Monday, March 16, 2009

Three by Kadens

Recent guest blogger Emily Kadens, University of Texas School of Law, has just posted three papers on SSRN.

The first is Justice Blackstone's Legal Orthodoxy, which is forthcoming in the Northwestern University Law Review 103 (2009). Here is the abstract:
Although William Blackstone served longer as a judge on the English Court of Common Pleas than he had as the inaugural Vinerian Professor of English law at Oxford, his post-professorial legal life has been almost entirely ignored by scholars. Only one brief article, written almost fifty years ago and focused narrowly on legal doctrine, has offered any insight into Blackstone as a judge. And yet the subject is of interest for two reasons. First, Blackstone was the first law professor to become a judge on an English common law court. Second, his judicial opinions provide an alternative, and arguably a more accurate, path into his legal thought. The lectures that became the Commentaries on the Laws of England were written when he was barely thirty years old and had spent fewer than seven unsuccessful years at the bar. By contrast, his judicial opinions are the work of a mature legal thinker. It is not possible to accurately assess how well the jurisprudence expressed in the Commentaries reflects his true legal thought without also studying his opinions and his other available practical legal writing. This article argues that Blackstone's opinions show him to have been a strong and consistent adherent to a basic view of law that all English lawyers shared and that Blackstone advocated in the Commentaries. This view, which is here called the common law orthodoxy, was a set of principles about how law was made and the role of judges in finding it. However, where most lawyers and judges, while taking the orthodoxy as a baseline, were willing to deviate from it as necessary, Blackstone was not. This insistence on principles arguably derived at least in part from his academic habit of seeing the law as a set of abstract rules. Having spent more time and achieved greater success as a teacher than he did as a practitioner, he never came to fully appreciate the practical realities of how the common law worked in the courtroom. Consequently, the man whose work is so admired in American law and who is so often cited as representing the state of the law at the time of the Founders, did not himself have a perfect understanding of the legal mind of his age.
A second paper, The Puzzle of Judicial Education: The Case of Chief Justice William De Grey, continues the theme of eighteenth-century Common Please judges:
Unlike civil law systems in which young lawyers choose between an attorney career track and a judicial one, Anglo-American legal systems mostly select their judges from the whole pool of bar members, regardless of the fact that the appointees may have had no experience with the court on which they are placed. Such a method of selection ensures that many judges come to the bench still needing to prepare themselves for their new positions. This problem is not a new one. At least by the seventeenth century, the specialization of legal practice in England meant that many neophyte judges had a great deal to learn. However, despite the importance of judicial education in forming the sort of judge an appointee becomes, neither modern scholars nor legal historians have given much attention to the issue. This may be due in part to the mystique of the common law judge who is supposed to have been trained on the way to the bench. And it may also be due to the difficulty of finding evidence, as most judges leave no trace of their program of self-education. William de Grey, named Chief Justice of the English Court of Common Pleas in 1771, did. A previously unexplored collection of archival material permits an at least partial reconstruction of his method of training himself for his new job. Examining the approach of de Grey and other eighteenth-century judges demonstrates that not only is the problem of judicial education not a modern one, but the various means by which judges have sought to solve it are also not unique to today.
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Finally, Kadens turns to a sanguinary chapter in the history of bankruptcy, The Last Bankrupt Hanged: Bankruptcy Procedure in 18th-Century England:
This paper uses the famous case of John Perrott, hanged for fraudulent bankruptcy in England in 1761, to discuss eighteenth-century English bankruptcy procedure and the threat of capital punishment as a stick to coerce the debtor into divulging his or her assets. The problem the English bankruptcy law faced was balancing the rights of creditors to repayment with the need to prevent debtors from becoming economically disabled. The bankruptcy procedure had numerous chokepoints [as it were--DRE] that made achieving this goal difficult, yet capital punishment proved an unsuccessful means of coercion.
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