DOI: 10.1080/03017605.2011.537453

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

Epstein’s strict liability model of tort law, first stated in 1973, relied on arguments derived from the history of the common law, starting with the late medieval period and extending into the nineteenth century. Since that seminal article was published, legal historical scholarship has deepened our understanding of earlier tort law and brought many new sources to bear, and it has also uncovered a pervasive if quiet Romanistic influence on doctrinal development. None of this new work overturns Epstein’s historical intuitions, and his strict liability theory can continue to claim support in the practices of the older common law.

ISBN: 1932-9148

In the early nineteenth century, authoritative treatise writers such as Joseph Story represented Anglo-American trust law as a seamless web. But the transplantation of trusts law from England to America was not a simple process of adherence. Rather, American courts and legislatures came to discard fundamental doctrines of English trusts law, and by such genetic engineering mutated this body of law into a new breed. Restraints on anticipation and on alienation were embraced, and in key state jurisdictions bare trusts were abolished, or else displaced from the core of trusts law. Irreducible settlor power over beneficiaries and the strong protection of beneficiaries from creditors under spendthrift trusts were two strikingly original American creations flowing from these basic doctrinal choices. The changes made to American trust doctrine leads to a paradox for the legal, social and economic historian, namely that republican America ended up with more a dynastic property law, more wedded to the dead hand and more hostile to commercial creditors, than did aristocratic England with its unreformed system of common law and equity rooted in the feudal property system. This paper explains how the English slowly came to commit to relatively free alienability of beneficial interests and the enhancement of beneficiary's powers over trust assets, and then charts how Americans abandoned these commitments. Some fresh interpretations are offered as to why these divergences occurred, rooted in the volatility of credit in America and the desire of the wealthy to escape from the pressures of the market.

ISBN: 1565-1509

Examines the beginning of petitions to parliament in the reign of Edward I; their formal analyis; who the petitions were; and the evidence for how they were dealt with in early parliaments

ISBN: 748619755

Criticises Lobban's procedural vision of early 19th centiry law-equity fusion, and places the process within a context of substantive doctrine and wider law reform in England's commercialising economy.

ISBN: 0738-2480

One principal difference between the legal traditions of Scotland and England is that, while Scots lawyers have always been committed to a rational structure of the law, English lawyers have generally shown themselves indifferent to legal taxonomy. Nevertheless, Oxford’s Professor Birks has recently edited a treatise on English private law which in effect revives the long-standing Roman institutional scheme, thus ‘civilianising’ the common law and bringing it a step closer to Scots law, which has been relying on this map for centuries. This article sets out to evaluate the merits of his enterprise. To that effect, it primarily examines the triangular relationship between the taxonomies of Roman, English and Scots law.

ISBN: 0022-6785

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.

Paperback corrected edition of my monograph of 2004; see parallel entry.

ISBN: 0-19-920760-7

Edition and translation of the official records of the English parliament 1275-1307 with introductions to the surviving records and the parliaments of the period and appendices of related material

ISBN: 1-84383-161-9

My contribution to this volume is a chapter on 'Aspects of the Law of Debt, 1189-1307' which is an attempt to provide a modern overview of the development of the law of debt during the period 1189-1307, with a particular focus on debts arising out of loans.

ISBN: 1842170732

My contribution to this volume is a chapter on 'Lawyer's Time in the Later Middle Ages' which look bothe at the ways in which medieval courts and lawyers dealt with present time (terms, return days and days in court) and at ways of conceiving and categorising time now past

ISBN: 1903153085

Moricev Bishop of Durham (1804-5) is most definitely a leading case in the law of trusts. But it was not cited as authority for any ‘beneficiary principle’ or ‘certainty of objects’ rule in the general texts of trusts and equity until well toward the middle of the nineteenth century. Its real celebrity as a leading decision dates to the early and mid-twentieth century, as lawyers grappled with the challenge of amorphous beneficial objects in the new environments of family and corporate tax planning, corporate finance, pensions, and offshore jurisdictions. The urgent problems facing lawyers at the time of Morice were rather different, and harked back to two linked issues that had troubled the legal system since before the Reformation – controlling the deathbed disherison of heirs, and restraining the putting of testamentary property into mortmain, that is perpetual or ‘deadhand’ control of property by ecclesiastical bodies or other corporations. This explains why Morice was early picked up by cases and texts on mortmain and charitable uses, and remained rather invisible in the key literatures on trusts. The beneficiary principle had to become controversial before it could be noticed properly as a foundational doctrine.

