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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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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.