Law Commons^™

Religious Courts In Secular Jurisdictions: How Jewish And Islamic Courts Adapt To Societal And Legal Norms, Rabea Benhalim

Publications

At first glance, religious courts, especially Sharia courts, seem incompatible with secular, democratic societies. Nevertheless, Jewish and Islamic courts operate in countries like the United States, England, and Israel. Scholarship on these religious courts has primarily focused on whether such religious legal pluralism promotes the value of religious freedom, and if so, whether these secular legal systems should accommodate the continued existence of these courts. This article shifts the inquiry to determine whether religious courts in these environments accommodate litigants’ popular opinions and the secular, procedural, and substantive justice norms of the country in which they are located. This article …

Non-Charitable Purpose Trusts: Past, Present, And Future, Richard C. Ausness

Law Faculty Scholarly Articles

This Article focuses on non-charitable purpose trusts and how they enable estate planners to better carry out their clients’ objectives. Specifically, it explores the history of non-charitable purpose trusts and summarizes the differences between private trusts, charitable trusts, and non-charitable purpose trusts. This Article also examines the treatment of non-charitable purpose trusts in England and the United States prior to the promulgation of the Restatement of Trusts in 1935. This Article surveys the recent adoption of non-charitable purpose trust provisions in the Uniform Trust Code and various Restatements and gives advice on drafting the trust instruments. Lastly, this Article concludes …

Rubbing The Rabbit's Foot: Gallows Superstitions And Public Healthcare In England During The Eighteenth And Nineteenth Centuries, Roberta M. Harding

Law Faculty Scholarly Articles

Superstitions possess an ancient pedigree. With the passage of time thematic superstitions developed; for example, some solely addressed the public’s health care needs. In fact, as far back as the fifth century many English subjects believed magical spells and jewels had curative properties. Law was another context that generated a body of superstitions. Capital punishment was one area that generated many superstitions. In fact, so many that a specific category was established: gallows superstitions. With hanging as the primary method of execution in England for centuries, this group of superstitions became a relatively large one. By merging the health care …

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 …

Comparative Reflections On Duncan V. Louisiana And Baldwin V. New York, William Pizzi

Publications

No abstract provided.

Comparative Defamation Law: England And The United States, Vincent R. Johnson

Faculty Articles

England and the United States share a common legal tradition that has been shaped by principles dating back at least 800 years to the time of the Magna Carta. Even after the American colonies declared their independence from England in 1776, English law was still widely followed in the new nation unless it was inconsistent with American institutions or new ideas. As late as 1964, American libel law was essentially "identical" to English libel law. This was true, in part, because until the mid-twentieth century, defamation law in both countries was defined "mainly by the common law and decisions of …

Cultural Paradigms In Property Institutions, Taisu Zhang

Faculty Scholarship

Do “cultural factors” substantively influence the creation and evolution of property institutions? For the past several decades, few legal scholars have answered affirmatively. Those inclined towards a law and economics methodology tend to see property institutions as the outcome of self-interested and utilitarian bargaining, and therefore often question the analytical usefulness of “culture.” The major emerging alternative, a progressive literature that emphasizes the social embeddedness of property institutions and individuals, is theoretically more accommodating of cultural analysis but has done very little of it.

This Article develops a “cultural” theory of how property institutions are created and demonstrates that such …

Forensic Evidence And The Court Of Appeal For England And Wales, Lissa Griffin

Elisabeth Haub School of Law Faculty Publications

The Criminal Division of the Court of Appeal has extensively analyzed the role of forensic evidence. In doing so, the court has grappled with the admissibility and reliability of a broad range of forensic evidence, from DNA and computer forensics to medical and psychological proof, to more outlying subjects like facial mapping, fiber analysis, or voice identification. The court has analyzed these subjects from two perspectives: the admissibility of such evidence in the lower courts and the admissibility of such evidence as fresh evidence on appeal. In both contexts, the court has taken a practical approach to admitting forensic proof …

Slides: Thoughts On Regulatory Mechanisms For Natural Resource Development: Alternatives To Command And Control, Including A Look At Open Source Approaches, Stanley Dempsey

Natural Resource Industries and the Sustainability Challenge (Martz Winter Symposium, February 27-28)

Presenter: Stanley Dempsey, Chairman, Royal Gold

17 slides

Optimizing English And American Security Interests, Lynn M. Lopucki, Arvin I. Abraham, Bernd P. Delahaye

