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Articles 1 - 28 of 28
Full-Text Articles in Law
Reason, The Common Law, And The Living Constitution (Review Of The Living Constitution By David Strauss), Matthew J. Steilen
Reason, The Common Law, And The Living Constitution (Review Of The Living Constitution By David Strauss), Matthew J. Steilen
Book Reviews
This article reviews David Strauss’s recent book, The Living Constitution. The thesis of Strauss’s book is that constitutional law is a kind of common law, based largely on judicial precedent and common-sense judgments about what works and what is fair. Strauss argues constitutional doctrines prohibiting discrimination and protecting free speech have a common law basis, and that the originalist would have to reject them. However, it is unclear that the common law can justify these rights. This review examines Strauss’s account of the common law and shows why it cannot justify our First Amendment protections of subversive advocacy, as Strauss …
Retrying The Acquitted In England Part Iii: Prosecution Appeals Against Judges' Rulings Of "No Case To Answer", David S. Rudstein
Retrying The Acquitted In England Part Iii: Prosecution Appeals Against Judges' Rulings Of "No Case To Answer", David S. Rudstein
San Diego International Law Journal
The Order in Council permitting the prosecution appeal of "Mo" Courtney's acquittal and allowing him to be retried for the same offense of which he had previously been acquitted stems from the Criminal Justice Act 2003. That Act, which applies in England and Wales, grants the government the right to appeal certain rulings by the trial judge in criminal prosecutions on an indictment, including a ruling that there is no case to answer, i.e., a directed verdict of acquittal, and if the appeal is successful, allows the reviewing court to order that the acquitted defendant?s trial be resumed or that …
Shedding Light On Shady Grove: Further Reflections On The Erie Doctrine From A Conflicts Perspective, Joseph P. Bauer
Shedding Light On Shady Grove: Further Reflections On The Erie Doctrine From A Conflicts Perspective, Joseph P. Bauer
Journal Articles
This Article, a contribution to the Notre Dame Law Review symposium issue on the Supreme Court’s recent Shady Grove decision, is a follow-up to an article published in the same journal eleven years ago, in which I suggested that the Erie doctrine could be usefully informed by drawing on caselaw and jurisprudence from the horizontal choice of law setting. Shady Grove addressed the question of whether a New York state law, barring the assertion of claims for statutory damages, was binding in an action brought in the federal courts, or whether Federal Rule 23, which does not contain a similar …
The Right And Wrong Of “Knowing Receipt” In The Law Of Restitution, Tiong Min Yeo
The Right And Wrong Of “Knowing Receipt” In The Law Of Restitution, Tiong Min Yeo
2009 Yong Pung How Professorship of Law Lecture
One distinctive feature of the common law system is its duality. No legal analysis is complete without considering both the rules of common law and the principles of equity. Civilians (non-lawyers in common law countries and lawyers from civil law countries) struggle to understand why there are two systems of justice in the legal discourse and how they interact with one another. The trite proposition that equity prevails whenever there is a conflict belies the complexity of the relationship. The other distinctive feature is that much of the law continues to be made in the courts rather than by legislation. …
Recovery In Japan: Will It Be Heavy-Handed Or Hands-Off?, Robert R.M. Verchick
Recovery In Japan: Will It Be Heavy-Handed Or Hands-Off?, Robert R.M. Verchick
Robert R.M. Verchick
No abstract provided.
When The Restatement Is Not A Restatement: The Curious Case Of The "Flagrant Trespasser", David Logan
When The Restatement Is Not A Restatement: The Curious Case Of The "Flagrant Trespasser", David Logan
Law Faculty Scholarship
No abstract provided.
Finding Possession: Labor, Waste And The Evolution Of Property, Jill M. Fraley
Finding Possession: Labor, Waste And The Evolution Of Property, Jill M. Fraley
Scholarly Articles
Although possession has long been intimately linked to labor, recent historical work on land claims during the sixteenth and seventeenth centuries suggests that the clash of divergent legal cultures of possession drove the two apart. This clash yielded an American concept of possession much more deeply connected to industrialization than the traditional understanding of labor. By providing evidence of how our concept of labor was industrialized, this article questions the outcomes in modem possession cases, particularly as they impact development and environmental preservation in rural areas.
