Law Commons^™

50 Years Of Legal Education In Ethiopia: A Memoir, Stanley Z. Fisher

Faculty Scholarship

In this paper I describe my experience as one of the early members of the Haile Selassie I University (H.S.I.U.), Law Faculty, and share my reflections on developments in the ensuing years.

A Common Law Constitutionalism For The Right To Education, Scott R. Bauries

Law Faculty Scholarly Articles

This Article makes two claims, one descriptive and the other normative. The descriptive claim is that individual rights to education have not been realized under state constitutions because the currently dominant structure of education reform litigation prevents such realization. In state constitutional education clause claims, both pleadings and adjudication generally focus on the equality or adequacy of the system as a whole, rather than on any particular student's educational resources or attainment. The Article traces the roots of the currently dominant systemic approach, and finds these roots in federal institutional reform litigation. This systemic focus leads to a systemic, rather …

Towards Universal Fiduciary Principles, Tamar Frankel

Faculty Scholarship

Fiduciary relationships play an important role in civil law and common law jurisdictions. While both legal systems offer similar outcomes in upholding fiduciary law principles, the way they achieve these ends is fundamentally different. In common law jurisdictions, fiduciary law is rooted in the law of property. By contrast, in civil law jurisdictions, fiduciary principles find their source in contract law. This article seeks to reconcile these differences, by identifying universal principles that apply to both systems. The author describes the sources of fiduciary law in the common law and the civil law, then highlights underlying differences between the two …

On Business Torts And The First Amendment, Richard J. Peltz-Steele

Faculty Publications

A gaping question in free speech law surrounds the application of the First Amendment defense in business torts. The pervasiveness of communication technologies, the flourishing of privacy law, and the mere passage of time have precipitated an escalation in tort cases in which communication, and what the defendant may allege is free speech, lies at the heart of the matter.

Reading Blackstone In The Twenty-First Century And The Twenty-First Century Through Blackstone, Jessie Allen

Book Chapters

If the Supreme Court mythologizes Blackstone, it is equally true that Blackstone himself was engaged in something of a mythmaking project. Far from a neutral reporter, Blackstone has some stories to tell, in particular the story of the hero law. The problems associated with using the Commentaries as a transparent window on eighteenth-century American legal norms, however, do not make Blackstone’s text irrelevant today. The chapter concludes with my brief reading of the Commentaries as a critical mirror of some twenty-first-century legal and social structures. That analysis draws on a long-term project, in which I am making my way through …

Apportioning Liability In Maryland Tort Cases: Time To End Contributory Negligence And Joint And Several Liability, Donald G. Gifford, Christopher J. Robinette

Faculty Scholarship

The Article presents a comprehensive proposal for assigning liability in tort cases according to the parties’ respective degrees of fault. The authors criticize the Court of Appeals of Maryland’s recent decision in Coleman v. Soccer Association of Columbia declining to abrogate contributory negligence, particularly the court’s notion that it should not act because of the legislature’s repeated failure to do so. The Article provides a comprehensive analysis of the advantages and disadvantages of comparative fault, including its effect on administrative costs, claims frequency, claims severity, insurance premiums, and economic performance. The authors propose the legislative enactment of comparative fault and …

The Ftc And The New Common Law Of Privacy, Daniel J. Solove, Woodrow Hartzog

Faculty Scholarship

One of the great ironies about information privacy law is that the primary regulation of privacy in the United States has barely been studied in a scholarly way. Since the late 1990s, the Federal Trade Commission (FTC) has been enforcing companies’ privacy policies through its authority to police unfair and deceptive trade practices. Despite over fifteen years of FTC enforcement, there is no meaningful body of judicial decisions to show for it. The cases have nearly all resulted in settlement agreements. Nevertheless, companies look to these agreements to guide their privacy practices. Thus, in practice, FTC privacy jurisprudence has become …

The Restatement (Second) Of Contracts Reasonably Certain Terms Requirement: A Model Of Neoclassical Contract Law And A Model Of Confusion And Inconsistency, Daniel P. O'Gorman

Faculty Scholarship

No abstract provided.

The Possibility Of Private Rights And Duties, Adam J. Macleod

Faculty Articles

Is it possible for us to know what we owe others, or do we need the state to tell us? To ask the question this way could be understood as a provocation. It might suggest that the possibility of private rights and duties - a possibility that common law takes for granted and which lawyers witness in their daily practice threatens the foundations of the legal realist jurisprudential project and the liberal political project. But it is not my intention here to attack those projects. I simply want to consider the possibility that legal realism and liberalism might not be …

Private Enforcement Of Statutory And Administrative Law In The United States (And Other Common Law Countries), Stephen B. Burbank, Sean Farhang, Herbert M. Kritzer

