's climate or the broader structure of the common law.

40 citations




Journal ArticleDOI
TL;DR: For decades, legal historians have examined the common law in order to document this theme as discussed by the authors, arguing that innovation, not stability, is the order of the day, and the hallmark of fame and recognition.
Abstract: O NE of the most persistent themes in the legal literature is that the common law grows and matures in response to social change. For generations, legal historians have examined the common law in order to document this theme. Older principles are distinguished away or swept aside by judges who recognize their obsolescence. Today economists echo this theme when they claim there is, whether by conscious choice or by social necessity, a strong tendency for the common law to adopt "efficient" legal rules.' The primacy of change is underscored by the pantheon of great judges. Men like Bramwell, Pitney, and Mitchell are forgotten while Coke, Mansfield, Cardozo, and Traynor are praised for the new paths they opened.2 Innovation, not stability, is the order of the day, and the hallmark of fame and recognition.

Journal ArticleDOI
TL;DR: In this article, it was shown that changes in economic conditions-in relative values-will lead to changes in common law rules, and this hypothesis is testable by examining the response of the common law to change in relative values, which provides a tool of potentially great value in the empirical analysis of the economic theory of common law.
Abstract: T HE how and why of legal change are of interest to people who study the legal system from any of a variety of different perspectives. It is, for example, of great interest to the economic analyst of law. Although this fact is not widely appreciated, the positive economic theory of the common law,, on which the present authors have written, contains an implicit theory of legal change. It is this: if the common law is an instrument by which society reduces divergences between private and social costs, and otherwise promotes the efficient allocation of resources, it should follow that changes in economic conditions-in relative values-will lead to changes in common law rules. Because this hypothesis is testable by examining the response of the common law to changes in relative values, it provides a tool of potentially great value in the empirical analysis of the economic theory of the common law. Surprisingly, this tool has been little used. Its potential is illustrated by Harold Demsetz's study some years ago of the property rights systems of North American Indians.2 Demsetz treated the customary law of primitive societies rather than the common or judge-made law of our society, but his study casts at least an oblique light on the proposition that the law

Book
01 Jan 1980
TL;DR: Hazeltine as mentioned in this paper discusses the problem and the evidence of interpretation of early fourteenth-century statutes and the interpretation of particular statutes in the context of early legal thought in the English legal system.
Abstract: General preface H. D. Hazeltine Author's preface Table of statutes Table of year book cases Sources List of incipits Introduction. The problem and the evidence Part I. Legislation and Legal Thought in the Early Fourteenth Century: 1. Origins and early forms of written law 2. Text and translation 3. The legislature and its place 4. Statutes and the common law 5. Statutes and ordinances 6. Legal thought Part II. Examples of Interpretation: 1. General words and literal construction 2. The intention of the legislature 3. 'Exceptions out of the statute' 4. Refusal of the courts to apply statutes 5. Extension of the words of a statute 6. Strict interpretation 7. Conflicts of statutes 8. Ignorance of statutes among contemporary lawyers 9. The retrospective effect of statutes 10. Judicial discretion 11. Statutes and the common law 12. Statutes and the royal prerogative 13. Statutory writs 14. The interpretation of particular statutes Conclusion Appendix 1. Text of statutes Appendix 2. Select cases Index.

Book
01 Jan 1980
TL;DR: In this paper, the fourth cumulative supplement to this volume on the conflict of laws is presented, which provides users with all developments in statute and case law, including case law developments.
Abstract: This is the fourth cumulative supplement to this volume on the conflict of laws. It provides users with all developments in statute and case law.


01 May 1980
TL;DR: In this paper, the authors examine the adequacy of existing performance appraisal systems to make them defensible against charges of discriminatory employment practices, and draw conclusions as to what would constitute a defensible appraisal system.
Abstract: Since the enactment of the Civil Rights Act of 1964 and specifically Title VII of the Act, the federal government has increasingly involved itself with personnel policies and practices of employers in both the public and the private sector. While Title VII was initially directed toward discriminatory employee selection practices, the development of case law in this area suggests that the courts are now interpreting the Act much more broadly. In light of this, human resources managers would be wise to reevaluate the adequacy of existing performance appraisal systems to make them defensible against charges of discriminatory employment practices. After examining significant cases brought before the courts involving performance appraisal systems, authors Gary L. Lubben, Duane E. Thompson, and Charles R. Klasson draw conclusions as to what would constitute a defensible appraisal system. Chief among these is to make the overall appraisal process as formal, standard, and objective as possible and to consider subjective supervisory ratings as only one component of the overall evaluation process.

