Open Access. Powered by Scholars. Published by Universities.®
- Institution
-
- University of Colorado Law School (8)
- Schulich School of Law, Dalhousie University (4)
- Maurer School of Law: Indiana University (3)
- University of Nevada, Las Vegas -- William S. Boyd School of Law (2)
- Duke Law (1)
-
- Notre Dame Law School (1)
- Selected Works (1)
- Touro University Jacob D. Fuchsberg Law Center (1)
- University of Baltimore (1)
- University of Baltimore Law (1)
- University of Cincinnati College of Law (1)
- University of Georgia School of Law (1)
- University of Pittsburgh School of Law (1)
- University of Richmond (1)
- Vanderbilt University Law School (1)
- West Virginia University (1)
- Publication Year
- Publication
-
- Books, Reports, and Studies (6)
- Dalhousie Law Journal (4)
- Articles by Maurer Faculty (3)
- Scholarly Works (2)
- All Faculty Scholarship (1)
-
- Articles (1)
- Boundaries and Water: Allocation and Use of a Shared Resource (Summer Conference, June 5-7) (1)
- Faculty Scholarship (1)
- James R Maxeiner (1)
- Jeffrey A. Pojanowski (1)
- Journal Articles (1)
- LLM Theses and Essays (1)
- Touro Law Review (1)
- University of Cincinnati Law Review (1)
- University of Richmond Law Review (1)
- Vanderbilt Law Review (1)
- West Virginia Law Review (1)
- Western Water Law in Transition (Summer Conference, June 3-5) (1)
- Publication Type
Articles 1 - 29 of 29
Full-Text Articles in Law
Coordination Of The Uniform Commercial Code And Common Law, Kenneth C. Kettering
Coordination Of The Uniform Commercial Code And Common Law, Kenneth C. Kettering
University of Cincinnati Law Review
Deciding whether an issue that is in the ambit of a statute should be resolved by reference to the statute alone, or whether other sources of law should be applied, is a common interpretative task. The Uniform Commercial Code ("UCC") contains rules of interpretation that address the subject, and those rules have not been altered since the UCC was first generally enacted. Nevertheless, questions often arise on the subject under the UCC. This paper examines the UCC rules on point. The analysis is germane to the interpretation and drafting of other statutes that codify rules of private law.
Reading Statutes In The Common Law Tradition, Jeffrey A. Pojanowski
Reading Statutes In The Common Law Tradition, Jeffrey A. Pojanowski
Jeffrey A. Pojanowski
There is wide agreement in American law and scholarship about the role the common law tradition plays in statutory interpretation. Jurists and scholars of various stripes concur that the common law points away from formalist interpretive approaches like textualism and toward a more creative, independent role for courts. They simply differ over whether the common law tradition is worth preserving. Dynamic and strongly purposive interpreters claim the Anglo-American common law heritage in support of their approach to statutory interpretation, while arguing that formalism is an unjustified break from that tradition. Formalists reply that the common law mindset and methods are …
A Government Of Laws Not Of Precedents 1776-1876: The Google Challenge To Common Law Myth, James Maxeiner
A Government Of Laws Not Of Precedents 1776-1876: The Google Challenge To Common Law Myth, James Maxeiner
James R Maxeiner
Conventional wisdom holds that the United States is a common law country of precedents where, until the 20th century (the “Age of Statutes”), statutes had little role. Digitization by Google and others of previously hard to find legal works of the 19th century challenges this common law myth. At the Centennial in 1876 Americans celebrated that “The great fact in the progress of American jurisprudence … is its tendency towards organic statute law and towards the systematizing of law; in other words, towards written constitutions and codification.” This article tests the claim of the Centennial Writers of 1876 and finds …
Reading Statutes In The Common Law Tradition, Jeffrey A. Pojanowski
Reading Statutes In The Common Law Tradition, Jeffrey A. Pojanowski
Journal Articles
There is wide agreement in American law and scholarship about the role the common law tradition plays in statutory interpretation. Jurists and scholars of various stripes concur that the common law points away from formalist interpretive approaches like textualism and toward a more creative, independent role for courts. They simply differ over whether the common law tradition is worth preserving. Dynamic and strongly purposive interpreters claim the Anglo-American common law heritage in support of their approach to statutory interpretation, while arguing that formalism is an unjustified break from that tradition. Formalists reply that the common law mindset and methods are …
Interpretive Methodology And Delegations To Courts: Are ‘Common-Law Statutes’ Different?, Margaret H. Lemos
Interpretive Methodology And Delegations To Courts: Are ‘Common-Law Statutes’ Different?, Margaret H. Lemos
Faculty Scholarship
It is hard to find consensus on questions of statutory interpretation. Debates rage on about the appropriate goals of interpretation and the best means of achieving those ends. Yet there is widespread agreement, even among traditional combatants on the statutory interpretation field, when it comes to so-called “common-law statutes.” Textualists concede that text is not controlling; originalists admit that judicial construction of common-law statutes need not be keyed to the specific intent of the enacting Congress; and staunch defenders of strict statutory stare decisis allow frequent departures from precedent.
