Law Commons^™

On The Place Of Judge-Made Law In A Government Of Laws, Matthew J. Steilen

Journal Articles

This essay explores a constitutional account of the elevation of the judiciary in American states following the Revolution. The core of the account is a connection between two fundamental concepts in Anglo-American constitutional thinking, discretion and a government of laws. In the periods examined here, arbitrary discretion tended to be associated with alien power and heteronomy, while bounded discretion was associated with self-rule. The formal, solemn, forensic, and public character of proceedings in courts of law suggested to some that judge-made law (a product of judicial discretion under these proceedings) did not express simply the will of the judge or …

Outlining The Case For A Common Law Duty Of Care Of Business To Exercise Human Rights Due Diligence, Douglass Cassell

Journal Articles

This article outlines the case for a business duty of care to exercise human rights due diligence, judicially enforceable in common law countries by tort suits for negligence brought by persons whose potential injuries were reasonably foreseeable. A parent company’s duty of care would extend to the human rights impacts of all entities in the enterprise, including subsidiaries. A company would not be liable for breach of the duty of care if it proves that it reasonably exercised due diligence as set forth in the Guiding Principles on Business and Human Rights. On the other hand, a company’s failure to …

Slade V. Caesars Entm’T Corp, 132 Nev. Adv. Op. 36 (May 12, 2016), Katherine Maher

Nevada Supreme Court Summaries

The Court generally upheld the common-law principles, referenced in NRS 463.0129(3)(a), permitting gaming establishments to exclude any persons from their premises for any reason, unless for discriminatory or otherwise unlawful purposes. Thus the district court properly dismissed the complaint.

Four Problems With The Draft Restatement’S Treatment Of Treaty Self-Execution, Carlos Manuel Vázquez

Georgetown Law Faculty Publications and Other Works

The American Law Institute has embarked on the challenging task of restating the confounding distinction between self-executing and non-self-executing treaties. In some respects, the current draft of the Fourth Restatement of Foreign Relations Law represents an advance from the treatment of the subject in the Third Restatement (Third). At the same time, the current draft retains, and may even aggravate, some of the flaws of that earlier treatment. This Essay suggests four ways the current draft could be improved. First, the draft should explicitly recognize that the concept of self-execution is not a unitary one. The "self-executing" label encompasses four …

Finding Common Law Duty Of Care From Statutory Duties: All Within The Anns Framework, Gary Kok Yew Chan

Research Collection Yong Pung How School Of Law

This paper examines the relationship between statutory duties and the common law duty of care in the tort of negligence. There are apparently divergent judicial statements on the general approach towards duty of care to be owed by persons under a statutory duty. One central question arises: should the courts treat the common law duty of care as subsisting generally unless it is excluded by the statute or must the plaintiff show that the Parliament intended to confer a private right of action or impose a common law duty? This paper argues that the two approaches may be properly accommodated …

Conceptions Of Authority And The Anglo-American Common Law Divide, Dan Priel

Articles & Book Chapters

This essay seeks to explain the puzzle of the divergence of American law from the rest of the common law world through the lens of legal theory. I argue that there are four competing ideal-type theories of the authority of the common law: reason, practice, custom, and will. The reason view explains the authority of the common law in terms of correspondence to the demands of pure practical reason; the practice view sees the authority of the common law as derived from the expertise of practitioners (especially judges and practice-oriented academics) who try to develop the common law as a …

Creating A Literature For The King’S Courts In The Later Thirteenth Century: Hengham Magna, Fet Asaver, And Bracton, Thomas J. Mcsweeney

Faculty Publications

The early common law produced a rich literature. This article examines two of the most popular legal treatises of the second half of the thirteenth century, Hengham Magna and Fet Asaver. It has long been recognized that these two treatises bear some relationship to each other. This article will attempt to establish that relationship, arguing that Hengham Magna and Fet Asaver were written by different people; that Fet Asaver borrows from Hengham Magna; and that the authors of both texts had independent access to the Bracton treatise. The article concludes by suggesting a new way to think about the legal …

