May 28-June 24, 2014: Daily, 10:30-12:00; Room 123
Professor Michael DeBow
medebow AT samford DOT edu
Room 208, Robinson
Office hours: 1:00 - 2:00 and by appointment
Secretary: Ms. Erin Boggan, 726-2880, Room 202
Birmingham, Alabama 35229
The URL for this page is http://www2.samford.edu/~medebow/LegalProcess.html
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
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,
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
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
out by common sense, which has established what the parties
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
v. Langston, 143 S.E.2d 671 (Ga. App. 1965).
Read the definitions of "Mandatory rule" and "Default rule" in the
& Whitman on equitable conversion.
May 30 (F). What is "the rule of law"?
Solum, Legal Theory Lexicon, The
Rule of Law
Down the Law (Wall St. Journal, March
Makes Law Effective? (Times Higher Education
K.M. Ohnesorge, The
Rule of Law,
pp. 99-103 (Annual Review of Law & Social Science, 2007)
re: the rule of law
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
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
Intangible Riches, Reason, August/September 2007
Berch 5th ed. pp. 1-15 and 16-24 (corresponding pages in 4th edition:
Education in America: What
Have You Gotten Into?
You can download the World Bank study Bailey
("Where Is the Wealth of Nations?") by clicking
(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
Marc Galanter, The Vanishing Trial: An
of Trials and Related Matters in Federal and State Courts, 1 J.
Legal Stud. 459 (2004), marcgalanter.net/Documents/papers/thevanishingtrial.pdf
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)
state courts website
Trials website (Douglas O. Linder)
* June 5, 1723 -- Adam Smith born in Kirkcaldy,
June 6 (F). Class will not meet.
June 9 (M). Anglo-American
history, including the big
of the common law.
Quote of the day: "A London barrister of 1540,
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
corporate-law firm." (Norman F. Cantor, Imagining the Law (1997),
Look over the course's online Legal
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
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,
YouTube of QEII's coronation
(1953) (the part of the oath we've discussed begins at 4:25 and takes about 30 seconds)
of the Brtish monarchy (official website)
John Hasnas, Hayek,
the Common Law, and Fluid Drive, 1 NYU J. L. & Liberty 79
especially sections I & II (approximately 17 pages)
Tom W. Bell, Polycentric
Law, Humane Studies Review (Winter 1991-92). For more, go
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
them as a fair inheritance from our worthy ancestors: they
them for us with toil and danger and expense of treasure and blood, and
transmitted them to us with care and diligence." (Samuel Adams,
of Liberties of Henry I (1100) -- especially paragraph
The Charter "is important in two ways. First, Henry formally bound
to the laws, setting the stage for the rule of law that parliaments and
parliamentarians of later ages would cry for. Second, it reads
exactly like the Magna Carta, and served as the model for the Great
Carta (1215) – especially paragraphs 39 & 40.
of Right (1628) – Sound familiar?
of Rights (1689) -- Sound familiar?
of Settlement (1701) -- especially section III,
7 (re: judges)
Evolution of Parliament including The
Stanford Encyclopedia of Philosophy on John Locke
and his Second
Treatise of Government
June 11 (W). A
(private property, freedom to contract, rule of law/limited government
Quotes of the day: "[I]n
beginning all the world was America . . . ." (John Locke, Second
Treatise on Government (1689), chapter V.)
under the American Constitution is the greatest political
privilege that was ever accorded to the human race." (Calvin Coolidge,
William Bradford, Of
Plymouth Plantation (1623)
Tom Bethell, How
Private Property Saved the Pilgrims (1999)
Look over 13
Originals: Founding the American Colonies (website)
The Federalist Nos. 10
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?)
Richard Pipes, Private
Property, Freedom, and the Rule of Law (2001)
English Legal Foundations of American Liberty -- A Tale of Contingency
(Albion's Seedlings, May 6, 2006)
Separated at Birth? (Chicago Boyz, July 8, 2006)
America Is Alike -- and Different (Albion's Seedlings, July 8,
Constitutional scavenger hunt
June 12 & 13 (Th & F). Defining property rights: Private
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)
Keeble v. Hickeringill (Q.B. 1707) -- handout
v. Post (N.Y. 1805)
Ghen v. Rich, 8 F. 159 (D. Mass 1881) (via TWEN,
under "course materials" tab)
Daniel Ernst, Pierson
v. Post: The New Learning (2009).
Web resources on William
Blackstone and the Economic
* 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
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)
Hotel Corp. v. Forty-five Twenty-Five, Inc., 114 So.2d 357
(the cornerstone of “the economic analysis of law”)
Web resources on Ronald Coase here
June 17 (T). Gains from trade and contract law I.
Bruce Benson, The
Spontaneous Evolution of Commercial Law, 55 S. Econ. J. 644
Web resources on Lord
Mitchel v. Reynolds (K.B. 1711) -- handout
Leonard Reed, I,
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.
River Corp. v. Carborundum Co., 769 F.2d 1284 (7th Cir. 1985)
Lawrence Solum on "Default
Rules and Completeness" (a good review)
Blog and Project Posner
Kozinski opinions in Trident
Center v. Conn. Gen. Life Ins. Co., 847 F.2d 564 (9th Cir.
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.
Co. v. Sara Creek Property Co., 966 F.2d 273 (7th Cir. 1992).
June 20 (F). Torts I: Accidents and negligence.
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
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
v. Yuba Power Products, Inc., 377 P.2d 897 (Cal. 1963) (products
v. Yellow Cab Co., 532 P.2d 1226 (Cal. 1975) (comparative
on Natural Rights and Utilitarianism
June 24 (T). Review.
Paul Rubin, Micro and Macro Legal Efficiency: Supply and
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
-- James Thurber
"Judge a man by his questions rather than by his answers."
** Post-exam reading list for the rest of your summer --
Frederick Schauer, Do
Cases Make Bad Law?, 73 U. Chi. L. Rev. 883 (2006)
Kenneth Dam, Legal
Institutions, Legal Origins, and Governance (2006)
Judiciary and Economic Development (2006).
especially for MCL students:
Rafael La Porta, et al., The
Economic Consequences of Legal Origins, 46 J. Econ. Literature
Daniel Klerman & Paul G. Mahoney, Legal
Origin?, 35 J. Comparative Econ. 278 (2007).
** If you're interested in doing additional study of the
we've explored in this course, click
here for my "Further Reading" list complete with links to most of
titles I've listed. **
Samford University complies with Section 504 of the
Act and the Americans with Disabilities Act. Students with
who seek accommodations must make their request by contacting the
for Students with Disabilities, located in Counseling Services on the
level of Pittman Hall, or by calling 726-4078. A faculty member
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.