John H. Langbein

Torture and the Law of Proof. Europe and England in the Ancien Régime

In Torture and the Law of Proof John H. Langbein explores the world of the thumbscrew and the rack, engines of torture authorized for investigating crime in European legal systems from medieval times until well into the eighteenth century. Drawing on juristic literature and legal records, Langbeins book, first published in 1977, remains the definitive account of how European legal systems became dependent on the use of torture in their routine criminal procedures, and how they eventually worked themselves free of it. The book has recently taken on an eerie relevance as a consequence of controversial American and British interrogation practices in the Iraq and Afghanistan wars. In a new introduction, Langbein contrasts the new law of torture with the older European law and offers some pointed lessons about the difficulty of reconciling coercion with accurate investigation. Embellished with fascinating illustrations of torture devices taken from an eighteenth-century criminal code, this crisply written account will engage all those interested in tortures remarkable grip on European legal history.

The Criminal Trial before the Lawyers

The common law criminal trial is dominated by the lawyers for prosecution and defense. In the prototypical case of serious crime (felony), counsel take the active role in shaping the litigation and proving the facts for a passive trier. Continental observers, accustomed to a nonadversarial trial in which the court itself has an active role in adducing evidence to inform its own judgment, regard our lawyerized criminal trial as a striking Anglo-American peculiarity. We seldom appreciate that this lawyerized criminal trial looks as striking from the perspective of our own legal history as from that of comparative law. It developed relatively late in a context otherwise ancient. Whereas much of our trial procedure has medieval antecedents, prosecution and defense counsel cannot be called regular until the second half of the eighteenth century. In our historical literature the relative newness of our adversary

The Contractarian Basis of the Law of Trusts

II. FROM CONVEYANCE TO MANAGEMENT: THE HISTORICAL TRANSFORMATION OF THE TRUST ........................ 632 A. The Early Trust as a Means of Conveyance .............. 632 B. Why Early Trust Law De-emphasized Contract ........... 634 1. Failings of Covenant .......................... 634 2. Hostility to Assignment ......................... 635 3. The Role of Procedure ......................... 635 4. Tracking the Common Law Estates ................. 636 5. Testamentary Trusts ........................... 636 C. The Appearance of the Management Trust ............... 637 1. Financial Assets .............................. 638 2. Institutional Trusteeship ........................ 638 3. Safeguard: From Disempowerment to Fiduciary Obligation .......................... 640

Torture and Plea Bargaining

In this essay I shall address the modern American system of plea bargaining from a perspective that must appear bizarre, although I hope to persuade you that it is illuminating. I am going to contrast plea bargaining with the medieval European law of torture. My thesis is that there are remarkable parallels in origin, in function, and even in specific points of doctrine, between the law of torture and the law of plea bargaining. I shall suggest that these parallels expose some important truths about how criminal justice systems respond when their trial procedures fall into deep disorder.

The Secret Life of the Trust: The Trust as an Instrument of Commerce

In the culture of Anglo-American law, we think of the trust as a branch of the law of gratuitous transfers. That is where we teach trusts in the law school curriculum,1 that is where we locate trusts in the statute books,2 and that is where American lawyers typically encounter the trust in their practice. The trust originated at the end of the Middle Ages as a means of transferring wealth within the family,3 and the trust remains our characteristic device for organizing intergenerational wealth transmission when the transferor has substantial assets or complex family affairs. In the succinct formulation of Bernard Rudden, Anglo-American lawyers regard the trust as essentially a gift, projected on the plane of time and so subjected to a management regime.4

Land without Plea Bargaining: How the Germans Do It

As the death grip of adversary procedure has tightened around the common law criminal trial, trial has ceased to be workable as a routine dispositive proceeding. Our criminal justice system has become ever more dependent on processing cases of serious crime through the nontrial procedure of plea bargaining. Unable to adjudicate, we now engage in condemnation without adjudication. Because our constitutions guarantee adjudication, we threaten the criminal defendant with a markedly greater sanction if he insists on adjudication and is convicted. This sentencing differential, directed towards inducing the defendant to waive his right to trial, makes plea bargaining work. It also makes plea bargaining intrinsically coercive. I have elsewhere had occasion to point to the host of irremediable deficiencies moral, juridical, practical that inhere in the plea bargaining system. Plea bargaining is such a recent2 and transparent evasion of our cherished common law tradition of criminal trial that its well-meaning practitioners and proponents feel a deep need for reassurance that what they are doing is not so bad as it looks. Rather lately, apologists for American plea bargaining have been sounding a theme purportedly derived from comparative law. As a corollary to the proposition that plea bargaining is not really so bad, the claim is advanced that everybody else does it too. Plea bargaining is said to be universal, at least in the legal systems of advanced industrial countries. 3

