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Common Law

2009

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Articles 1 - 23 of 23

Full-Text Articles in Law

Echoes Of The Impact Of Webb V. Mcgowin On The Doctrine Of Consideration Under Contract Law: Some Reflections On The Decision On The Approach Of Its 75th Anniversary, Stephen J. Leacock Oct 2009

Echoes Of The Impact Of Webb V. Mcgowin On The Doctrine Of Consideration Under Contract Law: Some Reflections On The Decision On The Approach Of Its 75th Anniversary, Stephen J. Leacock

Faculty Scholarship

No abstract provided.


Privacy 3.0-The Principle Of Proportionality, Andrew B. Serwin Jul 2009

Privacy 3.0-The Principle Of Proportionality, Andrew B. Serwin

University of Michigan Journal of Law Reform

Individual concern over privacy has existed as long as humans have said or done things they do not wish others to know about. In their groundbreaking law review article The Right to Privacy, Warren and Brandeis posited that the common law should protect an individual's right to privacy under a right formulated as the right to be let alone-Privacy 1.0. As technology advanced and societal values also changed, a belief surfaced that the Warren and Brandeis formulation did not provide sufficient structure for the development of privacy laws. As such, a second theoretical construct of privacy, Privacy 2.0 as …


Let Us Never Blame A Contract Breaker, Richard A. Posner Jun 2009

Let Us Never Blame A Contract Breaker, Richard A. Posner

Michigan Law Review

Holmes famously proposed a "no fault" theory of contract law: a contract is an option to perform or pay, and a "breach" is therefore not a wrongful act, but merely triggers the duty to pay liquidated or other damages. I elaborate the Holmesian theory, arguing that fault terminology in contract law, such as "good faith," should be given pragmatic economic interpretations, rather than be conceived of in moral terms. I further argue that contract doctrines should normally be alterable only on the basis of empirical investigations.


The Common Law Is Not Just About Contracts: How Legal Education Has Been Short-Changing Feminism, Charles E. Rounds Jr. May 2009

The Common Law Is Not Just About Contracts: How Legal Education Has Been Short-Changing Feminism, Charles E. Rounds Jr.

University of Richmond Law Review

No abstract provided.


The Appropriations Power And Sovereign Immunity, Paul F. Figley, Jay Tidmarsh May 2009

The Appropriations Power And Sovereign Immunity, Paul F. Figley, Jay Tidmarsh

Michigan Law Review

Discussions of sovereign immunity assume that the Constitution contains no explicit text regarding sovereign immunity. As a result, arguments about the existence-or nonexistence-of sovereign immunity begin with the English and American common-law doctrines. Exploring political, fiscal, and legal developments in England and the American colonies in the seventeenth and eighteenth centuries, this Article shows that focusing on common-law developments is misguided. The common-law approach to sovereign immunity ended in the early 1700s. The Bankers' Case (1690- 1700), which is often regarded as the first modern common-law treatment of sovereign immunity, is in fact the last in the line of English …


The Appropriations Power And Sovereign Immunity,, Jay Tidmarsh, Paul F. Figley May 2009

The Appropriations Power And Sovereign Immunity,, Jay Tidmarsh, Paul F. Figley

Journal Articles

Discussions of sovereign immunity assume that the Constitution contains no explicit text regarding sovereign immunity. As a result, arguments about the existence-or nonexistence-of sovereign immunity begin with the English and American common-law doctrines. Exploring political, fiscal, and legal developments in England and the American colonies in the seventeenth and eighteenth centuries, this Article shows that focusing on common-law developments is misguided. The common-law approach to sovereign immunity ended in the early 1700s. The Bankers' Case (1690- 1700), which is often regarded as the first modern common-law treatment of sovereign immunity, is in fact the last in the line of English …


Foreseeability And Copyright Incentives, Shyamkrishna Balganesh Apr 2009

Foreseeability And Copyright Incentives, Shyamkrishna Balganesh

All Faculty Scholarship

Copyright law’s principal justification today is the economic theory of creator incentives. Central to this theory is the recognition that while copyright’s exclusive rights framework provides creators with an economic incentive to create, it also entails large social costs, and that creators therefore need to be given just enough incentive to create in order to balance the system’s benefits against its costs. Yet, none of copyright’s current doctrines enable courts to circumscribe a creator’s entitlement by reference to limitations inherent in the very idea of incentives. While the common law too relies on providing actors with incentives to behave in …


Debunking Blackstonian Copyright, Shyamkrishna Balganesh Apr 2009

Debunking Blackstonian Copyright, Shyamkrishna Balganesh

All Faculty Scholarship

This is a review of Neil Weinstock Netanel’s Copyright’s Paradox (2008).