So what are common-law statutes? It is easy enough to name …
The Virginia Uniform Trust Code, John E. Donaldson, Robert T. Danforth
The Virginia Uniform Trust Code, John E. Donaldson, Robert T. Danforth
University of Richmond Law Review
In its 2005 Session, the Virginia General Assembly enacted Senate Bill 891,1 thus adopting the Uniform Trust Code ("UTC"), with modifications considered appropriate to this state's institutions, traditions, and jurisprudence. The Virginia Uniform Trust Code ("Virginia UTC"), set forth in new Chapter 31 of Title 55 of the Virginia Code, has an effective date of July 1, 2006, but, once in effect, it will be applicable (with some exceptions) to trusts created before, on, or after that date. The new Virginia UTC, which encompasses the great bulk of the principles and rules that comprise the law of trusts in Virginia, …
Private Lands Conservation In The British Virgin Islands, Joan Marsan, University Of Colorado Boulder. Natural Resources Law Center
Private Lands Conservation In The British Virgin Islands, Joan Marsan, University Of Colorado Boulder. Natural Resources Law Center
Books, Reports, and Studies
46 p. ; 28 cm
Private Lands Conservation In Belize, Joan Marsan, University Of Colorado Boulder. Natural Resources Law Center
Private Lands Conservation In Belize, Joan Marsan, University Of Colorado Boulder. Natural Resources Law Center
Books, Reports, and Studies
49 p. : map ; 28 cm
Private Lands Conservation In The U.S. Virgin Islands, Sonja Klopf, University Of Colorado Boulder. Natural Resources Law Center
Private Lands Conservation In The U.S. Virgin Islands, Sonja Klopf, University Of Colorado Boulder. Natural Resources Law Center
Books, Reports, and Studies
61 p. ; 28 cm
Private Lands Conservation In Guam, Craig Corona, University Of Colorado Boulder. Natural Resources Law Center
Private Lands Conservation In Guam, Craig Corona, University Of Colorado Boulder. Natural Resources Law Center
Books, Reports, and Studies
93 p. ; 28 cm
Private Lands Conservation In The Commonwealth Of The Northern Mariana Islands, Gregg De Bie, University Of Colorado Boulder. Natural Resources Law Center
Private Lands Conservation In The Commonwealth Of The Northern Mariana Islands, Gregg De Bie, University Of Colorado Boulder. Natural Resources Law Center
Books, Reports, and Studies
68 p. ; 28 cm
Private Lands Conservation In The Republic Of The Marshall Islands, Gregg De Bie, University Of Colorado Boulder. Natural Resources Law Center
Private Lands Conservation In The Republic Of The Marshall Islands, Gregg De Bie, University Of Colorado Boulder. Natural Resources Law Center
Books, Reports, and Studies
59 p. ; 28 cm
Judge-Made Insurance That Was Not On The Menu: Schmidt V. Smith And The Confluence Of Text, Expectation, And Public Policy In The Realm Of Employment Practices Liability, Jeffrey W. Stempel
Judge-Made Insurance That Was Not On The Menu: Schmidt V. Smith And The Confluence Of Text, Expectation, And Public Policy In The Realm Of Employment Practices Liability, Jeffrey W. Stempel
Scholarly Works
In Schmidt v. Smith, the New Jersey Supreme Court caught more than a few observers by surprise. New Jersey courts have generally issued opinions regarded as pro-claimant and pro-policyholders. But everyone's taste for recompense and coverage has limits. In Schmidt, the court exceeded those limits for many observers by holding that despite what it regarded as clear contract language in an exclusion, an insurer providing Employers’ Liability (“EL”) coverage along with Workers' Compensation (“WC”) insurance for the employer was required to provide coverage in a case of blatant sexual harassment bordering on criminal assault. In doing so, the Schmidt court, …
Adjudication As Representation, Christopher J. Peters
Adjudication As Representation, Christopher J. Peters
All Faculty Scholarship
