Common Law Commons^™

It's The Law! Applying The Law Is The Missing Measure Of Civil Law / Common Law Convergence, James Maxeiner

All Faculty Scholarship

It’s the Law! The application of law to facts is a measure of convergence of common and civil law systems of civil procedure that is missing from our program. The previous session addressed “Getting Straight to the Facts” and “Getting Results.” Facts and results are fine, but what of the law and of its application? Should not applying law have pride of place in systems of civil justice? Should not it be the measure of convergence?

The measure of convergence that I propose is whether methods of applying law to facts are converging. Applying law to facts is the principal …

Personal Jurisdiction Over Non-Resident Class Members: Have We Gone Down The Wrong Road?, Tanya Monestier

Law Faculty Scholarship

No abstract provided.

What Is Specific About Specific Restitution, Colleen P. Murphy

Law Faculty Scholarship

No abstract provided.

U.S. Class Actions And The "Global Class", George A. Bermann

Faculty Scholarship

Robert Casad's articles on comparative civil procedure were among the first comparative law pieces that caught my eye when, as a freshly-minted associate at a leading New York law firm, I found myself leafing through comparative law journals, rather than amassing billable hours. I had no idea then that comparative law could be as fascinating as I have come to find it, certainly not in a field like civil procedure where the dividends of comparative law work were by no means obvious to me. (Comparative law was not even taught in any guise at Yale Law School in the late …

A Unified Theory Of 28 U.S.C. Section 1331 Jurisdiction, Lumen N. Mulligan

Faculty Works

Title 28, section 1331 of the United States Code provides the jurisdictional grounding for the majority of cases heard in the federal courts, yet it is not well understood. The predominant view holds that section 1331 doctrine both lacks a focus upon congressional intent and is internally inconsistent. I seek to counter both these assumptions by re-contextualizing the Court's section 1331 jurisprudence in terms of the contemporary judicial usage of right (i.e., clear, mandatory obligations capable of judicial enforcement) and cause of action (i.e., permission to vindicate a right in court). In conducting this reinterpretation, I argue that section 1331 …

What Is The Erie Doctrine? (And What Does It Mean For The Contemporary Politics Of Judicial Federalism?), Adam N. Steinman

Faculty Scholarship

As when Erie Railroad Co. v. Tompkins was decided seventy years ago, federal courts today are seen as more favorable to corporate and business interests than many of their state-court brethren. The current situation is due in no small part to federal courts' comparatively pro-defendant approaches to summary judgment, class certification, and other procedural issues. The Court's decision in Bell Atlantic Corp. v. Twombly, which tilts federal pleading standards in favor of defendants, will likely have similar federalism implications. This Article presents a straightforward argument that the Erie doctrine may require federal courts to follow state-law standards on summary judgment, …

The Unseen Track Of Erie Railroad: Why History And Jurisprudence Suggest A More Straightforward Form Of Erie Analysis, Donald L. Doernberg

West Virginia Law Review

No abstract provided.

Quantum Meruit And The Restatement (Third) Of Restitution And Unjust Enrichment, Candace Kovacic-Fleischer

Scholarly Articles in Law Reviews & Journals

INTRODUCTION: Thirty years ago, Professor Graham Douthwaite said that restitution can "arise in a bedazzling variety of situations."' He also said that practitioners usually are not aware of "the restitutionary implications or potential" of their clients' problems. Over 50 years ago, Professor John Dawson said that "[i]t is doubtful even now whether most lawyers have an adequate conception of the range and resources of the remedy." About twenty years ago, I said of Professor Dawson's statement, "It is doubtful whether the situation has much improved in the last thirty years." Unfortunately, I can still repeat that concern.

The Merger Of Common-Law And Equity Pleading In Virginia, W. Hamilton Bryson

University of Richmond Law Review

No abstract provided.

The Merger Of Common-Law And Equity Pleading In Virginia, William Hamilton Bryson

Law Faculty Publications

This article describes the separation of common law and equity in Virginia leading up to the 2006 merger of common law and equity pleading and the problems that remain to be solved by the courts.

A Comparative View Of Standards Of Proof, Kevin M. Clermont, Emily Sherwin

Cornell Law Faculty Publications

In common-law systems, the standard of proof for ordinary civil cases requires the party who bears the burden of proof to establish by a preponderance of the evidence that the facts alleged are true. In contrast, the prevailing standard of proof for civil cases in civil-law systems is indistinguishable from the standard for criminal cases: the judge must be firmly convinced that the facts alleged are true. This striking difference in common-law and civil-law procedures has received very little attention from either civilian or comparative scholars.

