PANEL: Substance and Procedure in the Premodern English Trial
Friday, October 23, 1:30-3:00
Chair: Thomas P. Gallanis, Ohio State University School of Law
This panel brings together two papers united by a common question: how did rules develop in England to govern the procedure and substantive outcome of trials at common law?
Professor Seipp tackles the development of substantive rules by analyzing the tension between the fact-finding and law-declaring functions of the late medieval trial. He argues that individual judges and juries tried to foist responsibility onto each other, and that jurors' reluctance to choose among competing substantive rules forced judges to do so, thereby helping to create a truly "common" law applied throughout the country.
Professor Friedman and Dr Macnair address developments on the procedural side by examining the rule against hearsay. When and how this rule cohered has been a matter of recent debate; together, Friedman and Macnair argue for an account more nuanced than the ones offered by Wigmore, Landsman and Langbein. Emphasizing the rule's lengthy and piecemeal evolution, they contend that the foundations of the confrontation right were well-established by the middle of the 17th century; the hearsay rule in its modern form, however, did not cohere until the early 19th century.
Judge Scarcity, Jury Discretion, and the Rules of Law
David J. Seipp, Boston University School of Law
This paper draws on work by John Dawson and David Millon. It deals with English common law courts in the fourteenth and fifteenth centuries.
Dawson, in his Lay Judges and Oracles, focused attention on the tiny number of royal judges and the corresponding importance of juries. There were not enough judges to decide all the cases within the jurisdiction of the royal courts, so the early common law system relied enormously on juries to answer its questions and on lawyers paid by the parties to narrow down the questions to be answered.
Millon, in his article in the Wisconsin Law Review, has more recently suggested that there were few effective mechanisms for correcting jury verdicts that misapplied the law to the facts; he has also emphasized the degree of jury discretion to make ad hoc decisions or local rules, especially for tort and criminal liability. Other factors increasing jury discretion, I will suggest, were the paucity of judges and the rapidity with which they had to take jury verdicts at nisi prius.
My paper will suggest that, in the typical case, juries did not want discretion to decide the rules to apply. I will suggest that jurors likely feared retribution from parties and supporters who were disappointed by the verdict. Jurors wanted to shift the blame and to dissociate themselves, insofar as possible, from collective responsibility for the decision. I will discuss the limitations of my sources (year books and plea rolls) to confirm or refute my suggestion about the jury's predicament.
I will further suggest that there is some evidence that juries sometimes asked judges to take responsibility for the verdict and that judges refused to do so. Juries wanted fixed, known rules of law on which they could fix responsibility for the decisions they were forced to make. Just as there was one true set of facts, there was one right rule to be applied to those facts. Juries hungered for law, and their predicament helped to create a common law for England.
The Emergence of the Rule Against Hearsay
Richard D. Friedman, University of Michigan School of Law
Michael R.T. Macnair, Department of Law, University of Lancaster
The law of hearsay is one of the most significant aspects of the law of evidence in common law jurisdictions, with important effects on trial procedure and on the body of information presented to the factfinder. Associated with it is the right, protected by the Sixth Amendment to the Constitution, of a criminal defendant to confront the witnesses against him.
Historians of evidence have tended to view the emergence of the rule against hearsay as having occurred largely in one piece. Wigmore located the years 1675-1690 as the critical period, and Holdsworth largely followed Wigmore's account. More recently, Langbein and Landsman, emphasizing records from the early and mid-18th century, have suggested that the critical developments occurred later than Wigmore believed.
In our view, the story is richer and more complex than might be inferred from these accounts -- which, to a significant extent, we reconcile. What we now know as the law of hearsay developed in different pieces and at different times, some well before the time on which Wigmore focuses and others well after the time on which Landsman and Langbein focus. Indeed, it was not until the early 19th century that the modern conception of hearsay was articulated, as the various strands of development began to merge.
Comment: The Chair
James C. Oldham, Georgetown University Law Center
Israel's Early Social Legislation Tailored to Match
Ron Harris, Faculty of Law, Tel Aviv University
The Israeli Labor party seems, in the late 1990s, to be more alienated than it ever was from the working class and the poor. Its social and economic platform does not reflect a socialist ideology much more than that of the Likud party. Its electorate is mostly middle and upper class. The question is: when and why did it cease to be a socialist party preferred by proletarian electorate? The question bedevils historians ever since 1977, the year when the Labor Party was ousted by the voters for the first time in the history of Zionism.
I shall focus on the early 1950s, the years following Independence, as a period with a potential of furnishing new insights for dealing with the historical question presented above. The first decade was a unique, one time, opportunity for the Labor movement, and its dominant party, MAPAI, to implement socialist legislation in a new state and a new society, not yet infected by bourgeois legal system and capitalist vested interests.
A brief glance at the statute book of the first decade reveals that within a six-year period, 1951-57, over ten major statutes were passed in the fields of individual labor law, collective labor law, and social security. This extensive social legislation is often presented as a vindication of MAPAI as a genuine socialist or social-democrat party past 1948.
I shall critically examine this standard narrative and claim that the early social legislation in fact favored the strongest socio-economic group in contemporary Israeli society, organized and unionized white collar and skilled blue collar, who held secure job, with institutional employers, and were mostly Jewish, male, of European origins, who immigrated to Israel before the 1930s. Suggested legislative items that could benefit disadvantaged groups: women, Arabs, new immigrants, non-unionized, unemployed, were buried.
If that indeed was the case, as I assert here, then the implementation of this non-socialist or less socialist legislation was due to affect Israel's class stratification, political alignment and the electoral base of the Labor parties in future years.
Comment: Eben Moglen, Columbia University Law School