LEGAL PROCESS
May 28-June 24, 2014:  Daily, 10:30-12:00; Room 123



Professor Michael DeBow

medebow AT samford DOT edu
205-726-2434
Room 208, Robinson Hall                    Office hours:  1:00 - 2:00 and by appointment  
Samford University                               Secretary:  Ms. Erin Boggan, 726-2880, Room 202
Birmingham, Alabama  35229


The URL for this page is
http://www2.samford.edu/~medebow/LegalProcess.html


REQUIRED TEXT
Michael A. Berch, Rebecca W. Berch & Ralph S. Spritzer, Introduction to Legal Method and Process (West, paperback, 5th ed. 2011 or 4th ed. 2006).


ADDITIONAL ONLINE RESOURCES
Legal Glossary
Legal Timeline
Links em portugues, espanol (and English)  for MCL students


READING ASSIGNMENTS -- Subject to change; check back regularly!

May 28 (W).  Getting started.
Quote of the day:  "The common law of England is not to be taken, in all respects, to be that of America.  Our ancestors brought with them its general principles, and claimed it as their birthright; but they brought with them and adopted, only that portion which was applicable to their situation."  Justice Joseph Story in Van Ness v. Packard, 27 U.S. 137, 143-44 (1829).
Class objectives; handouts and survey.
After class, take a look at: 
   
Pages 1-5 of Michael Jensen & Meckling, The Nature of Man (2001),
    Hans Rosling's 200 Countries, 200 Years video and
    the website of Economic Freedom of the World 2013 Annual Report 


May 29 (Th).  Reading and analyzing judicial decisions I.
Quote of the day:  "[A]s people when contracting contemplate performance, not breach, they commonly say little or nothing as to what shall happen in the latter event, and thus the common rules have been worked out by common sense, which has established what the parties probably would have said if they had spoken about the matter."  Justice Oliver Wendell Holmes, in Globe Refining Co. v. Landa Cotton Oil Co., 190 U.S. 540, 543 (1903) (emphasis added).
Case study: "equitable conversion" and the risk of loss prior to closing
Bleckley v. Langston, 143 S.E.2d 671 (Ga. App. 1965).
Read the definitions of "Mandatory rule" and "Default rule" in the Glossary    
Stoebuck & Whitman on equitable conversion.


May 30 (F).  What is "the rule of law"?
 
Lawrence Solum, Legal Theory Lexicon, The Rule of Law  
Paul Johnson, Laying Down the Law (Wall St. Journal, March 10, 1999)
Alan Macfarlane, What Makes Law Effective? (Times Higher Education Supplement, 2005)
John K.M. Ohnesorge, The Rule of Law, pp. 99-103 (Annual Review of Law & Social Science, 2007)
Quotations re: the rule of law
Recommended (browse)
    World Justice Project Rule of Law Index   
    John Hasnas, The Myth of the Rule of Law, Wisconsin Law Review, vol. 1995, pp. 199-234 (1995).


June 2 (M).  Voluntary exchange, wealth creation, and the role of the common law.

The amazing properties of "good" property and contract laws.
    Part II of Quotations re: private property and America
    Read the definitions of "Bargaining range" and "Gains from trade" in the Glossary.
    Ronald Bailey, The Secrets of Intangible Wealth, Wall St. J., September 29, 2007 and
        Our Intangible Riches, Reason, August/September 2007
Berch 5th ed. pp. 1-15 and 16-24 (corresponding pages in 4th edition: 1-15 and 16-24)
Legal Education in America: What Have You Gotten Into?
Recommended (browse):
    You can download the World Bank study Bailey describes ("Where Is the Wealth of Nations?") by clicking here (see especially chapter 7).
    If you're curious about what procedures were used prior to the introduction of trial by jury, I recommend two terrific articles by economist Peter Leeson, Ordeals (Journal of Law & Economics, 2012) and Trial by Battle (Journal of Legal Analysis, 2011).   According to Norman Cantor, ordeals were used apprximately 80% of the time, with the remaining 20% of disputes settled by "compurgation" (oath-taking).  Trial by battle was introduced by the Normans, was originally available only to Normans, and was rarely used. 

 
June 3 (T).  Reading and analyzing judicial decisions II.
Berch 5th ed. pp. 34-57 (corresponding 4th ed. pp. 34-57)  (Omit Lon Fuller.)


June 4 (W). 
Litigation and the pressure to settle I.
Berch 5th ed. pp.75, 99-121  (corresponding 4th ed. pp. 74, 97-119)
Simple settlement model  (read definitions of "Expected value" and "Settle, Pressure to" in the Glossary)
Explanation of litigation risk analysis by Perkins Coie, a huge multi-city law firm headquartered in Seattle
Homework problems
Recommended (browse):
    Marc Galanter, The Vanishing Trial: An Examination of Trials and Related Matters in Federal and State Courts, 1 J. Empirical Legal Stud. 459 (2004),  marcgalanter.net/Documents/papers/thevanishingtrial.pdf  
             (see especially the graph on page 465)
    John Langbein, The Disappearance of Civil Trial in the United States, 122 Yale L.J. 522 (2012).      
    Robert M. Lloyd, Hard Law Firms and Soft Law Schools, 83 N.C. L. Rev. 667 (2005) (via TWEN, under "course materials" tab).


