Civil Law Commons^™

Shanghai In The 1930s, The German Civil Code And The Tragic Story Of A Brilliant Legal Mind, Lutz-Christian Wolff

Notre Dame Journal of International & Comparative Law

No abstract provided.

Roman–Dutch Law, Scottish Civil Procedure And Fusing Of The Common And Civil Jurisprudence, Zia Akhtar

Notre Dame Journal of International & Comparative Law

The range and breadth of Roman law have extended and been assimilated into the distant corners of Europe based on the concept of Jus Commune. Law of Scotland is one of the countries which has adopted Roman legal principles in its substantive law. The Scots law is a non-codified Civil law in which legal principles have been drawn from both the civilian (i.e. Roman law) and common law traditions. It also owes its evolution to the jurists who developed the causes of action in the civil courts of the country. These Roman law foundations still persist in Scottish law and …

Abortion—A Question Of Human Rights, Geoffrey Bennett, Christina M. Lyon

Journal Articles

Unlike the American Supreme Court which has been prepared to acknowledge, confront, and attempt to resolve the many problems associated with abortion, the European Commission of Human Rights in two cases that have only recently been reported has disappointingly side-stepped many of the difficult issues involved, and raised more questions than it answers. Furthermore, the reasoning in these decisions, which are concerned with the interpretation of several of the Articles of the European Convention on Human Rights, is at times vague and curiously ill-argued. The two decisions are first a German case, Bruggeman and Scheuten v Federal Republic of Germany …

Algorithmic Legal Metrics, Dan L. Burk

Notre Dame Law Review

Predictive algorithms are increasingly being deployed in a variety of settings to determine legal status. Algorithmic predictions have been used to determine provision of health care and social services, to allocate state resources, and to anticipate criminal behavior or activity. Further applications have been proposed to determine civil and criminal liability or to “personalize” legal default rules. Deployment of such artificial intelligence (AI) systems has properly raised questions of algorithmic bias, fairness, transparency, and due process. But little attention has been paid to the known sociological costs of using predictive algorithms to determine legal status. A large and growing social …

Equitable Remedies: Protecting "What We Have Coming To Us", Larissa Katz

Notre Dame Law Review

This Article develops a new, doctrinally informed, theoretical account of equitable remedies in terms of our interest in “what we have coming to us”—an interest beyond private law’s commitment to protecting what is already ours, viz., our property rights and our rights to another’s performance of a contract. Through distinctive equitable remedies like specific performance, injunctions, and the remedial constructive trust, equity intervenes to prevent others from obstructing or diverting what a person has coming to her. The need for equity to recognize and to protect an interest in “what we have coming to us” arises, I argue, out of …

The Law Wants To Be Formal, Chaim Saiman

Notre Dame Law Review

This Article examines the relationship between the formalism of an area of law, and whether it plays a central role in the legal system. English and American law were traditionally comprised of formalist private law doctrines. The influence of legal realism and the New Deal, however, caused these systems to diverge. While American private law was recast in realist terms, it also became less significant to the overall legal system. In its place, procedure and statutory interpretation emerged, and in turn became more formalized. Realism was never as influential in England where private law remains more formal and at the …

From Humphrey's Executor To Seila Law: Ending Dual Federal Antitrust Authority, Alyson M. Cox

Notre Dame Law Review

This Note catalogues and proposes solutions to both the traditional concerns of efficiency and fairness and the modern constitutional problems posed by the current dual enforcement structure. Part I will compare the two antitrust agencies on the basis of their structures, accountability, statutory authority, and enforcement procedures, as well as evaluate potential concerns with vesting either agency with the sole authority to enforce civil antitrust laws. Part II will evaluate the perils of the current dual enforcement structure, exploring both the traditional arguments about efficiency and fairness and the modern constitutional challenges. Part III will evaluate potential legislative solutions to …

Note: Building Blocks Of A Fundamental Right: A Thought Experiment On The Constitutional Right To A Livable Climate, Melanie Hess

