Law Commons^™

Divorce And The Welfare Of The Child In Japan, Matthew J. Mccauley

Washington International Law Journal

Current Japanese legal institutions are ill-equipped to resolve the complicated issues surrounding visitation, custody, and divorce. Japanese views toward family and society have changed greatly since the post-World War II family law was enacted in the 1950s, but the law has not evolved accordingly. This is especially clear in the methods used to determine custody and visitation, as well as the kyōgi rikon, or divorce by mutual consent system. Policy makers and activists are both working to resolve this problem, but their ongoing struggle has yet to produce any tangible results. This comment argues that the Japanese legal system …

To Plea Or Not To Plea: The Benefits Of Establishing An Institutionalized Plea Bargaining System In Japan, Priyanka Prakash

Washington International Law Journal

Plea bargaining, the practice that permits the prosecution and defense to negotiate reduced charges or a lighter sentence in exchange for the defendant’s guilty plea, is a bedrock component of the criminal justice system in many nations. The Japanese legal community, however, has resisted introducing plea bargaining into Japan’s legal system. From 2001 to 2004, the Japanese legislature passed over twenty reform laws to prepare the country’s criminal justice system for the demands of the twenty-first century, but provisions for plea bargaining were conspicuously absent from the reform package. This is largely because the Japanese legal community views plea bargaining …

Property And Precaution, Lee Anne Fennell

Public Law and Legal Theory Working Papers

Property in land suffers from an unacknowledged precautionary deficit. Ownership is dispensed in standardized blocks of monopoly control that are routinely retained in their entirety until someone raises an issue regarding an actual or potential incompatible land use. This arrangement, which encourages owners to take sustained, unpriced draws against a limited stock of future flexibility, sets the stage for future impasse as inconsistent plans develop. It also makes property an unnecessarily accident-prone institution, given the role that bargaining failure plays in producing costly land use conflicts. Expanding the slate of potential precautions beyond owners' locational and operational choices to include …

No.19 - June 2011, Center Of Civil Law Studies

The Center of Civil Law Studies Newsletter

No abstract provided.

Introduction: Mission Accomplished, Brandon Hasbrouck

Washington and Lee Law Review

No abstract provided.

Three Restatements Of Restitution, Andrew Kull

Washington and Lee Law Review

No abstract provided.

Moses V. Macferlan 250 Years On, W. M. C. Gummow

Washington and Lee Law Review

The continued influence of this decision of Lord Mansfield upon the scope of the action for money had and received is apparent in the Restatement (Third) of Restitution & Unjust Enrichment, recently adopted by the American Law Institute. The basic proposition that the action lies where the money was received in such circumstances that retention would offend equity and good conscience informs the Restatement. In particular, over definition and dissection of the defence of "change of position" by reference to "good faith" of the recipient diverts attention from the question whether in the circumstances of the case it would be …

Intent To Charge For Unsolicited Benefits Conferred In An Emergency: A Case Study In The Meaning Of "Unjust" In The Restatement (Third) Of Restitution & Unjust Enrichment, Louis E. Wolcher

Washington and Lee Law Review

This Article is a legal and jurisprudential case study that attempts to shed light on the use of the word "unjust" in the law of restitution as it has been reinterpreted by the new Restatement (Third) of Restitution & Unjust Enrichment. The particular case studied is the legal meaning of the term "intent to charge" in the law’s treatment of claims for unsolicited benefits conferred in emergencies. The author conducts a thought experiment involving the use of a sworn "Declaration of Intent to Charge for Benefits Conferred" to illustrate certain ambiguities and difficulties in the way the new Restatement deals …

Unjust Impoverishment: Using Restitution Reasoning In Today’S Mortgage Crisis, Peter Linzer, Donna L. Huffman

Washington and Lee Law Review

No abstract provided.

Restitution In A Contractual Context And The Restatement (Third) Of Restitution & Unjust Enrichment, Joseph M. C. Perillo

Washington and Lee Law Review

No abstract provided.

