LEADING CASES IN THE COMMON LAW

Professor Brian Simpson (1931 - 2011) taught at the University of Michigan Law School from 1987 until his retirement in 2009.    A British citizen and a graduate of Oxford University, the Guardian said this about Simpson in 2011 its obituary following Simpson's death on January 10, 2011:

"Although his academic career was latterly spent mostly in the U.S., he remained a British liberal to his core and never became an American citizen.  He tended to spend the winter and spring in Ann Arbor, Michigan, but for the summer and autumn he was often at the then Public Record Office, now the National Archives, in Kew, west London.  He was elected a fellow of the British Academy in 1983, a fellow of the American Academy of Arts and Science in 1993, was visiting professor of legal science at Cambridge Universtiy 1993-94, and in 2001 was appointed an honorary Q.C."

The book under consideration, Leading Cases in the Common Law (1995) posits the thesis that there is no "science of law" and that leading cases must be studied in their historical and cultural context to really understand the rationale for the decisions. 

This is fascinating reading.  Starting with Wolfe v. Shelley (1581), which produced "The Rule in Shelley's Case" that generations of law students have been tortured with, Professor Simpson seeks to find the story behind the story.  Shelley's case did not really have anything to do with some philosophical rule regarding wills and deeds and had everything to do with Queen Elizabeth I and her government wanting to disinherit a wealthy Catholic recusant son in favor of the deceased's Protestant grandson who had the Queen's favor.  Of no real significance at the time, it only became "a leading case" because one of the winning lawyers, Edward Coke, reported the case in the series of case reports which he published.

Professor Simpson goes through and tells "the story behind the story" on a number of famous common law cases, beginning with Wolfe v. Shelley (1581) and ending with Carlill v. Carbolic Smoke Ball Company (1893) which generations of law students have been tortured with to understand the acceptance of unilateral contracts.

This is fascinating reading.  Every Anglo-American lawyer interested in the history of the Common Law should read this book.  Five out of Five gavels.

Alfred William Brian Simpson, Q.C. (1931 - 2011)

From the Anglo-Saxons to the ABA

I did it.  And it was quite an accomplishment, if I do say so myself.  I read all 1144 pages of Professors Langbein, Lerner and Smith’s massive textbook on legal history: History of the Common Law: The Development of Anglo-American Legal Institutions (Aspen, 2009).

This book could be described as everything you ever wanted to know about the Common Law but was afraid to ask.  The book begins by describing law and order in Anglo-Saxon England before the Norman Conquest of 1066 and ends with a description of the legal profession in the United States in the twenty first century.

Greatest Stars of the Common Law:  Lord Chief Justice Edward Coke

If you ever wanted to know what procedure was utilized in the Court of the Exchequer in the 18th century, this is the book for you.  It took me, off and on, probably about six months of mornings to read this all the way through.  It was a really worthwhile experience.  I learned a great deal of interesting facts which explain why we do things the way we do them.  For instance, the authors opine that the procedure of the Chancery Courts in England have swallowed up the Common Law in Civil Cases in the modern United States.  All of our pre-trial discovery procedures, interrogatories, depositions and pre-trial motions have their root in the practice of the Courts of Equity.  A common law trial on the other hand, was a pleading contest to narrow an issue to submit to a jury.  Depositions and written interrogatories were unknown to the Common Law.

There are liberal quotes throughout the book from all of the “greats” of the law.  Lord Hale, Lord Cook, and Blackstone are all here as well as American greats like John Marshall, Oliver Wendall Holmes, and Benjamin Cardozo.

If you have any interest in legal history, and you have the time.  History of the Common Law by Langbein, Lerner and Smith is well worth your time.

Professor John H. Langbein, Sterling Professor of Legal History, Yale University