Law Commons^™

Tort Theory And The Restatement, In Retrospect, Keith N. Hylton

Faculty Scholarship

This is my third paper on the Restatement (Third) of Torts. In my first paper, The Theory of Tort Doctrine and the Restatement (Third) of Torts, I offered a positive economic theory of the tort doctrine that had been presented in the Restatement (Third) of Torts: General Principles, and also an optimistic vision of how positive theoretical analysis could be integrated with the Restatement project. In my second paper, The Economics of the Restatement and of the Common Law, I set out the utilitarian-economic theory of how the common law litigation process could generate optimal (efficient, wealth-maximizing) rules and compared …

Idaho's Law Of Seduction, Michael L. Smith

Faculty Articles

Seduction is a historical cause of action that permitted women's fathers to bring suit on their daughters' behalf in sexual assault and rape cases. This tort emerged long ago when the law's refusal to recognize women's agency left this as the only means of recovering damages in these cases. As time went on, the tort evolved, and women were eventually permitted to bring lawsuits for seduction on their own behalf. Today, most states have abolished seduction, along with other torts permitting recovery for damages arising from intimate conduct. One could be easily forgiven for thinking that such an archaic tort …

Is, Ought, And The Limited Competence Of Experts, Adam J. Macleod

Faculty Articles

The moral innovators whom C. S. Lewis criticized in The Abolition of Man supposed that they could draw imperatives out of their superior understanding of sentiment and instinct. They assumed that to know what human beings want to do is to know what human beings should do. But people want to do all sorts of things that are irrational, pointless, harmful, and even downright evil. And people want inconsistent things. So the innovators are incoherent. As Lewis correctly affirmed, no amount of knowledge about nature or the world is sufficient by itself to direct us to do what is good …

The New Public Nuisance: Illegitimate And Dysfunctional, Thomas W. Merrill

Faculty Scholarship

Leslie Kendrick’s defense of the new public nuisance fails to come to terms with legitimacy objections to such actions based on the rule of law and norms of democratic accountability. Nor is the new public nuisance a “second best” solution to widespread social problems. These actions rest on joint ventures between prosecutors and personal-injury lawyers that are likely to generate over- and under-deterrence and risk runaway liability.

Cardozo And Uncertainty In The Common Law, Shyamkrishna Balganesh

Faculty Scholarship

Benjamin Cardozo’s The Nature of the Judicial Process is best understood as one of the most successful contributions to this category of work defending the common law on the basis of its process. In the book, Cardozo offers a spirited and principled defense of the judicial process, all in an effort to highlight the manner in which judges manage the seemingly pervasive uncertainty of the common law method in the discharge of their duties. All the same, it is obvious that he considered the project to be necessarily incomplete. Just a few years after the publication of the Judicial Process …

Specific Performance: On Freedom And Commitment In Contract Law, Hanoch Dagan, Michael A. Heller

Faculty Scholarship

When should specific performance be available for breach of contract? This question — at the core of contract — divides common-law and civil-law jurisdictions and it has bedeviled generations of comparativists, along with legal economists, historians, and philosophers. Yet none of these disciplines has provided a persuasive answer. This Article provides a normatively attractive and conceptually coherent account, one grounded in respect for the autonomy of the promisor’s future self. Properly understood, autonomy explains why expectation damages should be the ordinary remedy for contract breach. This same normative commitment justifies the “uniqueness exception,” where specific performance is typically awarded, and …

Demystifying Implied Terms, Marcus Moore

All Faculty Publications

Recent years have witnessed significant interest in demystifying the implication of contract terms. Whilst the discussion thus far has elicited some answers, the subject remains notoriously ‘elusive'. This article advances discussion in the field. It argues that underlying recent debates are deeper issues that must be brought to the surface. These include theoretical incoherence regarding the nature/purpose of implication tracing back to The Moorcock (1889), and analytical indeterminacy in applying the established ‘tests' for implication, as courts vary between conflicting instrumental and non-instrumental approaches. Feeding both issues is inconsistent linguistic use of core terminology. This article helps demystify implication by …

Tort Law: Cases And Commentaries, Samuel Beswick

All Faculty Publications

The law of obligations concerns the legal rights and duties owed between people. Three primary categories make up the common law of obligations: tort, contract, and unjust enrichment. This coursebook provides an introduction to tort law: the law that recognises and responds to civil wrongdoing. The material is arranged in two parts. Part I comprises §§1-11 and addresses intentional and dignitary torts and the overarching theories and goals of tort law. Part II comprises §§12-25 and addresses no-fault compensation schemes, negligence, nuisance, strict liability, and tort law’s place within our broader legal systems.