The Restitution Revival And The Ghosts Of Equity, Caprice L. Roberts

Washington and Lee Law Review

A restitution revival is underway. Restitution and unjust enrichment theory, born in the United States, fell out of favor here while surging in Commonwealth countries and beyond. The American Law Institute’s (ALI) Restatement (Third) of Restitution & Unjust Enrichment streamlines the law of unjust enrichment in a language the modern American lawyer can understand, but it may encounter unintended problems from the law-equity distinction. Restitution is often misinterpreted as always equitable given its focus on fairness. This blurs decision making on the constitutional right to a jury trial, which "preserves" the right to a jury in federal and state cases …

A Relational Critique Of The Third Restatement Of Restitution § 39, David Campbell

Washington and Lee Law Review

In the Restatement (Third) of Restitution and Unjust Enrichment, breach of contract is regarded as a "wrong," and, in response to the perceived shortcomings of the current law of remedies based on compensatory damages, the proposed Section 39 seeks to provide for disgorgement of profit as an alternative remedy for "opportunistic" breach. In so doing, the Restatement is substantially repeating the argument for the extension of restitutionary remedies for breach of contract which recently has had great success in the Commonwealth. The restitutionary criticism of compensatory damages is, at root, that those damages are unable to prevent important forms of …

After Frustration: Three Cheers For Chandler V. Webster, Victor P. Goldberg

Washington and Lee Law Review

Performance of a contract can be excused by a number of circumstances, notably impossibility, impracticability, and frustration. When performance is excused there remains the question of how to treat any payments or expenditures that were made prior to the occurrence of the contract-frustrating event. In Chandler v. Webster, the English courts decided over a century ago that the parties should be left where they were at the time of the frustrating event. Forty years later that holding was overturned so that now recovery might be had both for restitution of payments made prior to the event and for expenditures made …

Beyond Ex Post Expediency—An Ex Ante View Of Rescission And Restitution, Richard R.W. Brooks, Alexander Stremitzer

Washington and Lee Law Review

It is commonly held that if getting a contractual remedy was costless and fully compensatory, rescission followed by restitution would not exist as a remedy for breach of contract. This claim, we will demonstrate, is not correct. Rescission and restitution offer more than remedial convenience. Rational parties, we argue, would often desire a right of rescission followed by restitution even if damages were fully compensatory and costless to enforce. The mere presence of a threat to rescind, even if not carried out, exerts an effect on the behavior of parties. Parties can enlist this effect to increase the value of …

Common Law And Equity In R3rue, Lionel Smith

Washington and Lee Law Review

One of the most remarked-upon achievements of the first Restatement of the Law of Restitution was the consolidation into a single treatment of all of the law that concerned the Reporters, whether it came from common law or Equity. In the Restatement (Third) of Restitution & Unjust Enrichment (R3RUE), there was initially an even more dramatic idea: to restate the law without even any reference to the historical distinction between common law and Equity. In the final product, however, there are several references to the peculiarly Equitable origins of certain juridical solutions to the problems addressed by this Restatement. The …

A Sin Of Admission: Why Section 62 Should Have Been Omitted From The Restatement (Third) Of Restitution & Unjust Enrichment, Adam Rigoni

Washington and Lee Law Review

No abstract provided.

Proprietary Remedies In Insolvency: A Comparison Of The Restatement (Third) Of Restitution & Unjust Enrichment With English And Commonwealth Law, Anthony Duggan

Washington and Lee Law Review

This Article deals with proprietary remedies, in particular the constructive trust, and their application in the defendant’s bankruptcy. The Article offers a comparative analysis of English and Commonwealth law with the relevant parts of the recently completed Restatement (Third) of Restitution & Unjust Enrichment. The discussion is organized around five simple hypotheticals, each representing issues which courts in England and other parts of the Commonwealth have found particularly troubling: mistaken payments; misrepresentation in the context of land dealings; misrepresentation in other contexts; breach of fiduciary obligation; and specific performance. The aim is to identify the likely outcome in each case …

Translocations And Inertia, W. F. Young

Washington and Lee Law Review

No abstract provided.

Bp Oil Spill: Compensation, Agency Costs,And Restitution, David F. Partlett, Russell L. Weaver

Washington and Lee Law Review

No abstract provided.