The preponderance standard applied in common-law systems is openly probabilistic and produces, on average, …

Common Law Courts In An Age Of Equity Procedure: Redefining Appellate Review For The Mass Tort Era, Melissa A. Waters

Scholarship@WashULaw

From expansion of tort liability rules, to novel claims aggregation and settlement techniques, to statistically derived liability and damages assessments, mass tort litigation is producing unprecedented innovations at every level of the federal legal system. What is particularly striking about these innovations is that they are almost exclusively the product of a handful of federal trial judges who specialize in mass tort cases. Because appellate courts lack the necessary tools to supervise their decisions, these few mass tort trial judges are shaping the rules that govern the mass tort legal regime with little or no appellate supervision. The result is …

Judgement As A Matter Of Law On Punitive Damages, Colleen P. Murphy

Law Faculty Scholarship

No abstract provided.

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

Journal Articles

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 …

A Survey Of Article Iii Procedural Issues Considered At The Federal Circuit During Its First Decade, 27 J. Marshall L. Rev. 25 (1993), Jerry R. Selinger

UIC Law Review

No abstract provided.

Jury Nullification: An Historical Perspective On A Modern Debate, Philip B. Scott

West Virginia Law Review

No abstract provided.

Book Review Of Passion: An Essay On Personality , Richard F. Devlin Frsc

Articles, Book Chapters, & Popular Press

Passion is a cogently structured, compel Jingly argued and seductively enthralling masterpiece which, in years to come, will undoubtedly stand out as an inspirational source for many who seek social transformation. Unger's style, in this essay at least, is lucid and inviting. Substantively, Passion demonstrates not only the depth of his penetrating intellect but also his command of an array of' disciplines. Unger's polymathy is all the more impressive when we remember that ours is an era in which idiosyncratic specialization is the norm.

Rule-Making Authority And Separation Of Powers In Connecticut, The, Richard Kay

Faculty Articles and Papers

No abstract provided.

The Alien's Access To Local Remedies: The African Commonwealth Countries' Experience, Ivan L. Head

Vanderbilt Law Review

Of the 27 members of the Commonwealth of Nations, 11 are located on the continent of Africa. They range in size from Nigeria, with an area of 356,000 square miles and a population of 60 million, to The Gambia, with an area of 4,000 square miles and a population of 350,000 persons. Prior to 1957 all of the 11 States were colonies of the British crown. In little more than a decade they have all gained political independence-one hundred and six million people residing in autonomous communities which are, in the words of the 1926 Balfour Declaration, "equal in status, …

Federal Rule 44.1 And The "Fact" Approach To Determining Foreign Law: Death Knell For A Die-Hard Doctrine, Arthur R. Miller

Michigan Law Review

The objective of this article is to analyze Federal Rule of Civil Procedure 44.1, which was developed as part of the reforms of the last decade and became effective on July 1, 1966 and to assess its capacity to rationalize the process of determining foreign law in the federal courts. What follows is an excursion through the past doctrine and into the probable future treatment of foreign law in the federal courts, an exploration of the interrelationship between the new Rule and other phases of federal civil procedure, and an analysis of the prospect that the Rule's effectiveness may be …

Judgments - Res Judicata - Limitation Of California Doctrine Of Collateral Estoppel In Multiple Claimant Cases, Sidney B. Hopps

Michigan Law Review

Plaintiffs were injured when their car was struck by defendant. They commenced separate negligence actions, which were consolidated for trial. These actions resulted in a judgment for plaintiff son, but judgments were entered against the plaintiffs mother and father. These parties were granted a new trial, with no limitation upon the issues to be tried. On the second trial the parents asserted the son's judgment, which had become final and been satisfied, as conclusively establishing defendant's negligence. The trial court ruled against them and submitted the issue of defendant's negligence to the jury. On appeal by the parents, held, …

Civil Procedure On The American Frontier, William Wirt Blume

Michigan Law Review

The Treaty of Greenville (1795) by which Indian tribes of the Northwest Territory ceded to the United States the eastern and southern parts of the area which later became the state of Ohio, provided that certain small areas north and west of the treaty line should also be ceded.

