Law Commons^™

The Future Of The Common Law Tradition, Alan Watson

Scholarly Works

What, then, can one say about the common law tradition as it will develop in the relatively near future? In terms of the future development of the common law systems, three facts seem certain and decisive. In the first place, there has been, as a matter of observable fact, a great shift in the balance of lawmaking in the common law world from judicial precedent to legislation, which together comprise the two main sources of law. In the second place, there is a deep awareness in the common law countries of a crisis in lawmaking, an awareness that is probably …

Protecting Research: Copyright, Common-Law Alternatives, And Federal Preemption, David E. Shipley, Jeffrey S. Hays

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Under federal copyright law, an author's expression is protected but his ideas and discoveries are not. Professor Shipley explores the possibility of expanding copyright to protect the research of nonfiction authors, but concludes that such an expansion would undermine federal copyright policy. State-law remedies exist that will provide such protection if they are not preempted by federal law. Professor Shipley concludes that most contract claims and some misappropriation claims will survive preemption and therefore are a means by which nonfiction authors can protect their research.

Political Perspectives On State And Local Taxation Of Natural Resources, Walter Hellerstein

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This article investigates the questions that have dominated the political debate over state and local taxation of natural resources in the federal system. It seeks to identify areas of consensus, clarify points of disagreement, and examine proposals that could provide a basis for reconciling the competing concerns. Part I briefly considers the issues as they arise within the framework of the individual state. Part II addresses interstate and interregional conflict. Part III turns to the dialogue over the role, if any, that the federal government should play in mediating the disputes.

Obligation: Not To The Law But To The Neighbor, Milner S. Ball

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In this article I will first address the strongest yet still unsatisfactory argument for an obligation to obey the law, the argument that the government and its officers are obligated to obey the law. I will then consider the weaker, more satisfactory argument that citizens have an obligation to obey the law. I will conclude by taking up the issue that I find more interesting and important: the absence of a biblical basis for an obligation to obey the law.

Balancing Government Efficienty And The Protection Of Individual Liberties: An Analysis Of The Conflit Between Executive Branch "Housekeeping" Regulations And Criminal Defendants' Rights To A Constitutionally Fair Trial, James F. Ponsoldt

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This Article addresses the issue of whether an accused person should be entitled to obtain and use at trial relevant government information or the testimony of government employees to prove his innocence, regardless of whether he has revealed in advance to his adversary his intended use of that information or the specific content of that testimony. Part I describes the federal "housekeeping" statute and the Justice Department's housekeeping regulations, which require that subpoenaed government employees not disclose evidence unless the person seeking that evidence has first summarized the requested evidence in advance, explained its intended use, and obtained permission from …

First Things Last: Amendomania And State Bills Of Rights, Donald E. Wilkes Jr.

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State bills of rights preceded the federal Bill of Rights. From June 1776, when the Virginia Declaration of Rights (the first state bill of rights) was adopted, until December 1791, when the federal Bill of Rights was ratified, eight states each adopted a bill of rights as a separate part of their state constitution. State constitutional rights existed even before there as a United States Constitution. Furthermore, the federal Bill of Rights contains provisions derived from earlier state bills of rights. Indeed, virtually every guarantee in the federal Bill of Rights can be traced to a similar guarantee in one …

The Evolution Of Law: The Roman System Of Contracts, Alan Watson

Scholarly Works

I have two aims in producing this paper. First, I wish to contribute to the general understanding of how and why law develops and explain the evolution of some very familiar legal institutions. Second, I wish to add to our knowledge of the history of Roman law, by producing a radically different view of the development of contracts, that is, I believe, both consistent with surviving textual data and plausible with regard to human behavior.

Motions To Enforce Settlements: An Important Procedural Tool, Jeffrey W. Stempel

Scholarly Works

No abstract provided.

Berger V. The Supreme Court—The Implications Of His Exceptions-Clause Odyssey, Thomas B. Mcaffee

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In his 1969 Congress v. The Supreme Court, Raoul Berger evaluated the potential claims to supremacy of Congress and the Supreme Court under the exceptions clause of article III and found in favor of the Supreme Court. Berger explicated a narrow construction of Congress’ express power to make exceptions to the Court’s appellate jurisdiction, holding that Congress’ claimed power to curb judicial excess was at odds with the design of the Constitution and without historical foundation. From 1969 to 1980, Berger reaffirmed his initial reading of the legislative history of article III no less than four times, once in …

A Conceptual Framework For Extradition And Jurisdiction Over Extraterritorial Crime, Christopher L. Blakesley

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International law is the language by which nations assert and attempt to resolve competing legal interests. As with any other language, if the definitions of essential concepts become muddled, it is difficult to communicate. The traditional bases of jurisdiction over extraterritorial crime are essential concepts in the language of international law. The decision to grant or deny extradition, for example, often depends on whether the interested nation recognizes the basis of jurisdiction asserted by another. Confusion over the traditional bases of jurisdiction therefore risks disagreement over and denial of extradition.

United States courts have recently expanded the traditional bases of …

Substantive Due Process And The Scope Of Constitutional Torts, Michael L. Wells, Thomas A. Eaton

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The thesis of this Article is that both the Supreme Court and its critics have failed to identify and confront the central issue presented by these due process constitutional tort cases. That issue is neither procedural fairness nor the choice between state and federal courts. It is deciding whether a government-inflicted injury to life, liberty, or property violates the substantive protections of the due process clauses and thereby warrants a constitutionally derived tort remedy. In Part II of this Article we examine the Supreme Court's decisions in this area, focusing primarily on Parratt v. Taylor. We demonstrate that neither Parratt …

An Approach To Customary Law, Alan Watson

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A proper understanding of the nature of customary law is important for legal historians. For students of European legal history, customary law is particularly important; from post-Roman times to the beginning of the modern legal age in the eighteenth century, the two main elements in European law have been Roman law and legal custom. In large measure, the main task of lawyers of that interim time period was to unify or harmonize the two strands of Roman law and custom.

Customary law flourishes in circumstances where law is likely to be the least theoretical. Yet, the nature of any source …

Ohio's Public Employee Bargaining Law: Can It Withstand Constitutional Challenge?, Rebecca White, Robert E. Kaplan, Michael W. Hawkins

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Public employees in Ohio are now statutorily entitled to bargain collectively with their government employers. This controversial right was obtained on July 6, 1983, when Ohio Governor Richard Celeste fulfilled a major campaign promise by signing into law Senate Bill 133. This bill, which took effect April 1, 1984, has been labeled "one of the most pro-labor public employee bargaining statutes in the nation.

As with any legislation that provides sweeping social and economic changes, challenges to the bill's legitimacy can be expected. Experience in other states teaches that constitutional attacks on the statute will be mounted swiftly, attacks that …