Indeterminacy And The Law Of Restitution, James Steven Rogers

Washington and Lee Law Review

No abstract provided.

Cohabitation And The Restatement (Third) Of Restitution & Unjust Enrichment, Candace Saari Kovacic-Fleischer

Washington and Lee Law Review

The Restatement (Third) of Restitution & Unjust Enrichment clarified and modernized a field that had become muddled since the publication of the Restatement (First) in 1937. One area of modernization relates to the changes in law towards women, particularly changes in law toward female cohabitants. Published in 2011, the Restatement (Third) added a new Section 28, which rejected the view that it would be immoral for one cohabitant to bring suit against the other, and relaxed the restriction on recovery in unjust enrichment for “gratuitous” contributions. This Article reviews societal and legal changes for women since 1937 and notes that, …

Lost In Translation: Repairing Rosetta Stone V. Google’S Indecipherable Functionality Holding, A. J. Frey

Washington and Lee Law Review

No abstract provided.

When The Bezzle Bursts: Restitutionary Distribution Of Assets After Ponzi Schemes Enter Bankruptcy, Mallory A. Sullivan

Washington and Lee Law Review

No abstract provided.

The Internet And Protection Of Children Online: Time For Change, Jill Scott

Canadian Journal of Law and Technology

This article explores the risks for children online and their privacy, with particular focus on the implications of widespread collection, use and retention of data about them. It touches on international standards and national laws that impact Internet activities and the special risk to children’s privacy in today’s ubiquitous computing environment. This is a complex topic that transcends national boundaries and involves both legal and policy issues confronting governments across the world.

Section I provides a brief outline of the online risks for children arising from the scope of data collection and the regulatory challenges of the Internet as it …

Table Of Content, Colorado Journal Of International Law And Policy

Colorado Environmental Law Journal

No abstract provided.

The Eyes That Blind Us: The Overlooked Phenomenon Of Trafficking Into The Agricultural Sector, Shelley Cavalieri

Northern Illinois University Law Review

This article offers an analysis of American anti-trafficking legislation. It documents the level of American preoccupation with trafficking for sex work by using existing data from the Department of Justice to demonstrate just how current anti-trafficking efforts focus their attention on trafficking for sex work, to the detriment of trafficking into other labor sectors. The author offers a critique of this overemphasis, observing how the expectations of the individuals involved in enforcing anti-trafficking laws influence what kinds of cases they consider to be trafficking cases. The article also offers a few modest interventions that might help reallocate some of the …

Measurement Of Restitution: Coordinating Restitution With Compensatory Damages And Punitive Damages, Doug Rendleman

Washington and Lee Law Review

No abstract provided.

Go Farm, Goleta: Urban Agriculture Protection For Eastern Goleta Valley, Eli M. Krispi

Master's Theses

This paper explores two potential land use planning strategies that can be used to preserve and enhance the economic viability of agricultural operations surrounded by suburban development in Santa Barbara County’s Eastern Goleta Valley: buffers between agriculture and other land uses, and agritourism. In the case of buffers, academic literature is examined to determine how effective buffers are at various tasks (filtering runoff, mitigating dust and wind, providing habitat, etc.) and how to construct buffers to maximize their effectiveness. Land use plans and codes from several California jurisdictions are studied to see how buffers are put to use. Academic literature …

Lessons From The Road: Ecuador, Jamaica, And Other Efforts To Combat Trafficking In Persons In The Americas, Salvador A. Cicero-Dominguez

Northern Illinois University Law Review

This article identifies obstacles encountered in the hemisphere and provides practical examples in order to assist countries in adopting laws that are not only consistent with their international obligations, but more importantly help them better serve their citizenry. The article also explores the various ideas and lessons learned over the last five years throughout the hemisphere, drawing heavily from the author's experience in Ecuador and in the course of training throughout the American continent for consular, immigration, law enforcement officers, and United Nations' Peace Keeping forces. A brief comment is made of various laws adopted in the region, and analysis …

Vol. 31, No. 3, Summer 2011: Table Of Contents And Masthead, Northern Illinois University Law Review

Northern Illinois University Law Review

No abstract provided.