Law Commons^™

Hidden Law: Taking The Comments More Seriously, Melissa T. Lonegrass

Melissa T. Lonegrass

No abstract provided.

Judicial Experimentation With A Strict Products Liability Rule: A Comparison Of The Law In The United Kingdom, Louisiana, And United States' Common Law Jurisdictions, Thomas E. Carbonneau, Catherine Garvey

Thomas Carbonneau

Since the mid-nineteenth century, products liability law has undergone significant modifications. The applicable doctrine has oscillated between contract and tort theories; fault and no-fault liability schemes have competed for predominance. Despite attempts to create an internationally accepted liability norm, different legal systems continue to espouse differing perceptions of the liability formula in the products area. In addition, even in jurisdictions in which courts adhere to identical liability theories, there is disagreement as to the application and implications of the same standard. This article attempts to set the shifting doctrinal character of products liability analysis into a comparative perspective principally between …

Analytical And Comparative Variations On Selected Provisions Of Book One Of The Louisiana Civil Code With Special Consideration Of The Role Of Fault In The Determination Of Marital Disputes, Thomas E. Carbonneau

Thomas Carbonneau

This article is intended to be a type of "structuralist" commentary upon selected provisions in Book I of the Louisiana Civil Code. Its sole purpose is to illustrate, both for pedagogical and doctrinal reasons, some of the analytical difficulties to which these code provisions might give rise when they are read in a close textual fashion. It should be emphasized that this study is a textual commentary and not a historical assessment of the sources or origins of the code texts – the latter analysis is outside the purview of the present endeavor. Accordingly, this article consists of a critical …

Water, Water, Everywhere: Surface Water Liability, Jill M. Fraley

Jill M. Fraley

By 2030 the U.S. will lose around $520 billion annually from its gross domestic product due to flooding. New risks resulting from climate change arise not only from swelling rivers and lakes, but also from stormwater runoff. According to the World Bank, coastal cities risk flooding more from their poor management of surface water than they do from rising sea levels. Surface water liability governs when a landowner is responsible for diverting the flow of water to a neighboring parcel of land. Steep increases in urban flooding will make surface water an enormous source of litigation in the coming decades. …

The Effect Of Lifting The Blindfold From Civil Juries Charged With Apportioning Damages In Modified Comparative Fault Cases: An Empirical Study Of The Alternatives, Jordan Leibman, Robert Bennett, Richard Fetter

Robert B. Bennett

Focuses on a study on the effect of lifting the blindfold from civil juries charged with apportioning damages in modified comparative fault cases. Historical background on comparative fault in the United States; Origin of blindfolding; Comparison of blindfold modified comparative fault verdicts with sunshine verdicts; Conclusions.

Contemplating A Civil Law Paradigm For A Future International Commercial Code, Wayne R. Barnes

Wayne R. Barnes

No abstract provided.

Código Civil Y Comercial Argentino, Enrique Varsi Dr.

Enrique Varsi Rospigliosi

No abstract provided.

¿Es Posible La Renuncia Al Derecho De Propiedad?, Henrry Paredes Sanchez

Henrry Paredes Sánchez

El derecho de renuncia de propiedad es un acto de disposición extintiva de la propiedad, que no está prohibido por nuestro ordenamiento jurídico, sin embargo, su ejercicio importa respetar los límites que impone la ley. La renuncia sobre bienes inmuebles debe ser regulada expresamente, pues su libre ejercicio puede conllevar a escenarios gravosos, tanto para el titular del derecho renunciado como para terceros.

The Continuing Influence Of Le Droit Civil And El Derecho Civil In The Private Law Of Louisiana, J.-R. Trahan

John Randall Trahan

No abstract provided.

