RICHARD HYLAND
Distinguished Professor
Universidade Nova de Lisboa
Fall 2006
The Case for the Common Law
Syllabus
Materials
Materials for the course are contained in the “Reader,” which is available on-line. You
will want to download it onto your computer and then print it out in installments, as you
prepare the material for class discussion. In class, you’ll only need the work we will discuss
on the indicated day.
Schedule
This is an intensive, seven-week course. Our first class is on Tuesday, October 24,
2006, and our last on Wednesday, December 6.
Final Exam
Grades in this class will be determined by a final exam.
(The earlier draft of this syllabus indicated that there would be a final paper. Instead,
the course now will be graded on the basis of a final exam.)
The exam will be written in class beginning at 9 am on Monday, January 8, 2007. You
will have four hours to complete your work on the exam. You will be able to write a total of
two written pages, approximately 500 words. I will not read overly long answers.
A somewhat complicated procedure will be followed to assure that I receive readable
copies. Your exam answer will be copied at the law school and then returned to you. You
will be asked to type the exam answer into a Word document exactly as you wrote it (I know
this will be painful and I apologize in advance). Then you will forward it to me electronically
at the email address provided below. The paper must arrive in my email box by 5 pm New
York time on Monday, January 15, 2007. It is your responsibility to assure that the paper
actually reaches me. As soon as I receive your paper, I will confirm receipt by return email. If
you receive no return email from me, your paper did not arrive.
Rutgers Law School, 217 North Fifth Street, Camden NJ 08102-1203 • (856) 225-6410 • (856) 225-6516 (fax)
hyland@camden.rutgers.edu
RICHARD HYLAND
Syllabus—Case for the Common Law
Universidade Nova de Lisboa (Fall 2006)
Page 2
The exam question will ask you to address some aspect of the following topic: “Is the
process of adjudication in the common law rational?” You may of course take any approach
to this topic, and are welcome to answer the question in any way you please. Your exam
answer must be well-organized. You should refer to the readings where they are helpful.
Please do not do outside research for purposes of this paper. I’m interested in your own
thoughts, observations, and conclusions, not in those of anyone else.
You may submit your paper in any of the following languages: English, French,
German, Italian, or Spanish. If my language learning goes well, you might also be able to
submit your paper in Portuguese. I’ll let you know during our last class.
Office Hours
I do not hold regular office hours, though, unless I’m traveling, I intend to be in my
office at the Faculdade almost all day every day. I am eager to meet with you (that’s why I’ve
come to Lisbon). Except for the hour and a half directly before class, if you find me in my
office, I’m available to you. Please take advantage of this opportunity. Furthermore, we can
also meet for a coffee at a nearby cafe. I’m particularly happy to discuss any topics that
interest you, including any plans you may have concerning further law study in the United
States.
Basic Rules
Attendance
Please do not miss class. This class moves extremely quickly.
Please show respect for your classmates by being on time. Class will begin
promptly at the appointed hour. I would appreciate it if you would be in your seat,
set up and ready to go, by that time. There will be three ten-minute breaks after each
50-minute class session. Class will end punctually as indicated in the schedule.
Electronic devices
With the exception of laptop computers, please do not use any electronic
devices (including tape recorders, cell phones, pagers, beepers, palm pilots or other
organizers, blackberries, or MP3 players) during the class period. (Of course you can
do anything you like during the breaks.) PLEASE ASSURE YOURSELF THAT YOUR CELL
RICHARD HYLAND
Syllabus—Case for the Common Law
Universidade Nova de Lisboa (Fall 2006)
Page 3
PHONE IS SWITCHED TO OFF (NOT SILENT)
during the class period. You may not send or
read SMS messages during the class period.
General Reading
To the extent you are interested in American law, you should read an American
newspaper every day. I suggest you choose the New York Times. It is available to you on-line
without cost (nytimes.com). Reading the Times should take you about thirty minutes each
morning (about an hour on Sundays). You don’t have to read the paper cover to cover.
Follow a couple of stories, and make sure you look at everything related to the law. And
please read both the Op-ed contributors and the daily book review.
You also need, desperately, to be reading books—I mean real books, books unrelated
to the law—on a regular basis. You may think you have no time for this, but you will have
even less time once you begin to practice, and by then reading has to have become for you a
habit — otherwise you will turn into lawyers who can only talk about their cases and their
unreflected political opinions.
You should, AT A MINIMUM, read for at least an hour every evening before you go to
sleep. Get used to carrying a book around with you all the time (NOT a law book), and read
when you’re in the dentist’s waiting room, in the train, instead of watching TV. Fiction is
especially important. You might start with Italo Calvino’s Invisible Cities, or Nicholas Baker’s
The Mezzanine.
Course Goals
The goal of the class is easily described. Many of you have already read the Sociology
of Law from Max Weber’s Economy and Society. Weber presents a well-formulated critique of
the common law. His basic point is that adjudication in the common law is less rational than
is the deciding of cases in the civil law. Weber’s view is far from unique—many civilian
jurists, particularly those who have had a chance to study the common law in the United
States, would agree with him. I’d like to discuss with you whether Weber is right.
We begin by reading a handful of celebrated cases in the American tradition of the
common law. We’re interested in watching how the judges reach their conclusions, and
particularly the extent to which they can be said to be following the rules.
