LAW 677 - History of the Common Law Seminar

Fall (2-3) Thomas McSweeney

We use the term “common law” to refer to the Anglo-American legal system as a whole, but England and early America were actually patchworks of competing legal systems. There was no common law of marriage or probate, both of which came from canon law, or of trusts, which came from equity. Devices like the fee tail, which we think of as ancient common law, were actually statutory. Judicial review might have its origins in the relationship between England and the colonies, not in traditional common law doctrines, and an important point of debate after 1789 was the degree to which the U.S. constitution had either abrogated or adopted the common law. Over time, most of these competing legal systems have been incorporated into the system we know as the common law. In this course, we will examine the history of the common law from its beginning in the 12th century to the present by looking at its interaction and competition with these different systems of law. We will read and discuss both primary and secondary sources. Grading will be based on class participation and the written work submitted.