Law Commons^™

Toxic Love: Mandating Standards In Arkansas’S Domestic Violence Laws, Alia B. Reddell

Arkansas Law Review

This Comment addresses the current scheme of domestic violence statutes, highlighting the inadequate state of domestic violence remedies and the ineffective law enforcement guidelines currently in place; it argues that the Arkansas State Legislature is in need of reforming its domestic violence policies. This recommendation is three-fold and proposes that Arkansas should abandon its current discretionary regime and adopt: (1) mandatory arrest policies; (2) statutory post-arrest procedures; and (3) mandatory

Tort Law: Cases And Commentaries, Samuel Beswick

All Faculty Publications

Preface

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 casebook provides an introduction to tort law: the law that recognises and responds to civil wrongdoing. The material is arranged in two main parts. Following a brief introduction (§1), the first main part addresses intentional, dignitary and dishonesty torts as well as corresponding defences and remedies (§2-§10). The focus pivots with a consideration of the overarching theories and goals of tort …

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 …

Eavesdropping, The Fourth Amendment, And The Common Law (Of Eavesdropping), Donald A. Dripps

William & Mary Bill of Rights Journal

This Article addresses two of the most momentous and controversial issues raised by the Fourth Amendment. These issues are closely related but distinct. First, is eavesdropping a “search” subject to the Fourth Amendment? Second, are Fourth Amendment “searches” limited to the interests against physical intrusion protected by the common-law torts of trespass and false arrest?

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Remarkably, the debate about the Fourth Amendment, the common law, and eavesdropping has almost completely ignored the common law of eavesdropping. This Article is the first to consider the Fourth Amendment in light of an in-depth examination of the common law’s prohibition of …

“Improve Your Privileges While They Stay”: A Guide To Improve The Privileges Of U.S. Citizenship For Everybody, Joshua J. Schroeder

Touro Law Review

In 1767, the young Phillis Wheatley wrote from her position of slavery in the Wheatley home of Boston to “ye sons of Science” at Harvard College, telling them to “improve your privileges while they stay.” She beheld the startling privileges of learning and discovery bestowed upon an elite group of young, rich white men in Boston and celebrated their privileges. Neither did she scorn those whose luck had placed a bounty of privilege upon their laps, for she likely planned to share in that bounty herself, one day. When she was only 13 or 14, Wheatley sublimely encouraged grown men …

Franchising Law In The United States Between Theory And Practice: Heads Up For Foreign Investors, Radwa Elsaman

Touro Law Review

As a dynamic vehicle for fostering investment opportunities, both domestically and internationally, franchising spans a diverse array of industrial sectors, encompassing both goods and services. The United States plays a highly influential role in global franchise industry promotion, with a vast majority of International Franchise Association members representing American companies. Present data underscores that franchising has extended its reach to virtually every sector of the American economy. Notably, the United States stands among just four common law nations that have established dedicated franchise legislation, operating at both state and federal levels. This framework includes provisions for pre-sale disclosure, registration of …

The Communication Conundrum: Weighing The Need To Prove Intent In Erisa Misrepresentation Claims, Kristen Hobbs

Emory Law Journal

In 1974, Congress enacted the Employee Retirement Income Security Act (ERISA) to provide oversight to voluntary employee benefit plans in the private sector. The statute, which draws from a deep well of common law history, places robust requirements on fiduciaries who safeguard such plans. Shortly after ERISA’s enactment, courts were forced to interpret the broad fiduciary duties set forth in 29 U.S. § 1104, which simply mandates that fiduciaries must discharge duties solely in the interest of the participants and beneficiaries. Considering this broad language, courts set out to define specific standards to which fiduciaries should be held, particularly surrounding …

An Originalist Approach To Prospective Overruling, John O. Mcginnis, Michael Rappaport

Notre Dame Law Review

Originalism has become a dominant jurisprudential theory on the Supreme Court. But a large number of precedents are inconsistent with the Constitution’s original meaning and overturning them risks creating enormous disruption to the legal order. This article defends a prospective overruling approach that would harmonize precedent with originalism’s rise and reduce the disruption from overrulings. Under prospective overruling, the Court declares that an existing statute violates the original meaning but will continue to be enforced because declaring it unconstitutional would produce enormous costs; however, future statutes of this type will be voided as unconstitutional. Under our approach, the Court would …

Coordination Of The Uniform Commercial Code And Common Law, Kenneth C. Kettering

University of Cincinnati Law Review

Deciding whether an issue that is in the ambit of a statute should be resolved by reference to the statute alone, or whether other sources of law should be applied, is a common interpretative task. The Uniform Commercial Code ("UCC") contains rules of interpretation that address the subject, and those rules have not been altered since the UCC was first generally enacted. Nevertheless, questions often arise on the subject under the UCC. This paper examines the UCC rules on point. The analysis is germane to the interpretation and drafting of other statutes that codify rules of private law.

