David J. Seipp

The Concept of Property in the Early Common Law

“There is nothing,” wrote William Blackstone, “which so generally strikes the imagination and engages the affections of mankind, as the right of property.” Property continues to occupy a place of enormous importance in American legal thought. More than just a staple of the first-year law school curriculum, the concept of property guides the application of constitutional doctrines of due process and eminent domain. A grand division between “property rules” and “liability rules” classifies our common law entitlements. Property is a concept of such longstanding importance in our law, of such great inertial momentum, that it has expanded to include nonphysical property in goodwill, inventions, designs, artistic expression, symbols, secrets, privacy, and celebrity, as well as “new” property in social security benefits, government contracts, job security, and occupational licenses. Recent scholars have identified property with autonomy, personality, political participation, and reliance interests. Thus expanded, the concept of property threatens to disintegrate. If it includes everything, does it mean anything?

The law's many bodies, and the manuscript tradition in english legal history

Sir John Baker’s recent book The Law’s Two Bodies supplies a happy occasion to celebrate and reflect on Professor Baker’s unique place within the field of English legal history today. Students beginning their study of this subject can well imagine the long history of the English common law as an hourglass. The wide upper chamber of the hourglass is the rich, complex, intricate medieval law of the Year Books. The wide bottom chamber is the equally rich, complex, intricate but very different caselaw of the modern age. The narrow neck of the hourglass can be imagined as the mind of one person, Sir Edward Coke. Such was the authority, the personality, and the historical importance of Lord Coke that his Reports, his Institutes, and his other writings formed the core of what the later legal profession ‘remembered’ about medieval common law. The unfortunate part was that Coke made things up. Students of English legal history can equally well imagine their subject today as an hourglass in which the narrow neck is again a single mind. That single mind, through which enormous quantities of manuscript sources have passed and from which enormous quantities of scholarly publications have issued, is of course Professor Sir John Baker. Every question of English legal history on which I have written has led me to find eventually in my research a few sentences in an article, chapter, or book by John Baker that anticipated both my question and my answer, and footnoted half a dozen manuscript sources of which I was unaware. I will not pursue the comparison of Sir John with Sir Edward any further, except to say that I am sure that Baker does not make things up. I want to commend Professor Baker for keeping the reported body count so low in The Law’s Two Bodies. By my reading of the book, there are enough bodies left lying on the stage to bring down the curtain on a Shakespearean tragedy. I count five bodies of law just in the main outline of the book. Baker emphasizes two of those bodies, and draws his principal contrast between them. I would like to comment briefly about another two bodies that play lesser roles in Baker’s scheme but have interested me in my work and teaching. The five bodies of law I identify in the book are these. First is the body of printed law: statutes, Year Books, and other case reports, with the early trea-