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2013

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Full-Text Articles in Law

Attribution Of Liability For Workplace Injuries Caused By Non-Employees- Recent Developments In The Law Of Non-Delegable Duty, Neil J. Foster Dec 2013

Attribution Of Liability For Workplace Injuries Caused By Non-Employees- Recent Developments In The Law Of Non-Delegable Duty, Neil J. Foster

Neil J Foster

What I do in this paper is to open up in a fairly preliminary way an area of the law relating to attribution of liability that, while it has been around for a long time, I think is increasingly being misunderstood by scholars and the courts. I will mostly focus on the application of this principle in relation to workplace injuries, partly because that constitutes a significant area of its past and present application.


A Suggestion For The Renewal Of The Canon Law, Robert E. Rodes Nov 2013

A Suggestion For The Renewal Of The Canon Law, Robert E. Rodes

Robert Rodes

No abstract provided.


The Federal Common Law Of Nations, Anthony J. Bellia, Bradford R. Clark Oct 2013

The Federal Common Law Of Nations, Anthony J. Bellia, Bradford R. Clark

Anthony J. Bellia

Courts and scholars have vigorously debated the proper role of customary international law in American courts: To what extent should it be considered federal common law, state law, or general law? The debate has reached something of an impasse, in part because various positions rely on, but also are in tension with, historical practice and constitutional structure. This Article describes the role that the law of nations actually has played throughout American history. In keeping with the original constitutional design, federal courts for much of that history enforced certain rules respecting other nations' perfect rights (or close analogues) under the …


State Courts And The Making Of Federal Common Law, Anthony J. Bellia Oct 2013

State Courts And The Making Of Federal Common Law, Anthony J. Bellia

Anthony J. Bellia

The authority of federal courts to make federal common law has been a controversial question for courts and scholars. Several scholars have propounded theories addressing primarily whether and when federal courts are justified in making federal common law. It is a little-noticed phenomenon that state courts, too, make federal common law. This Article brings to light the fact that state courts routinely make federal common law in as real a sense as federal courts make it. It further explains that theories that focus on whether the making of federal common law by federal courts is justified are inadequate to explain …


The Erie Doctrine Revisited: How A Conflicts Perspective Can Aid The Analysis, Joseph P. Bauer Oct 2013

The Erie Doctrine Revisited: How A Conflicts Perspective Can Aid The Analysis, Joseph P. Bauer

Joseph P. Bauer

I have taught Civil Procedure for the past twenty-five years. Having returned to teaching Conflict of Laws last year, after not having taught that course since the mid-1980s, I was interested in re-examining the Erie doctrine from the vantage point of both of these subject areas. My goal was to see whether a combination of learning from these two related disciplines would introduce additional coherence into the analysis of this topic.

In one sense, the Erie doctrine and traditional choice of law determinations present analogous questions, since they both involve making a selection between competing legal rules. Choice of law …


Addressing The Incoherency Of The Preemption Provision Of The Copyright Act Of 1976, Joseph P. Bauer Oct 2013

Addressing The Incoherency Of The Preemption Provision Of The Copyright Act Of 1976, Joseph P. Bauer

Joseph P. Bauer

Section 301 of the Copyright Act of 1976 expressly preempts state law actions that are within the "general scope of copyright" and that assert claims that are "equivalent to" the rights conferred by the Act. The Act eliminated the previous system of common law copyright for unpublished works, which had prevailed under the prior 1909 Copyright Act. By federalizing copyright law, the drafters of the statute sought to achieve uniformity and to avoid the potential for state protection of infinite duration. The legislative history of § 301 stated that this preemption provision was set forth "in the clearest and most …


The Evolution Of The Common Law And Efficiency, Nuno Garoupa, Carlos I. Gómez Ligüerre Oct 2013

The Evolution Of The Common Law And Efficiency, Nuno Garoupa, Carlos I. Gómez Ligüerre

Georgia Journal of International & Comparative Law

No abstract provided.


Saving The Trees One Constitutional Provision At A Time: Judicial Activism And Deforestation In India, Lennon Banks Haas Oct 2013

Saving The Trees One Constitutional Provision At A Time: Judicial Activism And Deforestation In India, Lennon Banks Haas

Georgia Journal of International & Comparative Law

No abstract provided.


