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Americanization of the Common Law
The Impact of Legal Change on Massachusetts Society, 1760-1830
William E. Nelson
Harvard University Press

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The Common Law
Oliver Wendell Holmes Jr.
Harvard University Press, 2009
Much more than an historical examination of liability, criminal law, torts, bail, possession and ownership, and contracts, The Common Law articulates the ideas and judicial theory of one of the greatest justices of the Supreme Court. G. Edward White reminds us why the book remains essential reading not only for law students but also for anyone interested in American history. The text published is, with occasional corrections of typographical errors, identical with that found in the first and all subsequent printings by Little, Brown.
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The Common Law
Oliver Wendell Holmes Jr.
Harvard University Press

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Copyhold, Equity, and the Common Law
Charles Montgomery Gray
Harvard University Press

This book has a threefold purpose: to date and explain the beginning of legal protection of copyholders in courts of law and equity; to reconstruct and explain the first stage in the creation of a body of law relating to copyholds; and to provide a case study in sixteenth-century jurisprudence of a sort that may tend to illuminate larger questions about the judicial process in that period. Mr. Gray has based his book largely on manuscript law reports never before used.

Copyhold, and its ancestor, villein tenure, were originally not protected by the central law courts in England, with the result that the tenant was at the mercy of his lord. There has been considerable uncertainty and dispute as to when this state of affairs was changed. This book argues that the Chancery possibly did not extend protection to tenants until the end of the fifteenth century, and that the common law did not provide protection until the middle of the sixteenth century. Mr. Gray explains why and how the change was effected. Since the extension of common-law protection brought many collateral issues before the courts, the judges had to write a new chapter in the law of property. The authordescribes the perplexities they faced and the changing techniques used to meet them.

This history of a new field of law developed in the Elizabethan period has implications for general questions on the judicial process, such as the use made of precedents, the methods of interpreting statutes, and the character of legal analysis. An introduction provides the Medieval background and explains the technical language and fundamental concepts necessary for understanding the specific studies.

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Legal Secrets
Equality and Efficiency in the Common Law
Kim Lane Scheppele
University of Chicago Press, 1988
Does the seller of a house have to tell the buyer that the water is turned off twelve hours a day? Does the buyer of a great quantity of tobacco have to inform the seller that the military blockade of the local port, which had depressed tobacco sales and lowered prices, is about to end? Courts say yes in the first case, no in the second. How can we understand the difference in judgments? And what does it say about whether the psychiatrist should disclose to his patient's girlfriend that the patient wants to kill her?

Kim Lane Scheppele answers the question, Which secrets are legal secrets and what makes them so? She challenges the economic theory of law, which argues that judges decide cases in ways that maximize efficiency, and she shows that judges use equality as an important principle in their decisions. In the course of thinking about secrets, Scheppele also explores broader questions about judicial reasoning—how judges find meaning in legal texts and how they infuse every fact summary with the values of their legal culture. Finally, the specific insights about secrecy are shown to be consistent with a general moral theory of law that indicates what the content of law should be if the law is to be legitimate, a theory that sees legal justification as the opportunity to attract consent.

This is more than a book about secrets. It is also a book about the limits of an economic view of law. Ultimately, it is a work in constructive legal theory, one that draws on moral philosophy, sociology, economics, and political theory to develop a new view of legal interpretation and legal morality.
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The Nature of the Common Law
Melvin Eisenberg
Harvard University Press, 1991

Much of our law is based on authoritative texts, such as constitutions and statutes. The common law, in contrast, is that part of the law that is established by the courts. Common law rules predominate in some areas of law, such as torts and contracts, and are extremely important in other areas, such as corporations. Nevertheless, it has been far from clear what principles courts use—or should use—in establishing common law rules. In this lucid yet subtly argued book, Melvin Eisenberg develops the principles that govern this process.