All Faculty Scholarship

Our aim in this paper, which was prepared for an international conference on comparative procedural law to be held in July 2011, is to advance understanding of private enforcement of statutory and administrative law in the United States, and, to the extent supported by the information that colleagues abroad have provided, of comparable phenomena in other common law countries. Seeking to raise questions that will be useful to those who are concerned with regulatory design, we briefly discuss aspects of American culture, history, and political institutions that reasonably can be thought to have contributed to the growth and subsequent development …

The Struggle For Justice In The Civil Rights March From Selma To Montgomery: The Legacy Of The Magna Carta And The Common Law Tradition, Winston P. Nagan

UF Law Faculty Publications

The article introduces the reader to the idea that justice involves social action and struggle. It then shifts the perspective to the struggle for justice in historic memory. The author focuses on the struggle to limit sovereign absolutism, the outcome of which is reflected in the Magna Carta. The Magna Carta was not a gift of the sovereign, it represented a political struggle to obtain it. The article then traces the evolution of law in the common law tradition and the importance of casuistic legal methods to ground the specific rights of citizens. The article draws reference to the struggle …

Extrinsic Evidence, Parol Evidence, And The Parol Evidence Rule: A Call For Courts To Use The Reasoning Of The Restatements Rather Than The Rhetoric Of Common Law, Timothy Archer, Shalayne Davis, David G. Epstein

Law Student Publications

This article is an example of what Professor Richard Epstein would call "Contracts small." According to Professor Richard Epstein, "'Contracts small' relates to contract law at the doctrinal level; it focuses on the rules of contract formation and performance; the everyday 'stuff of lawyer's law.' "This article looks to the Restatement of Contracts (hereafter "Restatement") and the Restatement (Second) of Contracts (hereafter "Restatement Second") for answers to the questions raised by the two problems. The Restatements generally have both been praised and condemned for their focus on doctrinal issues-on what Richard Epstein calls the "everyday stuff of lawyer's law." As …

Measuring The Transplantation Of English Commercial Law In A Small Jurisdiction: An Empirical Study Of Singapore’S Insurance Judgments Between 1965 And 2012, Christopher Chen

Research Collection Yong Pung How School Of Law

This article seeks to measure the development of law after transplanting common law and statutes from another country by conducting an empirical study of the citation of precedents and demography of disputes of insurance cases in Singapore. This article recognizes that there are justifications for Singapore to transplant English insurance law. However, this research shows that the transplantation of English commercial law into a small jurisdiction, even within the common law family, may cause the law to be in a static state if courts do not have enough cases to maintain the development of law or to consider new development …

A Canadian Model Of Corporate Governance, Carol Liao

All Faculty Publications

What is Canada’s actual legal model to govern its corporations? Recent landmark judicial decisions indicate Canada is shifting away from an Anglo-American definition of shareholder primacy. Yet the Canadian securities commissions have become increasingly influential in the governance sphere, and by nature are shareholder-focused. Shareholders’ rights have increased well beyond what was ever contemplated by Canadian corporate laws, and the issue of greater shareholder vs. board control has now become the topic of live debate. The future of Canada's overall model seems to rest on what will be more compelling: the constancy of the corporate statutes and trajectory of the …

A Canadian Model Of Corporate Governance: Where Do Shareholders Really Stand?, Carol Liao

All Faculty Publications

This feature article in the Director Journal summarizes the findings from the report, "A Canadian Model of Corporate Governance: Insights from Canada's Leading Legal Practitioners," produced for the Canadian Foundation for Governance Research and the Institute of Corporate Directors (also available on SSRN).

In the report, interviews were conducted with 32 leading senior legal practitioners across Canada to opine on the fundamental principles that are driving the development of Canadian corporate governance. The report found that Canadian common law has made the process of considering stakeholders in the "best interests of the corporation" more overt, well beyond what is assumed …

Law Reform Agenda As Ali Approaches Its Centennial, Lance Liebman

Faculty Scholarship

The American Law Institute and I are happy and proud that the Brooklyn Law School and its Law Review chose to hold an important conference about ALI work, to persuade such an outstanding group of scholars to write such varied and interesting papers, and now to publish their work. I am especially happy because, as I near the end of my service as ALI Director, these papers give me an opportunity to reflect on the projects, perfect and imperfect, that the ALI accomplished (or attempted and failed to accomplish) in our effort to improve the American legal system.

Concurrent Damages, Bert I. Huang

Faculty Scholarship

Imagine that a hacker is working for a university official secretly spying on faculty members – say, to find out who has been leaking information to the press about internal disciplinary matters. The injuries to a given victim of the hacking might follow a classic learning curve: The first few intrusions into her e-mail account reveal a storehouse of personal secrets, but further break-ins yield less and less new information. One might say there is diminishing marginal harm.

There is no such leveling off, however, in the compensation that would be awarded to that victim. The electronic privacy law …