Book
01 Jan 1980
TL;DR: The 8th edition of the contract law casebook as mentioned in this paper traces the development of contract law in English and American common law traditions and provides authoritative introductions to major topics, carefully selected cases, and well-tailored notes and problems.
Abstract: This classic casebook traces the development of contract law in the English and American common law traditions Like earlier editions, the 8th Edition features authoritative introductions to major topics, carefully selected cases, and well-tailored notes and problems The casebook is ecumenical in its outlook, presenting a well-balanced approach to the study of contract law without ever losing sight of the importance of doctrine in all its detail Cases are situated within a variety of disciplines-history, economics, philosophy, and ethics-and present the law in a variety of settings-commercial, familial, employment, and sports and entertainment The 8th Edition will feel familiar yet fresh to current users and both exciting and comfortable to newcomers to contracts or to this casebook

Book
01 Jan 1980
TL;DR: The Mareva injunction as discussed by the authors was the first application of the Mareva principle in the family law domain, and it has been successfully applied in a number of cases in the British legal system.
Abstract: PART ONE. Keeping the streams of justice pure and clean Introduction 1. In the face of the Court 2. The victimisation of witnesses 3. Refusing to answer questions 4. Scandalising the Court 5. Disobedience to an order of the Court 6. Prejudicing a fair trial Conclusion PART TWO. Inquiries into conduct Introduction 1. Into the conduct of judges 2. Into the conduct of ministers 3. Into the conduct of directors 4. Into the conduct of gaming clubs 5. Into the conduct of aliens 6. Into the delays of lawyers PART THREE. Arrest and Search Introduction 1. Making an arrest 2. Making a search 3. New procedures PART FOUR. The Mareva injunction Introduction 1. We introduce the process 2. We are reversed PART FIVE. Entrances and exits Introduction 1. The common law about aliens 2. Commonwealth citizens 3. Exits PART SIX. Ventures into Family Law 1. How I learned the trade 2. The story of emancipation PART SEVEN. The deserted wife's equity Introduction 1. Invoking Section 17 of the 1882 Act 2. Invoking the aid of equity 3. The Lords triumphant 4. Lady Summerskill takes charge PART EIGHT. The wife's share in the home 1. The judges introduce it 2. The wide principle of fairness 3. The trust concept 4. Where there is no financial contribution Conclusion Epilogue Index

Journal ArticleDOI
Abstract: According to Rodney Davenport, in the Oxford History of South Africa, 'the rule of law did not exist at the Cape in the Company period'. This statement secms incredible in view of the immense volume of the survivmg legal archives—a volume of the criminal court cases for a single year can easily be over 1000 paees of manuscript—and the large number of placcaaten issucd by the povernment of the Cape of Good Hope in the eightcenth Century.This, so" it would seem, is evidence of a society in which the Roman-Dutch law of the Republic of the Netherlands, as amcnded first to suit the requirements of an castern trading empire and then of the port and colony of the Cape, was used to settlc disputes and to maintain public order and the rights of property. South Africa was clearly rulcd by a code of law—as indeed is probably every society in the world, in some sense or other—and moreover by one which was based on a system to which more concentrated legal thought had been given, at a higher theoretical level, than any other m the seventcenth and eighteenth centurics. To be sure, there were no junsts of any standing whatsoever at the Cape at the time. Most of the meinbers of the Court of Justicc had. no legal training at all.' Ncverthcless, the codifications and tcxtbooks which they used were among the finest products of the greatest pcriocl of Dutch intcllcctual history. Tt is doubtful if the 'modernity' of the legal system of any other country could be comparcd with that of the Nclherlands in the eightcenth Century. Certainly that of the Netherlands could be comparcd with that of any other country. The batllement which Davcnport's init ial sentencc presents is, to a certam extent eascd by the rest of the paragraph in question, whcrc he imphcitly defines 'the rule of law' as one where the law was imposed 'uniformly' and 'fully impartialfly]', so that the 'sevcrity of the sentcnccs [did nol] depend .; . largely on the lenal status of the offender or the person olTcnded agamstV That the contrary was the case was clearly admitted by the Dutch authonties. When, after the British capture of the Cape in 1795, the Court of Justicc was informed that the barbaric nature of the capital punishment imposed m Company t i mes was hcnccforth to be mitigatcd, so that slaves would mercly be hanged or bcheadcd, they replied as follows:

Journal ArticleDOI
TL;DR: In this paper, the attorneys and officers of the common law in 1480 were discussed and discussed in the Journal of Legal History: Vol. 1, No. 2, pp. 182-203.
Abstract: (1980). The attorneys and officers of the common law in 1480. The Journal of Legal History: Vol. 1, No. 2, pp. 182-203.