Themes explored within this coursebook include:

• …

Public Nuisance As Risk Regulation, Thomas W. Merrill

Faculty Scholarship

Public nuisance has always been defined in terms of the object of protection – the community, the public, or perhaps even the state as a whole. Public nuisance in this regard has been juxtaposed to private nuisance, which protects individual persons and their use and enjoyment of land. Commentary on public nuisance has thus long been concerned with defining (without notable success) what it means to advance a public as opposed to a private right.

In this paper, I offer a different take on the function of public nuisance. The common law is designed to provide redress for actual harm, …

A Theory Of Constitutional Norms, Ashraf Ahmed

Faculty Scholarship

The political convulsions of the past decade have fueled acute interest in constitutional norms or “conventions.” Despite intense scholarly attention, existing accounts are incomplete and do not answer at least one or more of three major questions: (1) What must all constitutional norms do? (2) What makes them conventional? (3) And why are they constitutional?

This Article advances an original theory of constitutional norms that answers these questions. First, it defines them and explains their general character: they are normative, contingent, and arbitrary practices that implement constitutional text and principle. Most scholars have foregone examining how norms are conventional or …

The Cost Of Unstable Property: Oil, Gas, And Other Confusing Mineral Interests, Chad J. Pomeroy

Faculty Articles

Most people think of property as a thing: a chunk of land or a piece of personal property. Most lawyers, hopefully, have a more sophisticated view and think of property as a set of rights that exists with respect to a thing and governs how one interacts with that thing vis-a-vis other people. But even that nuance is not refined enough for an oil and gas lawyer. Such a practitioner does, of course, view ownership as a set of rights, but the thing at hand is not just a piece of real property or the part of the land that …

The American Experience With Employee Noncompete Clauses: Constraints On Employees Flourish And Do Real Damage In The Land Of Economic Liberty, Kenneth G. Dau-Schmidt, Xiaohan Sun, Phillip J. Jones

Articles by Maurer Faculty

Agreements not to compete are generally an anathema to free market advocates. Independent profit maximization is one of the fundamental assumptions of the neoclassical economic model and necessary to its conclusion that markets yield results that are Paraeto efficient. Consistent with this theory, and practical experience, agreements among competitors, or potential competitors, to divide a market, or fix price or quantity are per se violations under our antitrust laws.

Despite this fact, even some ardent free market advocates have argued on behalf of the enforcement of covenants not to compete in the employment relationship. The traditional economic argument in favor …

Derailing The Deference Lockstep, Aaron J. Saiger

Faculty Scholarship

Key voices, most prominently that of Justice Neil Gorsuch, have embraced the position that the Chevron doctrine, under which federal courts defer to an agency’s reasonable interpretation of its organizing statutes, is incompatible with the judicial duty to “say what the law is.” These voices include several state supreme courts, which have held (often citing Justice Gorsuch) that state-court deference to state agency interpretations likewise impinges upon the fundamental duty of state judges to decide, on their own, what state law is.

This Article urges states to resist the uncritical importation into state law of antideference arguments based on the …

Relying On Restatements, Shyamkrishna Balganesh

Faculty Scholarship

Restatements of the Law occupy a unique place in the Americanlegal system. For nearly a century, they have played a prominent and influential role as legal texts that courts routinely rely on in a wide variety of fields. Despite their ubiquitous and pervasive use by courts, Restatements are not formal sources of law. While they resemble statutes in their form and structure, Restatements are produced entirely by a private organization of experts set up to clarify and simplify the law and thus lack the force of law on their own. And yet, courts treat them as formal and authoritative sources …

Common Law Divorce, Michael J. Higdon

Scholarly Works

Common law marriage has existed in the United for more than 200 years. Although not permitted as widely today, every state continues to recognize a common law marriage from one of the handful of states that still permit parties to wed in this informal manner. In contrast, never has there been anything even approaching common law divorce—and for good reason. Namely, the states’ desire to ensure that those who leave unsuccessful marriages do so in such a way that their interests (as well as their children’s) are adequately protected. Nonetheless, even though not sanctioned by law, informal divorce not only …

