Monday, May 14, 2012

Yale's Student Legal History Papers

I was intrigued to learn over the weekend that the Yale Law School has a special series for student papers on legal history in the Yale Law School Legal Scholarship Repository.  The two contributions to Student Legal History Papers in 2012.  The two submissions from 2012 are:

No Adequate Remedy at Law: Equity in Massachusetts 1692-1877, by Phyllis Maloney Johnson
Although Massachusetts became the leading jurisdiction for trust law in the United States across the nineteenth century, it never established a separate court resembling the High Court of Chancery in England. This Article asks how the judicial system of Massachusetts functioned without a separate court of chancery. The Article explains that Massachusetts managed by gradually integrating the distinctive elements of English equity into its common law courts. Beginning in the 1690s, the legislature passed laws authorizing components of equity for use in the common law courts. By 1836 the commonwealth's Supreme Judicial Court could oversee discovery, entertain cases with multiple parties, and grant injunctions and- specific performance. The court could also administer certain areas of substantive law, including trust, guardianship, and settlement of estates, that in England belonged to the jurisdiction of the Court of Chancery. Thus, the Supreme Judicial Court had concurrent jurisdictions in law and equity early in the nineteenth century. In this respect the court resembled the federal courts before the merger of law and equity in the Federal Rules of Civil Procedure in 1938. The long process of adding the powers and substantive law of equity to the common law courts of adding the powers and substantive law of equity to the common law courts of Massachusetts ended in 1877, when the legislature granted the Supreme Judicial Court general equity jurisdiction.
The Origins of the Oral Deposition in the Federal Rules: Who's in Charge? by Ezra Siller
This paper traces the origins of the oral deposition in the Federal Rules of Civil Procedure ("Federal Rules") with an emphasis on the role of the officer in charge of the deposition. In Parts II and III, I document the origins of the deposition, drawing on published sources. In Parts IV and V, I draw upon unpublished sources regarding the 1930s Advisory Committee's decision not to provide for a judicial officer who would have the authority to rule on the admissibility of evidence during the deposition. That decision was an important, yet overlooked, element in the shaping of modern American civil procedure, including the displacement of civil trial by pretrial discovery. A striking attribute of the modern American deposition is that opposing counsel conduct the questioning in the absence of a judicial officer. The Advisory Committee that drafted the 1938 Federal Rules considered a proposal to provide deponents (both party witnesses and non-party witnesses) with the option of requesting a master to rule on the admissibility of evidence at the pretrial examination. According to archival sources, members of the Advisory Committee concluded that the systemic disadvantages of that proposal outweighed the advantages. I describe the historical origins of three salient features of the deposition: the near-absence of the rules of evidence; the presence of an "officer in charge" who has no power the rule on the admissibility of evidence; and the breadth of the permitted scope of inquiry. I discuss why the term "officer" is misleading: the examination is conducted entirely by adverse parties in the absence of a judge or a judge-like figure. The officer in charge is simply a stenographer or notary public who swears in the deponent and records the testimony; he or she exercises no adjudicatory function. 
The two submissions from 1996 are:

Public Law and Legal Education in the Nineteenth Century: The Founding of Burgess' School of Political Science at Columbia, by Alexa S. Bator
This paper discusses the founding of the School of Political Science at Columbia University by John W. Burgess in 1880. Burgess established the political science school after failing in his attempts to introduce a program of coursework in political science and public law at Columbia's School of Law. He hoped that the new school would supplement the private-law curriculum of the law school, with the particular aim of preparing students for a career in public service.
The Contracts Notes of Timothy Merwin: Earliest Evidence of Instruction at Yale Law School, by  Peter Stern
This paper discusses the contracts notes of one of the first students at the Yale Law School. The notes were taken in 1828, making them the earliest known evidence of the method of instruction employed by the law school's founders.
All four papers appear to have been written under the direction of John H. Langbein.  As long as papers meet standards comparable to those Professor Langbein sets for his students, such a series strikes me as a Good Thing.  Perhaps more of us should start them at our own law schools.

Update: I hear from the folks at YLS that more papers are to come on the site.

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