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simpson brian leading cases common law 1996

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Textbook in PDF format This book contains studies of a number of leading cases, written, I hope, in a style which will make them acceptable both to readers who are expert in the branch of law to which they belong, and to those who are not. They do not follow any uniform scheme, but in all of them I have tried to recreate the original historical context of the litigation, in so far as the sources make this possible. I have also tried to address more general questions about the cases, which I have selected, and to give an account of their subsequent life in the history of law and legal thought. Was Shelley’s Case (1581) really a product of the doctrines of property law, or was it perhaps a political decision? Is it possible to tell? How does an antique quarrel about the capture of wild ducks, Keeble v. Hickeringill (1707), retain an educational and doctrinal significance nearly three centuries later? Was the very absurdity of Jee v. Audley (1787) perhaps its guarantee of immortality? Whatever happened about accidents at work before Priestley v. Fowler (1837), and what induced the victim’s father in that case to take the unprecedented step of suing his employer for damages in tort law? Why did the case of Raffles v. Wichelhaus and Busch (1864) ever come — to court, and why did a case which includes no judicial opinion whatsoever become a focus of academic interest, principally fuelled by ignorance? What light does a historical analysis of Tipping v. St Helen’s Smelting Company (1865) throw upon economic theories as to how nuisance cases arising out of conflicting land uses ought to be decided? Was the decision in Rylands v. Fletcher (1868) —really about Mr Ryland’s unprepossessing and still defective reservoir? What has the case of R. v. Keyn (1876) to tell us about the value and the possibility of the ideal of the rule of law? What is the relationship between quack medicine, Carlill v. Carbolic Smoke Ball Company (1893), and the dogmatics of contract law? Underlying these and other questions which I ask in this book lies a philosophical interest in the casuistic processes of the common law, and a belief that the understanding of judicial decisions is little furthered by the elaboration of imaginative abstract theories, which have little connection with anything but themselves. So this book, like two others I have written, offers at one level a criticism of the deeply anti-empirical tradition of the world of academic law and legal theory. At a less solemn level I hope it may show that we can obtain greater enjoyment and instruction from the study of cases if we discover more about them than is provided by law reports. Three of the chapters in this book are based upon articles which have previously appeared in legal journals. I have made some modifications to enhance readability. These include reducing the bulk of footnotes; those who need fuller documentation can use the original versions. Chapter 6 is based upon ‘Contracts for Cotton to Arrive: The Case of the Two Ships Peerless’, which appeared in the Cardozo Law Review in 1989, and is published with the permission of that journal. Chapter 8 is based upon ‘Legal Liability for Bursting Reservoirs: The Historical Context of Rylands v. Fletcher’, which appeared in the Journal of Legal Studies in 1984. Chapter 10 is based upon ‘Quackery and Contract Law: The Case of the Carbolic Smoke Ball’, which appeared in the same journal in 1985. These two chapters are here published with the permission of the University of Chicago Press. Chapter 5 is based upon an inaugural lecture delivered in the University of Cambridge, and Chapter 9 began life as a Selden Society lecture

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