Introduction to law for second-year law students?

Journal of Legal Education

Volumn 46, Issue 3, 1996, Pages 430-444

  Watson, Alan ^a  

^a UNIVERSITY OF GEORGIA   (United States)

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EID: 21444458069     PISSN: 00222208     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (66)

1. Extending the Grasp of the Dead Hand: Reflections on the Origins of the Rule Against Perpetuities, 126 U. Pa. L. Rev. 19, 20 (1977).
2. The Rule Against Perpetuities, 4th ed., ed. Roland Gray, 191 (Boston, 1942).
3. I tried the questions today, September 7, 1995. I got no answers.
4. What we regard as feudal law results in fact from the breakdown of the feudal system. See Alan Watson, Roman Law and Comparative Law 141-46 (Athens, Ga., 1991).
5. For Germany the Bürgerliches Gmelzbuch § 2100 allows the possibility of a substitute heir after another had first been heir. Section 2101 declares that if a person unborn at the time of succession is named as heir, then in case of doubt that person is regarded as a substitute heir. Section 2109 prohibits, with exceptions, vesting in a substitute heir thirty years after the succession opened. The problems of the Rule Against Perpetuities are avoided. Cf. Otto Palandt, Bürgerliches Gesetzbuch, 14th ed. (Munich, 1995) on these articles.
6. For the absence of any equivalent in Scots law, see generally Robert Burgess, Perpetuities in Scots Law (Edinburgh, 1979).
7. The answer lies in the history of English land law, in tradition, and in the self-interest of practitioners.
8. See A. W. B. Simpson, A History of the Land Law, 2d ed., 81-102 (NewYork, 1986).
9. Y. B. 20 Edw. 3 (R. S.), pt. 2, at 202 (ed. & trans. Luke Owen Pike);
10. Cf. Simpson, supra note 8, at 84.
11. Taltarum's Case (1472), Y. B. 12 Edw. 4, Mich., fo. 14, pl. 16, fo. 19, pl. 25;
12. Edw. 4, Mich., fo. 1, pl. 1;
13. Cf. Simpson, supra note 8, at 129-32.
14. See Simpson, supra note 8, at 215-17.
15. See Haskins, supra note 1, at 20-46;
16. Simpson, supra note 8, at 208-41.
17. For arguments pointing to an answer in the positive, see Watson, supra note 4, at 97-110.
18. I am assuming that it is a reasonable desire of owners to want to exercise some control over their property after their death. That view would be generally acceptable in the U. S. today. But many societies, e.g., France for long before the Revolution and the code civil, have refused to recognize testate succession.
19. Except in a state where the wait-and-see doctrine applies.
20. For my argument, see Watson, supra note 4, at 221-14;
21. Alan Watson, The State, Law and Religion: Pagan Rome 63-72 (Athens, Ga., 1992).
22. Pepper v. Hart, [1993] A. C. 593.
23. For paragraphs 7, 8, and 9
24. See William Ewald, Comparative Jurisprudence (II) : The Logic of Legal Transplants, 43 Am. J. Comp. L. 489 (1995), and works cited therein.
25. Property, 3d ed., 103 (Boston, 1993). In no sense do I concentrate on that book, because I regard it as the worst among the casebooks. On the contrary, it is the one I use most when I teach Property. The approach does not differ much from casebook to casebook, nor from property to contracts to torts. Moreover, according to a flier from the publisher, Dukeminier and Krier's book is "Universally Admired for its Teachable and Engaging Presentation of Property Law," and is adopted at more than 150 law schools.
26. For a rather similar critical approach to the casebook method but with regard to the very special issue of casebooks on comparative law, see William Ewald, Comparative Jurisprudence (I) : What Was It Like to Try a Rat? 143 U. Pa. L. Rev. 1889, 1966-75, 1985 (1995). I agree completely with him (and have long held the opinion) that these books desperately misrepresent the spirit of continental European law.
27. 3d ed., ed. Walter B. Raushenbush, 19-23 (Chicago, 1975).
28. The reader will notice here, as elsewhere, the fine Australian hand of Mr. Justice Derrington.
29. 1 Strange 505, 93 Eng. Rep. 661 (K. B. 1722)
30. In Dukeminier & Krier, supra note 19, at 104.
31. [1945] K. B. 509, in Dukeminier & Krier, supra note 19, at 107-14.
32. McAvoy v. Medina, 93 Mass. (11 Allen) 518 (1860)
33. Is discussed by Dukemenier & Krier, supra note 19, at 114-16, but it need not be treated in this article.
34. It does, as a matter of fact.
