Law Commons^™

Equity In American And Jewish Law, Itzchak E. Kornfeld , Ph.D.

Touro Law Review

No abstract provided.

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. …

An Old View Of The Cathedral: Intellectual Property Under The Colorado Uniform Partnership Act, Nathaniel T. Vasquez

University of Colorado Law Review

The Colorado Uniform Partnership Act ("CUPA") contains a subtle shortcoming. CUPA is a default statute that only operates in the absence of a governing agreement between two partners formed at the outset of the partnership. As with most things in this life, partnerships inevitably come to an end. When this happens, a partner is said to have "dissociated" from the partnership. Typically, this is followed by a dissolution of the partnership itself

Rather than terminating at that point, the partnership then goes into what is called the "winding up" period. Among other things, winding up involves liquidating all of the …

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 …

Private And Public Law, Thomas W. Merrill

Faculty Scholarship

This chapter explores the relationship between private and public law. In civil law countries, the public-private distinction serves as an organizing principle of the entire legal system. In common law jurisdictions, the distinction is at best an implicit design principle and is used primarily as an informal device for categorizing different fields of law. Even if not explicitly recognized as an organizing principle, however, it is plausible that private and public law perform distinct functions. Private law supplies the tools that make private ordering possible — the discretionary decisions that individuals make in structuring their lives. Public law is concerned …

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 …

The Common Law Inside A Social Hierarchy: Power Or Reason?, Katharine B. Silbaugh

Faculty Scholarship

Anita Bernstein argues that the common law gives women, too, the right to say no to what they do not want. She demonstrates that the common law is a far-reaching defense of condoned self-regard, a system that allows individuals to place their own interests above the interests of others, particularly when seeking to exclude others. She, therefore, places in the common law a right to protection from rape and a near-absolute right to expel a pregnancy. Bernstein reasons that women’s exclusion from the common law right to say no was a mistake produced by their absence from the judiciary. This …

(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, …

The Patriation Of Canadian Corporate Law, Camden Hutchison

All Faculty Publications

Canadian corporate law belongs within a broader Anglo-American legal tradition, sharing many of the features of other common law jurisdictions, most notably England and the United States. Prior to Confederation, Canadian corporate law first emerged from nineteenth-century English legislation and continued to resemble English law – at least superficially – well into the twentieth century. Legislation is only one source of corporate law, however. Just as important is the creation of legal rules through the common law adjudicatory process. Thus, examining case law raises an important empirical question distinct from, though relevant to, the issue of legislative influence – namely, …

Of Dangers, Conditions, Children, And Maturity: A Plea For A Comprehensible Standard In Long-Standing Rules, Maureen Straub Kordesh

Northern Illinois University Law Review

This Article explores the common law doctrine of attractive nuisance in Illinois and proposes a more detailed explication of the rule. The doctrine lies in the junction between tort and contract, which might account for the incompleteness of its presentation. It argues that because law students are a significant audience for case law, the language of such rules should be as detailed and clear as possible.

The Fatal Leviathan: A Hayekian Perspective Of Lex Mercatoria In Civil Law Countries, Fabio Núñez Del Prado Ch.

Pace International Law Review

Who should create default commercial rules? Should they be created in a constructivist way or should they be created rather through a spontaneous order? Should Kelsen’s positivism prevail in commercial law? Drawing on diverse libertarian literature, I will argue that, since courts do not play a dominant role in civil law countries and, more importantly, do not set precedents, default commercial rules should not be created by the legislator, but through the Lex Mercatoria.

Defining Fishing, The Slippery Seaweed Slope, Ross V. Acadian Seaplants Ltd., Rebecca P. Totten

Ocean and Coastal Law Journal

In Maine, the intertidal zone has seen many disputes over its use, access, and property rights. Recently, in Ross v. Acadian Seaplants, Ltd., the Maine Supreme Judicial Court, sitting as the Law Court, held that rockweed seaweed in the intertidal zone is owned by the upland landowner and is not part of a public easement under the public trust doctrine. The Court held harvesting rockweed is not fishing. This case will impact private and public rights and also the balance between the State's environmental and economic interests. This Comment addresses the following points: first, the characteristics of rockweed and the …

The Use Of Historical Law In Treaty Rights Cases, Ann Tweedy

Faculty Publications

This paper examines the potential contributions of historical law to treaty rights cases, looking specifically to the use of such law in the Culverts Case and in a currently pending tribal hunting case, Herrera v. Wyoming. It demonstrates the benefits that historical law can confer on tribal clients, while also discussing some of the reasons that tribal clients may be reluctant to invoke it. It concludes that, at a minimum, lawyers representing tribes in treaty rights cases should research the laws that existed at the time that the treaty was entered into and should consider developing expert testimony on such …

Between Law And Diplomacy: The Conundrum Of Common Law Immunity, Chimène I. Keitner