The rules established in every common law case, he shows, are a product of the interplay between the rules announced in past precedents, on the one hand, and moral norms, policies, and experience, on the other. However, a court establishing a common law rule is not free, as a legislator would be, to employ those norms and policies it thinks best. Rather, it can properly employ only those that have a requisite degree of social support. More specifically, the common law should seek to satisfy three standards. First, it should correspond to the body of rules that would be arrived at by giving appropriate weight to all moral norms, policies, and experiential propositions that have the requisite support, and by making the best choices where norms, policies, and experience conflict. Second, all the rules that make up the body of the law should be consistent with one another. Third, the rules adopted in past precedents should be applied consistently over time. Often, these three standards point in the same direction. The central problems of legal reasoning arise when they do not. These problems are resolved by the principles of common law adjudication. With the general principles of common law adjudication as a background, the author then examines and explains the specific modes of common law reasoning, such as reasoning from precedent, reasoning by analogy, drawing distinctions, and overruling. Throughout the book, the analysis is fully illustrated by leading cases.

This innovative and carefully worked out account of the common law will be of great interest to lawyers, law students, students in undergraduate legal studies programs, scholars interested in legal theory, and all those who want to understand the basic legal institutions of our society.

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Navajo Courts and Navajo Common Law
A Tradition of Tribal Self-Governance
Raymond D. Austin
University of Minnesota Press, 2009

The Navajo Nation court system is the largest and most established tribal legal system in the world. Since the landmark 1959 U.S. Supreme Court decision in Williams v. Lee that affirmed tribal court authority over reservation-based claims, the Navajo Nation has been at the vanguard of a far-reaching, transformative jurisprudential movement among Indian tribes in North America and indigenous peoples around the world to retrieve and use traditional values to address contemporary legal issues.

A justice on the Navajo Nation Supreme Court for sixteen years, Justice Raymond D. Austin has been deeply involved in the movement to develop tribal courts and tribal law as effective means of modern self-government. He has written foundational opinions that have established Navajo common law and, throughout his legal career, has recognized the benefit of tribal customs and traditions as tools of restorative justice.

In Navajo Courts and Navajo Common Law, Justice Austin considers the history and implications of how the Navajo Nation courts apply foundational Navajo doctrines to modern legal issues. He explains key Navajo foundational concepts like Hózhó (harmony), K'é (peacefulness and solidarity), and K'éí (kinship) both within the Navajo cultural context and, using the case method of legal analysis, as they are adapted and applied by Navajo judges in virtually every important area of legal life in the tribe.

In addition to detailed case studies, Justice Austin provides a broad view of tribal law, documenting the development of tribal courts as important institutions of indigenous self-governance and outlining how other indigenous peoples, both in North America and elsewhere around the world, can draw on traditional precepts to achieve self-determination and self-government, solve community problems, and control their own futures.

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A Power to Do Justice
Jurisdiction, English Literature, and the Rise of Common Law
Bradin Cormack
University of Chicago Press, 2008
English law underwent rapid transformation in the sixteenth century, in response to the Reformation and also to heightened litigation and legal professionalization. As the common law became more comprehensive and systematic, the principle of jurisdiction came under particular strain. When the common law engaged with other court systems in England, when it encountered territories like Ireland and France, or when it confronted the ocean as a juridical space, the law revealed its qualities of ingenuity and improvisation. In other words, as Bradin Cormack argues, jurisdictional crisis made visible the law’s resemblance to the literary arts.  
A Power to Do Justice
shows how Renaissance writers engaged the practical and conceptual dynamics of jurisdiction, both as a subject for critical investigation and as a frame for articulating literature’s sense of itself. Reassessing the relation between English literature and law from More to Shakespeare, Cormack argues that where literary texts attend to jurisdiction, they dramatize how boundaries and limits are the very precondition of law’s power, even as they clarify the forms of intensification that make literary space a reality.

Tracking cultural responses to Renaissance jurisdictional thinking and legal centralization, A Power to Do Justice makes theoretical, literary-historical, and methodological contributions that set a new standard for law and the humanities and for the cultural history of early modern law and literature.
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