Notre Dame Journal on Emerging Technologies

When civil rights lawyers sought to overturn Plessy v. Ferguson in the years leading up to Brown v. Board of Education, they faced a history of institutionalized segregation and inequality, constitutional acceptance of the “separate but equal” doctrine, and sharp social divisions on the issue. Other landmark cases of rights recognition, such as Obergefell v. Hodges and Roe v. Wade, similarly built upon years of evolution in law, precedent, and social opinion that made them inconceivable before their time. Early versions of the litigation strategies envisioning these judgments might have been tentative and vague, lacking in factual, legal, …

The Unconstitutionality Of The Protecting Access To Care Act Of 2017’S Cap On Noneconomic Damages In Medical Malpractice Cases, Kaeleigh P. Christie

Journal of Legislation

No abstract provided.

Moving Beyond Lassiter: The Need For A Federal Statutory Right To Counsel For Parents In Child Welfare Cases, Vivek S. Sankaran

Journal of Legislation

No abstract provided.

Failure To Protect: Our Civil System's Chronic Punishment Of Victims Of Domestic Violence, Kate Ballou

Notre Dame Journal of Law, Ethics & Public Policy

This Note examines the effectiveness and enforceability of civil restraining orders in domestic violence cases in the wake of Town of Castle Rock v. Gonzalez, which held that there is no constitutional right to the enforcement of a restraining order. This Note analyzes the impact of Gonzales and the effectiveness of various restraining order statutory schemes more broadly. This Note subsequently addresses that as a result of experiencing continued contact from their attackers, victim mothers are more likely to have their children removed by the state in child welfare proceedings, due to the established presumption in most family courts that …

The Future Of Oral Arguments, Jay Tidmarsh

Journal Articles

The civil-justice literature is replete with discussions of two phenomena: case management and the vanishing trial. These two phenomena are not unrelated. One commonly state goal of case management is to find ways, other than trial, to resolve civil disputes that find their way into court. Some observers find the movements toward case management and away from trial to be salutary; others find them disquieting. Regardless of the merits of this debate, the delivery of civil justice is undeniably evolving.

This evolution affects and changes many of the traditional attributes of American-style civil justice. The Essay examines one of these …

Gerry Bradley Was Quoted In The Wall Street Journal Law Blog The Gay Marriage Case: How The Supreme Court Could Rule, Gerard V. Bradley

NDLS in the News

Gerry Bradley was quoted in the Wall Street Journal Law Blog The Gay Marriage Case: How the Supreme Court Could Rule on June 23, 2015.

Cy Pres And The Optimal Class Action, Jay Tidmarsh

Journal Articles

This Article, prepared for a symposium on class actions, examines the problem of cy pres relief through the lens of ensuring that class actions have an optimal claim structure and class membership. It finds that the present cy pres doctrine does little to advance the creation of optimal class actions, and may do some harm to achieving that goal. The Article then proposes an alternative “nudge” to induce putative class counsel to structure class actions in an optimal way: set attorneys’ fees so that counsel is compensated through a combination of an hourly market rate and a percentage of the …

Procedure, Substance, And Erie, Jay Tidmarsh

Journal Articles

This Article examines the relationship between procedure and substance, and the way in which that relationship affects Erie questions. It first suggests that "procedure" should be understood in terms of process-in other words, in terms of the way that it changes the substance of the law and the value of legal claims. It then argues that the traditional view that the definitions of "procedure" and "substance" change with the context-a pillar on which present Erie analysis is based-is wrong. Finally, it suggests a single process based principle that reconciles all of the Supreme Court's "procedural Erie" cases: that federal courts …

The Alien Tort Statute And The Law Of Nations, Bradford R. Clark, Anthony J. Bellia Jr.