Apportioning Liability In Maryland Tort Cases: Time To End Contributory Negligence And Joint And Several Liability, Donald G. Gifford, Christopher J. Robinette Oct 2013

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

Donald G Gifford

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 …


In The Shadow Of The Legislature: The Common Law In The Age Of The New Public Law, Daniel A. Farber, Philip P. Frickey Sep 2013

In The Shadow Of The Legislature: The Common Law In The Age Of The New Public Law, Daniel A. Farber, Philip P. Frickey

Daniel A Farber

No abstract provided.


The Death Of The Common Law: Judicial Abdication And Contributory Negligence In Maryland, Donald G. Gifford Jul 2013

The Death Of The Common Law: Judicial Abdication And Contributory Negligence In Maryland, Donald G. Gifford

Donald G Gifford

The issue of how to handle a victim’s own contributory negligence that combines with the negligence of a tortfeasor in causing harm is one of the most important, if not the most important, issue in all of tort law. Forty-six states now apply some version of comparative fault that holds the defendant liable for its negligence even when the plaintiff is also careless, but reduces the award in proportion to the plaintiff’s degree of fault when compared with that of the defendant. In contrast, the Maryland Court of Appeals in Coleman v. Soccer Association of Columbia recently refused again to …


An All Of The Above Theory Of Legal Development, Larry A. Dimatteo Jun 2013

An All Of The Above Theory Of Legal Development, Larry A. Dimatteo

Larry A DiMatteo

This paper reviews different theories of legal development in order to highlight their similarities and differences. In the end, as in contract theories, no monist view of legal development possesses the explanatory power needed to understand how law has come to be and where it may take us in the future. What we do have is a foundation built on at least two millennia of legal history. The intellectual starting point for this project is Nathan Isaacs’ unfinished work on a cycle theory of legal development. His view of legal development takes issue with Henry Sumner Maine’s thesis that development …


The Arkansas Proposal On Access To Court Records: Upgrading The Common Law With Electronic Freedom Of Information Norms, Richard Peltz-Steele, Joi Leonard, Amanda Andrews Jun 2013

The Arkansas Proposal On Access To Court Records: Upgrading The Common Law With Electronic Freedom Of Information Norms, Richard Peltz-Steele, Joi Leonard, Amanda Andrews

Richard J. Peltz-Steele

The law and practice of court record access across United States jurisdictions is in a confused state. Public access to records in the hands of government, including court records, is a desirable norm of public policy; on this point, there is universal agreement. But there is disagreement on questions as fundamental as whether public access to court records is founded in constitutional law, or only in common law; and the extent to which court record access is the province of the courts or the legislature. And most importantly, there is widely divergent disagreement about what circumstances warrant restriction on public …


Illegitimate Children And Constitutional Review, Clayton W. Plotkin, John Vodonick May 2013

Illegitimate Children And Constitutional Review, Clayton W. Plotkin, John Vodonick

Pepperdine Law Review

No abstract provided.


The Unwritten Law And Its Writers, Frederick J. Moreau May 2013

The Unwritten Law And Its Writers, Frederick J. Moreau

Pepperdine Law Review

No abstract provided.


Dirt Lawyers And Dirty Remics, Bradley T. Borden, David J. Reiss May 2013

Dirt Lawyers And Dirty Remics, Bradley T. Borden, David J. Reiss

Faculty Scholarship

No abstract provided.


Is The Rule Of Necessity Really Necessary In State Administrative Law: The Central Panel Solution, Arnold Rochvarg Apr 2013

Is The Rule Of Necessity Really Necessary In State Administrative Law: The Central Panel Solution, Arnold Rochvarg

Journal of the National Association of Administrative Law Judiciary

The rule of necessity is a judicial doctrine that permits a judge or agency decision maker to decide a case even if he or she would ordinarily be disqualified due to bias or prejudice . The rationale of the doctrine is that if there is no other person who can make the decision, let the biased person decide the case rather than have no decision made at all. The rule of necessity has been used in state administrative proceedings liberally despite the fact that it is widely recognized as unfair. This article analyzes current approaches to the doctrine, and after …