RICHARD HYLAND
Syllabus—Case for the Common Law
Universidade Nova de Lisboa (Fall 2006)
Page 4
We then turn to Weber’s discussion of the common law and rationality. I’ve
excerpted many of the relevant passages. I’m aware that these excerpts contain a large
amount of material. Don’t let that intimidate you. I prefer you have these pages with you in
class, even if you are unable to read it all. That way we can refer to it if we need it. In class,
we’ll address the following question: What exactly does Weber mean when he suggests that
the civil law is rational, while the common law is not? I’ve provided you with the best and
most recent American translation, which is straightforward and accessible. (Please feel free to
read the material in German, if you are able. It’s probably worth mentioning, however, that,
even native speakers find the original German text to be extremely difficult.)
All of the remaining texts are in English. Leaving aside my own two essays listed for
the last class, there are six books and one (very important) essay. In my humble and very
personal view, there is good reason to read all of these texts in their entirety. The reason is
that, should you actually do so, you would know everything you would ever need to know
about the common law. You may have to reread them, some of them many times, but I don’t
think there’s anything to add about our system once you’ve understood these books.
The problem is that you won’t be able to read these books by yourself. I’ve made this
same suggestion to my American students for years, and none of them has ever
accomplished the feat. In fact, I think very few American law professors have read them all.
The reason is that they respond to very specific questions, and those questions have long
since been lost. One of our tasks is to recreate the questions so you can benefit by reading the
passages. It may amuse you to learn that each of these jurists was addressing anew the
question of whether the common law should import ideas from the civil law. Each of them
wrote in order to prevent such borrowing.
Reading Assignments
I’ve included in the Reader several chapters from each of these books, together with
an essay by Thoreau and two essays of mine. The page numbers in this Syllabus refer to the
page numbers in the original book or essay. I’ll ask a couple of you to present each of our
authors to us at the beginning of the relevant class meeting. Since I won’t be able to ask for
volunteers for the cases we will discuss in our first meeting, I’d appreciate it if you’d try to
read all the cases, but then each take responsibility for one of the four. As far as the reading
from Max Weber is concerned, read as much of it as interests you, and then stop. We’ll read
together the paragraphs we need to discuss.
RICHARD HYLAND
Syllabus—Case for the Common Law
Universidade Nova de Lisboa (Fall 2006)
Page 5
Let me emphasize again: you will find these texts difficult. We all do. Nonetheless,
they’re the most rewarding texts I know about the common law. Many of these texts were
written long ago when time was not at such a premium and readers had the patience to
permit the author to move deliberately toward the point. That means you will be confronted
with long, difficult texts in a foreign language. And, to make things even worse, this is a
discussion course, not a lecture course. What you will say matters much more than anything
I will be able to contribute. For this reason, I urgently need for you to have read as much of
the text as you are able BEFORE the scheduled discussion.
How will we solve this difficulty? Very easily.
First, I will introduce each author and each text in the session before we are
scheduled to discuss it. That means you will begin to read with an understanding of the
context in which the author was writing.
Second, we will not place maximalist demands on ourselves. I myself tried for years
to read some of these books without being able to finish them. We will count as a success
each and every page you are able to read, and each and every idea you are able to
understand. Reading these books is not an all or nothing matter. We could spend an entire
session simply discussing the first page of any of these texts. That means that you will exert
your best efforts, you will read as much as you are able—and then you will stop.
Third, we will discuss many of the texts for two sessions, and you will be better able
to read the texts after our first discussion. Nonetheless, it is imperative that you try hard to
read as much of the text as you can BEFORE our scheduled discussion. If you wait until you
hear what I and others have to say about the text, it will be much more difficult for you to
establish your own authentic relationship with it. And establishing that relationship is what
the course is about.
Finally, let me emphasize as well the potential rewards of this reading. I have spent
my life studying and comparing both the common and the civil laws. In my opinion, each of
them offers a fabulously important insight into the nature of law, but each of them is also
limited. To be a complete jurist in the 21st century, you will need to have mastered both of
these systems. These readings—this I can guarantee you—represent the best introduction
you could find to the common law. If you are able to grasp the insights the common law
offers, it may change your life, both inside and outside of the law.
I greatly envy you the opportunity to engage with this extraordinary material for the
first time. Please remember, as you fight your way through the texts and keep wrestling with
RICHARD HYLAND
Syllabus—Case for the Common Law
Universidade Nova de Lisboa (Fall 2006)
Page 6
the dictionary, to enjoy yourself. I plan to be around. Feel free to come in and chat about any
difficulties as they arise.
October 24
Allegheny College v. Nat’l Chautauqua Count Bank
Webb v. McGowin (2 opinions)
Zell v. American Seating Co. (2 opinions)
Sylvan Crest Sand & Gravel Co. v. United States
October 25
Weber, Economy and Society
(read as much as interests you)
653-658, 687-688,
758-768, 775-776,
784-802, 809-815,
839-859, 865-866,
882-895.
Blackstone, Commentaries
5-6, 10-11, 15, 17,
40-44, 64, 66-74.
October 31
November 1
HOLIDAY
November 7
Holmes, The Common Law
5-33.
Holmes, The Common Law
195-240.
November 8
November 14
Maitland, The Forms of Action
1-27.
RICHARD HYLAND
Syllabus—Case for the Common Law
Universidade Nova de Lisboa (Fall 2006)
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November 15
Maitland, The Forms of Action
48-72.
Llewellyn, The Bramble Bush
11-55.
Llewellyn, The Bramble Bush
56-91.
November 21
November 22
November 28
Gilmore, The Death of Contract
1-34.
Gilmore, The Death of Contract
55-85.
November 29
December 5
Fisher & Ury, Getting to Yes
December 6
Thoreau, “Civil Disobedience”
Hyland, “Life, Death, and Contract”
Hyland, “Shall We Dance?”
3-94.