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| Scotland's Judiciary and the Development of Article III Posted: 13 Jan 2012 03:50 PM PST Historically-minded scholars and jurists invariably turn to English law and precedents in attempting to recapture the legal world of the framers. Blackstone's famous Commentaries on the Laws of England offer a convenient reference for moderns looking backwards. Yet the generation that framed the Constitution often relied on other sources, including Scottish law and legal institutions. Indeed, the Scottish judicial system provided an important, but overlooked, model for the framing of Article III. Unlike the English system of overlapping original jurisdiction, the Scottish judiciary featured a hierarchical, appellate-style judiciary, with one supreme court sitting at the top and an array of inferior courts of original jurisdiction down below. What's more, the Scottish judiciary operated within a constitutional framework - the so-called Acts of Union that combined England and Scotland into Great Britain in 1707 - that protected the role of the supreme court from legislative re-modeling. This Article explores the influence of the Scottish judiciary on the language and structure of Article III. Scotland provided a model for a single "supream" court and multiple inferior courts, and it defined inferior courts as subordinate to, and subject to the supervisory oversight of, the sole supreme court. Moreover, the Acts of Union entrenched this hierarchical judicial system by limiting Parliament to "regulations" for the better administration of justice. |
Practice under this precursor to Article III's Exceptions and Regulations Clause establishes that a supreme court's supervisory authority over inferior courts would survive restrictions on its as-of-right appellate jurisdiction. The Scottish model thus provides important historical support for the scholarly claim that unity, supremacy, and inferiority in Article III operate as textual and structural limits on Congress's jurisdiction-stripping authority.
Download the article from SSRN at the link.
Edward Peter Stringham, Fayetteville State University School of Business and Economics, and Todd J. Zywicki, George Mason University School of Law, have published Rivalry and Superior Dispatch: An Analysis of Competing Courts in Medieval and Early Modern England as George Mason University Law & Economics Research Paper No. 10-57. Here is the abstract.
Download the paper from SSRN at the link.
Download the article from SSRN at the link.
Judicial History In Medieval and Early Modern England
Posted: 13 Jan 2012 03:46 PM PST
Edward Peter Stringham, Fayetteville State University School of Business and Economics, and Todd J. Zywicki, George Mason University School of Law, have published Rivalry and Superior Dispatch: An Analysis of Competing Courts in Medieval and Early Modern England as George Mason University Law & Economics Research Paper No. 10-57. Here is the abstract.
In most areas, economists look to competition to align incentives, but not so with courts. Many believe that competition enables plaintiff forum shopping, but Adam Smith praised rivalry among courts. This article describes the courts when the common law developed. In many areas of law, courts were monopolized and imposed decisions on unwilling participants. In other areas, however, large degrees of competition and consent were present. In many areas, local, hundred, manorial, county, ecclesiastical, law merchant, chancery, and common law courts competed for customers. When parties had a choice, courts needed to provide a forum that was ex ante value maximizing.
Download the paper from SSRN at the link.
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