Provisions Denying A Deduction For Illegal Expenses And Expenses Of An Illegal Business Should Be Repealed, Douglas A. Kahn, Howard Bromberg

Articles

Currently, the tax law denies a deduction for business expenses that violate a federal or state law (but only if the state law is generally enforced). In addition, losses, including business losses, cannot be deducted if they arise out of an illegal activity. For example, medical expenses are denied a deduction if they are illegal. Kickbacks, bribes, and rebates given in connection with the Medicaid or Medicare program are nondeductible. Any expenses, legal or not, incurred in connection with the conduct of a business of selling a controlled substance that is prohibited by federal law (or by the law of …

"To The Devil We Sprang And To The Devil We Shall Go": Memory And History In The Narrative Of British Medieval Constitutionality, Helen W. Tschurr

Summer Research

The British Bill of Rights is arguably one of the most important documents in history; it symbolizes modernity, legal protection for popular sovereignty, and has inspired several political and intellectual revolutions. The Bill of Rights is a physical manifestation of the British constitution and represents a triumph of constitutionality over despotism, the struggle which has defined British history since the Norman Invasion in 1066, and which has been deemed the de facto constitution itself. Because of its unique composition, the British constitution has been a hotly debated historical subject since the Glorious Revolution. Most scholarship on this topic has been …

Lights Hidden Under Bushel's Case, Thomas A. Green

Book Chapters

Some forty years ago, Charlie Donahue created a course which he titled "Law, Morals and Society." Designed for undergraduates, and situated among the offerings of the University of Michigan's interdisciplinary Medieval and Renaissance Collegium, the course reflected the approach to doing history that, as this volume recognizes, Charlie has followed throughout his long and enormously influential career as scholar, teacher, lecturer, and inepressible master of well-timed interventions during conference-panel discussion periods. "LMS" was composed of four units. Charlie, who taught two of them, led off with the legal basis for the deposition of Richard II; I followed with the law …

A Crackerjack Of A Sea Yarn: The Triumphs, Tributes And Trials Of Treasure Hunter Tommy Thompson, Taylor Simpson-Wood

Faculty Scholarship

No abstract provided.

Lack Of Marketability And Minority Discounts In Valuing Close Corporation Stock: Elusiveness And Judicial Synchrony In Pursuit Of Equitable Consensus, Stephen J. Leacock

Faculty Scholarship

No abstract provided.

The Magna Carta And The Beginning Of Modern Legal Thought, Vincent R. Johnson

Faculty Articles

As the Magna Carta, England's Great Charter of Liberties, marks its eighth centennial, it is appropriate to ask what's in it. The answer, it turns out, lives up to the legend. What's in the Magna Carta is the beginning of modern legal thought. The Great Charter set the expectations that for 800 years have shaped the development of the law in England, America, and around the globe. Like a blazing light piercing the medieval darkness, the Magna Carta illuminated the importance of legal principles, fair procedures, proportional punishment, official accountability, and respect for human dignity. It was unlike any legal …

The Promise Of The Rule Of (Environmental) Law: A Reply To Pardy's Unbearable Licence, Jocelyn Stacey Assistant Professor

Osgoode Legal Studies Research Paper Series

This short reply clarifies and defends the argument presented in "The Environmental Emergency and the Legality of Discretion in Environmental Law." It responds to the arguments that were made, and that could have been made, in Pardy's critique "An Unbearable Licence".

A More Fundamental Distinction For The Contemporary Economy Between Employee And Independent Contractor Status, Michael C. Harper

Faculty Scholarship

The common law remains an intellectual battle ground in Anglo-American legal systems, even in the current age of statutes. This is true in significant part because the common law provides legitimacy for arguments actually based on policy, ideology, and interest. It also is true because of the common law's malleability and related susceptibility to significantly varied interpretations.

