This chapter surveys the principal features of the legal system of the later sixteenth century, beginning with the courts and their functions. Trials took place at the assizes in the country, separated from the legal argument in Westminster Hall. The court at Westminster did not hear the evidence but had to take the facts as encapsulated in Latin; the effect of this separation is considered. In absence of appeals as we know them, judges were unwilling to decide difficult cases, though the desire for unanimity was giving way to an acceptance of majority decisions. The cost of litigation was much lower than today, and most litigants in the highest courts were of a social status below the gentry. The chapter ends with an account of the legal profession in this period, which saw the rise of the solicitor. The inns of court played a central role as a residential legal university, attended by a substantial proportion of the English gentry.

This chapter continues with the differences between then and now and explores the difficulties of an evaluative comparison. The question is approached in terms of the rule of law, as now understood. In terms of accessibility, efficiency and fairness, in the sphere of civil justice the scales seem to be evenly balanced between the two periods. The criminal law, on the other hand, is now more protective of the accused and less severe; the removal of the death penalty, however, has led to the removal of some of the older safeguards. A meaningful comparison of the substantive content of the law in both periods is hindered by the intervening social changes and by changing attitudes to property and personal autonomy. The transformation of family law is a case in point. Nevertheless, the ultimate conclusion is that the law under two Elizabeths is in essence the same organism, facing similar challenges, and tackling them in recognisably similar ways. Much of what we regard as achievements of modern enlightenment should in fact be credited to the lawyers of the sixteenth century and the common-law heritage.

In this chapter, we explore the ability of courts to enhance the role of substantive law in case outcomes by reducing party litigation costs. When it becomes less costly for parties to engage actively in dispute resolution, the shadow of substantive law should, in theory, become more pronounced and case outcomes should change (and hopefully become more accurate/efficient on average). To empirically investigate this hypothesis, we examine the consequences of a large state court’s implementation of court-assisted online dispute resolution (ODR) tools for its small claims docket. A central goal of this technology is to reduce litigation costs of all sorts so that parties are able to communicate easily and negotiate settlements quickly in the shadow of what is —or could be—efficient substantive law, thereby avoiding inefficient status quo outcomes, like default judgments. ODR tools enhance court efficiency and litigant satisfaction by giving parties on‐demand, inexpensive access to a private and secure platform to negotiate an agreement that fully resolves their dispute. We find that, by reducing costs, eliminating procedural inefficiencies, and placing decision-making power in the hands of the parties, platform technology reduces the likelihood of default and likely improves the substantive outcome of disputes.

This chapter discusses the law and policy of monetary awards — including exemplary damages and litigation cost recoveries — that go beyond the compensatory damages to which prevailing parties in patent litigation are normally entitled. Up to treble damages are authorized in the United States for knowing infringement, but attorney fees are awarded only in exceptional cases. The rest of the world tends toward the opposite: Attorney fees are awarded as a matter of course, but punitive damages are generally prohibited as against public policy.This chapter discusses the theory, law, and policy of enhanced damages and attorney fee awards in the United States, Europe, and Asia. While the availability of enhanced damages and fees can bring accused infringers that might otherwise “hold out” to the table, care must also be taken to ensure that it does not discourage productive learning from patents or challenges to overbroad and vague patents. Rather than endorse any single set of doctrinal rules, there is a recommendation for further research into a number of unanswered questions about current and potential future configurations, in order to inform future policymaking.