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American Law in a Global Context: The Basics George P. Fletcher Steve Sheppard OXFORD UNIVERSITY PRESS
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The study of law is one of the great intellectual adventures of our time.True, there are many who mire it in the rote, the mundane, and thesimple-minded. Yet for those who look past the shallows, the depths oflaw offer excitement and wisdom. Those who learn these nuances gain aparticular authority in modern culture. They become effective citizens inthe modern state.This contrast between simplicity and intellectual adventure is especially clear in the legal education of the United States. Those who seekno more than a quick entrance to a profession equate the whole of American law to an inventory of rules. True, a lawyer must know enough rulesto answer basic questions asked by clients and examiners. On the otherhand, those who seek to know the law fully must probe the ideas fromwhich the rules gain their contours and authority. Knowing the law ofthe United States requires not only mastery of the detailed doctrines derived from cases, legislation, and scholarship but also a feeling of ease innegotiating the broad planes and narrow corners of the law.One early tradition of legal thought—evident in the writings of JohnAdams, James Kent, Joseph Story, and other teachers of the nineteenthcentury—required a solid commitment to comparative analysis of legaldoctrines, to explore every doctrine in the light of its own history andviii prefaceof the manner in which competing legal systems regulated similar subjects.This comparative tradition grew less popular in the twentieth century,but a growing awareness of the interdependence of American interestswith those of other nations has led to a renewed understanding of thesignificance of the relationship between the U.S. and the other legaltraditions of the globe.By analysis and comparison, students can see not only the transientand coincidental symmetries of the law but also its more enduring character, including its contradictions, its limits, its ambiguities, and itschanges. Lawyers trained in this knowledge learn to manage uncertaintyand thus become better lawyers, more capable of practicing, adjudicating,and reforming the laws.In time, American lawyers, professors, and students will more readilyperceive the necessity of understanding U.S. law in its relationship to theother legal systems of the globe. This understanding is already pervasiveamong foreign students, whose natural approach is to integrate newlyacquired tools of American law into their existing understanding of thelaw of their native legal systems. The reciprocal process is equally important—that American students reach out and begin to the think of theword “law” as referring not simply to the practices of their own countryrather to the basic doctrines that govern the world community.This book is an introduction to this fuller study of U.S. law. A shortwork cannot, of course, be the study as a whole. In these pages, though,the whole required curriculum of an American law school is introduced.In these pages, that curriculum is explored both for the big ideas it holdsand for the edges and counters to those ideas that one might find in otherlegal systems. At times, we discuss these ideas in the same vein that mostlaw classes discuss them, so that a diligent reader will acquire rules thatcan be redacted from the various materials, while also perceiving some ofthe ambience of the class. At other times, we will stretch those materialswith the tension of history, or theory, or comparative alternatives. In bothtimes, we hope that you will be skeptical, questioning, bringing yourown experience and understanding to bear in your own quest to understand the law. With luck, this is your entrance to the grand adventure ofAmerican law, and we wish you well.

1. The purpose of equity was to correct the common law in the way that Aristotle described the idea of epieikeia: [The] law is always a general statement, yet there are cases which it is not possible to cover in a general statement. This purpose of correcting the common law in particular cases 338 t h e t r i u m p h o f e q u i t y was sometimes expressed as seeking to realize the spirit as opposed to the plain letter of the law.1 The major critique of equity was that it was uncertain and therefore contrary to the requirement of law as the fair and precise regulation of private rights. The liberal view of law, as expressed by Immanuel Kant in his Philosophy of Right (1797), is that the law must be well dened and equally available to all. The danger of equity is that its decisions would vary as John Selden said, with the length of the Chancellors foot.
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2. The courts of equity operated by commanding the defendant to engage in a particular action. The common law operated by granting a judgment, usually for an amount of money, called damages. 3. Courts of equity operated without juries. The chancellor or the judge in equity decided the case as does a civil law judge, by resort to principles, called maxims, often enunciated in general principles, with a diminished inuence of precedent. Juries were essentially limited to cases that arose under the common law.
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Law and equity are unied today in what appears to be a single body of law, but in fact each remedy in the law continues to conform either to the principles of law or to the principles of equity. This has led to some overlap and to choices for lawyers that arise in conditions of overlapping opportunity to resolve disputes. Equity functions by commanding a specic act, such as specic performance of a contract. The command was eventually (and still is) expressed in an injunction. This has resulted in overlapping remedies in many cases. Suppose that A brings a lawsuit against B in Oregon on the basis of an incident that occurred in New York. A does this simply because he wants to make it difcult and expensive for B to defend himself in the lawsuit. B can request a dismissal of the action on the grounds of forum non conveniens. An alternative remedy for B would be to go to a court in New York and petition for an injunction against As suing him in Oregon. The injunction would not cancel
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2 The likely reso-
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