This Article sets forth an interpretive theory of adjudicative lawmaking according to which, under certain conditions, such lawmaking ensures constructive participation through interest representation and thus is not inherently nondemocratic. The author contends that the idea of ‘judicial activism,‘ courts deciding issues better left to political processes or substituting the personal ‘values‘ of judges for law, is based on the incorrect assumptions that courts are unconstrained and nonrepresentative. Instead, when adjudication operates in an archetypal way, it produces law in a manner similar to the parliamentary legislation process. Courts making law are constrained by the process of participatory decisionmaking--the production …
Fair Use In American And Continental Laws, Omar M.A. Obeidat
Fair Use In American And Continental Laws, Omar M.A. Obeidat
LLM Theses and Essays
Intellectual property, unlike tangible property, does not exclusively occupy one place at a designated time. Instead, intellectual property is composed of information which can be reproduced or used in multiple places at any given time. This fundamental difference between intellectual and tangible property is reflected in the legal provisions that regulate these types of property. There are two dominant theories that justify the legal protection of intellectual property: the individualistic European approach, and the commercial Anglo-American approach. Under the European approach, the protection of the creation is a natural right guaranteed to the author. In other words, natural law guarantees …
Under Age: A Minor's Right To Consent To Health Care, Nancy Batterman ,Esq.
Under Age: A Minor's Right To Consent To Health Care, Nancy Batterman ,Esq.
Touro Law Review
No abstract provided.
Exchange Loss Damages And The Uniform Foreign-Money Claims Act: The Emperor Hasn't All His Clothes, Ronald A. Brand
Exchange Loss Damages And The Uniform Foreign-Money Claims Act: The Emperor Hasn't All His Clothes, Ronald A. Brand
Articles
In 1989, the National Conference of Commissioners on Uniform State Laws approved a new Uniform Foreign-Money Claims Act. This Act is designed to change and clarify the law regarding judgments on obligations denominated in a foreign currency. It does so by recognizing that old rules preventing judgment in a foreign currency - developed in times of a strong dollar - are inappropriate. Unfortunately, in seeking fairness for plaintiffs when the U.S. dollar is weak, the Act replaces rigid old rules with stiff new rules that fail to address the basic issue of appropriate damages for exchange rate losses. While the …
An "Internal" Critique Of Justice Scalia's Theory Of Statutory Interpretation, William D. Popkin
An "Internal" Critique Of Justice Scalia's Theory Of Statutory Interpretation, William D. Popkin
Articles by Maurer Faculty
No abstract provided.
Reconsidering The Employment Contract Exclusion In Section 1 Of The Federal Arbitration Act: Correcting The Judiciary's Failure Of Statutory Vision, Jeffrey W. Stempel
Reconsidering The Employment Contract Exclusion In Section 1 Of The Federal Arbitration Act: Correcting The Judiciary's Failure Of Statutory Vision, Jeffrey W. Stempel
Scholarly Works
The Federal Arbitration Act (the Act), seeks to eliminate centuries of perceived judicial hostility toward arbitration agreements. The Act made written arbitration agreements involving interstate commerce specifically enforceable. It also provided a procedural structure for enforcing awards, which were protected through deferential judicial review. The Act intended to have a wide reach, employing a broad definition of commerce that has presumably grown in breadth along with the expansion of judicial notions of commerce. Although courts applied the Act in tentative and cautious fashion until the 1960's, arbitration gained momentum during the 1970's and the 1980's. Despite growing judicial enthusiasm for …
Interjurisdictional Relations Under Federal Water Quality Law: A Guide Through The Maze, Michael C. Blumm, Daniel Rohlf
Interjurisdictional Relations Under Federal Water Quality Law: A Guide Through The Maze, Michael C. Blumm, Daniel Rohlf
Boundaries and Water: Allocation and Use of a Shared Resource (Summer Conference, June 5-7)
53 pages.
Contains references.