Journal Articles

Courts and scholars have struggled to identify the original meaning of the Alien Tort Statute (ATS). As enacted in 1789, the ATS provided "[t]hat the district courts...shall...have cognizance...of all causes where an alien sues for tort only in violation of the law of nations or a treaty of the United States." The statute was rarely invoked for almost two centuries. In the 1980s, lower federal courts began reading the statute expansively to allow foreign citizens to sue other foreign citizens for all violations of modern customary international law that occurred outside the United States. In 2004, the Supreme Court took …

Twenty-Eight Words: Enforcing Corporate Fiduciary Duties Through Criminal Prosecution Of Honest Services Fraud, Lisa L. Casey

Journal Articles

This article examines the federal government's growing use of 18 U.S.C. § 1346 to prosecute public company executives for breaching their fiduciary duties. Section 1346 is a controversial but under-examined statute making it a felony to engage in a scheme "to deprive another of the intangible right of honest services." Although enacted by Congress over twenty years ago, the Supreme Court repeatedly declined to review the statute, until now. In 2009, Justice Antonin Scalia pointed to the numerous interpretive questions dividing the federal appellate courts and proclaimed that it was "quite irresponsible" to let the "current chaos prevail." Since then, …

No Bonds But Those Freely Chosen: An Obituary For The Principle Of Forced Heirship In American Law, Vincent D. Rougeau

Journal Articles

This article explains the history of forced heirship in Louisiana and describes the negative implications of its demise. Section IV outlines how the end of forced heirship reveals the changing values of Louisiana culture and views on the family.

On Castles And Commerce: Zoning Law And The Home Business Dilemma, Nicole Stelle Garnett

Journal Articles

Most zoning laws severely restrict residents' ability to work from home. Some prohibit it outright. These regulations serve the ostensible purpose of protecting neighbors from externalities that might be generated by home businesses. But, home occupation restrictions also reflect in a particularly sharp way the central motivating ideology underlying all zoning laws - namely, that the good life requires the careful segregation of work and home. Today, home business regulations are being challenged by both planning theory and economic reality. At the same time that many in the academy and planning professions are calling into question zoning's pervasive segregation of …

Moving Toward A First-Best World: Minnesota's Position On Multiethnic Adoptions, Margaret F. Brinig

Journal Articles

The best world allows a child to grow to adulthood with biological parents, or at least one parent, who love the child unconditionally and who have resources to support the child. A second-best world allows the child to permanently and completely become part of an extended family that loves him or her and has the resources for supporting and meeting the child's needs. Hopefully this process costs little in terms of time or emotional or physical harm to the child. In traditional third-party adoptions, the child permanently moves and becomes part of (hopefully, at low cost) a family that will …

Legal Beagle: Ece's Best Friend May Be The Civil Law, Gerard V. Bradley

Journal Articles

The Everson no-aid principle is still the law, though barely so. We are within sight, meaning that we are within a single vote on the Supreme Court, of return to the tradition described by the bishops. Consummation of this development must loom large in any plan for legal action in light of ECE. Short of the tradition's second coming, the only potential civil law cost of implementing ECE is this: if a Catholic college is deemed to be "pervasively sectarian" then, but only then, "direct" public aid to the institution will be constitutionally suspect. But no court is likely to …

Ex Corde Ecclesiae And The Civil Law, Gerard V. Bradley

Journal Articles

Most parties to the debate over Ex Corde Ecclesiae agree that Canon 812 is at the heart of the matter. Canon 812 says: "It is necessary that those who teach theological disciplines in any institute of higher studies have a mandate from the competent ecclesiastical authority." Essentially, the canon requires the consent of some Church authority (likely the local ordinary) to the appointment of theology professors.

Why is the matter so central? Because the stakes are very great. Behind the disagreement over Canon 812 lies a disagreement over what Catholic theology is, a disagreement that is substantially a product of …

Shaping Today's Forfeiture Law: A Conversation With Senator Mcclellan, G. Robert Blakey

Journal Articles

In any society, the government's ability to interfere with life, liberty or property is always open for full discussion. In this conversation, Professor Blakey discusses property in the context of organized and white-collar crime, in addition to criminal forfeiture, and frames his discussion around his work with Senator John McClellan on drafting the Organized Crime Control Act.