The "Common-Law Regime" Of Foreign Sovereign Immunity: The Actual Possession Rule In Admiralty, David J. Bederman
The "Common-Law Regime" Of Foreign Sovereign Immunity: The Actual Possession Rule In Admiralty, David J. Bederman
Vanderbilt Journal of Transnational Law
It has been a long-standing rule in admiralty that in order for a foreign sovereign to assert immunity in U.S. courts, the res that is the object of the maritime claim must be in the actual possession of the foreign state at the time the case is brought. Inasmuch as Samantar recognized the existence of a "common-law regime" that preexisted the Foreign Sovereign Immunities Act (FSIA), this Article examines whether the actual possession rule remains in force today. The FSIA codified the actual possession rule in its provisions for the handling of admiralty claims against foreign sovereigns, but this has …
The Immunity Of State Officials Under The Un Convention On Jurisdictional Immunities Of States And Their Property, David P. Stewart
The Immunity Of State Officials Under The Un Convention On Jurisdictional Immunities Of States And Their Property, David P. Stewart
Vanderbilt Journal of Transnational Law
The U.S. Supreme Court decided in Samantar v. Yousuf that claims of immunity by individual foreign officials in U.S. courts will be determined not under the Foreign Sovereign Immunities Act but instead under the common law, drawing on principles of international law. The 2004 UN Convention on the Jurisdictional Immunities of States and Their Properties represents the most recent and comprehensive international thinking on the question of jurisdictional immunities of foreign states and their officials in foreign courts. Under the Convention, individual representatives of a state acting in that capacity are entitled to the same immunities as the state itself. …
Judicial Takings And Collateral Attacks On State Court Property Decisions, Stacey Dogan
Judicial Takings And Collateral Attacks On State Court Property Decisions, Stacey Dogan
Faculty Scholarship
In Stop the Beach Renourishment, Inc. v. Florida Department of Environmental Protection,1 the U.S. Supreme Court divided over the question whether takings alleged to have occurred as a result of judicial action should be treated identically to takings by legislative or executive actors. In this essay, we accept the plurality’s basic contention that it makes little sense to treat judicial takings of property categorically differently than takings by other branches of government. If a judge decided to condemn property for a highway project, for example, we agree with Justice Scalia that the Constitution would compel compensation, just as it does …
The New Common Law Courts, Culture, And The Localization Of The Model Penal Code, Anders Walker
The New Common Law Courts, Culture, And The Localization Of The Model Penal Code, Anders Walker
All Faculty Scholarship
Few tropes in American law teaching are more firmly entrenched than the criminal law division between Model Penal Code and common law states. Yet, even a cursory look at current state codes indicates that this bifurcation is outmoded. No state continues to cling to ancient English common law, nor does any state adhere fully to the Model Penal Code. In fact, those states that adopted portions of the Code have since produced a substantial body of case law – what this article terms “new common law” – transforming it. Taking the controversial position that criminal law pedagogy is antiquated, this …
Law "In" And "As" History: The Common Law In The American Polity, 1790-1900, Kunal Parker
Law "In" And "As" History: The Common Law In The American Polity, 1790-1900, Kunal Parker
Articles
No abstract provided.
Samantar And Executive Power, Peter B. Rutledge
Samantar And Executive Power, Peter B. Rutledge
Vanderbilt Journal of Transnational Law
This essay examines Samantar v. Yousuf in the context of broader debate about the relationship between federal common law and executive power. Samantar represents simply the latest effort by the Executive Branch to literally shape the meaning of law through a process referred to in the literature as "executive lawmaking." While traditional accounts of executive lawmaking typically have treated the idea as a singular concept, Samantar demonstrates the need to bifurcate the concept into at least two different categories: acts of executive lawmaking decoupled from pending litigation and acts of executive lawmaking taken expressly in response to litigation. As Samantar …
The Dog That Caught The Car: Observations On The Past, Present, And Future Approaches Of The Office Of The Legal Adviser To Official Acts Immnunities, John B. Bellinger Iii
The Dog That Caught The Car: Observations On The Past, Present, And Future Approaches Of The Office Of The Legal Adviser To Official Acts Immnunities, John B. Bellinger Iii
Vanderbilt Journal of Transnational Law
The Supreme Court's decision in Samantar v. Yousuf vindicated the position of the State Department's Office of the Legal Adviser, which had long argued that the immunities of current and former foreign government officials in U.S. courts are defined by common law and customary international law as articulated by the Executive Branch, rather than by the Foreign Sovereign Immunities Act of 1976. But the decision will place a burden on the Office of the Legal Adviser, which will now be asked to submit its views on the potential immunity of every foreign government official sued in the United States. The …
Reshaping The Traditional Limits Of Affirmative Duties Under The Third Restatement Of Torts, 44 J. Marshall L. Rev. 319 (2011), Victor E. Schwartz, Christopher E. Appel
Reshaping The Traditional Limits Of Affirmative Duties Under The Third Restatement Of Torts, 44 J. Marshall L. Rev. 319 (2011), Victor E. Schwartz, Christopher E. Appel
UIC Law Review
No abstract provided.
