Mike Macnair | University of Oxford (original) (raw)
Papers by Mike Macnair
Critique, 2011
The last months of the outgoing Labour government and the creation of the Conservative–Liberal De... more The last months of the outgoing Labour government and the creation of the Conservative–Liberal Democrat coalition have brought the question of the anti-union laws back into prominence. The recent, as it were 'traditional', left position on the issue is to call for the ...
The Journal of Legal History, 1994
... Hale, like Gilbert but rather less frequently, discusses the history of points and makes occa... more ... Hale, like Gilbert but rather less frequently, discusses the history of points and makes occasional use of authority from the learned laws. ... Of these apart from Gilbert only Bernard Hale was neither an MP nor held English office before appointment to the English bench. 35. ...
Critique, 2011
The last months of the outgoing Labour government and the creation of the Conservative–Liberal De... more The last months of the outgoing Labour government and the creation of the Conservative–Liberal Democrat coalition have brought the question of the anti-union laws back into prominence. The recent, as it were 'traditional', left position on the issue is to call for the ...
Http Dx Doi Org 10 1080 03017605 2011 621247, Nov 22, 2011
Equity and Administration, 2000
Oxford Journal of Legal Studies, 2007
Law and History Review, 1999
I am grateful for the opportunity to clarify some parts of my argument that is afforded by the co... more I am grateful for the opportunity to clarify some parts of my argument that is afforded by the comments of Charles Donahue and Patrick Wormald. I should say at the outset that I am not seeking to propose a monocausal explanation of the origins of the generalized use of jury trial at common law, whether a “stirps” or a “smoking gun” (Donahue), or to exclude altogether the relevance of Anglo-Saxon practice or strong government (Wormald)—though I am pretty skeptical of the specific Carolingian-Norman lineage proposed by Brunner.
Law and History Review, 1999
The origins of trial by jury have been the subject of an extensive debate. The traditional approa... more The origins of trial by jury have been the subject of an extensive debate. The traditional approach to the creation of the “palladium of liberty” saw the jurors as lay judges and located their origins in the lay judges of Anglo-Saxon England, continuing through the survival of the “ancient constitution.” An alternative approach, that of Heinrich Brunner, found wide acceptance from the end of the last century and until recently. Brunner detected the origins of the jury in fiscal inquiries imposed by strong monarchs, reversing the constitutional politics of the older view. At present, the wheel has turned back toward judicial character and origins in general early medieval practice. The purpose of this article is to take a new look at the issue by approaching it from a different angle: the requirement that jurors should come de vicineto, from the locality. This approach has produced the following observations.
P. Brand, K. Costello and WN Osborough, …, 2005
P Brand, K Costello and WN Osborough (eds), Adventures of the Law: Proceedings of the Sixteenth B... more P Brand, K Costello and WN Osborough (eds), Adventures of the Law: Proceedings of the Sixteenth British Legal History Conference, Dublin, 2003 (Four Courts Press, Dublin, 2005) 267-288 ... University of Oxford Faculty of Law Legal Studies Research Paper Series
Law and History Review, 1999
The origins of trial by jury have been the subject of an extensive debate. The traditional approa... more The origins of trial by jury have been the subject of an extensive debate. The traditional approach to the creation of the “palladium of liberty” saw the jurors as lay judges and located their origins in the lay judges of Anglo-Saxon England, continuing through the survival of the “ancient constitution.” An alternative approach, that of Heinrich Brunner, found wide acceptance from the end of the last century and until recently. Brunner detected the origins of the jury in fiscal inquiries imposed by strong monarchs, reversing the constitutional politics of the older view. At present, the wheel has turned back toward judicial character and origins in general early medieval practice. The purpose of this article is to take a new look at the issue by approaching it from a different angle: the requirement that jurors should come de vicineto, from the locality. This approach has produced the following observations.
