Common Law Commons^™

State Doctrines Of Substantial Compliance: A Call For Erisa Preemption And Uniform Federal Common Law Doctrine, Meridith H. Bogart

Cardozo Law Review

No abstract provided.

No Longer Safe At Home: Preventing The Misuse Of Federal Common Law Of Foreign Relations As A Defense Tactic In Private Transnational Litigation, Lumen N. Mulligan

Faculty Works

No abstract provided.

Federal Common Law, Cooperative Federalism, And The Enforcement Of The Telecom Act, Philip J. Weiser

Publications

Congress increasingly has enacted cooperative federalism programs to achieve complex regulatory policy objectives. Such programs combine the authority of federal regulators, state regulators, and federal courts in creative and often pathmarking ways, but the failure of these actors to appreciate fully their respective roles threatens to undermine cooperative federalism's effectiveness. In this Article, Professor Philip Weiser develops a coherent vision of how federal courts should enforce cooperative federalism regulatory programs. In particular, he relates the rise and purpose of cooperative federalism to the federal courts' increased reluctance to make federal common law under the Erie doctrine and their greater deference …

Cisg And The Problem With Common Law Jurisdictions, Monica Kilian

Florida State University Journal of Transnational Law & Policy

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 …

Law's Territory (A History Of Jurisdiction), Richard T. Ford

Michigan Law Review

Pop quiz: New York City. The United Kingdom. The East Bay Area Municipal Utilities District. Kwazulu, South Africa. The Cathedral of Notre Dame. The State of California. Vatican City. Switzerland. The American Embassy in the U.S.S.R. What do the foregoing items have in common? Answer: they are, or were, all territorial jurisdictions. A thesis of this Article is that territorial jurisdictions - the rigidly mapped territories within which formally defined legal powers are exercised by formally organized governmental institutions - are relatively new and intuitively surprising technological developments. New, because until the development of modern cartography, legal authority generally followed …

What State Am I In?: Common Law Trademarks On The Internet , Brian L. Berlandi

Michigan Telecommunications & Technology Law Review

This essay explores the interaction between common law trademarks and the Internet--a relationship that has yet to be scrutinized by the intellectual property and Internet communities. More specifically, it strains to identify a common law mark's territorial zone of protection with respect to the Internet. This is an ambitious endeavor from the start, for there is no case law or published academic material available or directly on-point. As a result, this essay will not be a critique of judicial precedent or academic opinion. Instead, it offers a premonition of future case law and a foreshadowing of legal scenarios that might …

Comparative Law In Action: Promissory Estoppel, The Civil Law, And The Mixed Jurisdiction, David Snyder

Scholarly Articles in Law Reviews & Journals

No abstract provided.

The Recognition And Enforcement Of Foreign Equitable Remedies And Other Types Of Non-Money Judgments In United States And French Courts: A Comparative Analysis, Noele Sophie Rigot

LLM Theses and Essays

Courts of industrialized nations are often faced with adjudication of cases which involve foreign components. It is common for those courts to be asked by individuals or legal entities from a transnational environment to adjudicate with regard to some elements already adjudged in a different legal system as if it were a local judgment. The question that arises is how effects should be given when dealing with prior adjudications. Most countries agree to recognize some effects determined by foreign jurisdictions, as long as those determinations meet standards that guarantee proper integration of the foreign decision into the domestic setting. These …

Federalism Myth, Fernando Laguarda

Scholarly Articles in Law Reviews & Journals

INTRODUCTION: The late Justice Louis Brandeis once remarked on the benefit that our system of government derives from the states acting as the "laboratories of democracy."' This remark not only implies that states should be given the discretion to experiment, it presumes that states actually have the ability to do so. In order to understand Justice Brandeis and those who have followed in his rhetorical footprints, it is important to understand federalism, which is the organizing principle of American government.

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.

The Court’S Role In Interbranch Disputes Over Oversight Of Agency Rulemaking, John J. Gibbons

Cardozo Law Review

This paper is adapted from the Uri and Caroline Bauer Memorial Lecture delivered at the Benjamin N. Cardozo School of Law, Yeshiva University, on March 10, 1992.

Primary Jurisdiction: The Need For Better Court/Agency Interaction, Michael Botein

Articles & Chapters

No abstract provided.

Recent Treaties And Statutes, Donald C. Van Pelt, Jr., George H. Carnall Ii

Vanderbilt Journal of Transnational Law

The Single Convention on Narcotic Drugs, 1961, constituted a major step toward international acceptance of responsibility for the control of licit and illicit drug traffic. The Single Convention achieved a unified codification4 of existing multilateral treaties in the field' and created the International Narcotics Control Board (INCB), center of illicit traffic...In an effort to carry out the principle of limiting the use of narcotic drugs to medical and scientific purposes, the Narcotics Convention of 1931 required noncontracting parties as well as parties to the Convention to furnish annual advance estimates of narcotics needed for these purposes. These estimates were examined …

Territorial Courts And Law: Unifying Factors In The Development Of American Legal Institutions-Pt.1-Establishment Of A Standardized Judicial System, William Wirt Blume, Elizabeth Gaspar Brown

Michigan Law Review

The United States first became a sovereign nation when individual states of the Confederation ceded to the states collectively their several interests in the lands west of the Appalachians which lay east of the Mississippi, north of Spanish Florida, and south of the Great Lakes. This area had been relinquished by Great Britain by the Treaty of 1783 and, with the exception of Kentucky, now became the property of the United States. It was the first area over which the states as a group had complete sovereignty, subject only to the claims of the various Indian tribes. Colonies fresh from …

The Objective And Function Of The Complaint: Common Law -- Codes -- Federal Rules, Fleming James, Jr.

