History of the Common Law: The Development of Anglo-American Legal Institutions I give it 5 stars

Coming this fall from Aspen, it’s History of the Common Law: The Development of Anglo-American Legal Institutions, by John Langbein, Renée Lerner, and Bruce Smith:

This introductory text explores the historical origins of the main legal institutions that came to characterize the Anglo-American legal tradition, and to distinguish it from European legal systems. The book contains both text and extracts from historical sources and literature. …

Two great themes dominate the book: (1) the origins, development, and pervasive influence of the jury system and judge/jury relations across eight centuries of Anglo-American civil and criminal justice; and (2) the law/equity division, from the emergence of the Court of Chancery in the fourteenth century down through equity’s conquest of common law in the Federal Rules of Civil Procedure. The chapters on criminal justice explore the history of pretrial investigation, policing, trial, and sentencing, as well as the movement in modern times to nonjury resolution through plea bargaining. Considerable attention is devoted to distinctively American developments, such as the elective bench, and the influence of race relations on the law of criminal procedure.

I took Professor Langbein’s course of the same name in law school; our course materials consisted of a sequence of photocopied packets that had clearly been assembled with the aid of scissors and glue. It was one of the best courses I’ve ever taken, and the materials—an eclectic mixture of monograph excerpts, primary source documents, and modern variations on older themes—were a true labor of love. Langbein wove the disparate materials into a compellingly complex narrative. Readers of the book will have to do without his inimitable lecturing style, but fortunately the published version comes with extensive notes that provide the necessary explanatory context. I expect that this volume will quickly become the standard law-school text on Anglo-American legal history.

The only unfortunate thing is the price: a stunning $159. Yes, it comes with “over 200 illustrations, many in color, including medieval illuminated manuscripts, paintings, books and manuscripts, caricatures, and photographs,” but that price is insane. With some casebooks, I can almost understand why they’re so expensive: obviously, no one would read them voluntarily, so sales will be low. But this beauty of a text ought to be a quarter of the price and out on display at the front table of every good bookstore.

I’m guessing that the subject matter makes it less likely that a revised edition will be needed soon, so there’ll be more of a market for used copies… hence the higher price for the new copies.

I took that same course (more or less) 30 years earlier from Prof. S.F.C. Milsom, of Cambridge, as a visitor. His book, Historical Foundations of the Common Law (1969) is also great. I see he has written at least two others on the history of early common law since, and that he appears still to be alive in his mid-80s. The man had a vertical sort of cleft in his forehead from some early injury that made us students think he might have been struck by a battle-axe in the 1200s himself. He did seem to live, in his mind at least, in those days.

This is the sort of topic which clearly needs a freely available text to provide foundational background, on top of which much slimmer $150 books can be written :-) maybe a little nudging can convince Milsom and Langbein and the like to allow a particular reconception of their basics, grounded in an arrangement of public excerpts, to be made a part of such a new free canon.

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