History of the Common Law

History of the Common Law - Professor Tomas Gomez-Arostegui

  • Course Number: LAW-330
  • Course Type: Highly Specialized
  • Credits: 2-3
  • Enrollment Limit: 15
  • Description:   This 2- or 3-credit course (see below on credits) is an introduction to the historical origins of civil and criminal Anglo-American law, in which students study selected historical sources, extracts from legal-historical scholarship, and methods for researching and understanding the historical sources. This is an especially auspicious time to learn about 18th-century English law and how to find and understand it given the current composition of the U.S. Supreme Court and its emphasis on originalism and interpreting the Constitution according to 18th-century public meaning and practices. In this course we will cover the history of the common law, mostly the substantive, remedial, and procedural rules of England up through the late 18th century and a bit beyond. We will also cover some of the law of the American Colonies and of the first 100 years or so of the United States. Naturally, we will discuss how history continues to influence the law today, and how in some instances the law today depends directly on the law of the past. My goal is for you to have a good working knowledge of the major doctrinal shifts of the common law, along with knowledge of numerous more specific points along the way. I also want you to be able to find and comprehend historical sources, so that you will not flounder when doing the 18th- and 19th-century research that modern doctrine sometimes requires.

    Usual topics include: (1) the jury system–medieval origins and European alternatives, separation of grand and petty juries, changes in the functions and composition of the jury from medieval to modern times, the law of evidence, and other forms of jury control; appellate review of jury verdicts; the growing disuse of juries and of trials in modern times; (2) civil justice–the forms of action and the pleading system; the regular and itinerant courts; the judiciary; law reporting and other forms of legal literature; Chancery, the trust, equitable procedure and remedies; historical perspectives on the scope of the right to civil jury trial under the Seventh Amendment; the deterioration of Chancery procedure and the fusion of law and equity in England and the United States; the codification movement; the drafting of the Federal Rules of Civil Procedure; (3) criminal justice–medieval criminal procedure; presentment and indictment; the recasting of criminal procedure in the sixteenth and seventeenth centuries; the officialization of prosecution and policing; the rise and fall of Star Chamber; defense counsel and the rise of the adversary system in the eighteenth century; the privilege against self-incrimination; the law of evidence; criminal sanctions and sentencing; (4) legal education–the inns of court and apprenticeship; and (5) the legal profession–attorneys and barristers and the regulation of admission to the profession.
    At the election of the student, the course will be evaluated either by an exam or by a 30-40 page (double-spaced) paper that will qualify for the Capstone requirement. If you choose to write the paper, it must be on an English, American, or other common-law country legal history topic or at least have a non-trivial historical component to it. By the latter I mean that you can write a paper about a modern law topic, so long as the paper talks a bit about the history of the doctrine at issue in your paper. The history of the doctrine need not be ancient. Your paper could, for example, be about modern U.S. internet law in which your historical section talks about legal developments in the 1990s.
    The decision to sit for an exam or write a Capstone paper must be made by the student by the second week of class. Details of the process will be outlined in the syllabus.
    Credits: The class meets once a week for 2 hours. Students who sit for the exam will receive 2 credits. Students who write a Capstone paper can choose to add an additional credit, for a total of 3 credits. You are not required to add the extra 1-credit, and thus one can elect to write the Capstone for only 2 course credits. The amount of work undertaken and expected on a Capstone remains the same, regardless of the number of credits selected.
  • Prerequisite: none
  • Evaluation Method: Final exam or capstone paper
  • Capstone: optional (See description for details)
  • WIE: no