Implied Organizations And Technological Governance, Shawn Bayern

William & Mary Law Review

Common law historically adapted creatively and gracefully to the emergence of new types of organizations. Today, statutory forms of organizations predominate. But statutory organizational forms may be ill-suited to govern the novel, loosely coupled, and rapidly changing organizations that can arise through distributed technological mechanisms. This Article suggests that the common law of implied organizations can be a fertile ground for legal responses to technological organizations and indeed may be important not just for regulating such organizations but for giving them important legal capabilities.

On The Nexus Between The Strength Of The Separation Of Powers And The Power Of The Judiciary, Rivka Weill

William & Mary Bill of Rights Journal

This Article makes four novel arguments: (1) There is an inverse relationship between the strength of a separation of powers structure and the strength of the judiciary. In a strong separation of powers structure, one should expect a weaker judiciary, and vice versa. This nexus exists empirically, and is supported on normative and strategic grounds. (2) This nexus is manifested through a web of common law doctrines that developed to support a given separation of powers structure and shape the judicial oversight of the political branches. This Article identifies a list of common law doctrines—including standing, justiciability, deference, and judicial …

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

Notre Dame Law Review

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 the personal services exclusion, …

A Chinese Law Wedge Into The Hong Kong Common Law System: A Legal Appraisal Of The Hong Kong National Security Law, Han Zhu

Northwestern Journal of Human Rights

This paper is the first to comprehensively analyze the key legal controversies surrounding the Hong Kong National Security Law (NSL) and its implementation. Based on doctrinal analysis, case studies, and the most up-to-date statistics, this study centers on three categories of legal disputes: (1) the constitutionality and legality of the NSL; (2) the disputed content of the NSL; and (3) the legislative procedural issues involving the NSL. The study shows that the enactment of the NSL is not only an unprecedented crisis facing the “one country, two systems” framework, but also marks a culmination of the intersection and conflict between …

Civil Liability For Sexual Misconduct, Mike K. Steenson

Mitchell Hamline Law Review

No abstract provided.

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 Restatement Of Property: The Curse Of Incompleteness, Thomas W. Merrill

Faculty Scholarship

The central feature of the American Law Institute’s Restatement of Property is that it remains incomplete after nearly seventeen volumes produced over nearly ninety years. The principal explanation for this is the proclivities of the Reporters who have been responsible for the first three iterations of this effort. Some of these proclivities, such as a commitment to meticulous research, have been commendable. But the incompleteness of the effort has reduced the influence of the property Restatement, relative to other Restatements like contracts and torts. The chapter concludes with a description of the Fourth Restatement of Property, now underway, and the …

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 …

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 …

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.

The Dark Side Of Due Process: Part Iii, How To Use Irreverent Double-Talk To Speak Back To Bad Men, Joshua J. Schroeder

St. Mary's Law Journal

Most American lawyers take for granted that the common law established almost all the ordinary causes of action we know today. As Joseph Story’s Commentaries acknowledged, the common law is the basis of the entire U.S. system of law. Common law struggled with feudal and canon forms and eventually transformed them for the benefit of ordinary people even in the face of the most heinous travesties of the English and American past.

The Witch Judges of Salem, Massachusetts and the Parliament of Saints in England did not prevail through despotic radicalism to demolish the common law through codification. Legal positivism …

Real Property Law—Easements—Why Arkansas Should Adopt The Uniform Easement Relocation Act., Adam Conrady

University of Arkansas at Little Rock Law Review

No abstract provided.

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 …

If The Government Says So, It Must Be Right: An Analysis On The Impact Of Government Issued Force Majeure Certificates, Verónica Orantes

University of Miami Inter-American Law Review

In March 2020, the world came to a halt with the beginning of the Covid–19 pandemic. The pandemic’s worldwide im-pact resulted in endless business transactions becoming im-possible or impracticable to perform. The China Council for the Promotion of International Trade issued force majeure certificates for its national business parties to excuse their performance under cross–border transactions. This note explores how the excuses for the performance of a contract work under Common Law and Civil Law systems and how each system would react to the parties invoking force majeure under a force majeure certificate issued by a government agency.

What Property Does, Christopher Serkin

Vanderbilt Law Review

For centuries, scholars have wrestled with seemingly intractable problems about the nature of property. This Article offers a different approach. Instead of asking what property is, it asks what property does. And it argues that property protects people’s reliance on resources by moderating the pace of change. Modern scholarly accounts emphasize voluntary transactions as the source and purpose of reliance in property. Such “transactional reliance” implies strong, stable, and enduring rights. This Article argues that property law also reflects a very different source of reliance on resources, one that rises and falls simply with the passage of time. This new …

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 …

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 …

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 …

Bridges Of Law, Ideology, And Commitment, Steven L. Winter

Touro Law Review

Law has a distinctive temporal structure—an ontology—that defines it as a social institution. Law knits together past, present, purpose, and projected future into a demand for action. Robert Cover captures this dynamic in his metaphor of law as a bridge to an imagined future. Law’s orientation to the future necessarily poses the question of commitment or complicity. For law can shape the future only when people act to make it real. Cover’s bridge metaphor provides a lens through which to explore the complexities of law’s ontology and the pathologies that arise from its neglect or misuse. A bridge carries us …

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 …