ISBN: 9781849461542

History of the doctrine of privity and third party rights in European contract law.

ISBN: 978-3-16-149376-8

The seminal case of Keech v Sandford is analysed from three perspectives: the fiduciary theory of Peter Birks which sees fiduciaries as an offspring of trust custodianship; the historical intent of King LC, the author of the judgment, which was to prevent profit from office as a basic principle of public and legal mores; and the longer-term historical functions of fiduciary law. It is argued that trusts can be seen as an offspring of the fiduciary principle, and that the historical strength of the principle should speak against attempts by John Langbein and others in the US and UK to dilute that principle into one of acting in the best interests of beneficiaries.

ISBN: 0-19-920655-4

An analysis drawing on economic history to cast doubt on the orthodox view - expressed inter alia by Lord Scott in Spectrum - that floating charges were an essential innovation in late-19th century corporate finance, necessary to summon loan capital for enterprise and so counterbalance weaknesses in the equity market. An alternative thesis is offered that the floating charge was developed to maintain bank liquidity, and may have distorted entrepreneurial incentives.

ISBN: 0-19-929993-5

A study of the doctrine surrounding denial of title in modern English land and early modern personal property law with an account of the contrasting doctrine in Roman Law

ISBN: 0-19-920655-4

Shows how law, equity and ad hoc statute permitted forward and reverse asset partitioning in the two centuries before the Companies Acts, and thereby questions the orthodoxy regarding the rise of free incorporation.

ISBN: 1-85182-936-9

The career of one well-attested Norfolk local lawyer murdered in 1312 is used to explore the various functions performed by local lawyers in this period and the role of such lawyers in stimulating litigation and helping and advising litigants

ISBN: 1-84383-070-1

Authoritative study of the beginnings of the system for central governmental licensing of all grants to the church created after the 1279 statute of mortmain

ISBN: 1843830566

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)

Oxford DNB biographical outline of LOrd Talbot, Lord Chancellor 1734-37 (new article)

Analysis and criticism of prescription for incorporeal property and nature of land use titles, showing dense historical background to the House of Lords decision in Hunter v Canary Wharf and indicating future directions for simplifying law reform.

ISBN: 406964408

This volume of essays by leading legal historians addresses significant topics in the complex history of judges and judging, with comparisons not only between British, American and Commonwealth experience, but also with the judiciary in civil-law countries.

ISBN: 9781107018976

This volume draws together the views of some prominent figures in corporate law and finance regarding the law on fixed and floating charges. The focus for the book is the litigation in the case of Spectrum Plus, which culminated in a House of Lords judgment in June 2005 ([2005] UKHL 41).This decision has important commercial implications, not only for the parties in the case but also for the business community at large, including banks and other lenders, and practitioners in corporate finance and insolvency. The litigation also raises important juristic questions regarding the fixed/floating charge divide such as the theoretical basis for that divide, how the divide is determined, why it exists at all and whether it ought to be maintained as a coherent doctrine and a beneficial policy. The decision also has important ramifications in both security law and insolvency law and it provides a challenge to some of our most basic conceptions of freedom of contract and the assignability of rights and assets in law and equity.These issues, amongst others, are explored by the contributors to this book. The contributors include Gabriel Moss, who was one of the QCs involved in the Spectrum litigation, Sir Roy Goode, Michael Bridge, John Armour, Robert Stevens, Sarah Worthington, Julian Franks and Oren Sussman, Jenny Payne and Louise Gullifer, Philip Wood, Joshua Getzler, Look Chan Ho and Nicholas Frome.

ISBN: 0-19-929993-5