The American Law Institute’S New Principles Of Aggregate Litigation, Sam Issacharoff, Carolyn Kuhl, Francis Mcgovern, Stephanie Middleton, John Beisner
The American Law Institute’S New Principles Of Aggregate Litigation, Sam Issacharoff, Carolyn Kuhl, Francis Mcgovern, Stephanie Middleton, John Beisner
Faculty Scholarship
No abstract provided.
The Conflicted Assumptions Of Modern Constitutional Law, H. Jefferson Powell
The Conflicted Assumptions Of Modern Constitutional Law, H. Jefferson Powell
Faculty Scholarship
Contribution to Symposium - The Nature of Judicial Authority: A Reflection on Philip Hamburger's Law and Judicial Duty
"Hot News": The Enduring Myth Of Property In News, Shyamkrishna Balganesh
"Hot News": The Enduring Myth Of Property In News, Shyamkrishna Balganesh
All Faculty Scholarship
No abstract provided.
Consumer Contract Exchanges And The Problem Of Adhesion, Andrew A. Schwartz
Consumer Contract Exchanges And The Problem Of Adhesion, Andrew A. Schwartz
Publications
Businesses and sophisticated parties have long used "contract exchanges," like the Chicago Board of Trade, to obtain a fair price and protect themselves from market volatility. These contract exchanges have greatly benefited both their participants and the public at large, but participation was long limited to a wealthy few. A decade ago, however, Internet websites, including Hotwire and Priceline, brought the power of contract exchanges directly to consumers, allowing regular people to flex their collective bargaining power to obtain low prices on travel services. Even more recently, other such "consumer contract exchanges," including Prosper and MoneyAisle, have organized vibrant markets …
Foreward: Erie's Gift, Jay Tidmarsh
Foreward: Erie's Gift, Jay Tidmarsh
Journal Articles
Sometimes described as "one of the modem cornerstones of our federalism," Erie stands at its narrowest for a simple proposition: When a federal court decides a claim whose source is state law, the court must apply the same substantive common-law rules that a state court would apply to the claim. Dictated by statute, by policy, and by the Constitution, this result seems "superbly right" to many. Indeed, Erie's narrow holding is not controversial today.
Sex Work By Law: Bedford's Impact On The Municipal Regulation Of Sex Work, Elaine Craig
Sex Work By Law: Bedford's Impact On The Municipal Regulation Of Sex Work, Elaine Craig
Articles, Book Chapters, & Popular Press
The recent Ontario trial decision in Bedford suggests three interrelated principles that municipal law makers should consider when formulating bylaws aimed at regulating sex work. These principles, if upheld on appeal, will inform the constitutionality of both current and prospective bylaws regulating sex work in Canadian cities.