35. The Byzantine emperor Justinian would strongly disagree with such an opinion. His Institutes was at the same time statute law and a textbook for first-year students. It was expressly designed to make the approach to law easy for beginners. Institutes 1. 1. 2. Has this purpose anything to do with the success of the Institutes as a teaching tool over many centuries and in many lands? For the view that, without the Institutes, the shape of modern law in the U. S. as well as in continental Europe and Latin America would be very different, see Alan Watson, The Importance of "Nutshells," 42 Am. J. Comp. L. 1 (1994).
36. 3 Cai. R. 175
37. Am. Dec. 264 (N. Y. Sup. Ct. 1805).
38. Even if the previous cases then have to be reinterpreted.
39. It should be remembered how few American law reports there then were.
40. Now known as the Corpus Juris Civilis.
41. Dukeminier & Krier, supra note 19, at 24. Interestingly, the casebook's authors have escalated the obscurity of the works cited in the case from their treatment in the second edition.
42. See id., 2d ed., 19 (Boston, 1988).
43. See generally Ewald, supra note 18.
44. For another property case that is just as instructive for the use of authority and for legal transplants, see Nebraska v. Iowa, 143 U. S. 359 (1891). In its turn, this case is cited with approval in the Scottish case of Stirling v. Bartlett, 1993 SLT 763.
45. Cf. Michael H. Hoeflich, Roman Law in America (forthcoming).
46. See Alan Watson, Aspects of Reception of Law, 44 Am. J. Comp. L. 335 (1996).
47. 2 Am. Dec. at 265. And other cases were irrelevant because they arose between huntsmen and the owners of the land they hunted.
48. De jure belli ac pacis 2.2.5. The proposition was, of course, a commonplace even long before. See Bartolus, on Justinian's Code 1.4, De summa trinitati, gloss Quad si Bononiensis § 19.
49. The use of Roman law gives rise to particular questions in this context. The Corpus Juris Civilis was statute law of the Byzantine empire, but was widely regarded elsewhere as authoritative or influential. And Justinian's Code contained the legal replies of previous emperors.
50. See Brian Seymour Vesey-Fitzgerald, Town Fox, Country Fox 89 (London, 1973).
51. Perhaps nowhere more clearly than in Chapter 9 of The Landleaguers, of which publication began in 1882.
52. See, e.g., Anthony Trollope, The American Senator chs. 3-4 (publication began in 1876).
53. See J. K. Anderson, Hunting in the Ancient World 83-100 (Berkeley, 1985). The emperor Hadrian's (117-138) passion for hunting made the activity even more fashionable.
54. Id. at 101-21. Later, Nemesianus dedicated his Cynegetica, a treatise on breeding and training dogs, to the emperors Carinus (283-285) and Numerianus (283-284).
55. Id. at 139-41. A mosaic of circa A. D. 200 from Roman North Africa shows hounds coursing after hare and fox.
56. Id. at 98. I have a Roman oil lamp whose disc shows a hunter holding his horse's bridle in his left hand, a hare in his right, while his hound prances at the horse's hooves.
57. See Robert Stevens, Law School: Legal Education in America from the 1850s to the 1980s 51-72 (Chapel Hill, 1983);
58. William P. LaPiana, Logic and Experience: The Origin of Modern American Legal Education 22-28 (New York, 1994).
59. I should not be understood as claiming that cases should not be studied-only that the present method of study is entirely unsatisfactory. If contemporary law review articles are so much ignored in teaching in part because of the casebook approach, then that approach is to be applauded. If the present nature of law review articles is in part because of the casebook approach, then that approach is to be condemned.
60. They also stress the relevance and importance of rhetoric in law school instruction. But then why not have a class or classes specifically on rhetoric?
61. Moreover, the teachers' manuals put out by casebook authors do not seem to envisage professors using the books to teach the theoretical underpinnings.
62. See Watson, supra note 16, especially 91-93.
63. For examples of legal development that clearly show the impact of legal elites' being blinkered by what they know, see Alan Watson, The Evolution of Law 3-42 (Baltimore, 1985), especially 32-12.
64. Cf. Alan Watson, The Spirit of Roman Law 33-34 (Athens, Ga., 1995).
65. 72 Chi.-Kent L. Rev. (forthcoming).
66. 65 Fordham L. Rev. (forthcoming, 1997).