The Teaching Of Legislation In Canadian Law Faculties, W Maclauchlan, T G. Ison, H N. Janisch, P A. Coté
The Teaching Of Legislation In Canadian Law Faculties, W Maclauchlan, T G. Ison, H N. Janisch, P A. Coté
Dalhousie Law Journal
Wade MacLauchlan: On behalf of Pierre Issalys, who serves as co- President of the Administrative Law Section of the Canadian Association of Law Teachers, and myself, I would like to welcome you to our annual section meeting. The subject which has been adopted for today's meeting is: "The Teaching of Legislation in Canadian Law Faculties". We have the good fortune to have as panelists three of the most experienced and vital teachers of Administrative Law in the country. Professors Terry Ison of Osgoode Hall Law School, Hudson Janisch of the University of Toronto and Pierre-Andr6 Cot6 of l'Universit6 de Montr6al …
Statutes And Constitutions In An Age Of Common Law, Reed Dickerson
Statutes And Constitutions In An Age Of Common Law, Reed Dickerson
Articles by Maurer Faculty
No abstract provided.
Federal And State Regulation Of Activities Affecting Water Quality, Julia B. Epley
Federal And State Regulation Of Activities Affecting Water Quality, Julia B. Epley
Western Water Law in Transition (Summer Conference, June 3-5)
54 pages.
Statutory Interpretation: An Outline Of Method, Jodn M. Kernochan
Statutory Interpretation: An Outline Of Method, Jodn M. Kernochan
Dalhousie Law Journal
We are moving ever more surely and deeply these days into an age of legislation. In the past, judge-made law was the dominant feature, as it was also the matrix, the fundamental and pervasive stuff, of our legal system. Statutes were scattered islands in the ocean of common law. For some time they were regarded by the courts as peculiar incursions on the system, troubling the harmony of caselaw patterns. A legislative enactment was seen, in the words of the late Chief Justice Stone, as an "alien intruder in the house of the common law." But change has come and …
Statutory Interpretation: An Outline Of Method, Jodn M. Kernochan
Statutory Interpretation: An Outline Of Method, Jodn M. Kernochan
Dalhousie Law Journal
We are moving ever more surely and deeply these days into an age of legislation. In the past, judge-made law was the dominant feature, as it was also the matrix, the fundamental and pervasive stuff, of our legal system. Statutes were scattered islands in the ocean of common law. For some time they were regarded by the courts as peculiar incursions on the system, troubling the harmony of caselaw patterns. A legislative enactment was seen, in the words of the late Chief Justice Stone, as an "alien intruder in the house of the common law." But change has come and …
Statutory Interpretation: An Outline Of Method, Jodn M. Kernochan
Statutory Interpretation: An Outline Of Method, Jodn M. Kernochan
Dalhousie Law Journal
We are moving ever more surely and deeply these days into an age of legislation. In the past, judge-made law was the dominant feature, as it was also the matrix, the fundamental and pervasive stuff, of our legal system. Statutes were scattered islands in the ocean of common law. For some time they were regarded by the courts as peculiar incursions on the system, troubling the harmony of caselaw patterns. A legislative enactment was seen, in the words of the late Chief Justice Stone, as an "alien intruder in the house of the common law." But change has come and …
The Common Law As A Bar To Judicial Legislation, James H. Mccauley
The Common Law As A Bar To Judicial Legislation, James H. Mccauley
West Virginia Law Review
No abstract provided.
Interpretation Of Statutes In Derogation Of The Common Law, Jefferson B. Fordham, J. Russell Leach
Interpretation Of Statutes In Derogation Of The Common Law, Jefferson B. Fordham, J. Russell Leach
Vanderbilt Law Review
The tendency of the lex scripta to supplant the lex von scripta has carried far since Roscoe Pound published his provocative paper on "Common Law and Legislation" in 1908. One can note at the same time indications that statute law is being received with much less hostility. The surprising thing, however, is that legislation in general is not at this day getting a far more sympathetic reception by lawyers and judges. Clearly they make up the professional group which has the largest share in the drafting and enactment of statutes. In actual practice, moreover, lawyers are given to committing private …
The Common Law Of Legislation, Frank Edward Horack Jr.
The Common Law Of Legislation, Frank Edward Horack Jr.
Articles by Maurer Faculty
No abstract provided.