UF Law Faculty Publications

Since the adoption of Uniform Commercial Code Article 9 in American jurisdictions in the 1960s, scholars have debated the desirability of the extraordinary priority given to secured creditors. Through a point-by-point comparison of English and American security interests, this article provides a new perspective on that long-running debate. The comparison reveals that security functions in strikingly similar manners in the two jurisdictions, while differing sharply in one crucial respect. In contrast to the absolute priority given secured creditors under American law, English law subordinates floating charges to administrative expenses, preferential creditors, and a prescribed share for unsecured creditors. Other, less …

Consent In Mediation , Jacqueline Nolan-Haley

Faculty Scholarship

This brief comparative analysis of the United States and English approaches to mediation consent raises policy questions about the merits of mandatory mediation. Is England on a better course by requiring consent at the front end of mediation? Will mediation be stronger in the long run when it has a consensual foundation? Arguably, the use of cost sanctions in England's mediation regime makes it close to a mandatory mediation system. For some litigants, participating in mediation will be potentially less costly than arguing that it was not unreasonable to refuse mediation. But despite the mandatory gloss, mediation is still a …

Foreign Judgments At Common Law: Rethinking The Enforcement Rules, Tanya J. Monestier

Journal Articles

England and Canada have adopted divergent approaches to the enforcement of foreign civil and commercial judgments. An English court will only enforce a foreign judgment where the defendant submitted to the junsdiction of the foreign court, or was present in the foreign jurisdiction when served with process. This position. while protecting domestic defendants, is outdated and does little to further the objectives underpinning judgment enforcement- Canadian courts, by contrast, have been far more liberal than their English counterparts, enforcing foreign judgments in cases where there is a "real and substantial connection" between the dispute and the judgment forum. While this …

Unity And Pluralism In Contract Law, Nathan B. Oman

Faculty Publications

No abstract provided.

Review Of Explaining The English Revolution: Hobbes And His Contemporaries, Donald J. Herzog

Reviews

The explosion of primary texts from seven- teenth-century England continues to trigger an explosion of scholarly treatments today. For good reason, too: Lots of the primary texts are amazing, and not just those tired old warhors- es, Hobbes's Leviathan and Locke's Second Treatise. As fun and challenging as the primary texts are, you are forgiven a touch of skepticism if you wonder just what the latest author has to add to our understanding. You might redouble your skepticism if you just glance at Mark Stephen Jendrysik's table of contents, offering chapters on Winstanley, Milton, Cromwell, Filmer, and Hobbes, and zeroing …

All My Rights, Carl E. Schneider

Articles

Diane Pretty was an Englishwoman in her early 40s who had been married nearly a quarter of a century. In November 1999, she learned she had amyotrophic lateral sclerosis-in Britain, motor neurone disease. Her condition deteriorated rapidly, and soon she was "essentially paralysed from the neck downwards." She had "virtually no decipherable speech" and was fed by a tube. She was expected to live only a few months or even weeks. AB a court later explained, however, "her intellect and capacity to make decisions are unimpaired. The final stages of the disease are exceedingly distressing and undignified. AB she is …

Legislative Intent And Statutory Interpretation In England And The United States: An Assessment Of The Impact Of Pepper V. Hart, Michael P. Healy

Law Faculty Scholarly Articles

Statutory interpretation is the process of discerning the meaning of legislation, and U.S. law has permitted courts to find meaning through a variety of often contradictory interpretive approaches. As a result, U.S. litigants often are uncertain about the interpretive approach a court will apply to a statute, even though the choice of the interpretive approach may determine the outcome of the litigation. Until the recent decision in Pepper (Inspector of Taxes) v. Hart, English approaches to statutory interpretation were more circumscribed because English courts foreclosed the intentionalist approach. This Article considers the impact that Pepper has had on statutory …

The American "Adversary System"?, William T. Pizzi

Publications

No abstract provided.

England's Contaminated Land Act Of 1995: Perspectives On America's Approach To Hazardous Substance Cleanups And Evolving Principles Of International Law, Michael P. Healy

Law Faculty Scholarly Articles

An important contemporary problem in environmental regulation concerns the cleanup of property that is an unfortunate legacy of the modem industrial age—acres of land affected by past inadequate disposals of toxic substances. The United States began to address this problem in 1980 with the enactment of the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA). CERCLA establishes both a liability regime for assigning the costs of cleaning up lands contaminated by the release of hazardous substances and regulatory requirements defining how those cleanups are to be pursued. In 1995, England enacted the Contaminated Land Act (alternatively referred to as the …

Thoughts From Across The Water On Hearsay And Confrontation, Richard D. Friedman

Articles

This article draws on the history of the hearsay rule, and on recent decisions of the European Court of Human Rights, to argue that the right to confrontation should be recognised as a basic principle of the law of evidence, and that aspects of the Law Commission's proposals for reform of the hearsay rule, and of the Home Office's proposals for restrictions on the right of cross-examination, are therefore unsatisfactory.