June 5 (Th).  Litigation and the pressure to settle II.
Berch 5th ed. pp. 126-135, 149-154, 473-480  (corresponding 4th ed. pp. 123-132, 146-151, 469-475)  
Recommended (browse):
     U.S. Courts website
     Alabama state courts website
     Famous Trials website (Douglas O. Linder)
*  June 5, 1723 -- Adam Smith born in Kirkcaldy, Scotland.


June 6 (F).  Class will not meet.


June 9 (M).   Anglo-American history, including the big picture of the common law.
Quote of the day:  "A London barrister of 1540, quick-frozen and revived in New York today, would only need a year’s brush-up course at NYU School of Law to begin civil practice in a midtown or Wall Street corporate-law firm."  (Norman F. Cantor, Imagining the Law (1997), p. 192.)
Look over the course's online Legal Timeline
Section III.A.1. & 2. of Todd Zywicki, The Rise and Fall of Efficiency in the Common Law: A Supply-Side Analysis, 97 Nw. U. L. Rev. 1551 (2003). 
     If you're reading the SSRN version (sign up is FREE) of the paper, read pages 17-27.  If you're reading the Westlaw version of the published article, read pages 1567-1578.
Chapter III, Section VI of Lysander Spooner, An Essay on the Trial by Jury (1852), discussing English (later, British) coronation oaths   
    YouTube of QEII's coronation (1953) (the part of the oath we've discussed begins at 4:25 and takes about 30 seconds)
Recommended (browse):
    History of the Brtish monarchy (official website)
    John Hasnas, Hayek, the Common Law, and Fluid Drive, 1 NYU J. L. & Liberty 79 (2005), especially sections I & II (approximately 17 pages)
    Tom W. Bell, Polycentric Law, Humane Studies Review (Winter 1991-92).  For more, go to www.tomwbell.com/writings.html and scroll down to "Various other legal issues"
    Daniel Klerman, Jurisdictional Competition and the Evolution of the Common Law, 74 U. Chi. L. Rev. 1179 (2007).


June 10 (T).  Our English inheritance
(private property, freedom to contract, rule of law/limited government I).
Quote of the day:  "The liberties of our country, the freedom of our civil Constitution, are worth defending at all hazards; and it is our duty to defend them against all attacks.  We have received them as a fair inheritance from our worthy ancestors: they purchased them for us with toil and danger and expense of treasure and blood, and transmitted them to us with care and diligence."  (Samuel Adams, 1771) (emphasis added)
Charter of Liberties of Henry I (1100) -- especially paragraph 13.  The Charter "is important in two ways. First, Henry formally bound himself to the laws, setting the stage for the rule of law that parliaments and parliamentarians of later ages would cry for.  Second, it reads almost exactly like the Magna Carta, and served as the model for the Great Charter in 1215."
Magna Carta (1215) – especially paragraphs 39 & 40.
Petition of Right (1628) – Sound familiar?
Bill of Rights (1689) -- Sound familiar?
Act of Settlement (1701) -- especially section III, paragraph 7 (re: judges)
Recommended (browse):
   
The Evolution of Parliament including The Glorious Revolution
    Stanford Encyclopedia of Philosophy on John Locke and his Second Treatise of Government
  

June 11 (W).  A civics refesher (private property, freedom to contract, rule of law/limited government II).
Quotes of the day:  "[I]n the beginning all the world was America . . . ."  (John Locke, Second Treatise on Government (1689), chapter V.)
"To live under the American Constitution is the greatest political privilege that was ever accorded to the human race." (Calvin Coolidge, 1924)
William Bradford, Of Plymouth Plantation (1623)
Tom Bethell, How Private Property Saved the Pilgrims (1999)
Look over 13 Originals: Founding the American Colonies (website)
Declaration of Independence
The Federalist Nos. 10 and 51
US Constitution
Lawrence Solum on the is/ought distinction and the difference between positive and normative legal theories
Read the definitions of "negative rights" and "positive rights" in the Glossary 
Essay on the distinction between negative rights and positive rights
Review these five state common law "reception statutes"  (Do you see any differences between the Alabama statute and the others?)
Rcommended (browse):
    Richard Pipes, Private Property, Freedom, and the Rule of Law (2001)
    The English Legal Foundations of American Liberty -- A Tale of Contingency  (Albion's Seedlings, May 6, 2006)
    Also Separated at Birth? (Chicago Boyz, July 8, 2006)
    How America Is Alike -- and Different (Albion's Seedlings, July 8, 2006)
    21-question Constitutional scavenger hunt


June 12 & 13 (Th & F).   Defining property rights: Private property and prosperity.