House Rules: Congress And The Attorney-Client Privilege, David Rapallo

Georgetown Law Faculty Publications and Other Works

In 2020, the Supreme Court rendered a landmark decision in Trump v. Mazars establishing four factors for determining the validity of congressional subpoenas for a sitting president’s personal papers. In an unanticipated move, Chief Justice John Roberts added that recipients of congressional subpoenas have “long been understood” to retain not only constitutional privileges, but common law privileges developed by judges, including the attorney-client privilege. This was particularly surprising since Trump was not relying on the attorney-client privilege and the Court had never treated this common law privilege as overriding Congress’s Article I power to set its own procedures for conducting …

Conceptualising A Role For The Common Law In Environmental Protection In Singapore, Kenny Chng

Research Collection Yong Pung How School Of Law

In Singapore, the key institutions driving environmental protection are the legislature and the executive. The judiciary’s role in environmental protection has thus far been relatively minor. By drawing upon environmental law theory and comparative analysis of other common law jurisdictions, this paper aims to explore avenues through which the common law can be engaged more meaningfully to further environmental protection in Singapore. A conceptualisation of environmental law as directed at furthering the rule of law by promoting carefully-considered and participatory environmental governance will be suggested as a fruitful way forward for thinking about the role of the common law in …

Foreign Judgments: The Limits Of Transnational Issue Estoppel, Reciprocity, And Transnational Comity, Tiong Min Yeo

Research Collection Yong Pung How School Of Law

In Merck Sharp & Dohme Corp v Merck KGaA [2021] SGCA 14, a full bench of the Singapore Court of Appeal addressed the limits of transnational issue estoppel in Singapore law, and flagged possible fundamental changes to the common law on the recognition and enforcement of foreign judgments in Singapore. The litigation involves multiple parties spread over different jurisdictions. The specific facts involved in the appeal are fairly straightforward, centring on what has been decided in a judgment from the English court, and whether it could be used to raise issue estoppel on the interpretation of a particular term of …

Catalytic Courts And Enforcement Of Constitutional Education Funding Provisions, Hugh D. Spitzer, Andy Omara

Articles

It is well-recognized that it is easier for judges to enforce constitutional “negative rights” provisions than positive social and economic rights. This article focuses on the challenges of enforcing one specific positive right: the constitutional right of children to attend adequately funded schools. Our article tests on-the-ground judicial implementation of education funding provisions against the general theoretical framework of judicial interaction with the political branches developed by Katharine Young. We analyze how, in multi-year, multi-decision litigation, constitutional court judges in the three jurisdictions we studied actively experimented with the challenging task of forcing, or enticing, reluctant legislative and executive branches …

A Formulaic Recitation Will Not Do: Why The Federal Rules Demand More Detail In Criminal Pleading, Charles Eric Hintz

All Faculty Scholarship

When a plaintiff files a civil lawsuit in federal court, her complaint must satisfy certain minimum standards. Specifically, under the prevailing understanding of Federal Rule of Civil Procedure 8(a), a complaint must plead sufficient factual matter to state a claim to relief that is plausible on its face, rather than mere conclusory statements. Given the significantly higher stakes involved in criminal cases, one might think that an even more robust requirement would exist in that context. But in fact a weaker pleading standard reigns. Under the governing interpretation of Federal Rule of Criminal Procedure 7(c), indictments that simply parrot the …

Introduction: Situating, Researching, And Writing Comparative Legal History, John G. H. Hudson, William Eves

Other Publications

This volume is a selection of essays taken from the excellent range of papers presented at the British Legal History Conference hosted by the Institute for Legal and Constitutional Research at the University of St Andrews, 10–13 July 2019. The theme of the conference gives this book its title: ‘comparative legal history’. The topic came easily to the organisers because of their association with the St Andrews-based European Research Council Advanced grant project ‘Civil law, common law, customary law: consonance, divergence and transformation in Western Europe from the late eleventh to the thirteenth centuries’. But the chosen topic was also …

Advisory Opinions And The Problem Of Legal Authority, Christian R. Burset

Journal Articles

The prohibition against advisory opinions is fundamental to our understanding of federal judicial power, but we’ve misunderstood its origins. Discussions of the doctrine begin not with a constitutional text or even a court case, but a letter in which the Jay Court rejected President Washington’s request for legal advice. Courts and scholars have offered a variety of explanations for the Jay Court’s behavior. But they all depict the earliest Justices as responding to uniquely American concerns about advisory opinions.