Understanding the Short History of Plea Bargaining

As late as the eighteenth century, ordinary jury trial at common law was a judge-dominated, lawyer-free procedure conducted so rapidly that plea bargaining was unnecessary. Thereafter, the rise of adversary procedure and the law of evidence injected vast complexity into jury trial and made it unworkable as a routine dispositive procedure. A variety of factors, some quite fortuitous, inclined nineteenthcentury common law procedure to channel the mounting caseload into nontrial plea bargaining procedure rather than to refine its trial procedure as contemporary Continental legal systems were doing. Alschuler (supra) has undertaken to document that plea bargaining was unknotvn during most of the history of the common law. Only in the nineteenth century does he find significant evidence of the practice in either England or America. These findings beckon to the legal historian for explanation. In modern times, plea bargaining has become the primary procedure through which we dispose of the vast proportion of cases of serious crime. How then could common law procedure function for so many centuries without a practice that is today so prevalent and seemingly so indispensable?

The Historical Foundations of the Law of Evidence: A View from the Ryder Sources

The main work of a legal system is deciding matters of past fact. Blackstone remarked that experience will abundantly show, that above a hundred of our lawsuits arise from disputed facts, for one where the law is doubted of. Was the traffic light red or green? Was it OJ. Simpson or somebody else who wielded the dagger? Find the facts and the law is usually easy. The great chasm that separates the modem Continental legal systems from the Anglo-American systems is largely about the conduct of fact-finding. On the Continent, professional judges take the main responsibility for investigating and adjudicating, although the lawyers for the parties guide and limit the judicial inquiry in important ways. In the Anglo-American legal tradition, by contrast, we parcel out this work of fact-finding among three sets of actors: the lawyers for the parties, the professional judge, and the laypersons who serve as jurors. We leave to the lawyers the responsibility for gathering, sifting, and presenting evidence of the facts. Prototypically, our trial judge sits with a jury. Although many cases fall outside the jury entitlement, and in many others the parties waive it, jury trial remains the presumptive norm in American civil and criminal procedure. 2 The judge who presides over this jury

Controlling Prosecutorial Discretion in Germany

Among the major western legal systems, the West German is unique in its concern with controlling prosecutorial discretion. The Germans have isolated the elements of the problem, and they have implemented legislation to limit prosecutorial discretion and, indeed, to exclude it altogether in the most important cases. The German and American systems of criminal procedure differ in fundamental matters of principle and structure, and these differences restrict the direct transferability of insights and practices between the two. Nevertheless, there are also important similarities, especially in the pretrial powers and responsibilities of the prosecutorial office. Americans in search of solu-

The Historical Origins of the Sanction of Imprisonment for Serious Crime

THE movement for the abolition of capital punishment is righty associated with the writers of the Enlightenment, especially Beccaria, whose enormously influential tract appeared in 1764. Perhaps because the abolitionists drew so much attention to the gore of the capital sanctions of the eighteenth century, it has seldom been realized that capital punishment was already in a deep decline in the age of Beccaria and Voltaire. Writing to Voltaire in 1777, Frederick the Great boasted that in the whole Prussian realm executions had been occurring at the rate of only 14 or 15 per year. When John Howard visited Bremen in 1778 he discovered that [t]here has been no execution in this city for twenty-six years.2 The abolition movement that we associate with Beccaria and Voltaire3 was a second-stage affair. Indeed, it had to be. For abolition presupposes the existence of a workable alternative for the punishment of serious crime. By the time of the American Revolution, the sanction of imprisonment for serious crime was in use throughout Europe, and England had developed a near equivalent. Although it is commonly said that [t]he history of imprisonment has often been told,4 Americans have not listened with much care. The claim is incessantly made that [p]risons . . . are a pervasive American export, like tobacco in their international acceptance and perhaps