Mere contention over the meaning of the common law to provide legitimacy for modern statutes is most often not productive of sensible policy, however. It generally produces no more than reified doctrine unsuited for problems the common law was not framed to solve. …

The Common Law Of Contract And The Default Rule Project, Alan Schwartz, Robert E. Scott

Faculty Scholarship

The common law developed over centuries a small set of default rules that courts have used to fill gaps in otherwise incomplete contracts between commercial parties. These rules can be applied almost independently of context: the market damages rule, for example, requires a court only to know the difference between market and contract prices. When parties in various sectors of the economy write sales contracts but leave terms blank, courts fill in the blanks with their own rules. As a consequence, a judicial rule that many parties accept must be "transcontextual": parties in varied commercial contexts accept the courts' rule …

Copyright And Good Faith Purchasers, Shyamkrishna Balganesh

All Faculty Scholarship

Good faith purchasers for value — individuals who unknowingly and in good faith purchase property from a seller whose own actions in obtaining the property are of questionable legality — have long obtained special protection under the common law. Despite the seller’s own actions being tainted, such purchasers obtain valid title themselves and are allowed to freely alienate the property without any restriction. Modern copyright law, however, does just the opposite. Individuals who unknowingly and in good faith purchase property embodying an unauthorized copy of a protected work are altogether precluded from subsequently alienating such property, or risk running afoul …

Law And Regime Change: The Common Law, Knowledge Regimes, And Democracy Between The Nineteenth And Twentieth Centuries, Kunal Parker

Articles

Using a change in knowledge regime as a paradigm of regime change, this paper explores the career of common law thinking in the United States between the nineteenth and twentieth centuries. It shows how, under the pressures of anti-foundational thinking, knowledge moved from a nineteenth-century regime of “knowledge that,” a regime of foundational knowledge, to an early-twentieth-century regime of “knowledge how,” a regime of anti-foundational knowledge concerned with the procedures, processes, and protocols of arriving at knowledge. It then shows how common law thinkers adapted to this change in knowledge regimes, transforming the common law from a body of substantive …

Le Concept Dé Dignité Le Droit Américain, Elisabeth Zoller

Articles by Maurer Faculty

No abstract provided.

Improving Predictability And Consistency In Class Action Tolling, Tanya Pierce

Faculty Scholarship

Class action tolling means that when parties in a suit allege federal treatment, the individual claims of putative class members are tolled federal courts while the class action is pending. Commonly referred to as American Pipe tolling, this rule prevents duplicative litigation that would result if plaintiffs were required to intervene or file independent lawsuits to protect their interests while the class action was pending. Federal courts have long settled the application of American Pipe tolling in scenarios involving later-filed individual actions. In other scenarios, however, the application of American Pipe tolling has caused considerable uncertainty. This Article examines the …

Cases And Case-Lawyers, Richard A. Danner

Faculty Scholarship

In the nineteenth century, the term “case-lawyer” was used as a label for lawyers who seemed to care more about locating precedents applicable to their current cases than understanding the principles behind the reported case law. Criticisms of case-lawyers appeared in English journals in the late 1820s, then in the United States, usually from those who believed that every lawyer needed to know and understand the unchanging principles of the common law in order to resolve issues not found in the reported cases. After the Civil War, expressions of concern about caselawyers increased with the significant growth in the amount …

Prior Consistent Statements: The Dangers Of Misinterpreting Recently Amended Federal Rule Of Evidence 801(D)(1)(B), Laird C. Kirkpatrick, Christopher B. Mueller

Publications

A recent amendment to Federal Rule of Evidence 801(d)(1)(B) expands the situations in which prior consistent statements by testifying witnesses can be used as substantive evidence, and not merely as rehabilitating evidence. In this piece, the Authors argue that the revised rule may mislead judges and lawyers to conclude that prior consistent statements are always usable as substantive evidence when offered to rehabilitate a witness. Nothing could be further from the truth. The intent, although hard to discern on the face of the revised rule, is only to allow substantive use of consistent statements that are otherwise admissible to rehabilitate …