Introduction: The Ancient Roots Of Modern Forfeiture Law, Jimmy Gurulé

Journal Articles

Civil forfeiture is one of the most potent weapons available to prosecutors in the “war on drugs” and against traditional organized crime. Unlike criminal forfeiture it is in rem and based on a legal fiction that property used in violation of law must be held responsible for harm that it has caused. The conceptual underpinnings of civil forfeiture are long established and can be traced back to English common law, but they also create the potential for abuse. There is currently federal legislation that considers scaling back the reach of civil forfeiture and recent Supreme Court decisions have also limited …

Making Men Moral: Civil Liberties And Public Morality, Gerard V. Bradley

Journal Articles

Making Men Moral: Civil Liberties and Public Morality. By Robert P. George. Oxford University Press. 247 pages. $42.

Robert George's brilliant new book rescues the topic of legal enforcement of moral obligations from both liberals and conservatives. Against Devlin he maintains that "the genuine immorality" of an act is a necessary (but not alone sufficient) condition for the legitimacy of a morals law. Against the liberals he maintains that no principle of justice precludes morals legislation as such. George persuasively argues that morals laws - prohibitions of so-called victimless immoralities like sodomy, prostitution, drug use, suicide - may be enacted. …

Equitable Relief Under Civil Rico: Reflection On Religious Technology Center V. Wallersheim: Will Civil Rico Be Effective Only Against White-Collar Crime?, G. Robert Blakey, Scott D. Cessar

Journal Articles

The Court of Appeals for the Ninth Circuit held in Religious Technology Center v. Wollersheim that Congress did not intend to give private civil RICO plaintiffs any right to injunctive relief. This Article argues that the Wollershiem’s reasoning is flawed for being inconsistent with the text, the legislative history, and the purpose of RICO. In addition, it argues that it is inconsistent with statutory interpretation principles advanced by the Supreme Court. In particular, it discusses the case’s facts, provides an overview of civil RICO, examines and critiques Wollersheim’s reasoning, and addresses the adverse policy, economic, and political consequences of Wollersheim …

Rico Civil Fraud Action In Context: Reflections On Bennett V. Berg, G. Robert Blakey

Journal Articles

In Bennett v. Berg, the United States Court of Appeals for the Eighth Circuit, as a matter of "first impression in the Circuit Courts of Appeals," faced and resolved a number of significant issues in the construction of Title IX, the Racketeer Influenced and Corrupt Organizations (hereinafter "RICO") provisions of the Organized Crime Control Act of 1970. In Bennett, the plaintiffs, residents in a "life care" retirement village, sought treble damages and equitable relief under 18 U.S.C. § 1964 from a number of defendants, including named individuals, a not-for-profit corporation, the John Knox Village, attorneys, accountants, the firm of Snyder, …

The Entanglement Test Of The Religion Clauses -- A Ten Year Assessment, Kenneth F. Ripple

Journal Articles

During its 1979 Term, the Supreme Court of the United States passed the ten-year mark in its employment of the so-called "excessive entanglement" test of the religion clauses. During the past decade this concept has developed from a simple expression of one of the accepted policy considerations underlying interpretation of the religion clauses to an identifiably separate test in establishment clause analysis. In this latter role, the Court has employed the concept to accomplish two distinct, although analytically related, objectives. First, it has sought to identify those legal and administrative relationships between civil and religious authorities which are likely to …

Abortion—The Female, The Foetus And The Father, Geoffrey Bennett, Christina M. Lyon

Journal Articles

The recent case of Paton v. Trustees of B.P.A.S. raised an issue never previously canvassed before an English court, namely: does a husband have any rights in English law to prevent his wife having a lawful abortion within the terms of the Abortion Act 1967? Apart from its interest as a case of first impression in an area of the law which has never been devoid of controversy, the case raised directly or by implication fundamental questions about the control of family life and the rights and duties of those in any way connected with it. Should the final decision …

The Federal Income Tax Effects Of The Missouri Version Of The Uniform Divorce Act, Alan Gunn

Journal Articles

The marital property provisions of the new Missouri divorce law render the tax treatment of property transfers and alimony payments unclear. As to property transfers, the problem is that the new law appears to give the wife an interest in property that previously would have been regarded as belonging to the husband. Since this is so, it is possible to argue that a “transfer” of appreciated property to the wife is part of a “division” of property between “co-owners,” and therefore not taxable. Although transfers of appreciated property in connection with a divorce are usually taxable, divisions of community property …