Georgia Law Review

Drawing the line between disputes that can be adjudicated in domestic (U.S.) courts and those that cannot has perplexed judges and jurists since the Founding Era. Although Congress provided a statutory framework for the jurisdictional immunities of foreign states in 1976, important ambiguities remain. Notably, in 2010, the U.S. Supreme Court held in Samantar v. Yousuf that the Foreign Sovereign Immunities Act (FSIA) does not govern suits against foreign officials unless the foreign state is the “real party in interest.” This decision clarified, but did not fully resolve, conceptual and doctrinal questions surrounding the immunities of foreign officials whose conduct …

"Cyborg Justice" And The Risk Of Technological-Legal Lock-In, Rebecca Crootof

Law Faculty Publications

Although Artificial Intelligence (AI) is already of use to litigants and legal practitioners, we must be cautious and deliberate in incorporating AI into the common law judicial process. Human beings and machine systems process information and reach conclusions in fundamentally different ways, with AI being particularly ill-suited for the rule application and value balancing required of human judges. Nor will “cyborg justice”—hybrid human/AI judicial systems that attempt to marry the best of human and machine decisionmaking and minimize the drawbacks of both—be a panacea. While such systems would ideally maximize the strengths of human and machine intelligence, they might also …

Limiting Lessons From Property: Re-Imagining The Public Domain In The Image Of The Public Trust Doctrine, Deidre Keller

Journal Publications

No abstract provided.

The Genius Of Common Law Intellectual Property, Shyamkrishna Balganesh

All Faculty Scholarship

Among Richard Epstein’s influential contributions to legal scholarship over the years is his writing on common law intellectual property. In it, we see Epstein’s attempt to meld the innate logic of the common law’s conceptual structure with the realities of the modern information economy. Common law intellectual property refers to different judge made causes of action that create forms of exclusive rights and privileges in intangibles, interferences with which are then rendered enforceable through private liability. In this Essay, I examine Epstein’s writing on two such doctrines: “hot news misappropriation” and “cyber-trespass”, which embraces several important ideas that modern discussions …

Mens Rea In Comparative Perspective

Marquette Law Review

This Essay compares and contrasts the American and civilian approaches to mens rea. The comparative analysis generates two important insights. First, it is preferable to have multiple forms of culpability than to have only two. Common law bipartite distinctions such as general and specific intent fail to fully make sense of our moral intuitions. The same goes for the civilian distinction between dolus (intent) and culpa (negligence). Second, attitudinal mental states should matter for criminalization and grading decisions. Nevertheless, adding attitudinal mental states to our already complicated mens rea framework may end up confusing juries instead of helping them. As …

The Conjecture From The Universality Of Objectivity In Jurisprudential Thought: The Universal Presence Of A ‘Reasonable Man’, Johnny Sakr

Theses

This thesis proposes that all legal systems use objective standards as an integral part of their conceptual foundation. To demonstrate this point, this thesis will show that Jewish law, ancient Athenian law, Roman law and canon law use an objective standard like English common law’s ‘reasonable person’ to judge human behaviour. It argues that the universal use of objective standards dictates that human reason, a capability possessed by all mentally complete human beings, holds that objective standards are an important tool in judicial reasoning.

To establish a just system of law, this thesis contends that objective standards should be used …

Finding Law, Stephen E. Sachs

Faculty Scholarship

That the judge's task is to find the law, not to make it, was once a commonplace of our legal culture. Today, decades after Erie, the idea of a common law discovered by judges is commonly dismissed -- as a "fallacy," an "illusion," a "brooding omnipresence in the sky." That dismissive view is wrong. Expecting judges to find unwritten law is no childish fiction of the benighted past, but a real and plausible option for a modern legal system.

This Essay seeks to restore the respectability of finding law, in part by responding to two criticisms made by Erie and …

Reading Terminology In The Sources For The Early Common Law: Seisin, Simple And Not So Simple, John G. H. Hudson

Book Chapters

According to F. W. Maitland, ‘the treatment of seisin in our oldest common law must be understood if ever we are to use the vast store of valuable knowledge that lies buried in the plea rolls and the Year Books’. In The History of English Law, Maitland stated firmly that ‘Seisin is possession’, and that ‘When we say that seisin is possession, we use the latter term in the sense in which lawyers use it, a sense in which possession is quite distinct from, and may be sharply opposed to, proprietary right.’ He added that ‘The idea of seisin …

The Common Law As Silver Slippers, Bridget J. Crawford

Elisabeth Haub School of Law Faculty Publications

Professor Anita Bernstein's book, The Common Law Inside the Female Body, is an erudite investigation into the history and operation of the common law. Bernstein's careful and wide-ranging study leads to her arresting thesis: The common law--an old, unpredictable, and slow system that has been there all along--has tremendous power to support and even advance women's legal claims to personal liberty. In other words, women have always had the common law right to be treated equally to men. We simply have not realized it.

