Law Commons^™

Justifying An Analysis Of The Ecclesiological Development Of Subsidiarity Via Civil And Common Law Jurisprudential Epistemology, William Pieratt Demond

Seton Hall University Dissertations and Theses (ETDs)

This article seeks to justify an examination of subsidiarity's development within Catholicism. Due to the fact that the European Union ["EU"] codified subsidiarity via the Treaty of Maastricht, subsidiarity is now a part of EU law. Although seemingly intended to resolve questions concerning the proper allocation of powers, its codification has generated substantial debate concerning the proper meaning(s) (if any) and/or application(s) of subsidiarity within the EU. Due to the facts that 1) the EU's legal traditions are heavily influenced by both the civil and common law traditions, 2) both of these traditions advocate the use of established jurisprudential methodologies …

License To Share: The Ugly Side Of Creative Capitalism And The Irony Of The Commons, Warren B. Chik

Research Collection Yong Pung How School Of Law

In the real world, capitalism has largely influenced the development of the copyright regime as it exists today. However, the emergence of a cyberspace society requires us to revisit communitarian values in the light of the unique features of virtual interaction and the changing expectations and attitudes towards the control and use of creative works. As copyright legal and technological protections continue to expand, private initiatives through creative licensing provide some relief to their restrictions.

Poorly Crafted Endorsement Contracts Leave Athletes Exposed, Don R. Berthiaume, J. Douglas Baldridge

Don R Berthiaume

No abstract provided.

Of Equal Wrongs And Half Rights, Gideon Parchomovsky, Peter Siegelman, Steven Thel

All Faculty Scholarship

With a tiny handful of exceptions, common law jurisprudence is predicated on a “winner-take-all” principle: the plaintiff either gets the entire entitlement at issue or collects nothing at all. Cases that split an entitlement between the two parties are exceedingly rare. While there may be sound reasons for this all-or-nothing rule, we argue in this Article that the law should prefer equal division of an entitlement in a limited but important set of property, tort and contracts cases. The common element in such cases is a windfall, a gain or loss that occurs despite the fact that no ex ante …

Retrying The Acquitted In England, Part I: The Exception To The Rule Against Double Jeopardy For New And Compelling Evidence, David S. Rudstein

San Diego International Law Journal

More than 240 years ago, Sir William Blackstone, perhaps the most important commentator on the English common law, wrote that when a man is once fairly found not guilty upon any indictment, or other prosecution, before any court having competent jurisdiction of the offence, he may plead such acquittal in bar of any subsequent accusation for the same crime. This plea of autrefois acquit (a former acquittal), Blackstone explained, is based upon the principle that no man is to be brought into jeopardy of his life, more than once for the same offence, which he called a universal maxim of …

The Dream Of Greater Municipal Autonomy: Should The Legislature Or The Courts Modify Dillon's Rule, A Common Law Restraint On Municipal Power, Louis V. Csoka

North Carolina Central Law Review

No abstract provided.

Barrett V. Rosenthal: Oh, What A Tangled Web We Weave - No Liability For Web Defamation, Ternisha Miles

North Carolina Central Law Review

No abstract provided.

The Unseen Track Of Erie Railroad: Why History And Jurisprudence Suggest A More Straightforward Form Of Erie Analysis, Donald L. Doernberg

West Virginia Law Review

No abstract provided.

From The Dead Hand To The Living Dead: The Conundrum Of Charitable Donor Standing (Symposium), Evelyn Brody

Evelyn Brody

No abstract provided.

Post-Realist Blues: Formalism, Instrumentalism, And The Hybrid Nature Of Common Law Jurisprudence, Marin Roger Scordato

Nevada Law Journal

No abstract provided.

Quantum Meruit And The Restatement (Third) Of Restitution And Unjust Enrichment, Candace Kovacic-Fleischer

Articles in Law Reviews & Other Academic Journals

INTRODUCTION: Thirty years ago, Professor Graham Douthwaite said that restitution can "arise in a bedazzling variety of situations."' He also said that practitioners usually are not aware of "the restitutionary implications or potential" of their clients' problems. Over 50 years ago, Professor John Dawson said that "[i]t is doubtful even now whether most lawyers have an adequate conception of the range and resources of the remedy." About twenty years ago, I said of Professor Dawson's statement, "It is doubtful whether the situation has much improved in the last thirty years." Unfortunately, I can still repeat that concern.

The Protection Of Religious Freedom Under The American Constitution, Robert A. Sedler

Law Faculty Research Publications

No abstract provided.

From Blackstone’S Common Law Duty Of Parents To Educate Their Children To A Constitutional Right Of Parents To Control The Education Of Their Children, Robert A. Sedler

Law Faculty Research Publications

Blackstone’s Commentaries stated that the common law imposed a duty on parents to provide for the maintenance, protection, and education of their children, and of these, the duty to provide an education was "of far the greatest importance."

Early on American courts cited Blackstone for the proposition of the common law duty of parents educate their children. As the nineteenth century progressed, public and private schools were formed in most American states, and a number of states enacted compulsory education laws.

American states also sometimes also enacted laws that interfered with the freedom of parents to direct the education of …

Development Of Subsidiarity Via Civil And Common Law Jurisprudential Epistemology, William Pieratt Demond

Theses

This article seeks to justify an examination of subsidiarity's development within Catholicism. Due to the fact that the European Union ["EU"] codified subsidiarity via the Treaty of Maastricht, subsidiarity is now a part of EU law. Although seemingly intended to resolve questions concerning the proper allocation of powers, its codification has generated substantial debate concerning the proper meaning(s) (if any) and/or application(s) of subsidiarity within the EU.

