Common Law Commons^™

English Justices And Roman Jurists: The Civilian Learning Behind England's First Case Law, Thomas J. Mcsweeney

Faculty Publications

Article looks at a historical problem—the first use of case law by English royal justices in the thirteenth century—and makes it a starting point for thinking about the ways legal reasoning works in the modern common law. In the first Part of the Article, I show that, at its origin, the English justices’ use of decided cases as a source of law was inspired by the work civil and canon law scholars were doing with written authorities in the medieval universities. In an attempt to make the case that English law was on par with civil law and ...

Property Before Property: Romanizing The English Law Of Land, Thomas J. Mcsweeney

Faculty Publications

No abstract provided.

Illegitimate Children And Constitutional Review, Clayton W. Plotkin, John Vodonick

Pepperdine Law Review

No abstract provided.

The Unwritten Law And Its Writers, Frederick J. Moreau

Pepperdine Law Review

No abstract provided.

Is The Rule Of Necessity Really Necessary In State Administrative Law: The Central Panel Solution, Arnold Rochvarg

Journal of the National Association of Administrative Law Judiciary

The rule of necessity is a judicial doctrine that permits a judge or agency decision maker to decide a case even if he or she would ordinarily be disqualified due to bias or prejudice . The rationale of the doctrine is that if there is no other person who can make the decision, let the biased person decide the case rather than have no decision made at all. The rule of necessity has been used in state administrative proceedings liberally despite the fact that it is widely recognized as unfair. This article analyzes current approaches to the doctrine, and after concluding ...

Rubin And New Cap: Foreign Judgments And Insolvency, University Of Oxford; Visiting Faculty, Singapore Management University

Research Collection School of Law (Open Access)

The decisions of the UK Supreme Court in 2012 in Rubin and New Cap, and of the Singapore High Court in 2013 in Beluga Chartering, raise in acute form the question of how far the common law of international insolvency and of the recognition of foreign judgments can go when a local court is asked by a court in another country to render particular forms of assistance in relation to an insolvency administration which is taking place there. It asks how the instinct to give assistance for the ultimate benefit of creditors needs to be balanced by the caution which ...

Past The Pillars Of Hercules: Francis Bacon And The Science Of Rulemaking, Daniel R. Coquillette

Boston College Law School Faculty Papers

The parallels between Francis Bacon’s career and that of Edward H. Cooper are obvious. Bacon was one of the great legal minds of his day and, unlike the common law judges who formed the law by deciding cases, Bacon expressed his greatness in writing brilliant juristic treatises and, as Lord Chancellor, drafting one of the first modern rule systems, the Ordinances in Chancery (1617-1620). My thesis is that Bacon invented modern, scientific rulemaking by fusing his new theories of inductive, empirical research with the traditions of equitable pleading, and is, in fact, the intellectual forebearer of the likes of ...

Forgiving The Unforgivable: Reinvigorating The Use Of Executive Clemency In Capital Cases, Molly Clayton

Boston College Law Review

Clemency, the power to reduce the sentence of a convicted criminal, has existed since ancient times. Yet, the use of this power in the United States has significantly declined in recent decades. The U.S. Supreme Court has called executive clemency “the fail safe” of the criminal justice system, and has determined that some minimal procedural safeguards apply in clemency proceedings. Lower courts, however, have failed to require any significant procedural safeguards in the clemency process. Because clemency plays a crucial function in the criminal justice system, this Note argues that states should enact both procedural requirements and substantive guidelines ...

Certainty Of Title: Perspectives After The Mortgage Foreclosure Crisis On The Essential Function Of Effective Recording Systems, Donald J. Kochan

Donald J. Kochan

Recording systems for property play a pivotal, market-facilitating role for the players engaged in any transaction, the judiciary that must resolve disputes between the players, and others members of the general public by informing each about the true nature of ownership of the real property things in the world. This symposium article explores the essential character of such systems in providing certainty of title, and takes a tour through the mortgage foreclosure crisis to see where adherence to and respect for these systems’ roles broke down.

Leading up to the crisis, as securitization became vogue and the housing boom blurred ...

Mind The Gap: The Equality Bill And Sharia Arbitration In The United Kingdom, Rebecca E. Maret

Boston College International and Comparative Law Review

The observance of Sharia principles in Islamic arbitration tribunals operating in the United Kingdom has been heralded for its ability to provide Muslim communities with internal, community-based fora for dispute resolution. Although the judgments issued by these faith-based arbitration tribunals lack binding legal authority, British lawmakers ex-press concerns centered on threats to the existing national legal system and to England’s deeply rooted social policy of equality and non-discrimination. Introduced to address these concerns in 2011, the Equality Bill proposes a legislative solution to further maintain the principle of equality within alternative dispute resolution channels. This Note argues that, despite ...

Hubbard V. Boelt: The Fireman's Rule Extended , Marty K. Deniston

Pepperdine Law Review

The California Supreme Court, in Hubbard v. Boelt, extended the reach of the fireman's rule to bar a suit brought by a policeman who was injured by the willful and wanton conduct of a speeding motor is while pursuing that motorist. This is an important development in tort law because, traditionally, the fireman's rule had only been applied to bar suits by firemen and policemen who were injured by the negligent conduct of another which was the cause of their presence at the scene. This author suggests that the majority's rationale underlying this extension was flawed because ...

Nlra Preemption Of State Common Law Wrongful Discharge Claims: The Bhopal Brigade Goes Home , Joseph R. Weeks

Pepperdine Law Review

No abstract provided.

A Duty To Rescue: The Good, The Bad And The Indifferent—The Bystander's Dilemma, Claire Elaine Radcliffe

Pepperdine Law Review

No abstract provided.

The Restatement (Second): Its Misleading Quality And A Proposal For Its Amelioration, W. Noel Keyes

Pepperdine Law Review

No abstract provided.

The Restatement (Second): A Tribute To Its Increasingly Advantageous Quality, And An Encouragement To Continue The Trend, John W. Wade

Pepperdine Law Review

No abstract provided.

Creditors And The Feme Covert, James Oldham

Georgetown Law Faculty Publications and Other Works

As is well-known, the Court of King’s Bench in Marshall v. Rutton (1800), under Chief Justice Lloyd Kenyon, overruled earlier King’s Bench decisions by Lord Mansfield that had allowed creditors to prevail in suits against married women in an expanding set of factual circumstances. As Kenyon confessed in Marshall, he had never been satisfied with the Mansfield decisions, and had wished that a case “should come to take away all the difficulties.” The Marshall case fulfilled his wish. Kenyon, however, was not the powerful leader of King’s Bench that Mansfield had been, and but for fortuities of ...

Ethics In Legal Education: An Augmentation Of Legal Realism, Gerald R. Ferrera

Pepperdine Law Review

No abstract provided.

The Best Interest Of The Child And The Law , Christian Reichel Van Deusen

Pepperdine Law Review

No abstract provided.

Allocating The Costs Of Parental Free Exercise: Striking A New Balance Between Sincere Religious Belief And A Child's Right To Medical Treatment , Paul A. Monopoli

Pepperdine Law Review

No abstract provided.

Negligent Infliction Of Emotional Distress: A Proposal For A Consistent Theory Of Tort Recovery For Bystanders And Direct Victims, Julie A. Greenberg

Pepperdine Law Review

No abstract provided.