Inter cives necnon peregrinos, 2014
Sham Transactions, 2013
ABSTRACT This chapter explores the history in English law down to 1875 of legal use of the word &... more ABSTRACT This chapter explores the history in English law down to 1875 of legal use of the word "sham" and the related doctrines of "colourable" transactions, etc, fraus legis, and simulations. It shows that a wider scope originally given to such doctrines was narrowed in the mid-later 19th century. The "labelling rule" that a transaction labelled as a licence to occupy land is ipso facto a lease is, however, in its origins and early history (1460s-20th century) unrelated to "sham" and related ideas.
ABSTRACT This chapter explores the history in English law down to 1875 of legal use of the word &... more ABSTRACT This chapter explores the history in English law down to 1875 of legal use of the word "sham" and the related doctrines of "colourable" transactions, etc, fraus legis, and simulations. It shows that a wider scope originally given to such doctrines was narrowed in the mid-later 19th century. The "labelling rule" that a transaction labelled as a licence to occupy land is ipso facto a lease is, however, in its origins and early history (1460s-20th century) unrelated to "sham" and related ideas.
Coke v Fountaine (1676) is a "landmark" case in the sense that it has been commonly cit... more Coke v Fountaine (1676) is a "landmark" case in the sense that it has been commonly cited in textbooks etc for general claims about equity and trusts made by Lord Nottingham LC. But this decision was in its own time unreported (several other decisions in the same long-running litigation were reported) but only unearthed from Lord Nottingham's MS in the 19th century. This chapter explores why this was.
Oxford Journal of Legal Studies, 1990
... 76 Fry v Porter (1669) Lord Nottingham's 'Prolegomena of Chancery and Equity',... more ... 76 Fry v Porter (1669) Lord Nottingham's 'Prolegomena of Chancery and Equity', in DEC Yale (ed) Lord Nottingham's Two Treatises (Cambridge, CUP, 1965) (cited hereafter as Nott Proleg) c 29, 14 (1 Ch Rep 26, 1 Ch Cas 138, 1 Mod 300, etc, not SP); Monnins vMonnins (1672 ...
Critique, 2011
The last months of the outgoing Labour government and the creation of the Conservative–Liberal De... more The last months of the outgoing Labour government and the creation of the Conservative–Liberal Democrat coalition have brought the question of the anti-union laws back into prominence. The recent, as it were 'traditional', left position on the issue is to call for the ...
The Journal of Legal History, 1994
... Hale, like Gilbert but rather less frequently, discusses the history of points and makes occa... more ... Hale, like Gilbert but rather less frequently, discusses the history of points and makes occasional use of authority from the learned laws. ... Of these apart from Gilbert only Bernard Hale was neither an MP nor held English office before appointment to the English bench. 35. ...
Critique, 2011
The last months of the outgoing Labour government and the creation of the Conservative–Liberal De... more The last months of the outgoing Labour government and the creation of the Conservative–Liberal Democrat coalition have brought the question of the anti-union laws back into prominence. The recent, as it were 'traditional', left position on the issue is to call for the ...
Http Dx Doi Org 10 1080 03017605 2011 621247, Nov 22, 2011
Equity and Administration, 2000
Oxford Journal of Legal Studies, 2007
Law and History Review, 1999
I am grateful for the opportunity to clarify some parts of my argument that is afforded by the co... more I am grateful for the opportunity to clarify some parts of my argument that is afforded by the comments of Charles Donahue and Patrick Wormald. I should say at the outset that I am not seeking to propose a monocausal explanation of the origins of the generalized use of jury trial at common law, whether a “stirps” or a “smoking gun” (Donahue), or to exclude altogether the relevance of Anglo-Saxon practice or strong government (Wormald)—though I am pretty skeptical of the specific Carolingian-Norman lineage proposed by Brunner.