Examining A Comparative Law Myth: Two Hundred Years Of Riparian Misconception, Andrea B. Carroll

Andrea Beauchamp Carroll

This article is a first step in an effort to critically examine - and to debunk - some of the myths that persist about the degree to which the common and civil law systems differ. Specifically, the article questions the validity of recent scholarly commentary suggesting that the primary differences between the systems can be found in their substantive legal rules or in their respective "spirits." A relatively narrow issue of riparian access perfectly highlights the problem. Nearly all of the high courts in the United States that have examined this particular riparian issue have chosen to adopt either the …

Hunting Promissory Estoppel, David Snyder

David Snyder

This paper considers how promissory estoppel jobs are undertaken in two jurisdictions that ought not to need promissory estoppel. The purpose is to achieve a better understanding of systematic decisions to enforce promises and to discover the doctrinal combinations possible in mixed Civil Law/Common Law jurisdictions. This bilateral comparison allows an examination of the different philosophical and moral bases for according promises legal force, whether founded on contract and will or on delict and injury. The differing functions of formalities are also discussed. More particularly, Scotland does not have promissory estoppel but has a remarkable doctrine allowing the enforceability even …

The Failure Of Gender Equality: An Essay In Constitutional Dissonance, Wendy E. Parmet, Judith Olans Brown, Phyllis Tropper Baumann

Wendy E. Parmet

Feminists agree that gender equality remains elusive; they disagree about why. A critical question is whether gender equality can be accomplished by treating men and women interchangeably. Stated another way, the debate has been between those who deny that women need "special treatment" in order to achieve equality, and those who argue that "real" equality demands that the legal system recognize the unique role which women play in society. Each side of this similar treatment/special treatment debate has assumed that the correct doctrinal formulation of equality will lead to some form of "true equality." This article will examine and critique …

In The Interests Of Justice: Human Rights And The Right To Counsel In Civil Cases, Martha F. Davis

Martha F. Davis

This report examines the international human rights treaties binding on the United States as well as other non-binding international human rights documents to ascertain the status of the right to counsel in civil cases, the so-called "Civil Gideon" right. The United Nations treaty monitoring bodies responsible for the International Covenant on Civil and Political Rights and the Convention on the Elimination of All Forms of Racial Discrimination have both indicated that legal assistance may be required to ensure fairness in civil cases. The Charter of the Organization of American States, to which the United States is a party, goes farther …

Transplantation Of Fiduciary Duties Into Civil Law Jurisdiction: Experiences From Taiwan, Chao-Hung Christopher Chen

Christopher Chao-hung CHEN

No abstract provided.

China's Evidentiary And Procedural Reforms, The Federal Rules Of Evidence, And The Harmonization Of Civil And Common Law, John J. Capowski

John J. Capowski

A Restatement Of Rabbinic Civil Law, Volumes Vii And Viii, By Emanuel Quint (Book Review), Samuel J. Levine

Samuel J. Levine

In Volumes VII and VIII of A Restatement of Rabbinic Civil Law, Rabbi Emanuel Quint follows admirably in the path of Maimonides and Rabbi Caro. Building on and updating the work of these and countless other legal scholars, Rabbi Quint offers a comprehensive and scholarly yet comprehensible and practical description of the law in a wide variety of subjects, including sales, gifts and gifts causa mortis, wills and estates, lost property, and bailments. The deceptive simplicity of Rabbi Quint's finished product, however, should not obscure the inherent difficulty of the ambitious task he has undertaken: an attempt to present a …

Toward A Convention For The International Sale Of Real Property: Challenges, Commonalities, And Possibilities, Christopher K. Odinet

Christopher K. Odinet

Laying To Rest An Ancien Regime: Antiquated Institutions In Louisiana Civil Law And Their Incompatibility With Modern Public Policies, Christopher K. Odinet

Christopher K. Odinet

The Dynamic Quality Of Law: The Role Of Judicial Incentives And Legal Human Capital In The Adaptation Of Law, Gillian K. Hadfield

Gillian K Hadfield

Much of the existing literature investigating the relationship between legal regimes and economic growth focuses on the agency problem of aligning judicial incentives with social welfare. In this paper I look instead at the factors that influence the quality of law when judges have incentives to promote social welfare but they have limited knowledge about the environment in which law is to be applied. The key insight is that the capacity for a legal regime to generate value-enhancing legal adaptation to local and changing conditions depends on its capacity to generate and implement adequate expertise about the environment in which …

Redefining Harm, Reimagining Remedies And Reclaiming Domestic Violence Law, Margaret Johnson

Margaret E Johnson

Women subjected to domestic violence are disserved by the civil domestic violence laws that should effectively address and redress their harms. The Civil Protective Order [CPO] laws should remedy all domestic abuse and not solely physical violence or criminal acts. All forms of abuse, including psychological, emotional, economic and physical abuse, cause severe emotional distress, physical harm, isolation, sustained fear, intimidation, poverty, degradation, humiliation, and coerced loss of autonomy. Moreover, all abuse is interrelated, because, as researchers have demonstrated, most domestic violence is the fundamental operation of systemic oppression through the exertion of power and control. Given the effectiveness of …

Originalism & Early Civil Search Statutes: Searches & The Misunderstood History Of Suspicion & Probable Cause, Fabio Arcila

Fabio Arcila Jr.