Quote of the day:  Private property is "that sole and despotic dominion which one man claims and exercises over the external things of the world, in total exclusion of the right of any other individual in the universe."  (William Blackstone, 1765)
Schoolmasters' Case (1410)
Keeble v. Hickeringill (Q.B. 1707) -- handout
Pierson v. Post (N.Y. 1805)
Ghen v. Rich, 8 F. 159 (D. Mass 1881) (via TWEN, under "course materials" tab)
Recomended (browse):
    Daniel Ernst, Pierson v. Post: The New Learning (2009).
    Web resources on William Blackstone and the Economic Freedom Network
*  June 14, 1645 -- The turning point in the English Civil War:  Charles I's army defeated by Parliament's New Model Army (commanded by Lord Fairfax) at the Battle of Naseby.
*  June 15, 1215 -- King John "agrees" to the Magna Carta.



June 16 (M).
  The pressure to settle revisited: An introduction to the Coase Theorem.
Homework assignment:  The Miami Beach Problem
Review settlement model, numerical problem(s)
Fontainebleau Hotel Corp. v. Forty-five Twenty-Five, Inc., 114 So.2d 357 (1959).
Coase Theorem  (the cornerstone of “the economic analysis of law”)
Recommended (browse):
    Web resources on Ronald Coase here and here
    

June 17 (T).  Gains from trade and contract law I.

Bruce Benson, The Spontaneous Evolution of Commercial Law, 55 S. Econ. J. 644 (1989).
Web resources on Lord Mansfield
Mitchel v. Reynolds (K.B. 1711) -- handout
Recommended (browse):
    Leonard Reed, I, Pencil (1958)
    Paul Rubin, Folk Economics, 70 S. Econ. J. 157 (2003) (another source) and discuss survey results.


June 18 (W).  Gains from trade and contract law II. 
Lake River Corp. v. Carborundum Co., 769 F.2d 1284 (7th Cir. 1985) (Posner, J.)
Lawrence Solum on "Default Rules and Completeness" (a good review)
Recommended (browse):
    The Becker-Posner Blog and Project Posner
    Kozinski opinions in Trident Center v. Conn. Gen. Life Ins. Co., 847 F.2d 564 (9th Cir. 1988)
        and Morta v. Korea Ins. Corp., 840 F.2d 1452 (9th Cir. 1988).
    Rent control case (California)?


June 19 (Th):  Ganins from trade and contract law III.
Walgreen Co. v. Sara Creek Property Co., 966 F.2d 273 (7th Cir. 1992).


June 20 (F).   Torts I:  Accidents and negligence.
United States v. Carroll Towing Co., 159 F.2d 169 (2d Cir. 1947) (Hand formula for negligence).
Look over this web page on Jeremy Bentham, and read this short note
*   June 21, 1788 -- New Hampshire becomes the ninth State to ratify the U.S. Constitution, bringing the document into force pursuant to Article VII.


June 23 (M).  Torts II:  Comparative negligence and products liability.
Greenman v. Yuba Power Products, Inc., 377 P.2d 897 (Cal. 1963) (products liability).
Li v. Yellow Cab Co., 532 P.2d 1226 (Cal. 1975) (comparative negligence).
Note on Natural Rights and Utilitarianism


June 24 (T).  Review.  
Paul Rubin, Micro and Macro Legal Efficiency: Supply and Demand, 13 Sup. Ct.  Econ. Rev. 19 (2005) (also via TWEN, under "course materials" tab)


June 26 (Th).  Final exam, 9:00 -12 Noon, Room ___.

                                                                    ________________


                            "It is better to ask some of the questions than to know all the answers."
                                                                    -- James Thurber

                            "Judge a man by his questions rather than by his answers."
                                                                    -- Voltaire


                                                                    ________________

** Post-exam reading list for the rest of your summer --

Recommended:
    Frederick Schauer, Do Cases Make Bad Law?, 73 U. Chi. L. Rev. 883 (2006)
    Kenneth Dam, Legal Institutions, Legal Origins, and Governance (2006)
    Kenneth Dam, The Judiciary and Economic Development (2006).
Recommended especially for MCL students:
    Rafael La Porta, et al., The Economic Consequences of Legal Origins, 46 J. Econ. Literature 285 (2008).
    Daniel Klerman & Paul G. Mahoney, Legal Origin?, 35 J. Comparative Econ. 278 (2007).

**  If you're interested in doing additional study of the topics we've explored in this course, click here for my "Further Reading" list complete with links to most of the titles I've listed.  **
 

Samford University complies with Section 504 of the Rehabilitation Act and the Americans with Disabilities Act.  Students with disabilities who seek accommodations must make their request by contacting the Advisor for Students with Disabilities, located in Counseling Services on the lower level of Pittman Hall, or by calling 726-4078.  A faculty member will grant reasonable accommodations only upon written notification from the Advisor for Students with Disabilities.
 
Last updated June 25, 2014.

All original materials Copyright (c) 2007-14  Michael E. DeBow.