What Is Specific About Specific Restitution, Colleen P. Murphy Mar 2009

What Is Specific About Specific Restitution, Colleen P. Murphy

Law Faculty Scholarship

No abstract provided.


Kf Modified And The Classification Of Canadian Common Law, F. Tim Knight Mar 2009

Kf Modified And The Classification Of Canadian Common Law, F. Tim Knight

Librarian Publications & Presentations

This article was inspired by a previous article written by Vincent DeCaen in an earlier issue of CLLR. It explores classification, the different approaches taken by KF Modified and LC Class KE, and the role KF Modified has had in organizing collections in Canadian law libraries. It argues that there is no right or wrong way to classify legal resources and suggests that KF Modified can benefit cataloguing workflow and is well suited to both the Canadian and common law library environments.


In Defence Of The Doctrine Of Forum Non Conveniens, Dan Jerker B. Svantesson Feb 2009

In Defence Of The Doctrine Of Forum Non Conveniens, Dan Jerker B. Svantesson

Dan Svantesson

This article examines the doctrine of forum non conveniens as applied in Hong Kong, Australia, the US and Sweden, and considers the criticism that has been raised against the doctrine. The author argues that some of this criticism is valid, some of it is valid only in relation to some countries’ application of the doctrine, and some of the criticism is unfounded. The author concludes that the test applied in Hong Kong and most other common law jurisdictions - the clearly or distinctly more appropriate forum test - is the better option. The author goes on to make a number …


Giles V. California: Sixth Amendment Confrontation Right, Forfeiture By Wrongdoing, And A Misguided Departure From The Common Law And The Constitution, 40 U. Tol. L. Rev. 577 (2009), Ralph Ruebner, Eugene Goryunov Jan 2009

Giles V. California: Sixth Amendment Confrontation Right, Forfeiture By Wrongdoing, And A Misguided Departure From The Common Law And The Constitution, 40 U. Tol. L. Rev. 577 (2009), Ralph Ruebner, Eugene Goryunov

UIC Law Open Access Faculty Scholarship

No abstract provided.


Three Stories And Their Morals, Robert B. Bennett Jan 2009

Three Stories And Their Morals, Robert B. Bennett

Scholarship and Professional Work - Business

Fundamentally, the common law tradition is a collection of stories. Stories also become the law professor's stock in trade. We tell students stories or have them read stories in the form of cases or hypothetical situations and help them discern the morals to the stories-i.e., what the stories mean in the context of business or in their business lives? In a sense, that is what the Socratic Method is all about: analyzing stories in the form of cases and discerning their greater meaning. In this paper I will relate three true stories within the context of just-in-time production management and …


Marriage And Its Alternatives, Jeanine Elbaz Jan 2009

Marriage And Its Alternatives, Jeanine Elbaz

Tribeca Square Press

No abstract provided.


The Law And The Host Of The Canterbury Tales, 43 J. Marshall L. Rev. 51 (2009), Frederick B. Jonassen Jan 2009

The Law And The Host Of The Canterbury Tales, 43 J. Marshall L. Rev. 51 (2009), Frederick B. Jonassen

UIC Law Review

No abstract provided.


From Judging Culture To Taxing 'Indians': Tracing The Legal Discourse Of The 'Indian Mode Of Life', Constance Macintosh Jan 2009

From Judging Culture To Taxing 'Indians': Tracing The Legal Discourse Of The 'Indian Mode Of Life', Constance Macintosh

Articles, Book Chapters, & Popular Press

In this article I consider how judicial decision making characterizes Indigenous peoples’ culture outside the context of determinations under section 35(1) of the Constitution Act, 1982. I am concerned with how contemporary jurisprudence sometimes subjects Indigenous people to stereotyped tests of Aboriginality when they seek to exercise legislated rights. These common law tests of Aboriginality tend to turn on troubling oppositional logics, such as whether or not the Indigenous person engages in waged labour or commercial activities. These tests arose in historic legislation and policy that were premised on social evolutionary theory and were directed at determining whether an Indigenous …


Just Not Who We Are: A Critique Of Common Law Constitutionalism, Andrew C. Spiropoulos Jan 2009

Just Not Who We Are: A Critique Of Common Law Constitutionalism, Andrew C. Spiropoulos

Villanova Law Review

No abstract provided.


