Chapter 3 guides the reader inside parties by examining how candidate nominations, leadership selection, and policy platforms operate in modern democracies around the world. Kernell examines variation among these rules both within and across countries, as well as over time, and proposes a coding methodology for defining the degree of membership influence in each of the three primary dimensions. The chapter also discusses case selection and data collection.

Chapter 3 explores the willingness of some state courts in the early 21st century to consider and approve plaintiffs assertion of public nuisance claims in developing mass tort litigation. This chapter involves a case study of the lead paint litigation, describing high incidences of childhood lead paint poisoning in older buildings as the basis for the lead paint lawsuits. These lawsuits attempted to hold the manufacturers and sellers of lead paint liable on a theory that the defendants created and maintained a public nuisance relating to lead paint. Many courts initially declined to allow plaintiffs to assert public nuisance claims in the lead paint litigation, based on various defenses sounding in lack of proximate caustaion, remoteness, and failure to satify the elements of a public nuisance claim. However, courts in Wisconsin and California subsequently accepted the plaintiffs pleading of a lead paint public nuisance claim, based on the defendants advertising and promotion of their products. These successful lead paint cases illustrated a conceptual breakthrough in judicial receptivity to communitywide public nusiance claims. However, other courts continued to reject lead paint public nuisance claims, illustrating the unsettled nature of public nuisance law.

This chapter explores the transition from a medieval picture of manorial courts as being focused on seignorial concerns to an early modern picture of being focused on community concerns. Through categorising presentments, it demonstrates that the role of manorial officials went through two transitions between c.1300 and c.1650. Firstly, there was a shift away from seignorial and royal business to a community-focused ‘little commonwealth’ where courts worked to maintain local infrastructure and common lands. In a second transition, in the seventeenth century some courts began to be purely focused on land registration and transfers. However, these changes occurred in the context of local variation and a wider East Anglian versus western/south-western divide. These findings support two conclusions. Firstly, they challenge a narrative of the decline of manorial structures, showing how the adaptability of courts allowed them to be put to a wide range of uses by communities. Secondly, they highlight that manorial institutions were not imposed by lords in a top-down process, but were shaped by local officials, who recognised the utility of these institutions for their own purposes.

This chapter investigates the impact of state formation, through the rise of the quarter sessions and the new responsibilities this gave village constables, on manorial governance structures. A county-wide case study of manors and quarter sessions’ records in Norfolk for the sixteenth and seventeenth centuries reveals that constables were fulfilling important roles for JPs in serving warrants, enforcing labour legislation and policing vagrancy. However, constables continued to be chosen in manorial courts and to be subject to the oversight of, and directed by, officials of courts leet. Examining the identities of constables at the case-study manors further shows that these individuals continued to serve in manorial office into the early modern period. Moreover, manorial courts since the fourteenth century ensured that constables fulfilled the requirements owed by vills to the crown, meaning that new obligations of constables to the state were underpinned by manorial structures. Therefore, the incorporation of constables into new county-wide structures of law and order was made possible through the local authority given to them via the manor court.

This chapter shows how the ties between office and household were loosened from the early seventeenth century by a new legal approach to officeholding. The authority of certain officers began to be treated as separable from their personal identity, meaning they no longer had to be ‘independent’ heads of household. MPs passed statutes to protect officers from lawsuits, providing they acted in accordance with the authority granted to them by higher powers. Judges developed a distinction between ‘judicial’ and ‘ministerial’ officers: the first required personal qualities associated with independence, the second did not. ‘Ministerial’ officers wielded an impersonal form of authority which had nothing to do with their individual identities. In interactions with other people, they conjured this authority with an array of special words and props, which granted them legal protection as servants of the state. This was especially clear in homicide law, where the question of whether or not an officer had properly conjured authority could determine the outcome of a trial. The impersonal model of official authority laid the foundations for a new style of masculine officeholding.

The title of this chapter on ‘The English Justinian (c. 1272–1307)’ refers to the nickname given to Edward I who was likened to the Roman Emperor Justinian I who codified Roman law on the basis that Edward’s reign saw a significant increase in the number and importance of statutes. It falls into three sections. The first will discuss the main statutes of Edward I, focusing on the Statute of Westminster 1275, the Statute of Wales 1284 and the Statute of Westminster II 1285. The second part will examine statutes that had a particular effect upon feudalism: the Statute of Mortmain 1279 and Quia Emptores 1290 (also known as the Statute of Westminster III). The third and final section will explore a development in the common law that began before this time but blossomed in this period: the origins of what is now known as the law of obligations or the law of contract and tort (examining the writs of covenant and trespass). This underlines that, although the English Justinian is known for the growth of statute law, the era also saw the continued development of the common law.

Judges play a role in enabling Mass Incarceration beyond imposing longer sentences. Judges also set the boundaries of American criminal law. They do this in two ways: (1) judges interpret the criminal laws that legislators enact and (2) judges ensure that the processes the government uses to lock people up comport with state and federal constitutions.

In most countries a codified constitution explains the overarching relationship between individuals and the state and establishes a coherent hierarchy of authoritative sources of law. The absence of a codified UK Constitution means that constitutionally significant rules can be found in a range of legal sources including statutes, statutory instruments, the Royal Prerogative and judicial decisions. There is even a prominent role for political understandings, known as conventions. This chapter compares the operation of the UK Constitution to the codified constitutions adopted in most other liberal democracies and introduces constitutional debates which will be developed in later chapters.

Bartolus of Sassoferrato, the leading jurist of his day, whose influence spanned several centuries, first formulated an equation of family and its property (substantia) that cast an image of family enduring over time in the immediate passage of property from father to son. That tie was so pivotal that a son could be termed, however incorrectly in strict legal terms, as a co-owner of the estate with his father. Disinheritance was difficult to conceive of in these terms, although it was an allowed legal institution. Subsequent jurists followed Bartolus's lead, even though they were likely to face only situations where the paradigmatic passage of haereditas from father to son was not possible.

In general, when people in society refer to ‘the law’ they mean the rules made by parliaments. They have learned that ‘the parliament makes the law and the judges decide disputes.’ As a student you now know that the process of judicial interpretation inevitably strays into lawmaking, but in fact the popular understanding of law is just about right. In the modern era, the overwhelming majority of laws are made either by, or with the permission of, elected members in our Parliament.

Statutory interpretation is a core skill in the legal profession. At a basic level, it seems quite simple: statutory interpretation represents the art (or perhaps science) of reading legislation correctly. Unfortunately, beneath this simple description lies a much more complicated process. You see, words are almost always ambiguous. Words combined into sentences become more ambiguous. How many times in your daily life have you said something that you considered to be perfectly plain and simple, only to have others in the conversation completely misinterpret your meaning?

This chapter considers available responses to the government’s speech that endangers constitutional values. It starts by outlining possibilities for, and barriers to, constitutional remedies that include injunctive relief, declaratory relief, and damages. It then turns to a range of legislative, structural, and political possibilities for constructively influencing the government's expressive choices without resort to constitutional litigation. Statutory possibilities include laws that that require the government’s transparency, its deliberation, and its accuracy; or that limit the government’s speech on certain matters or for certain purposes. Other options include legislative oversight and impeachment, as well as rebuttals, protests, and other forms of counterspeech from other government officials, the press, and, of course, the people themselves—along with political remedies that include petitioning, lobbying, and voting.