In Bedford, Justice Himel concluded that the constitutionality of laws regulating the sex trade must be determined in a legal context which recognizes the violence faced by sex workers. She confirmed that laws that indirectly make sex work more dangerous and harmful must be consistent with those principles that our legal system, through …
Sex Work By Law: Bedford's Impact On The Municipal Regulation Of Sex Work, Elaine Craig
Sex Work By Law: Bedford's Impact On The Municipal Regulation Of Sex Work, Elaine Craig
Articles, Book Chapters, & Popular Press
The recent Ontario trial decision in Bedford suggests three interrelated principles that municipal law makers should consider when formulating bylaws aimed at regulating sex work. These principles, if upheld on appeal, will inform the constitutionality of both current and prospective bylaws regulating sex work in Canadian cities. In Bedford, Justice Himel concluded that the constitutionality of laws regulating the sex trade must be determined in a legal context which recognizes the violence faced by sex workers. She confirmed that laws that indirectly make sex work more dangerous and harmful must be consistent with those principles that our legal system, through …
Melms V. Pabst Brewing Co. And The Doctrine Of Waste In American Property Law, Thomas W. Merrill
Melms V. Pabst Brewing Co. And The Doctrine Of Waste In American Property Law, Thomas W. Merrill
Faculty Scholarship
Melms v. Pabst Brewing Co. may be the most important decision ever rendered by an American court concerning the law of waste. Unless your specialty is property law, that might not be enough to stir your interest. The doctrine of waste, after all, does not loom very large in public consciousness these days.
Nevertheless, waste has held a peculiar fascination for property theorists. The reason, I think, is that it touches directly on an important line of division in how we think about property. Does property exist primarily to protect the subjective expectations that particular owners have in particular things? …
Hot News: The Enduring Myth Of Property In News, Shyamkrishna Balganesh
Hot News: The Enduring Myth Of Property In News, Shyamkrishna Balganesh
Faculty Scholarship
The “hot news” doctrine refers to a cause of action for the misappropriation of time-sensitive factual information that state laws afford purveyors of news against free riding by a direct competitor. Entirely the offshoot of the Supreme Court’s decision in International News Service v. Associated Press, the doctrine enables an information gatherer to prevent a competitor from free riding on its efforts at collecting and distributing timely information. Over the last few years, newsgatherers of different kinds have begun using the doctrine with increased frequency, believing it to create and protect an ownership interest in news. This Article argues …
Common Law And Statute Law In Administrative Law, Jack M. Beermann
Common Law And Statute Law In Administrative Law, Jack M. Beermann
Faculty Scholarship
The largely statutory appearance of U.S. administrative law be surprising in light of the existence of the federal A Procedure Act of 1946 (APA).1 The APA, including its a amendments, is a relatively comprehensive guide to much of law in the United States. It contains the procedures agencies to follow in both rulemaking and adjudication and provisions on the availability and scope of judicial review of agency action. As includes open meeting and open file requirements as well as negotiated rulemaking and legislative review of agency rules generally held view that federal courts should not make com should act only …
The Democratic Common Law, Matthew J. Steilen
The Democratic Common Law, Matthew J. Steilen
Journal Articles
This article explores the democratic features of common-law judicial law-making. It begins by examining the so-called “classical” account of the common law, associated with English jurists Edward Coke and Matthew Hale. These jurists describe the common law as a kind of “reasonable custom” that emerges out of a public process in which lawyers exchange reasons with the court about how to resolve a dispute. The article then turns to modern common-law adjudication, and, drawing on the work of Fred Schauer, Edward Levi, Martin Golding, and others, shows how public deliberation prominently features in the modern adjudicative process as well. The …
The Rules About Restitution In The Proposal On A Common European Sales Law, Pietro Sirena
The Rules About Restitution In The Proposal On A Common European Sales Law, Pietro Sirena
Pietro Sirena
Under the point of view of restitution law, the proposal on a CESL, part VII, draws a parallel between terminated and avoided contracts, which is much more convincing than the binary model followed by the DCFR. It is, however, necessary to make this set of rules consistent with the general principle of unjustified enrichment, which according to European law represents its underpinning. In the article, a series of corrections are suggested to reach that goal.
Climate Change And The Puget Sound: Building The Legal Framework For Adaptation, Robert Glicksman, Catherine O'Neill, Yee Huang, William Andreen, Robin Kundis Craig, Victor Flatt, William Funk, Dale Goble, Alice Kaswan, Robert R.M. Verchick
Climate Change And The Puget Sound: Building The Legal Framework For Adaptation, Robert Glicksman, Catherine O'Neill, Yee Huang, William Andreen, Robin Kundis Craig, Victor Flatt, William Funk, Dale Goble, Alice Kaswan, Robert R.M. Verchick
Robert R.M. Verchick
No abstract provided.