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Articles 91 - 98 of 98
Full-Text Articles in Law
Time, Property Rights, And The Common Law, Thomas W. Merrill
Time, Property Rights, And The Common Law, Thomas W. Merrill
Faculty Scholarship
The fee simple is often defined as an estate or interest of "potentially infinite duration." This way of speaking suggests that property rights are fixed and permanent – indeed, that they last forever. Similarly, property rights are regarded in classical liberal thought as sources of stability and security that foster individual autonomy and protect owners against the vicissitudes of life. This too suggests that property rights are not contingent upon a particular temporal context, but rather are impervious to the passage of time.
When we look at the common law, however, we quickly discover a much more complex relationship between …
The Common Law Powers Of Federal Courts, Thomas W. Merrill
The Common Law Powers Of Federal Courts, Thomas W. Merrill
Faculty Scholarship
Lawmaking by federal courts has been a matter of controversy since the early days of the Republic. In the last forty years, the debate has fallen into roughly two periods, with Roe v. Wade marking the dividing line. During what might be called the "legal process" era of the 1950's and 1960's, scholarly energy was focused on Erie Railroad v. Tompkins and what was then called the "new federal common law." To be sure, important work on judicial review was also done in those years, particularly in the wake of the Supreme Court's dramatic decision in Brown v. Board of …
The Right And The Reasonable, George P. Fletcher
The Right And The Reasonable, George P. Fletcher
Faculty Scholarship
As the common law relies on the concept of "reasonableness," the civil law relies on the concept of "Right." Professor Fletcher argues that reliance on reasonableness enables the common law to develop rules that can be voiced in a single standard. Such rules permit what Professor Fletcher terms 'flat" legal thinking. In contrast, the civil law's reliance on the concept of Right leads it to develop rules that proceed in two stages: the first rule asserts an absolute right; the second, a limitation based upon criteria other than Right. The application of such rules proceeds by what Professor Fletcher terms …
The Perplexing Borders Of Justification And Excuse, Kent Greenawalt
The Perplexing Borders Of Justification And Excuse, Kent Greenawalt
Faculty Scholarship
This Article's central theme is that Anglo-American criminal law should not attempt to distinguish between justification and excuse in a fully systematic way. I explore three possible bases for drawing the distinction: (1) a distinction between warranted and wrongful conduct; (2) a division between general and individual claims; and (3) a distinction based on the rights of others. I show why none of these bases yields a clear and simple criterion for categorization. The difficulty rests largely on the conceptual fuzziness of the terms ''justification" and "excuse" in ordinary usage and on the uneasy quality of many of the moral …
Marriage: The Status Of Contract, An Essay On Weitzman's The Marriage Contract, Marsha Garrison
Marriage: The Status Of Contract, An Essay On Weitzman's The Marriage Contract, Marsha Garrison
Faculty Scholarship
No abstract provided.
The Right Deed For The Wrong Reason: A Reply To Mr. Robinson, George P. Fletcher
The Right Deed For The Wrong Reason: A Reply To Mr. Robinson, George P. Fletcher
Faculty Scholarship
So far as there is a school of criminal theory in the United States, it is a school devoted to sifting and celebrating the purposes of the criminal law. Discussions in the literature are dominated by endless recitals of the deterrent, rehabilitative and retributive functions of criminal sanctions. The orthodox view is that all of these purposes are relevant and that any proposed rule of criminal law must be measured by its tendency to further one or all of these goals. If the issue is punishing negligence, for example, the standard mode of analysis is to ask whether punishing negligent …
Environmental Law And Construction Project Management, Michael S. Baram
Environmental Law And Construction Project Management, Michael S. Baram
Faculty Scholarship
Construction project management generally proceeds through sequential stages of project conception, planning, site acquisition, design and construction. Traditionally, citizens and public officials have relied on various elements of American common law to prevent, abate or get compensation for injuries resulting from the final construction stage of project management. Common law concepts of nuisance, negligence and trespass have been applied by the courts to situations where essentially private rights have been infringed by debris, runoff, noise, vibrations, structural damage and other byproducts of the construction process. The common law has therefore indirectly served as an environmental control on construction activities in …
Widow's Success In Common-Law Property State To Husband's Rights In Her Half Of Community Property Is Taxable And Valued At One-Half Of Entire Community--In Re Kessler's Estate, Bailey H. Kuklin
Faculty Scholarship
No abstract provided.