Required Joinder Of Claims, Dieter L. Hoegen

Michigan Law Review

In review we can say that within a comparatively broad field of the American law required joinder of claims is the rule. There are some exceptions. The German law has no rule of compulsory joinder of claims. Here, there are some exceptions, too. In this sense and within a field which is marked out by the American rule and the German exceptions, the relationship of rule and exceptions is reversed in the two systems.

Required Joinder Of Claims, Dieter L. Hoegen

Michigan Law Review

This comparative study is confined to the situation of one claimant against one claimee. The principles which will be considered seem to be rather well settled both in the American and the German law. The fact, however, that besides many a common result we shall find fundamental differences in the pertinent basic concepts of the American and German systems makes the discussion worthwhile. It may, at least, promote a reconsideration of the propriety of those concepts.

Civil Procedure - Joinder Of Statutory Causes Of Action With Common Law Negligence Where There Are Different Parties Defendant, George W. Marti

Michigan Law Review

Plaintiff brought an action against defendant for injuries received in an automobile accident caused by defendant's negligence in driving while intoxicated. She sought to join with this claim actions against several bar owners under a statute providing for liability of bar owners for injuries caused by one to whom they had unlawfully sold alcoholic beverages. One of the defendant bar owners moved to dismiss for misjoinder or to compel an election of causes on the ground that since only compensatory damages could be recovered against the defendant-consumer upon common law negligence, and both exemplary and compensatory damages could be recovered …

Amendments To The Federal Rules: The Function Of A Continuing Rules Committee, Charles A. Wright

Vanderbilt Law Review

No development in American procedural history in the last century has exceeded in importance the adoption by the United States Supreme Court in 1938 of the Federal Rules of Civil Procedure. These rules, the product of a distinguished Advisory Committee, introduced a system and a philosophy differing as markedly from the code pleading then in vogue as code pleading, in its day, had differed from common-law pleading. This new system has worked well in the federal courts, so well indeed as to stimulate a reexamination of procedure in many of the states, with nearly a dozen jurisdiction shaving already adopted …

Evidence-Privilege-Right Of Third Person To Assert Privilege As To Accident Report Made Confidential By Statute, Richard W. Young S.Ed.

Michigan Law Review

Plaintiff brought a negligence action for injuries sustained when the automobile in which she was a passenger collided with that operated by the defendant. Defendant questioned a police officer, who had filed the accident report, concerning statements made to him by the driver of the vehicle in which the plaintiff was riding. The trial court permitted this testimony over the plaintiff's objection that these statements were privileged under an Iowa statute purporting to make written accident reports confidential and inadmissible in evidence. On appeal after a verdict was returned in favor of the defendant, held, reversed. The statute can …

Civil Procedure-Parties-Real Party In Interest When Insurer Has Equitable Interest In Claim, Warren K, Urbom S.Ed.

Michigan Law Review

Plaintiff sued for damages to his fruit and grocery market which were allegedly caused by the negligence of defendant. Interrogatories were submitted by defendant designed to determine whether or not plaintiff had been paid the full amount of his loss by an insurance company and had assigned his claim to that company. The trial court sustained a motion to strike the interrogatories. On appeal, held, reversed, two judges dissenting. Although a tortfeasor cannot defeat an action by the insured by showing full subrogation of the insurer, he can plead an assignment of the insured's claim to show that the …

Limitations And The Federal Courts, William Wirt Blume, B. J. George Jr.

Michigan Law Review

Though as a practical matter it is difficult to secure passage of uniform legislation in all states, particularly when the subject matter has so long been considered as of local interest only, the need for such legislation in the case of the statute of limitations seems clear. To the extent that such a statute is adopted, the problem of varying limitation periods upon particular causes of action and similar causes of action will be removed. Only by a uniform state treatment of the problem will the conflict among federal districts resulting from the uniformity of result requirement of Erie Railroad …

Torts-False Imprisonment-Detention Of Insane Person, John A. Hellstrom S.Ed.

Michigan Law Review

Plaintiff sued defendant doctor for false imprisonment arising out of her detention as an insane person. Defendant had examined plaintiff at the request of the plaintiff's husband, called the police, and advised that she be detained as dangerous. Plaintiff was released ten days later but there was evidence to the effect that she was of unsound mind when originally detained. The arrest and detention of insane persons without a warrant is authorized by a District of Columbia statute on the affidavits of two responsible persons supported by certificates from two doctors or when such a person is found in a …