Journal ArticleDOI
TL;DR: Pocock as discussed by the authors examined the place of statutes within the English common law during the sixteenth and seventeenth centuries and pointed out a significant shift in attitudes towards statutory law between the medieval and early modern periods; while some medieval statutes were perceived by contemporaries as innovative, by the seventeenth century statutes tended to be regarded otherwise, as confirmation of pre-existing law and not as innovative.'
Abstract: The impetus for this study was a concern with the place of statutes within the English common law during the sixteenth and seventeenth centuries. There seems to have been a significant shift in attitudes towards statutory law between the medieval and early modern periods; specifically, while some medieval statutes were perceived by contemporaries as innovative, by the seventeenth century statutes tended to be regarded otherwise, as confirmation of pre-existing law and not as innovative.' It is clear, however, that regardless of how they were viewed by contemporaries, there were innovative statutes in the sixteenth century; one need not go farther than the great Henrician statutes of Uses and Wills (27 Henry 8, c. 10, 32 Henry 8, c. 1).2 If, then, the "common-law mind" was reluctant to recognize innovation, how did this mind deal with innovative statutes, i.e., ones creating new procedures, remedies, and/or crimes? The question becomes critical when asked of the later Tudor period during which, according to Pocock, "there occurred a great hardening and consolidation of common-law thought."3 This study is not, however, a direct response to Pocock's call for "a detailed study of Tudor common-law thought" which would "show how and when it came into being."4 Rather, it approaches this issue from a far more narrow focus. This study involves an examination of one particular statute, the Perjury Statute of 1563 (5 Elizabeth, c. 9) and the treat-

Journal ArticleDOI
TL;DR: In a sense, the legal history has become the study of law tout court as mentioned in this paper, and the explanation of why law changes, the laws of its change have become the explanation for law-tout court.
Abstract: TODAY the law is conventionally viewed as something of which we catch a fleeting glimpse as it moves rapidly past us. One does not describe the fixed points of the law so much as its vectors, its varying momenta at various regions, the directions and velocity of change. Every first-year student who studies torts, for instance, studies a moving object proceeding from a regime where one often acted at his peril, to negligence, to strict liability, and perhaps beyond. He or she studies contracts as a moving object, beginning with relations of status, moving to freedom of contract and the will theory, going on to Willistonian objectivism, and on again to a new kind of status law in respect to form contracts, contracts imposed by the state, implied contracts, and, I suppose, beyond. He studies constitutional law, bankruptcy law, property law not to discover the coordinates of the present system but the first and second derivatives of change. So it is not surprising that the most ambitious and enterprising of legal scholars should be engaged in devising, not so much theories of the law, as theories of legal change. In the classrooms where Williston or Scott may have set out the only glacially evolving landscape of contract or trusts, today the talk is of changing paradigms, evolving models, transformations, movements from preclassical to postclassical periods, and the like.' In a sense the study of legal history has become the study of law tout court. The explanation of why law changes, the laws of its change have become the explanation of law tout court. To explain how the common law changes, therefore, is just to explain the law. Let me give two rather different examples. It has recently been suggested by Rubin, Priest, and Goodman2 that law

Book
01 Dec 1980
TL;DR: In this paper, the authors present an interpretation of the sixteenth century which takes account of the dynamics of that age and gives us some way of understanding initiatives and the proceedings that also affected the history of the law.
Abstract: I am not a legal historian, I am not a lawyer; to address a body so eminent in those particular ways is something of an excitement, a strain, an embarrassment, a pleasure; at least I can talk history, perhaps teach history, to lawyers. Because what I would like to talk about today is not really the history of the law so much as how the changes that happened in sixteenth-century law may be seen to fit into a larger historical framework – an interpretation of the sixteenth century which takes account of the dynamics of that age and gives us some way of understanding initiatives and the proceedings that also affected the history of the law. It is a well-known fact that the sixteenth century witnessed a major transformation in the history of the common law, though it is also a well-known fact that we face here one of the ‘dark ages’, as Dr Baker has called them, in the history of that law. In other words, we know that things were transformed but we have not very much idea of what they were transformed from or into, and least of all do we yet know exactly what transformations happened in the course of that major change; nor can I give you much detail of that kind.

Journal ArticleDOI
05 Dec 1980-JAMA
TL;DR: Analysis indicates that, although the statutes dealing with informed consent do provide some useful clarifications of the law, many of the uncertainties found in the case law remain.
Abstract: AS WAS pointed out in the earlier articles in this series, the law of informed consent, as presented by the judicial opinions on this subject, contains many uncertainties and ambiguities. This is particularly true with respect to the information a physician must disclose to a patient to obtain an informed consent and the scope of the defenses that a physician may raise to a claim that an informed consent has not been obtained. In recent years at least 26 states have adopted statutes dealing with informed consent, which seem to be intended to remove some of the ambiguities in the case law. However, analysis indicates that, although the statutes do provide some useful clarifications of the law, many of the uncertainties found in the case law remain. Standard of Disclosure As was discussed in the first article in this series, there is substantial disagreement among courts as to whether the



Book
01 Jan 1980
TL;DR: Card, Cross & Jones Criminal Law as discussed by the authors is a popular introductory text on substantive criminal law in England and Wales, with a reputation for being one of the very best introductory texts on criminal law.
Abstract: With a reputation for being one of the very best introductory texts on the substantive criminal law in England and Wales, Card, Cross & Jones Criminal Law remains a firm favourite with lecturers and students alike. Carefully developed coverage ensures that this textbook will support students throughout their study, helping to advance their understanding of the key principles governing criminal law. Designed for use on undergraduate courses and graduate diplomas in law, discussion of case law as well as hypothetical examples and key point summaries guide students through the technicalities of this fascinating area of law.