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Response: There Is No Common Law Of Severability, Kevin C. Walsh
Response: There Is No Common Law Of Severability, Kevin C. Walsh
Scholarly Articles
In this solicited response to The New General Common Law of Severability, I first offer an interpretation of Ayotte and subsequent Supreme Court decisions as continuous with existing doctrine instead of a departure from it. I then suggest that much of Scoville’s evidence for a federalization of severability doctrine is better viewed as evidence of doctrinal looseness rather than of doctrinal change. I conclude by returning to the lessons of severability’s doctrinal history, suggesting that the prehistory of severability doctrine may supply a better guide for how courts should deal with problems of partial unconstitutionality in the future.
Cigarette Smoking As A Public Health Hazard: Crafting Common Law And Legislative Strategies For Abatemen, George P. Smith Ii
Cigarette Smoking As A Public Health Hazard: Crafting Common Law And Legislative Strategies For Abatemen, George P. Smith Ii
Scholarly Articles
The debate over when, and to what extent, the government may regulate public smoking, is a contentious one of great moment. The point at which the line will be drawn with regard to an individual's right to smoke in public is narrowing. This right may stop at public restaurants and the workplace; or it may reach as far as public stadia, outdoor gathering spots and public streets. In 2006, one report showed 461 municipalities in thirty-three states and the District of Columbia, had adopted one-hundred percent smoke-free coverage in restaurants, bars or workplaces; and 135 municipalities had one-hundred percent coverage …
In The Tribunal Of Conscience: Mills V. Wyman Reconsidered, Geoffrey R. Watson
In The Tribunal Of Conscience: Mills V. Wyman Reconsidered, Geoffrey R. Watson
Scholarly Articles
In this Article, Professor Watson explores the historical record surrounding Mills v. Wyman, 20 Mass (3 Pick) 207 (1825), one of the leading American cases on moral obligation in contract law. In Mills, the Massachusetts Supreme Judicial Court refused to enforce a father's promise to compensate a Good Samaritan who had cared for the father's dying son. Professor Watson combs the historical evidence--court records, census reports, genealogical data, probate records, military rolls, and so on-and argues that the Mills court got both the facts and the law wrong. According to Professor Watson, the father did not make the promise in …
Aesthetic Nuisance: Re-Educating The Judiciary, George P. Smith Ii
Aesthetic Nuisance: Re-Educating The Judiciary, George P. Smith Ii
Scholarly Articles
This article discusses how the traditional common-law refusal to grant relief for an aesthetic nuisance has been eroded by various case decisions. The author suggests an “average person” standard for the judiciary to follow for recognizing an aesthetic nuisance.