Past The Pillars Of Hercules: Francis Bacon And The Science Of Rulemaking, Daniel R. Coquillette Apr 2013

Past The Pillars Of Hercules: Francis Bacon And The Science Of Rulemaking, Daniel R. Coquillette

Daniel R. Coquillette

The parallels between Francis Bacon’s career and that of Edward H. Cooper are obvious. Bacon was one of the great legal minds of his day and, unlike the common law judges who formed the law by deciding cases, Bacon expressed his greatness in writing brilliant juristic treatises and, as Lord Chancellor, drafting one of the first modern rule systems, the Ordinances in Chancery (1617-1620). My thesis is that Bacon invented modern, scientific rulemaking by fusing his new theories of inductive, empirical research with the traditions of equitable pleading, and is, in fact, the intellectual forebearer of the likes of Charles …


Legal Rhetoric And Social Science: A Hypothesis For Why Doctrine Matters In Judicial Decisionmaking, Brett Waldron Apr 2013

Legal Rhetoric And Social Science: A Hypothesis For Why Doctrine Matters In Judicial Decisionmaking, Brett Waldron

Pace International Law Review Online Companion

In the realm of American jurisprudence, little draws more excitement or controversy than investigating the role of federal judges in our constitutional order. Yet, at the same time, the scholarly literature has not settled upon a singular descriptive device to explain how federal judges actually carry out this role. In broad strokes, current academic commentary appears to be divided on the issue of whether fidelity to the law or fidelity to political ideology largely determines how judges decide cases. This division, however interesting it may be, should not be afforded the luxury of being examined on a level playing field. …


Combating Obesity With A Right To Nutrition, Paul Diller Apr 2013

Combating Obesity With A Right To Nutrition, Paul Diller

Paul Diller

Domestic and international law have, in different ways, recognized a human right to food since the twentieth century. The original reason for this recognition was the need to alleviate a particular type of food insecurity—“traditional” hunger, as manifested in conditions like malnutrition and underweight. The current public-health crisis of obesity, however, demands a reconsideration of this right. The food environment in the United States today is awash in high-calorie, low-nutrient food products that are often cheaper, on a relative basis, than more nutritious foods, leading to the overconsumption of the former by much of the American population. Merely ensuring a …


Rubin And New Cap: Foreign Judgments And Insolvency, Adrian Briggs Apr 2013

Rubin And New Cap: Foreign Judgments And Insolvency, Adrian Briggs

2013 Jones Day Professorship of Commercial Law Lecture

The decisions of the UK Supreme Court in 2012 in Rubin and New Cap, and of the Singapore High Court in 2013 in Beluga Chartering, raise in acute form the question of how far the common law of international insolvency and of the recognition of foreign judgments can go when a local court is asked by a court in another country to render particular forms of assistance in relation to an insolvency administration which is taking place there. It asks how the instinct to give assistance for the ultimate benefit of creditors needs to be balanced by the …


A Decade Of Registered And Unregistered Design Rights Decisions In The Uk: What Conclusions Can We Draw For The Future Of Both Types Of Rights?, Estelle Derclaye Apr 2013

A Decade Of Registered And Unregistered Design Rights Decisions In The Uk: What Conclusions Can We Draw For The Future Of Both Types Of Rights?, Estelle Derclaye

IP Theory

No abstract provided.


Rubin And New Cap: Foreign Judgments And Insolvency, University Of Oxford; Visiting Faculty, Singapore Management University Apr 2013

Rubin And New Cap: Foreign Judgments And Insolvency, University Of Oxford; Visiting Faculty, Singapore Management University

Research Collection Yong Pung How School Of Law

The decisions of the UK Supreme Court in 2012 in Rubin and New Cap, and of the Singapore High Court in 2013 in Beluga Chartering, raise in acute form the question of how far the common law of international insolvency and of the recognition of foreign judgments can go when a local court is asked by a court in another country to render particular forms of assistance in relation to an insolvency administration which is taking place there. It asks how the instinct to give assistance for the ultimate benefit of creditors needs to be balanced by the …