Law and History Review, 1999
The origins of trial by jury have been the subject of an extensive debate. The traditional approa... more The origins of trial by jury have been the subject of an extensive debate. The traditional approach to the creation of the “palladium of liberty” saw the jurors as lay judges and located their origins in the lay judges of Anglo-Saxon England, continuing through the survival of the “ancient constitution.” An alternative approach, that of Heinrich Brunner, found wide acceptance from the end of the last century and until recently. Brunner detected the origins of the jury in fiscal inquiries imposed by strong monarchs, reversing the constitutional politics of the older view. At present, the wheel has turned back toward judicial character and origins in general early medieval practice. The purpose of this article is to take a new look at the issue by approaching it from a different angle: the requirement that jurors should come de vicineto, from the locality. This approach has produced the following observations.
P. Brand, K. Costello and WN Osborough, …, 2005
P Brand, K Costello and WN Osborough (eds), Adventures of the Law: Proceedings of the Sixteenth B... more P Brand, K Costello and WN Osborough (eds), Adventures of the Law: Proceedings of the Sixteenth British Legal History Conference, Dublin, 2003 (Four Courts Press, Dublin, 2005) 267-288 ... University of Oxford Faculty of Law Legal Studies Research Paper Series
Law and History Review, 1999
The origins of trial by jury have been the subject of an extensive debate. The traditional approa... more The origins of trial by jury have been the subject of an extensive debate. The traditional approach to the creation of the “palladium of liberty” saw the jurors as lay judges and located their origins in the lay judges of Anglo-Saxon England, continuing through the survival of the “ancient constitution.” An alternative approach, that of Heinrich Brunner, found wide acceptance from the end of the last century and until recently. Brunner detected the origins of the jury in fiscal inquiries imposed by strong monarchs, reversing the constitutional politics of the older view. At present, the wheel has turned back toward judicial character and origins in general early medieval practice. The purpose of this article is to take a new look at the issue by approaching it from a different angle: the requirement that jurors should come de vicineto, from the locality. This approach has produced the following observations.
Inter cives necnon peregrinos, 2014
Sham Transactions, 2013
ABSTRACT This chapter explores the history in English law down to 1875 of legal use of the word &... more ABSTRACT This chapter explores the history in English law down to 1875 of legal use of the word "sham" and the related doctrines of "colourable" transactions, etc, fraus legis, and simulations. It shows that a wider scope originally given to such doctrines was narrowed in the mid-later 19th century. The "labelling rule" that a transaction labelled as a licence to occupy land is ipso facto a lease is, however, in its origins and early history (1460s-20th century) unrelated to "sham" and related ideas.
ABSTRACT This chapter explores the history in English law down to 1875 of legal use of the word &... more ABSTRACT This chapter explores the history in English law down to 1875 of legal use of the word "sham" and the related doctrines of "colourable" transactions, etc, fraus legis, and simulations. It shows that a wider scope originally given to such doctrines was narrowed in the mid-later 19th century. The "labelling rule" that a transaction labelled as a licence to occupy land is ipso facto a lease is, however, in its origins and early history (1460s-20th century) unrelated to "sham" and related ideas.
Coke v Fountaine (1676) is a "landmark" case in the sense that it has been commonly cit... more Coke v Fountaine (1676) is a "landmark" case in the sense that it has been commonly cited in textbooks etc for general claims about equity and trusts made by Lord Nottingham LC. But this decision was in its own time unreported (several other decisions in the same long-running litigation were reported) but only unearthed from Lord Nottingham's MS in the 19th century. This chapter explores why this was.
Oxford Journal of Legal Studies, 1990
... 76 Fry v Porter (1669) Lord Nottingham's 'Prolegomena of Chancery and Equity',... more ... 76 Fry v Porter (1669) Lord Nottingham's 'Prolegomena of Chancery and Equity', in DEC Yale (ed) Lord Nottingham's Two Treatises (Cambridge, CUP, 1965) (cited hereafter as Nott Proleg) c 29, 14 (1 Ch Rep 26, 1 Ch Cas 138, 1 Mod 300, etc, not SP); Monnins vMonnins (1672 ...