Civil Law Commons^™

Promise And Private Law, Nathan B. Oman

Nathan B. Oman

This essay was part of a symposium on the thirtieth anniversary of the publication of Charles Fried's Contract as Promise and revisits Fried's theory in light of two developments in the private-law scholarship: the rise of corrective justice and civil-recourse theories. The structural features that motivate these theories-the bilateralism of damages and the private standing of plaintiffs-are both elements of the law of contracts that Contract as Promise sets out to explain. I begin with the issue of bilateralism. Remedies--in particular the defense of expectation damages--occupy much of Fried's attention in Contract as Promise, and he insists that this particular …

Why There Is No Duty To Pay Damages: Powers, Duties, And Private Law, Nathan B. Oman

Nathan B. Oman

This Article was part of a symposium on the rise of civil recourse theory. It contributes to this debate by defending a simple but counterintuitive claim: There is no duty to pay damages in either tort or contract law. The absence of such a duty provides a reason for believing that civil recourse provides a better account of private law than does corrective justice. Corrective justice is committed to interpreting private law as creating duties for wrongdoers to compensate their victims. In contrast, civil recourse sees the law as empowering plaintiffs against defendants. My argument is that a careful analysis …

The Supreme Court's Theory Of Private Law, Nathan B. Oman, Jason M. Solomon

Nathan B. Oman

In this Article, we revisit the clash between private law and the First Amendment in the Supreme Court’s recent case, Snyder v. Phelps, using a private-law lens. We are scholars who write about private law as individual justice, a perspective that has been lost in recent years but is currently enjoying something of a revival.

Our argument is that the Supreme Court’s theory of private law has led it down a path that has distorted its doctrine in several areas, including the First Amendment–tort clash in Snyder. In areas that range from punitive damages to preemption, the Supreme Court has …

The Honor Of Private Law, Nathan B. Oman

Nathan B. Oman

While combativeness is central to how our culture both experiences and conceptualizes litigation, we generally notice it only as a regrettable cost. This Article offers a less squeamish vision, one that sees in the struggle of people suing one another a morally valuable activity: the vindication of insulted honor. This claim is offered as a normative defense of a civil recourse approach to private law. According to civil recourse theorists, tort and contract law should be seen as empowering plaintiffs to act against defendants, rather than as economically optimal incentives or as a means of enforcing duties of corrective justice. …

A Theory Of Civil Liability, Nathan B. Oman

Nathan B. Oman

No abstract provided.

The Significance Of The Corpus Juris Civilis: Matilda Of Canossa And The Revival Of Roman Law, Thomas J. Mcsweeney, Michéle K. Spike

Thomas J. McSweeney

No abstract provided.

Magna Carta, Civil Law, And Canon Law, Thomas J. Mcsweeney

Thomas J. McSweeney

No abstract provided.

Keeping The Promise Of Public Fiduciary Theory: A Reply To Leib And Galoob, Evan J. Criddle, Evan Fox-Decent

Evan J. Criddle

No abstract provided.

The Limits Of Law In Accomplishing Racial Change: School Segregation In The Pre-Brown North, Davison M. Douglas

Davison M. Douglas

No abstract provided.

Excavating Race-Based Disadvantage Among Class-Privileged People Of Color, Khiara Bridges

Khiara M Bridges

The aim of this article is to begin to theorize the fraught space within which class-privileged racial minorities exist — the disadvantage within their privilege. The article posits that the invisibility of the racial subordination of wealthier people of color (that is, their marginalization on account of their race) is fertile soil for the germination of post-racialism — the sense that we, as a nation, have overcome our racial problems. The dramatic visibility of the minority poor’s suffering, combined with the relative invisibility of the suffering of those minorities who are not poor, breeds the belief that class is now …

Citizen Chávez: The State, Social Movements, And Publics, Anthony Peter Spanakos

Anthony Spanakos

Scholars are divided over whether the emancipatory politics promised by new social movements can be attained within civil society or whether seizure of the state apparatus is necessary. The Bolivarian Revolution led by President Hugo Chávez presents a crucial case for examining this question. Chávez’s use of the state apparatus has been fundamental in broadening the concept of citizenship, but this extension of citizenship has occurred alongside the deliberate exclusion of others. This has not only limited its appeal as a citizenship project but created counterpublics that challenge the functioning of the government and its very legitimacy. Analysis of Bolivarianism …

Brain Imaging For Legal Thinkers: A Guide For The Perplexed, Owen D. Jones, Joshua W. Buckholtz, Jeffrey D. Schall, Rene Marois

Owen Jones

It has become increasingly common for brain images to be proffered as evidence in criminal and civil litigation. This Article - the collaborative product of scholars in law and neuroscience - provides three things.

First, it provides the first introduction, specifically for legal thinkers, to brain imaging. It describes in accessible ways the new techniques and methods that the legal system increasingly encounters.

Second, it provides a tutorial on how to read and understand a brain-imaging study. It does this by providing an annotated walk-through of the recently-published work (by three of the authors - Buckholtz, Jones, and Marois) that …

The Louisiana Civil Code In French:Translation And Retranslation, Olivier Moréteau

Olivier Moréteau

The first codes of Louisiana (1808 and 1825) were written in French and translated into English. When the Civil Code was revised in 1870, it was written in English only. Recent revisions, all in English, aim at promoting a civilian vocabulary that differs from that of the common law. This article discusses the translation of the Louisiana Civil Code from English to French in the context of the steep decline and limited revival of the French language usage in Louisiana. It explores the purpose and the implementation process of the translation project, detailing every step, and identifying linguistic and legal …

A Dialogue To Conclude A Conference On Legal Translation: Synthèse À Deux Voix, Matthias Martin, Olivier Moréteau

Olivier Moréteau

No abstract provided.