Critical Analysis And Case Study Of [Mmtc Vs. Sterlite Industries Pvt. Ltd.]- Role Of Arbitrators, Yashvardhan Rana Mar 2013

Critical Analysis And Case Study Of [Mmtc Vs. Sterlite Industries Pvt. Ltd.]- Role Of Arbitrators, Yashvardhan Rana

Yashvardhan Rana

Critical analysis and Case study of [MMTC vs. Sterlite Industries Pvt. Ltd.]. Supreme Court of India M.M.T.C. Limited - Versus- Sterlite Industries (India) Ltd. Decided on: 18 November, 1996 Equivalent citations: 1996 IXAD SC 25, 1997 AIHC 605, 1996 (2) ARBLR 705 SC Bench: J Verma, B Kirpal Facts: The agreement between the parties: An agreement was entered into on 14th December, 1993 between the petitioner and the respondent by which the respondent appointed the petitioner as a consignment agent for the storage, handling and marketing of continuous cast copper rods manufactured by the respondent. The agreement provided, in so …


Presidential Pardon In Singapore: A Comment On Yong Vui Kong V Ag, Shubhankar Dam Mar 2013

Presidential Pardon In Singapore: A Comment On Yong Vui Kong V Ag, Shubhankar Dam

Research Collection Yong Pung How School Of Law

This paper critically analyses the decision of the Singapore Court of Appeal in Yong Vui Kong v Attorney-General in relation to presidential pardon. Two questions were central to the case. First, is the President bound by the decision of the Cabinet in pardon-related matters? Secondly, are decisions regarding pardon—whether made by the Cabinet or President—subject to judicial review? In relation to the first question, the Court based its reasoning on Singapore's political system being a Westminster-inspired model and, therefore, that the President generally undertakes the same functions as the British monarch. However, this paper identifies the unique features of Singapore's …


Statutes In Common Law Courts, Jeffrey Pojanowski Feb 2013

Statutes In Common Law Courts, Jeffrey Pojanowski

Journal Articles

The Supreme Court teaches that federal courts, unlike their counterparts in the states, are not general common law courts. Nevertheless, a perennial point of contention among federal law scholars is whether and how a court’s common law powers affect its treatment of statutes. Textualists point to federal courts’ lack of common law powers to reject purposivist statutory interpretation. Critics of textualism challenge this characterization of federal courts’ powers, leveraging a more robust notion of the judicial power to support purposivist or dynamic interpretation. This disagreement has become more important in recent years with the emergence of a refreshing movement in …


Hubbard V. Boelt: The Fireman's Rule Extended , Marty K. Deniston Feb 2013

Hubbard V. Boelt: The Fireman's Rule Extended , Marty K. Deniston

Pepperdine Law Review

The California Supreme Court, in Hubbard v. Boelt, extended the reach of the fireman's rule to bar a suit brought by a policeman who was injured by the willful and wanton conduct of a speeding motor is while pursuing that motorist. This is an important development in tort law because, traditionally, the fireman's rule had only been applied to bar suits by firemen and policemen who were injured by the negligent conduct of another which was the cause of their presence at the scene. This author suggests that the majority's rationale underlying this extension was flawed because of the fundamental …


Nlra Preemption Of State Common Law Wrongful Discharge Claims: The Bhopal Brigade Goes Home , Joseph R. Weeks Jan 2013

Nlra Preemption Of State Common Law Wrongful Discharge Claims: The Bhopal Brigade Goes Home , Joseph R. Weeks

Pepperdine Law Review

No abstract provided.


A Duty To Rescue: The Good, The Bad And The Indifferent—The Bystander's Dilemma, Claire Elaine Radcliffe Jan 2013

A Duty To Rescue: The Good, The Bad And The Indifferent—The Bystander's Dilemma, Claire Elaine Radcliffe

Pepperdine Law Review

No abstract provided.


The Restatement (Second): Its Misleading Quality And A Proposal For Its Amelioration, W. Noel Keyes Jan 2013

The Restatement (Second): Its Misleading Quality And A Proposal For Its Amelioration, W. Noel Keyes

Pepperdine Law Review

No abstract provided.