Case For A Constitutional Definition Of Hearsay: Requiring Confrontation Of Testimonial, Nonassertive Conduct And Statements Admitted To Explain An Unchallenged Investigation, The, James L. Kainen, Carrie A. Tendler Jan 2009

Case For A Constitutional Definition Of Hearsay: Requiring Confrontation Of Testimonial, Nonassertive Conduct And Statements Admitted To Explain An Unchallenged Investigation, The, James L. Kainen, Carrie A. Tendler

Faculty Scholarship

Crawford v. Washington’s historical approach to the confrontation clause establishes that testimonial hearsay inadmissible without confrontation at the founding is similarly inadmissible today, despite whether it fits a subsequently developed hearsay exception. Consequently, the requirement of confrontation depends upon whether an out-of-court statement is hearsay, testimonial, and, if so, whether it was nonetheless admissible without confrontation at the founding. A substantial literature has developed about whether hearsay statements are testimonial or were, like dying declarations, otherwise admissible at the founding. In contrast, this article focuses on the first question – whether statements are hearsay – which scholars have thus far …


Geier V. American Honda Motor Co.: A Story Of Statutes, Regulation And The Common Law, Peter L. Strauss Jan 2009

Geier V. American Honda Motor Co.: A Story Of Statutes, Regulation And The Common Law, Peter L. Strauss

Faculty Scholarship

This essay was written as a contribution to one of Foundation's "Story" series. In Geier, a lawsuit had been brought on behalf of a teenager whose injuries from an accident might have been lessened if her car had contained an airbag. Plaintiffs sued on the straightforward basis that the design choice to omit a safety device of proven merit made the car unreasonably hazardous. Federal safety regulations had required the maker of her car to install some such device as an airbag in at least 10% of the cars it made the year it made her car – but her …


"Everybody Knows What A Picket Line Means": Picketing Before The British Columbia Court Of Appeal, Judy Fudge, Eric Tucker Jan 2009

"Everybody Knows What A Picket Line Means": Picketing Before The British Columbia Court Of Appeal, Judy Fudge, Eric Tucker

Articles & Book Chapters

The general hostility of courts towards workers’ collective action is well documented, but even against that standard the restrictive approach of the British Columbia Court of Appeal stands out. Although this trend first became apparent in a series of cases before World War II in which the court treated peaceful picketing as unlawful and narrowly interpreted British Columbia’s Trade Union Act (1902), which limited trade unions’ common law liability, this study will focus on the court’s post-War jurisprudence. The legal environment for trade union activity was radically altered during World War II by PC 1003, which provided unions with a …


U.S. Class Actions And The "Global Class", George A. Bermann Jan 2009

U.S. Class Actions And The "Global Class", George A. Bermann

Faculty Scholarship

Robert Casad's articles on comparative civil procedure were among the first comparative law pieces that caught my eye when, as a freshly-minted associate at a leading New York law firm, I found myself leafing through comparative law journals, rather than amassing billable hours. I had no idea then that comparative law could be as fascinating as I have come to find it, certainly not in a field like civil procedure where the dividends of comparative law work were by no means obvious to me. (Comparative law was not even taught in any guise at Yale Law School in the late …


The Federal Common Law Of Nations, Anthony J. Bellia, Bradford R. Clark Jan 2009

The Federal Common Law Of Nations, Anthony J. Bellia, Bradford R. Clark

Journal Articles

Courts and scholars have vigorously debated the proper role of customary international law in American courts: To what extent should it be considered federal common law, state law, or general law? The debate has reached something of an impasse, in part because various positions rely on, but also are in tension with, historical practice and constitutional structure. This Article describes the role that the law of nations actually has played throughout American history. In keeping with the original constitutional design, federal courts for much of that history enforced certain rules respecting other nations' perfect rights (or close analogues) under the …


La Restituzione Del'arricchimento E Il Risarcimento Del Danno, Pietro Sirena Dec 2008

La Restituzione Del'arricchimento E Il Risarcimento Del Danno, Pietro Sirena

Pietro Sirena

No abstract provided.