Open Access. Powered by Scholars. Published by Universities.®

Law Commons

Open Access. Powered by Scholars. Published by Universities.®

Articles 1 - 15 of 15

Full-Text Articles in Law

Restatements Of Statutory Law: The Curious Case Of The Restatement Of Copyright, Shyamkrishna Balganesh, Peter S. Menell Jan 2021

Restatements Of Statutory Law: The Curious Case Of The Restatement Of Copyright, Shyamkrishna Balganesh, Peter S. Menell

Faculty Scholarship

For nearly a century, the American Law Institute’s (ALI) Restatements of the Law have played an important role in the American legal system. And in all of this time, they refrained from restating areas of law dominated by a uniform statute despite the proliferation and growing importance of such statutes, especially at the federal level. This omission was deliberate and in recognition of the fundamentally different nature of the judicial role and of lawmaking in areas governed by detailed statutes compared to areas governed by the common law. Then in 2015, without much deliberation, the ALI embarked on the ...


The Economics Of Leasing, Thomas W. Merrill Jan 2020

The Economics Of Leasing, Thomas W. Merrill

Faculty Scholarship

Leasing may be the most important legal institution that has received virtually no systematic scholarly attention. Real property leasing is familiar in the context of residential tenancies. But it is also widely used in commercial contexts, including office buildings and shopping centers. Personal property leasing, which was rarely encountered before World War II, has more recently exploded on a world-wide basis, with everything from autos to farm equipment to airplanes being leased. This article seeks to develop a composite picture of the defining features of leases and why leasing is such a widespread and highly successful economic institution.

The reasons ...


The Common Law Of Contract And The Default Rule Project, Alan Schwartz, Robert E. Scott Jan 2016

The Common Law Of Contract And The Default Rule Project, Alan Schwartz, Robert E. Scott

Faculty Scholarship

The common law developed over centuries a small set of default rules that courts have used to fill gaps in otherwise incomplete contracts between commercial parties. These rules can be applied almost independently of context: the market damages rule, for example, requires a court only to know the difference between market and contract prices. When parties in various sectors of the economy write sales contracts but leave terms blank, courts fill in the blanks with their own rules. As a consequence, a judicial rule that many parties accept must be "transcontextual": parties in varied commercial contexts accept the courts' rule ...


The Common Law Of Contract And The Default Rule Project, Alan Schwartz, Robert E. Scott Jan 2016

The Common Law Of Contract And The Default Rule Project, Alan Schwartz, Robert E. Scott

Faculty Scholarship

The common law developed over centuries a small set of default rules that courts have used to fill gaps in otherwise incomplete contracts between commercial parties. These rules can be applied almost independently of context: the market damages rule, for example, requires a court only to know the difference between market and contract prices. When parties in various sectors of the economy write sales contracts but leave terms blank, courts fill in the blanks with their own rules. As a consequence, a judicial rule that many parties accept must be “transcontextual”: parties in varied commercial contexts accept the courts’ rule ...


The Disposing Power Of The Literature, Thomas W. Merrill Jan 2010

The Disposing Power Of The Literature, Thomas W. Merrill

Faculty Scholarship

The Constitution as we understand it includes principles that have emerged over time in a common law fashion. One such principle is the disposing power of the legislature – the understanding that only the legislature has the power to arrange, order, and distribute the power to act with the force of law among the different institutions of society. This Essay illustrates the gradual emergence of the disposing power in criminal, civil, and administrative law, and offers some reasons why it is appropriate that the legislature be given this exclusive authority. One implication of the disposing power is that another type of ...


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 ...


Transparency And Determinacy In Common Law Adjucation: A Philosophical Defense Of Explanatory Economic Analysis, Jody S. Kraus Jan 2007

Transparency And Determinacy In Common Law Adjucation: 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 ...


Liberalism And Tort Law: On The Content And Economic Efficiency Of A Liberal Common Law Of Torts, Richard S. Markovits Jan 2005

Liberalism And Tort Law: On The Content And Economic Efficiency Of A Liberal Common Law Of Torts, Richard S. Markovits

Faculty Scholarship

This Article has three parts. Part I begins by delineating the protocol one should use to determine whether a society is an immoral society, an amoral society, a goal-based society of moral integrity, or a rights-based society of moral integrity (i.e., a society that engages in a bifurcated prescriptive-moral practice that strongly distinguishes moral-rights claims (about the just) from moral-ought claims (about the good), that is committed to the lexical priority of the just over the good, and that fulfills its commitments to some hard-to-specify, requisite extent). Part I then proceeds to outline the protocol one should use to ...


Courts Or Tribunals? Federal Courts And The Common Law, Peter L. Strauss Jan 2002

Courts Or Tribunals? Federal Courts And The Common Law, Peter L. Strauss

Faculty Scholarship

Every Justice, save perhaps Justice Breyer, has recently subscribed to an opinion raising questions in one or another context about whether federal courts can appropriately exercise common law law-making functions that had, until these questions began to appear, been characteristic of all American courts. To invoke a special class of "federal tribunal" whose actions are not to be confused with those of common law courts suggests broader implications than the long-familiar debates about Erie RR. Co. v. Tompkins, or more recent contentions over when, if ever, it is appropriate to infer privately enforceable judicial remedies in aid of federal statutes ...


Optimal Standardization In The Law Of Property: The Numerus Clausus Principle, Thomas W. Merrill, Henry E. Smith Jan 2000

Optimal Standardization In The Law Of Property: The Numerus Clausus Principle, Thomas W. Merrill, Henry E. Smith

Faculty Scholarship

A central difference between contract and property concerns the freedom to "customize" legally enforceable interests. The law of contract recognizes no inherent limitations on the nature or the duration of the interests that can be the subject of a legally binding contract. Certain types of promises – such as promises to commit a crime – are declared unenforceable as a matter of public policy. But outside these relatively narrow areas of proscription and requirements such as definiteness and (maybe) consideration, there is a potentially infinite range of promises that the law will honor. The parties to a contract are free to be ...


On Resegregating The Worlds Of Statute And Common Law, Peter L. Strauss Jan 1994

On Resegregating The Worlds Of Statute And Common Law, Peter L. Strauss

Faculty Scholarship

In the early afternoon of a humid, 97 degree summer day, James Gottshall was part of a crew of mostly 50- to 60-year-old men replacing track for Conrail. Michael Norvick, the crew supervisor, pressed the men to finish the work. He discouraged observance of the scheduled breaks. Richard Johns collapsed in the heat; Norvick ordered the men back to work as soon as a cold compress had revived him. Five minutes later Johns collapsed again, the victim of a heart attack. Gottshall began 40 minutes of ultimately fruitless cardiopulmonary resuscitation on Johns, his friend for 15 years. Norvick was unable ...


Time, Property Rights, And The Common Law, Thomas W. Merrill Jan 1986

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 property ...


The Right And The Reasonable, George P. Fletcher Jan 1985

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 ...


The Common Law Powers Of Federal Courts, Thomas W. Merrill Jan 1985

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 ...


The Right Deed For The Wrong Reason: A Reply To Mr. Robinson, George P. Fletcher Jan 1975

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 ...