Due to the facts that 1) the EU's legal traditions are heavily influenced by both the civil and common law traditions, 2) both of these traditions advocate the use of established jurisprudential methodologies …

Restating Restitution: A Case Of Contemporary Common Law Conceptualism, Chaim Saiman

Villanova Law Review

No abstract provided.

Cigarette Smoking As A Public Health Hazard: Crafting Common Law And Legislative Strategies For Abatemen, George P. Smith Ii

Scholarly Articles

The debate over when, and to what extent, the government may regulate public smoking, is a contentious one of great moment. The point at which the line will be drawn with regard to an individual's right to smoke in public is narrowing. This right may stop at public restaurants and the workplace; or it may reach as far as public stadia, outdoor gathering spots and public streets. In 2006, one report showed 461 municipalities in thirty-three states and the District of Columbia, had adopted one-hundred percent smoke-free coverage in restaurants, bars or workplaces; and 135 municipalities had one-hundred percent coverage …

Transparency And Determinacy In Common Law Adjudication: A Philosophical Defense Of Explanatory Economic Analysis, Jody S. Kraus

Faculty Scholarship

Explanatory economic analysis of the common law has long been subject to deep philosophical skepticism for two reasons. First, common law decisions appear to be cast in the language of deontic morality, not the consequentialist language of efficiency. For this reason, philosophers have claimed that explanatory economic analysis cannot satisfy the transparency criterion, which holds that a legal theory's explanation must provide a plausible account of the relationship between the reasoning it claims judges actually use to decide cases and the express reasoning judges provide in their opinions. Philosophers have doubted that the economic analysis has a plausible account of …

Promissory Estoppel: The Life History Of An Ideal Legal Transplant, Joel M. Ngugi

University of Richmond Law Review

This article hopes to accomplish three things. First, it will revisit the historical origins of the doctrine of promissory estoppel in the American law of contracts and the role that Samuel Williston, the Chief Reporter of the Restatement (First) of Contracts ("First Restatement") played in the evolution of the doctrine. The dominant theory is that Williston conceptualized the new promissory estoppel doctrine in a way that retarded and blunted the doctrine shortly after its birth. This theory is adhered to by both critics and proponents of the expansion of promissory estoppel as a ground of promissory obligation. According to both …

Aesthetic Judgment And Legal Justification, Guyora Binder

Journal Articles

Although criticized as illegitimate, literary elements are necessary features of legal argument. In a modern liberal state, law motivates compliance by justifying controversial prescriptions as products of an appropriate process for representing the will of society. Yet because law constructs the will of individual and collective actors in representing them, its representations are necessarily figurative rather than mimetic. In evaluating law's representation of society, citizens of the liberal state are also shaping their own ends. Such self-expressive choices, subjective but non-instrumental, entail aesthetic judgment. Thus the literary elements of rhetorical figuration and aesthetic appeal are fundamental, rather than merely ornamental, …

Advancing The Rebirth Of Environmental Common Law, Jason J. Czarnezki

Elisabeth Haub School of Law Faculty Publications

Federal law often fails to mitigate environmental harm. An alternative litigation response when federal avenues prove ineffective is reliance on state common law doctrines, especially public and private nuisance. A rebirth of the common law is occurring. This Article provides examples of the rebirth of environmental common law and suggests how common law claims and remedies in the environmental context can mitigate environmental harm.

Common Law Police Powers And The Rule Of Law, Steve Coughlan

Articles, Book Chapters, & Popular Press

Common law police powers have long been a source of some dispute in the Canadian criminal justice system. On the one hand, their existence is difficult to reconcile with predictability in the law, since in any individual case where a new power is created (generally referred to as use of the "ancillary powers doctrine"), it would not have been possible to know in advance that the police were actually acting legally. On the other hand the benefit for society purchased with that ambiguity is a more tailored response to the particular problem, which might also lead to better results in …

Why The Supreme Court Lied In Plessy, David S. Bogen

Villanova Law Review

No abstract provided.

Addressing The Incoherency Of The Preemption Provision Of The Copyright Act Of 1976, Joseph P. Bauer

Journal Articles

Section 301 of the Copyright Act of 1976 expressly preempts state law actions that are within the "general scope of copyright" and that assert claims that are "equivalent to" the rights conferred by the Act. The Act eliminated the previous system of common law copyright for unpublished works, which had prevailed under the prior 1909 Copyright Act. By federalizing copyright law, the drafters of the statute sought to achieve uniformity and to avoid the potential for state protection of infinite duration.

The legislative history of § 301 stated that this preemption provision was set forth "in the clearest and most …

The Economic Torts And English Law: An Uncertain Future, Hazel Carty

Kentucky Law Journal

No abstract provided.

Washington "Redskins" -Disparaging Term Or Valuable Tradition?: Legal And Economic Issues Concerning Harjo V. Pro-Football, Inc., Mark S. Nagel, Daniel A. Rascher

Fordham Intellectual Property, Media and Entertainment Law Journal

"I'll never change the name of the Redskins. You have my word on that. In addition to that, it's really what the Redskins mean that's not quite out there.., what it means is tradition. It means winning. It means a great tradition for the franchise."

-Daniel Snyder (owner of the Washington Redskins).

"A long habit of not thinking a thing wrong gives it a superficial appearance of being right, and raises at first a formidable outcry in defense of custom."

-Thomas Paine.