Originalist analyses of the Framers’ views about governmental search power have devoted insufficient attention to the civil search statutes they promulgated. What attention has been paid, primarily as part of what I term the “conventional account,” has it that the Framers were divided about how accessible search remedies should be. This article explains why this conventional account is mostly wrong, and explores the lessons to be learned from the statutory choices the Framers made with regard to search and seizure law.

In enacting civil search statutes, the Framers chose to depart from common law standards and instead largely followed the …

The Levers Of Legal Design: Institutional Determinants Of The Quality Of Law, Gillian K. Hadfield

Gillian K Hadfield

In the past decade a comparative law and economics literature has emerged that is largely organized around an effort to explain differences in country economic performance in terms of differences between common law and civil code systems. Assumptions about differences between common law and civil code regimes and the correspondence between legal regimes and judicial behavior are, however, still only weakly based in real institutional features of modern legal systems. In this paper, I examine the institutional determinants of the quality of law developed by a legal regime, drawing on a model from Hadfield (2006) which identifies five key parameters …

The Many Faces Of Equity. A Comparative Survey Of The European Civil Law Tradition, Mauro Bussani, Francesca Fiorentini

Mauro Bussani

The paper investigates the meaning of, and the role played by equity in the continental European legal tradition. In this perspective, the article outlines the historical origins of the Western notion of equity in the Greek and Roman world, and examines how equity became a core instrument of law-making in the age of ius commune. Through the survey of French, German, and Italian law, the paper then clarifies the place of equity in the private law codes. In particular, this comparative analysis shows that, in spite of the wave of legal positivism affecting European legal thought in the XIXth-XXth centuries, …

Ontario (Attorney General) V. $29, 020 In Canadian Currency: A Comment On Proceeds Of Crime And Provincial Civil Forfeiture Laws, Michelle Gallant

Michelle Gallant

Many provinces are embracing a modern approach to crime control, an approach which uses civil proceedings, primarily a device known as forfeiture, to tackle criminal activity. The strategy targets the financial underpinnings of crime, the proceeds or the assets linked to illegal activity. It effectively gives the public actor the ability to use civil actions to recover financial resources tainted by criminality.

New to provincial law, this convergence of civil proceedings and crime, of civil forfeiture and the financial element of crime, invites obvious questions about the consistency of this approach with constitutional norms. On the jurisdictional front, there is …

Remedies For Breach Of An Obligation: A Look At The Remedies' Section Of The New Israeli Civil Code, Dr. Yehuda Adar, Prof. Gabriela Shalev

Yehuda Adar Dr.

-This article is in Hebrew-

The remedies section in the new Israeli draft civil code is an endeavor to create a unified law of remedies, applicable to all branches of civil and commercial law, including torts and breach of contract. This article explores the main innovations included in the remedies section. It opens with a short overview of the status of the law of remedies in modern times, and the debate over the justification for unifying it. Then, in the remainder of the article, the authors examine the various changes, in terms of both structure and substance, reflected in the …

Construction Producers’ Joint And Several Liability Under Kuwaiti Civil Code’S Decennial Guarantee Provisions, Mashael Alhajeri

Mashael Alhajeri

No abstract provided.

The Government’S Duty To ‘Seek Justice’ In Civil Cases, James W. Diehm

James W. Diehm

Lawyering And Client Decisionmaking: Informed Consent And The Legal Profession, Mark Spiegel

Mark Spiegel

In this Article, Professor Spiegel examines the doctrine of informed consent as it relates to the legal profession. The Article first traces the development of the informed-consent doctrine and then considers the extent to which current legal doctrines and professional norms incorporate informed consent between lawyers and their clients. Professor Spiegel suggests that the predominant focus of informed consent is on a lawyer’s power to bind his client vis-à-vis third parties and advocates for the development of an informed-consent doctrine that accounts for the interests of all parties involved. Professor Spiegel concludes with a discussion of the application of his …