This Article offers a different explanation. Drawing on previously untapped archival sources, it shows that judges throughout the anglophone world—not only …

Deodand, Brian L. Frye

Law Faculty Scholarly Articles

Law is a funny thing. Nobody really knows what it is. And there’s so much of it! If you started reading the United States Code out loud today, you’d be hoarse before you got to Title 17. Even still, you’d barely be getting started. The Library of Babel has nothing on the mountain of laws we’ve already got or the avalanche we keep creating. No one could possibly read them all, let alone remember what they say. What a conundrum!

And yet, as a practical matter, we still seem to have a pretty good idea of what the law expects …

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 task …

The Female Legal Realist Inside The Common Law, Ann Bartow

Law Faculty Scholarship

This essay, a response piece to Anita Bernstein’s thought-provoking book The Common Law Inside the Female Body, examines the powerful tool of the common law and the role that judges play in wielding it. I begin by drawing on my twenty-four years of teaching and looking at the questions that I, and my students, grapple with every year while studying the common law: Do the uncoordinated actions of individual judges, juries, and lawyers and parties generate an efficient legal system? And does that system result in some version of justice for most of the parties, most of the time, …

The Common Law As A Force For Women, Bridget J. Crawford

Elisabeth Haub School of Law Faculty Publications

This essay introduces a collection of Symposium Essays examining Anita Bernstein's book, The Common Law Inside the Female Body (Cambridge University Press, 2019). Professor Bernstein explores the common law's recognition of both rights and liberties, highlighting in particular negative liberties such as the right to be left undisturbed. The Symposium Essays test and explore Professor Bernstein's thesis as applied to the right to be free from rape and unwanted pregnancies. Grounded in perspectives informed by the study of tort law, legal history, intellectual property, constitutional law, and critical race theory, these Essays--together with Professor Bernstein's book--suggest that the common law …

Public Rights After Oil States Energy, Adam J. Macleod

Faculty Articles

The concept of public rights plays an important role in the jurisprudence of the Supreme Court of the United States. But as the decision in Oil States last Term revealed, the Court has often used the term to refer to three different concepts with different jurisprudential implications. Using insights drawn from historical and analytical jurisprudence, this Article distinguishes the three concepts and examines how each of them is at work in patent law. A precise reading of Oil States also bears lessons for other areas of law that implicate both private rights and duties and the administration of public regulatory …

The Roberts Court And Administrative Law, Gillian E. Metzger

Faculty Scholarship

Administrative law today is marked by the legal equivalent of mortal combat, where foundational principles are fiercely disputed and basic doctrines are offered up for “execution.” Several factors have led to administrative law’s currently fraught status. Increasingly bold presidential assertions of executive power are one, with President Trump and President Obama before him using presidential control over administration to advance controversial policies that failed to get congressional sanction. In the process, they have deeply enmeshed administrative agencies in political battles – indeed, for President Trump, administrative agencies are the political battle, as his administration has waged an all-out war on …

(Un)Common Law And The Female Body, Lolita Buckner Inniss

Publications

A dissonance frequently exists between explicit feminist approaches to law and the realities of a common law system that has often ignored and even at times exacerbated women’s legal disabilities. In The Common Law Inside the Fe-male Body, Anita Bernstein mounts a challenge to this story of division. There is, and has long been, she asserts, a substantial interrelation between the common law and feminist jurisprudential approaches to law. But Bernstein’s central argument, far from disrupting broad understandings of the common law, is in keeping with a claim that other legal scholars have long asserted: decisions according to precedent, …

In Defense Of International Comity, Thomas H. Lee, Samuel Estreicher

Faculty Scholarship

A chorus of critics, led by the late Justice Scalia, have condemned the practice of federal courts’ refraining from hearing cases over which they have subject-matter jurisdiction on the basis of international comity—respect for the governmental interests of other nations. They assail the practice as unprincipled abandonment of judicial duty and unnecessary given statutes and settled judicial doctrines that amply protect foreign governmental interests and guide the lower courts. But existing statutes and doctrines do not give adequate answers to the myriad cases in which such interests are implicated given the scope of present-day globalization and features of the U.S. …