Bernstein makes a convincing argument that the common law tradition has a unifying theoretical commitment: “[T]he …

A Common Law Of Zoning, Michael Allan Wolf

UF Law Faculty Publications

This Article for the first time identifies a common law of zoning, describes the typology of this essential and overlooked element of American land use law, and establishes the historical and structural context for its pervasive set of rules and principles. Over the past 100 years, American judges, filling in the gaps and resolving the ambiguities of a surprisingly uniform set of state enabling statutes, have produced this body of common law. The story will take the reader to Iowa cornfields that surround an iconic baseball diamond; to a federal agency that gave an important impetus to the nationwide adoption …

Right To Privacy, A Complicated Concept To Review, Ali Alibeigi, Abu Bakar Munir, Md Ershadul Karim

Library Philosophy and Practice (e-journal)

The Concept and definition of the privacy has been changed during the time affecting by different factors. At the same time, the boundaries of privacy may differ from one place to another affecting by the culture, religion, etc. Nonetheless, there is not a unique general accepted definition for the privacy. Privacy has been considered from different disciplines like sociology, psychology, law and philosophy. It is a multidisciplinary domain, having an easy concept but difficult to define. However, by reviewing all different viewpoints, it can be concluded that privacy is an individual tendency, wish and natural need to be away from …

Equity, Samuel L. Bray

Book Chapters

From the Publisher
Chapter 2
How has equity been received in the United States? Two themes stand out. One is that of ‘nice adjustment’: the case-specific adjustment of legal rules to avoid the harsh results of applying rules to unforeseen circumstances. The second is the idea of judicial command: ordering the particular defendant in the circumstances to do equity without contradicting the common law. While the former has waned in the US, the latter has overly strengthened. The reasons of legal culture are discussed.

Common Law Tort Of Negligence As A Tool For Deconstructing Positive Obligations Under The European Convention On Human Rights, Vladislava Stoyanova

Vladislava Stoyanova

The Best And Worst Of Contracts Decisions: An Anthology, Nathan B. Oman, Daniel Barnhizer, Scott J. Burnham, Charles R. Calleros, Larry T. Garvin, Nadelle Grossman, F. E. Guerra-Pujol, Jeffrey L. Harrison, Hila Keren, Michael P. Malloy, Daniel P. O'Gorman, Deborah Post, Val Ricks, Rachel Arnow-Richman, Richard R. Carlson, Mark P. Gergen, Kenney Hegland, Nancy S. Kim, Jean Fleming Powers, Cheryl B. Preston

Faculty Publications

Five hundred years ago, the common law of contract was without substance. It was form-procedure. Plaintiffs picked a form of action, and common law judges made sure someone besides themselves answered all the hard questions; the parties, a jury, or a ritual determined the winner and the remedy. Judges ran a switch on a conflicts-resolution railway. Thomas More, when Chancellor of England (1529-33), urged judges to lay tracks and control the trains. The problem, he said, was that the judges, "by the verdict of the jury[,] cast off all quarrels from themselves." The judges soon assumed greater authority, taking responsibility …

Six Of One, Half A Dozen Of The Other? Jurisdiction In Common Law Canada, Stephen G.A. Pitel

Osgoode Hall Law Journal

This short article considers the central differences in the law on taking jurisdiction in civil and commercial disputes between those common law provinces that have implemented a statute on jurisdiction (British Columbia, Nova Scotia, and Saskatchewan) and those common law provinces that rely on the common law (Alberta, Ontario, and others). It focuses on the distinction between presence and ordinary residence, the role and analysis of presumptive connecting factors for taking jurisdiction, and issues related to immovable property.

Could Official Climate Denial Revive The Common Law As A Regulatory Backstop?, Mark P. Nevitt, Robert V. Percival

Faculty Articles

This Article makes two core arguments. First, it maintains that the common law of nuisance remains an essential backstop when existing regulatory authorities fail to address significant environmental problems. Second, reconnecting nuisance law to its historical roots, the Article maintains that common law litigation has served as an effective prod to help spur the development and implementation of new pollution control technology and to stimulate regulatory action to require its use, rather than serving as a vehicle for the judiciary to impose its own solutions for environmental problems.

This Article proceeds in four parts. Part I reviews the history of …

Copyright As Market Prospect, Shyamkrishna Balganesh

All Faculty Scholarship

For many decades now, copyright jurisprudence and scholarship have looked to the common law of torts—principally trespass and negligence—in order to understand copyright’s structure of entitlement and liability. This focus on property- and harm-based torts has altogether ignored an area of tort law with significant import for our understanding of copyright law: tortious interference with a prospective economic advantage. This Article develops an understanding of copyright law using tortious interference with a prospect as a homology. Tortious interference with a prospect allows a plaintiff to recover when a defendant's volitional actions interfere with a potential economic benefit that was likely …