Law Commons^™

Nature And Extent Of Rights To Fish In Western Australia. Final Report., Department Of Fisheries

Fisheries management papers

This report (‘Nature and Extent of Rights to Fish in Western Australia’) is not a policy document. It has been written to assist Government and stakeholders alike in reaching a common position on the issue of fisheries access rights in Western Australia. The report is intended to inform policy makers and stakeholders in gaining an understanding of fisheries legislation in Western Australia and the mechanisms and implications of resource allocation shifts. Its main use will be as a reference document and not a full treatise on the law. The report examines the common law position in the waters in respect …

Federalism's Fallacy: The Early Tradition Of Federal Family Law And The Invention Of States' Rights, Kristin Collins

Faculty Scholarship

By examining the history of the federal government's role in the regulation of the family, this article joins the work of others who in recent years have begun to piece together the history of the federal government's role in crafting domestic relations law and policy.'⁸ Much of this attention has focused on federal involvement in domestic relations in the late nineteenth and early twentieth centuries, with relatively less consideration given to the pre-Civil War period. Though recent contributions to this field have helped to cure this imbalance, ¹⁹ there remains a strong sense, especially among lawyers and judges, that …

Hadley V. Baxendale And Other Common Law Borrowings From The Civil Law, Wayne Barnes

Faculty Scholarship

In 1854, the English Exchequer Court delivered the landmark case of Hadley v. Baxendale. That case provided, for the first time in the common law, a defined rule regarding the limitations on recovery of damages for breach of contract. It has been widely celebrated as a landmark in the law of contracts, and more widely as a triumph of the common law system. A little over a decade after it was decided, it had already become highly regarded, for Chief Baron Pollock stated in 1866: “[A] more extensive and accurate knowledge of decisions in our law books, and a more …

Privacy And The Criminal Arrestee Or Suspect: In Search Of A Right, In Need Of A Rule, Sadiq Reza

Articles & Chapters

Criminal accusation stigmatizes. Merely having been accused of a crime lasts in the public eye, damaging one's reputation and threatening current and future employment, relationships, social status, and more. But vast numbers of criminal cases are dismissed soon after arrest, and countless accusations are unfounded orunprovable. Nevertheless, police officers and prosecutors routinely name criminal accusees to the public upon arrest or suspicion, with no obligation to publicize a defendant's exoneration, or the dismissal of his case, or a decision not to file charges against him at all. Other individuals caught up in the criminal process enjoy protections against the public …

The Supreme Court And The Dig: An Empirical And Institutional Analysis With Michael E. Solimine, Rafael Gely, Michael E. Solimine

Faculty Publications

Almost all cases reach the docket of the United States Supreme Court through the discretionary writ of certiorari. In the normal course of events, the vast majority of petitions for a writ are denied. For those few petitions that are granted, the case is then briefed, orally argued, and decided on the merits. However, in a small number of cases the normal course is diverted, and the Court changes its mind by dismissing the writ of certiorari as improvidently granted. This action is usually referred to by the pithy acronym “DIG,” a convention we will use as well. Few cases …

Where There's At-Will, There Are Many Ways: Redressing The Increasing Incoherence Of Employment At Will, Scott A. Moss

Publications

Employment at will, the doctrine holding that employees have no legal remedy for unfair terminations because they hold their jobs at the will of the employer, has become mired in incoherence. State courts praise the common law rule as "essential to free enterprise" and "central to the free market," but in recent years they increasingly have riddled the rule with exceptions, allowing employee claims for whistleblowing, fraud, etc. Yet states have neither rejected employment at will nor shown any consistency in recognizing exceptions. Strikingly, states cite the same rationales to adopt and reject opposite exceptions, as a case study of …

Shopping For Law In A Coasean Market, G. Marcus Cole

Journal Articles

In the twentieth century, two Nobel-Prize winning economists wrote two seemingly unrelated characterizations of the processes constraining human behavior. One, Ronald Coase, wrote a short article entitled The Nature of the Firm,1 in which he reduced all managerial decision-making to a fundamental choice between making the factors of production, or buying them. This article and the idea of the "make or buy" decision for which it has come to be known, have proven to be among the most seminal in the history of financial economics and organizational behavior.

The second economist, Friedrich Hayek, wrote what he thought to be a …

The Common Law Choice Of Law Rules For Resulting And Constructive Trusts, Adeline Chong

Research Collection Yong Pung How School Of Law

There is a dearth of authority and in-depth discussion concerning what the choice of law rules are for claims involving the assertion that property is held on a resulting or constructive trust. It is usually thought that the choice of law rules set out by the Hague Convention on the Law Applicable to Trusts and on their Recognition (hereafter the ‘Hague Trusts Convention’), as enacted into English law by the Recognition of Trusts Act 1987, apply. However, it is arguable that this is not so for some types of resulting and constructive trusts, namely those governed by a foreign law; …

The Supreme Court, Rule 10b-5, And The Federalization Of Corporate Law, Mark J. Loewenstein

Publications

This Article examines Supreme Court jurisprudence since 1997 under the federal securities laws in light of the Court's earlier securities law decisions and in light of its recent decisions construing the Constitution and federal statutes as they relate to the regulation of business. These post-1977 cases strongly suggest that the much-heralded new federalism philosophy of the Supreme Court is not a factor in securities law cases or in business cases generally. Indeed, the opposite seems to be the case. In this context, new federalism cases appear to be an anomaly, with the reality being that the Court is still as …

State Courts And The Making Of Federal Common Law, Anthony J. Bellia

Journal Articles

The authority of federal courts to make federal common law has been a controversial question for courts and scholars. Several scholars have propounded theories addressing primarily whether and when federal courts are justified in making federal common law. It is a little-noticed phenomenon that state courts, too, make federal common law. This Article brings to light the fact that state courts routinely make federal common law in as real a sense as federal courts make it. It further explains that theories that focus on whether the making of federal common law by federal courts is justified are inadequate to explain …

Privacy And The Criminal Arrestee Or Suspect: In Search Of A Right, In Need Of A Rule, Sadiq Reza

Faculty Scholarship

Criminal accusation stigmatizes. Merely having been accused of a crime lasts in the public eye, damaging one's reputation and threatening current and future employment, relationships, social status, and more. But vast numbers of criminal cases are dismissed soon after arrest, and countless accusations are unfounded or unprovable. Nevertheless, police officers and prosecutors routinely name criminal accusees to the public upon arrest or suspicion, with no obligation to publicize a defendant's exoneration, or the dismissal of his case, or a decision not to file charges against him at all. Other individuals caught up in the criminal process enjoy protections against the …

Liberalism And Tort Law: On The Content And Economic Efficiency Of A Liberal Common Law Of Torts, Richard S. Markovits

Faculty Scholarship

This Article has three parts. Part I begins by delineating the protocol one should use to determine whether a society is an immoral society, an amoral society, a goal-based society of moral integrity, or a rights-based society of moral integrity (i.e., a society that engages in a bifurcated prescriptive-moral practice that strongly distinguishes moral-rights claims (about the just) from moral-ought claims (about the good), that is committed to the lexical priority of the just over the good, and that fulfills its commitments to some hard-to-specify, requisite extent). Part I then proceeds to outline the protocol one should use to determine …