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Articles 1 - 12 of 12

Full-Text Articles in Law

What Has Happened To The Common Law? -- Recent American Codifications, And Their Impact On Judicial Practice And The Law's Subsequent Development, Mark D. Rosen Mar 1994

What Has Happened To The Common Law? -- Recent American Codifications, And Their Impact On Judicial Practice And The Law's Subsequent Development, Mark D. Rosen

All Faculty Scholarship

The Article documents that the general failure of the nineteenth century movement to codify American common law has given way to a quiet piecemeal codification over the past seventy five years. The Article assesses the consequences of this large-scale shift from common law to code. While the jurisprudential concerns voiced by opponents of codification in the nineteenth century (that codification would strip judges of necessary discretion and freeze growth of the law) have not materialized, the recent American codes have shaped the law's subsequent evolution in several critical respects. For one, the Article shows that unarticulated, non-axiomatic views of ...


The Historical Origins Of The Privilege Against Self-Incrimination At Common Law, John H. Langbein Mar 1994

The Historical Origins Of The Privilege Against Self-Incrimination At Common Law, John H. Langbein

Michigan Law Review

This essay explains that the true origins of the common law privilege are to be found not in the high politics of the English revolutions, but in the rise of adversary criminal procedure at the end of the eighteenth century. The privilege against self-incrimination at common law was the work of defense counsel.

Part I of this essay discusses the several attributes of early modem criminal procedure that combined, until the end of the eighteenth century, to prevent the development of the common law privilege. Part II explains how prior scholarship went astray in locating the common law privilege against ...


Appendix: The Sleeves From Our Vest: Naming A Perpetuities Non-Event, Mark Reutlinger, John Weaver Jan 1994

Appendix: The Sleeves From Our Vest: Naming A Perpetuities Non-Event, Mark Reutlinger, John Weaver

Faculty Scholarship

Professors Mark Reutlinger and John Weaver examine the conceptual dilemma that Professor Reutlinger encountered in the course of developing the series of diagrams to illustrate the Rule Against Perpetuities described in the accompanying article. To describe it briefly (if not simply), the perpetuities period for a special or testamentary power of appointment begins when the power is created (not exercised), and it ends when the appointed interest vests. Applying the "relation back" doctrine, the appointment is treated, for perpetuities purposes, as if it were a gift by the donor, rather than the donee. Under the "second look" doctrine, however, one ...


Federalism Myth, Fernando Laguarda Jan 1994

Federalism Myth, Fernando Laguarda

Articles in Law Reviews & Other Academic Journals

INTRODUCTION: The late Justice Louis Brandeis once remarked on the benefit that our system of government derives from the states acting as the "laboratories of democracy."' This remark not only implies that states should be given the discretion to experiment, it presumes that states actually have the ability to do so. In order to understand Justice Brandeis and those who have followed in his rhetorical footprints, it is important to understand federalism, which is the organizing principle of American government.


Jurisprudence Of Successful Treason: Coup D'Etat & Common Law, Tayyab Mahmud Jan 1994

Jurisprudence Of Successful Treason: Coup D'Etat & Common Law, Tayyab Mahmud

Faculty Scholarship

The first part of this article is a survey of all known judicial responses to coups d'etat in post colonial common law settings. Although these different coups unfolded in diverse contexts the courts validated all incumbent usurper regimes with one exception. Kelsen's theory of revolutionary legality furnished the primary doctrinal vehicle to reach this result. While some courts adopted Kelsen's proposition that efficacy of a coup bestows validity in an unadulterated form, others modified this with or substituted it by doctrines of state necessity, implied mandate, and public policy. Following Kelsen, they fail to distinguish between legitimacy ...


Foreword Evidence Symposium: A Comparative Study Of Federal And New York Evidence Practice, Honorable Frank X. Altimari Jan 1994

Foreword Evidence Symposium: A Comparative Study Of Federal And New York Evidence Practice, Honorable Frank X. Altimari

Touro Law Review

No abstract provided.


Closing The Gap: Safeguarding Participants' Rights By Expanding The Federal Common Law Of Erisa, Jayne Elizabeth Zanglein Jan 1994

Closing The Gap: Safeguarding Participants' Rights By Expanding The Federal Common Law Of Erisa, Jayne Elizabeth Zanglein

Washington University Law Review

This Article will explore the current boundaries of the federal common law of ERISA and will urge the expansion of these boundaries to protect plan participants who have been betrayed without a remedy.


Prior Written Notice Statutes In New York State: The Resurrection Of Sovereign Immunity, Lewis J. Lubell Jan 1994

Prior Written Notice Statutes In New York State: The Resurrection Of Sovereign Immunity, Lewis J. Lubell

Touro Law Review

No abstract provided.


Tribute To William F. Fratcher: Marital Property Rights In Transition, Lawrence W. Waggoner Jan 1994

Tribute To William F. Fratcher: Marital Property Rights In Transition, Lawrence W. Waggoner

Articles

"Marital property rights," a term that covers a vast multitude of rights or interests conferred by law on persons who occupy the status of spouse, are in a state of transition. To discuss the themes and trends that are emerging, this Article is divided into four discrete, yet related segments. The first segment addresses how the law allocates original ownership between spouses in a marriage. The second segment turns to the intestate share of the surviving spouse. This is not a topic that much concerns high-powered estate planners because intestate estates are usually fairly small. But to the surviving spouse ...


Torts-- Federal Preemption Of State Common Law-- Federal Cigarette Labeling & Advertising Act, Elizabeth Price Foley, Elizabeth C. Price Jan 1994

Torts-- Federal Preemption Of State Common Law-- Federal Cigarette Labeling & Advertising Act, Elizabeth Price Foley, Elizabeth C. Price

Faculty Publications

This case note examining Supreme Court's landmark preemption decision in Cipollone v. Liggett Group.


Common Law Right Of Public Access - The Third Circuit Limits Its Expansive Approach To The Common-Law Right Of Public Access To Judicial Records, Diane Apa Jan 1994

Common Law Right Of Public Access - The Third Circuit Limits Its Expansive Approach To The Common-Law Right Of Public Access To Judicial Records, Diane Apa

Villanova Law Review

No abstract provided.


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 ...