Enlightenment, Donald J. Herzog

Articles

It's a curious broadside, a work of austere graphics and polite prose far removed from the mischievous engravings and bawdy ballads usually appearing on such sheets. Drawn from an address that 345 printers had signed and 138 had presented to the queen, the original text was committed to parchment "and accompanied by a Copy surperbly printed on white Satin, edged with white Silk Fringe, backed with purple Satin, and mounted in an Ivory Roller with appropriate Devices." Even in the published version, the arch is full of intricately detailed work. The printers took pride in their craftmanship: "This Specimen of …

An American Lawyer's Reflections On Pepper V. Hart, Michael P. Healy

Law Faculty Scholarly Articles

Pepper v. Hart gave American lawyers a number of insights into the English law of statutory interpretation. For example, English law as described by the case was not as tidy as had been thought. To be sure, the case does state what Americans had believed was true about English law: “[u]nder present law, there is a general rule that references to parliamentary material as an aid to statutory construction is not permissible (the exclusionary rule).” Notwithstanding that rule, however, Pepper recognized that the rule of exclusion had an important and long-standing exception. This exception applies when the legislative materials identify …

Punishment And Procedure: A Different View Of The American Criminal Justice System, William T. Pizzi

Publications

No abstract provided.

Fact-Bargaining: An American Phenomenon, William T. Pizzi

Publications

No abstract provided.

Discovering Who We Are: An English Perspective On The Simpson Trial, William T. Pizzi

Publications

No abstract provided.

A Holistic Approach To Criminal Justice Scholarship, William T. Pizzi

Publications

No abstract provided.

Strong Criticism Of The American System Of Trial By Jury, Yale Kamisar

Articles

I grieve for my country to say that the administration of the criminal law in all the states in the Union (there may be one or two exceptions) is a disgrace to our civilization.

Review Of Kingship, Law And Society: Criminal Justice In The Reign Of Henry V, Thomas A. Green

Reviews

Edward Powell's splendid study of Henry V's strategy for keeping peace among magnate and gentry factions represents an important contribution to the history of criminal justice. After providing a panoramic view of the machinery of criminal justice, Powell analyzes the extent to which that machinery was effective as between the Crown, at the center, and the upper echelons of society in the provinces. His conclusion, not surprisingly, is that the regular processes of common-law criminal administration could not easily be deployed at those levels. But Powell does not let the matter drop there. Kingship, Law, and Society presents a lucid …

Pluralist Establishment: Reflections On The English Experience, Robert E. Rodes

Journal Articles

England's historical and current synthesis of Church and State differs greatly from other European and American experiences. It contrasts sharply with the path taken by most states, which chose to cope with religious pluralism by privatizing religion and by trying to base public life on secular views of human nature. This paper reviews the unique inception, and continuance, of the church-state throughout English history. It also reviews the unique manner in which England chose to deal with religious pluralism while maintaining its established church. After reviewing the English experience of establishment of religion, this paper concludes that the total wall …

A House Of Lords' Judgment, And Other Tales Of The Absurd, Alan Watson

Scholarly Works

In this paper I want to look at four approaches to deciding a case in different societies-contemporary England, uncodified civil or 'mixed' law systems (with an example from 17th century Scot-land and another from early 20th century South Africa), 19th century France after codification, 15th century Germany with a glance at 13th and 14th century Spain-where the attempt is made each time to reach the correct decision by applying the mental process thought most appropriate. None of the approaches examined here is result-oriented, and to outsiders, especially to lawyers brought up in a different legal culture, the mental process seems …

The Jury, Seditious Libel And The Criminal Law, Thomas A. Green

Book Chapters

The seditious libel trials of the eighteenth century constitute an important chapter in the history of freedom of the press and the growth of democratic government. While much has been written about the trials and about the administration of the criminal law in eighteenth-century England, little has been said about the relationship between the libel prosecutions and the more pervasive and long-standing problems of the criminal law. We have perhaps gone too far in positing-or simply assuming-a separation between political high misdemeanors and common-run felony cases such as homicide and theft. For there were points of contact between the two: …