How Many Judges Does It Take to Make a Supreme Court?: And Other Essays on Law And the Constitution
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| How Many Judges Does It Take to Make a Supreme Court?: And Other Essays on Law And the Constitution | |||||||||||||||||||||||||||||
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Why do appellate courts always have an odd number of judges? And what does the answer tell us about changing concepts of law? How can common law be unconstitutional? Why does the power of judges depend on accurate court reporting?
Because legal education today has come to focus so much on teaching students "how to think like lawyers," some subjects do not fit comfortably in law school curricula. John Orth, a distinguished senior law scholar, here explores some of these neglected but important topics. His insightful volume invites students of the law to look at the origins of accepted legal practices as a means of gaining insight into the judicial role and the evolution of common law.
In six carefully reasoned and clearly argued articles, Orth presents the familiar in a fresh light. He considers, in addition to the questions already mentioned, how the centuries-old common law tradition interacts with statutory law-making, why claims that individual rights are grounded in common law are suspect, and how the common law uses what it learns about the past.
In considering these questions related to common law and its remarkable longevity, Orth illuminates both its interaction with written constitutions and its longstanding preoccupation with procedure and property. And by questioning the assertion that individualism was the cornerstone of common law, he deftly resolves an objection that liberal scholars sometimes raise concerning common law-its connection to the Lochner era of Supreme Court jurisprudence.
How many judges does it take to make a supreme court? As Orth observes, the institutional novelty of odd numbers of judges provided a means to break ties but did nothing to guarantee acceptance of their decisions. By demonstrating that what seems obvious about the law today was not always so, he cogently addresses changing perceptions of law and invites its future practitioners not only to think like lawyers but also to be more fully grounded in the law. |
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| 10-27-06 | 5 | (NA) |
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This is a collection of six loosely-connected essays relating to legal history and the development of the common law. The author is professor of law at North Carolina, Chapel Hill, and one of best informed and well-grounded legal scholars writing today. His interests are broad and it shows in this book. The book contains footnotes, and I would disagree with the author that the general reader should ignore them--I found them quite helpful. Essay I asks the interesting question as to why English judges don't necessarily sit in odd number panels, the way American appellate judges almost certainly do. Does this indicate that we have a greater expectation of policy issues being encased within legal issues that will cause disagreement? Perhaps, courts of even-numbered judges would encourage collaboration of counsel with the court more than occurs here. The second essay is on judicial reports, and how sometimes imprecise reports can help courts adjust the law (witness Lord Mansfield), while on yet other occasions precise and unequivocal opinions (especially if they are unitary) can enhance judidicial power (ala John Marshall). Orth suggests this technique is one reason Marshall was able to make the Court a co-equal branch--quite an interesting essay. The third essay, on English v. American views of judicial review, raises a question about which I had never thought--can decisions abrogating long-standing common law principles constitute unlawful takings under the Constitution? The final two essays focus on the flexibility and adaptability of the common law, and how this flexibility has allowed a system without a prescribed system of rules (such as in civil law systems) to adapt and keep pace with societal change. Considering that for centuries the common law was basically focused on property and procedure, with tort and contract emerging relatively late in its history, and yet still functions so well today, this essays provides quite an interesting perspective. Informative, stimulating and fun to read to boot.
(Review Data Last Updated: 2008-07-19 06:30:46 EST)
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