On sabbatical leave this term.
Mike Macnair is Tutor in Law at St Hugh's College. Teaching Fields: History of English Law, Roman Law, Land Law, Torts
The article argues that the 'unlawfulness' of industrial action at common law is the product of judicial bias; and that there are institutional reasons in the structure of the legal system to suggest that such bias is ongoing and will be applied to any legislative framework
This article offers a schematic outline hypothesis of a Marxist approach to freedom of communication. It argues for an approach in terms of freedom of communication, not freedom of speech, of the press, or of expression. The analysis of the political economy of communication under capitalism has to be placed within the frame of historical materialism, therefore beginning with communicative behaviour as an aspect of the human ‘species-being’. The contradictions of class societies in general generate contradictory relations to control of communication, and the rise and fall of particular class societies (and conversely the fall and rise of state forms) produces temporal variability in state communication controls. Within this general frame what is specific to capitalist society is the operation of processes of concentration of capital on the means and nodes of communication, producing monopolistic ‘market’ control. The problems this regime creates for the proletariat as a class pose the problem of freedom of communication in abstraction from class ordering as an immediate, practical present problem for working class organisation.
M R Macnair, 'Law and State as Holes in Marxist Theory' (2006) 34(3) Critique 211
M R Macnair, 'The Court of Exchequer and Equity' (2001) 22(3) Journal of Legal History 75 [...]
Reviews three books on the sources for the equity jurisdiction of the Court of Exchequer and considers what these tell us about the evolution of the jurisdiction. Also considers issues in relation to methods of classification for legal-historical statistics.
M R Macnair, 'Arbitrary Chancellors and the problem of predictability' in Willem Zwalve & Egbert Koops (eds), Law and Equity: Roman Law and Common Law approaches (Brill 2013) (forthcoming) [...]
Roman law experienced concerns about arbitrary decision-making by Praetors. English equity being much more recent, we have much better evidence both for actual arbitrary decision-making by Chancellors, and for concerns about arbitrary decision-making by Chancellors. The remedies adopted, however, are profoundly different. The Romans made the Edict more like the Twelve Tables - a code. The development of English law, in contrast, made equity more like the common law: a system based on the communis opinio of a narrow group of advocates (in the case of modern Chancery equity, the specialist Chancery bar), expressed in the heavy use of precedent and case reporting, modified by particularistic statutes, and governed by collegiate courts of review or (in modern times) appeal. The eventual upshot is that modern ‘Chancery bar equity’ is perhaps the least ‘equitable’, in the Aristotelian ἐπιείκεια sense of ‘flexible’, branch of English law.
M R Macnair, 'Sham: early uses and related and unrelated doctrines.' in Edwin Simpson and Miranda Stewart (eds), Sham Transactions (OUP 2013) (forthcoming) [...]
‘Sham’ is a late 17th century slang expression which passed into legal usage in the 1690s, first becoming a term of art in the contexts of ‘sham pleas’, and a bit later in that of ‘sham bidders’ at auction. Beyond these contexts it is not apparent that it had become a term of art before the 1850s, though there is some evidence of restrictive interpretation at that period and down to 1875. The related doctrines, which were very extensive and hence can be discussed only very briefly, are the late medieval doctrine of ‘colour’ in pleading, and its offshoot, the description of actions and transactions some of which might have been called ‘shams’ as ‘merely colourable’; ‘fraudulent conveyances’ of goods under Statute 3 Hen. VII c. 4 (1487), and of land under the Elizabethan statutes 13 Eliz. I c. 5 (1571) and 27 Eliz. I c. 4 (1585), ‘fraud apparent’ as an expression for avoidance schemes in revenue and regulatory contexts, and ‘fraud on the law' (fraus legis) [e.g. ‘fraud on the bankrupt laws’] . An example of an unrelated doctrine which, however, also produces the result that transactions are not what they seem to be, is the old property law dogma that a licence to occupy land (not consistent with the licensor remaining in occupation) is ipso facto a lease. This dogma was established in the late 15th century, apparently on numerus clausus grounds, and continuously accepted until the early 20th. Its entanglement with ‘sham’ in Street v Mountford and AG Securities v Vaughan appears to be the result of counsel and judges in those cases not appreciating the age or the scope of the doctrine on the basis of the very summary use in Glenwood Lumber v Phillips.
M R Macnair, 'Coke v Fountaine (1676)' in Charles Mitchell & Paul Mitchell (eds), Landmark Cases in Equity (Hart 2012) (forthcoming) [...]
Though commonly cited in modern equity books, Lord Nottingham's decision in Coke v Fountaine was only reported by Lord Nottingham himself and was not cited until Swanston printed Lord Nottingham's report in 1827 - though other aspects of the litigation were reported and cited. This chapter examines why this was the case, working through the background to the litigation and its complex multiple character, concluding that Lord Nottingham's decision 'turned on its own facts,' and in so far as it was worth citing, was obscured by the passage in the following year of the Statute of Frauds.
M R Macnair and J Getzler, 'The firm as an entity before the Companies Acts' in Paul Brand, Kevin Costello & W.N. Osborough (eds), Adventures of the Law: Proceedings of the Sixteenth British Legal History Conference, Dublin 2003 (Four Courts Press 2005)
Oxford DNB biographical outline of Sir John Comyns, Chief baron of the Exchequer (revise of existing old DNB text)
Oxford DNB biographical outline of Sir Jeffray Gilbert, Chief Baron of the Exchequer (new article)
Oxford DNB biographical outline of George Hill, lawyer & eccentric (revise of old DNB text)
M R Macnair, 'Lord King and Lord Talbot: An Eighteenth Century Attempt to reduce delay in Equity and its general lessons' in C.H. van Rhee (ed), The Law's Delay : Essays on Undue Delay in Civil Litigation (Intersentia 2004)
M R Macnair, 'Talbot, Charles, first Baron Talbot of Hensol (bap. 1685, d. 1737)' in Oxford Dictionary of National Biography (Oxford University Press 2004) [...]
Oxford DNB biographical outline of LOrd Talbot, Lord Chancellor 1734-37 (new article)
M R Macnair, 'Equity and Conscience' (2007) Oxford Journal of Legal Studies
M R Macnair, 'Review of Paul D Halliday, Habeas Corpus: From England to Empire' (2011) 29 Law & History Review 629