Authors: Arthur T. Von Mehren, Peter L. Murray
ISBN-13: 9780521617536, ISBN-10: 0521617537
Format: Paperback
Publisher: Cambridge University Press
Date Published: January 2007
Edition: 2nd Edition
Arthur T. von Mehren (1922-2006) was Professor of Law Emeritus at Harvard Law School. He represented the United States for 38 years in the Hague Conference of Private International Law. He wrote 210 publications in English, French, Spanish, Italian, German, and Japanese. They include the groundbreaking Civil Law System, his pioneering two books and nine articles on Japanese law, his highly original Law of Multistate Problems, his foundational monographs on contract formation and form, his articles on jurisdiction, and his award-winning Hague lectures.
Peter L. Murray is the Robert Braucher Visiting Professor of Law from Practice at Harvard Law School. He served as the Faculty Director of the Harvard Legal Aid Bureau and continues to serve as Director of the Winter Trial Advocacy Workshop. He is the author of Basic Trial Advocacy, an advocacy training treatise; a co-author of Green, Nesson and Murray's Problems, Cases, & Materials on Evidence, and an author and co-author of many legal articles. He has worked extensively in comparative law, with particular reference to civil procedure in Germany and Europe.
Book Synopsis
This book is about the American legal system for jurists of civil law backgrounds.
Table of Contents
Preface xiii
The Sources of American Law 1
Historical Roots 1
Allocation of Authority to Create and Adapt Legal Rules and Principles 5
The Judicial Decision 7
Legislation 14
Court Rules 19
Secondary Sources 20
Finding American Law 23
American Common Law 27
The Two Western Legal Traditions 27
The Reception of the Common Law on the North American Continent 32
The Post-Revolution Development of American Law 35
Common Law Reasoning and Analysis 40
Public Policy and Legal Decision Making 40
Precedent and Case Distinctions 42
Overruling and Departing from Precedent 45
American Common Law at the Beginning of the Third Millennium 46
An Example of the Common Law in Action 47
Comparative Perspectives on American Contract Law 71
Looking at Law Comparatively 71
Comparative Law Methodology 72
Contract Law - Offer and Acceptance 76
The Common Law of Offer and Acceptance 76
Comparative Analysis 78
The Doctrine ofConsideration 82
The Common Law Doctrine of Consideration 83
The Problem of Unenforceability, Relative and Absolute 85
Delineating Transaction Types Unenforceable in Their Natural or Normal State 86
Classifying Individual Transactions to Determine Whether They Fall Within an Unenforceable Transaction Type 87
Determining and Devising Extrinsic Elements Capable of Rendering Enforceable Otherwise Unenforceable Transactions 93
The Problem of Abstractness 97
The Screening of Individual Transactions for Unfairness 98
Conclusion 99
American Federalism 103
The American Governmental Scene Prior to the Constitution of 1789 104
The Federal System Established by the U.S. Constitution 105
The Spheres of Federal and State Authority - Interstate Commerce 108
The Federal and State Judicial Systems 116
Interaction between the State and Federal Systems of Justice 120
American Federalism Compared 131
American Constitutional Law and the Role of the United States Supreme Court 134
Introduction 134
The Supreme Court's Threefold Role 137
The Supreme Court's Institutional Character 138
The Founding Fathers' Understandings Respecting the Supreme Court's Role 140
The Court as Balance Wheel of the Federal System: The Commerce Clause 145
The Court as Guardian of Individual Rights 146
The Court as Arbiter of the Allocation of Powers among the Branches of the Federal Government 149
The Court's Standing in American Society 154
American Constitutional Law Compared 159
American Civil Justice 162
The Role of Civil Justice in American Society 162
Civil Procedure and Adversarial Legalism 165
American Civil Procedure and the Continuous Trial 167
Fundamental Principles and Basic Institutional Arrangements 168
The Significance for First-Instance Procedure of Concentrated Trials 170
Further Procedural Characteristics Associated with Concentrated and with Discontinuous Trials 174
Civil Justice as Punishment? 179
Collective Litigation 182
American Criminal Justice 187
American Federalism and Criminal Law 189
Criminal Constitutional Review 191
The Adversary Criminal Justice System 194
The Prosecution Function 196
Criminal Justice and Jury Trial 200
The Death Penalty in the United States 202
American Trial By Jury 206
Historical Background of American Jury Trial 206
The Jury as Fact Finder and Case Decider 209
Selection and Composition of Juries 209
Function of the Jury at Trial 213
Rules of Evidentiary Admissibility 216
The Application of the Law in Jury Proceedings 219
Jury Deliberations 220
Accountability of the Jury and Review of Jury Determinations 222
The Role of the Judge in Jury Trial 224
The Role of Lawyers in Jury Trial 226
The Future of American Trial by Jury 227
Choice of Law, International Civil Jurisdiction, and Recognition of Judgments in the United States 231
Introduction 231
Choice of Law 233
Recognition and Enforcement of Foreign Judgments 237
Jurisdiction to Adjudicate 241
European-American Problems of Discovery and Taking of Evidence Abroad 246
The American Legal Profession 249
American Legal Education 251
The American Law School 252
The Law School Curriculum 254
American Legal Pedagogy 256
Clinical Legal Education and Law Reviews 258
Examinations and Grading 260
Transitions to Law Practice 261
Admission to the Bar 262
The American Legal Profession 263
Private Law Firms 264
Bar Associations and Regulation of the Bar 265
Legal Aid and Access to Justice 266
Lawyers' Fees and Compensation 268
The American Judiciary 269
The United States and the Global Legal Community 273
The American Legal System in World Context 274
American Private Law in the Modern World 278
American Litigation Abroad 282
American Public Law and the Modern Democratic World 285
America and the World Language of Law 287
American Legal Culture on the World Scene 288
America and World Public Law 291
America and the Legal World of the Future 294
Index 299
Subjects