Invitation Au Voyage, Olivier Moréteau

Olivier Moréteau

No abstract provided.

The Interaction Of Good Faith With Contract Performance, Dissolution, And Damages In The Louisiana Supreme Court, Jumoke Dara, Olivier Moréteau

Olivier Moréteau

No abstract provided.

Hidden Law: Taking The Comments More Seriously, Melissa T. Lonegrass

Melissa T. Lonegrass

No abstract provided.

Trends In Civil Justice Reform: A Canadian Perspective, Poonam Puri, Andrew Nichol

Poonam Puri

An effective civil litigation system is essential for the operation of a modern state. Access to civil justice promotes contractual certainty, the efficient resolution of tort claims, and provides an effective mechanism for disciplining private action. In order to promote these values a judicial system must provide timely and cost-effective access to court services, the competent adjudication of legal disputes, and consistent legal outcomes. However, the increased volume and complexity of modern civil litigation has created challenges for the administration of Canadian courts. Consequently, the judicial system is increasingly becoming less accessible to a broad class of individuals and the …

Best Practices For Mediation Training And Regulation: Preliminary Findings, Susan S. Raines, Tim Hedeen, Ansley B. Barton

Susan Raines

This article makes recommendations as to “Best Practices” for the training of mediators in court-connected settings. The authors’ findings cover issues including the design of training programs, the importance of experiential learning through role-plays, teaching methods for adult learners, class size and length, training ethical mediators, suggested trainer qualifications, and recommended regulatory practices for administrators. Data comes primarily from an assessment of mediation training and regulation in Florida, but the findings hold insights for court-connected mediation programs throughout the United States. Additionally, the authors highlight the benefits of a collaborative assessment approach involving all stakeholder groups and facilitating smooth implementation …

A Fresh Look At Title Vii: Sexual Orientation Discrimination As Sex Discrimination, Anthony Michael Kreis

Anthony Michael Kreis

Aggregation On Defendants' Terms: Bristol-Myers Squibb And The Federalization Of Mass-Tort Litigation, Andrew D. Bradt, D. Theodore Rave

Andrew D. Bradt

Although it is destined for the personal jurisdiction canon, the Supreme Court’s eight-to-one decision in Bristol-Myers Squibb Co. v. Superior Court does little to clarify that notoriously hazy doctrine. It does, however, significantly alter the balance of power in complex litigation. Bristol-Myers is a landmark case because it makes both mass-tort class actions and mass joinders impracticable in almost any state court outside of the defendant’s home states. With federal courts already hostile to class actions, plaintiffs who want to aggregate their claims will have to do so on the defendant’s terms: either on the defendant’s home turf or in …

Class Action Settlement Residue And Cy Pres Awards: Emerging Problems And Practical Solutions, Wilber H. Boies, Latonia Haney Keith

Latonia Haney Keith

Class action settlements often present the court and parties with the practical problem of disposing of residual funds that remain after distributions to class members. The cy pres doctrine is a well-recognized device that permits the court to designate suitable organizations to receive such funds. Recently, academics, judges, practitioners, and professional objectors have mounted a multi-faceted attack on this device, ranging from constitutional and ethical concerns to appeals challenging specific awards. This Article first describes the use of cy pres awards in class action settlements and explains why the constitutional, statutory, and ethical objections are unfounded. This Article then addresses …

Review Of The Fight For Fair Housing: Causes, Consequences And Future Implications Of The 1968 Federal Fair Housing Act, Tim Iglesias

Tim Iglesias

Threading The Needle Of Fair Housing Law In A Gentrifying City With A Legacy Of Discrimination, Tim Iglesias

Tim Iglesias

Le Code Napoleón Régit-Il Toujours L’Amérique Latine D’Outre-Tombe?, Matthew C. Mirow

M. C. Mirow

A l'occasion de réunions internationales, il est commun de voir des juristes de pays différents échanger des plaisanteries douteuses sur leurs systemes juridiques et la pratique judiciaire. Lorsqu'ils se trouvent aux Etats-Unis, les juristes d' Amérique Latine se plaisent à informer leurs interlocuteurs que leur systéme est toujours basé sur la codification napoléonienne. Une telle remarque ne fera pas le méme effet sur un juriste des Etats-Unis que sur un juriste européen. Elle masque à peine l'affirmation d'une égalité historique et culturelle, voire d'un sentiment de supériorité a l'égard de la tradition juridique anglo-américaine fondée sur la common law. Evidemment, …

A Novel Tool For Teaching Property: Starting With The Questions, Tim Iglesias

Tim Iglesias

Procedural Due Process Claims, Erwin Chemerinsky

Erwin Chemerinsky

No abstract provided.

Government Duty To Protect: Post-Deshaney Developments, Erwin Chemerinsky

Erwin Chemerinsky

No abstract provided.

The Future Of Oral Arguments, Jay Tidmarsh

Jay Tidmarsh

The civil-justice literature is replete with discussions of two phenomena: case management and the vanishing trial. These two phenomena are not unrelated. One commonly state goal of case management is to find ways, other than trial, to resolve civil disputes that find their way into court. Some observers find the movements toward case management and away from trial to be salutary; others find them disquieting. Regardless of the merits of this debate, the delivery of civil justice is undeniably evolving.

This evolution affects and changes many of the traditional attributes of American-style civil justice. The Essay examines one of these …

Causa E Função Social: A Ordem Pública E O Interesse Coletivo Nas Relações Contratuais, Lucas Abreu Barroso

Lucas Abreu Barroso

No abstract provided.