Vanderbilt Law Review

Before a court can properly decide a case and enter judgment, certain things must have taken place. The court must have obtained jurisdiction over the parties and over the controversy to be decided.'Limits must be set to the controversy so that the court and the parties may know how to direct their efforts, and so that the court may rule on questions of relevancy. The issues of fact and of law must be framed so that each is allocated to the appropriate tribunal for decision and is presented clearly enough so that the tribunal knows what to decide. The adversary …

Escheat - Abandoned Property - Full Faith And Credit As A Bar To Multiple Escheat Of Intangibles, Clarold L. Britton S.Ed.

Michigan Law Review

Escheat of abandoned or unclaimed property by the sovereign is as old as the common law. Recast in constitutional form, this ancient right of kings has become a significant source of revenue in an increasing number of American states. While the right of escheat is inherent in the power of a sovereign, its exercise requires specific legislative authority. Until recently this authority was sparingly given and escheat was generally limited to the administration of estates and abandoned tangible property. However, in this past decade, state legislatures have greatly expanded the scope and extent of escheat by authorizing the escheat of …

The Law Of The Collective Agreement, Charles O. Gregory

Michigan Law Review

The Wagner Act contained no law governing collective agreements. Congress left their enforcement to the state and federal courts under the miserable body of common-law rules. Under various theories the courts worried about consideration, mutuality of obligation, duress and public policy aspects as if they were dealing with conventional contracts.

Criminal Procedure On The American Frontier: A Study Of The Statutes And Court Records Of Michigan Territory 1805-1825, William Wirt Blume

Michigan Law Review

The area north and east of Lake Michigan, organized in 1805 as Michigan Territory, was first organized in 1796 as Wayne County of the Northwest Territory. In 1800 the western half of the county, and in 1803 the eastern half, became parts of Indiana Territory, and so remained until July 1805. In 1818 Michigan Territory was expanded westward so as to include all of the area north of Illinois to the Mississippi River.

Conflict Of Laws - Torts - Proper Party Plaintiff In Wrongful Death Actions, John M. Webb

Michigan Law Review

The purpose of this comment is to examine the differing solutions and determine the vitality of the common law rule in wrongful death actions.

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 …

Conflict Of Laws-Model Execution Of Wills Statute-Law Governing Revocation Of Will, Edward W. Rothe S.Ed.

Michigan Law Review

Decedent's will, devising Iowa realty, was denied probate in Illinois, the state of domicile, on grounds that the will had been revoked by cancellation. The devisees offered the will for probate in Iowa, under whose law no revocation was effected. The heirs contested probate on grounds that the Illinois denial of probate was conclusive and binding on Iowa courts in view of §633.49, Iowa code, 1946: "A last will and testament executed without this state, in the mode prescribed by the law, either of the place where executed or the testator's domicile, shall be deemed to be legally executed, and …

Procedure-Contempt As Sanction To Enforce Delivery In Replevin, John A. Nordberg

Michigan Law Review

In a replevin action in a common pleas court the plaintiff, after filing a $200 bond for property later valued at $900, obtained possession of some household goods of the defendant under a fatally defective writ. On motion of the defendant the court dismissed the action and ordered the property returned. On appeal, plaintiff's action was again dismissed and he was directed to return defendant's goods. He ignored the order and was adjudged guilty of contempt. On appeal in the nature of certiorari from this conviction, held, reversed without prejudice. The order was void since the court had lost …

Theory Of Pleading A Survey Including The Federal Rules, William Wirt Blume

Michigan Law Review

In an often-quoted report of a committee of the American Bar Association, Roscoe Pound stated: "Pleadings have four purposes: (1) The first is to serve as a formal basis for the judgment. This is the oldest function, and one that goes back before the time of rational, as distinguished from purely mechanical trial of issues. . . . (2) Another is to separate issues of fact from questions of law .... (3) Another is to give litigants the advantage of a plea of res judicata if molested again for the same cause .... (4) Finally, pleadings exist to notify parties …

Discovery-Procurement Of An Order Requiring A Nonresident Plaintiff To Submit To An Oral Examination Within The State Before Trial, Ralph J. Isackson

Michigan Law Review

Relator, a resident of Massachusetts, brought an action in Illinois against the Railway Express Company to recover damages for the negligent transportation of the relator's cattle. After the cause was at issue the Express Company's attorneys presented a motion to respondent, a superior court judge, requesting a court order directing the nonresident relator to appear before a notary public in Chicago for the purpose of an oral examination. The court granted the order, fixing a time and place for the taking of relator's deposition on oral interrogatories. Upon failure of the relator to appear, the court stayed proceedings for a …

The Powers Of A Court Of Equity In State Tax Litigation, Maurice S. Culp

Michigan Law Review

Hitherto a state taxpayer, otherwise meeting the jurisdictional requirements of a federal district court, could secure an injunction from such a court upon a showing that there was no adequate remedy at law in the federal district court, and this regardless of the legal or equitable remedies afforded by the state courts.

In view of this recent legislation, it becomes important to ascertain the new limitation upon the equity powers of the federal district courts in state tax litigation. Likewise, because of these new rigid limitations upon the jurisdiction of the federal courts, the attitude of the state courts of …

Book Review. Cases On Conflict Of Laws (Lorenzen), Comparative Commentaries On Private International Law, And Cases On Conflict Of Laws (Harper And Taintor), Frank Edward Horack Jr.

Articles by Maurer Faculty

No abstract provided.

Conflict Of Laws: Recent Development Concerning Marriage, Francis Deak

Michigan Law Review

Anglo-American writers on the conflict of laws and Continental writers on private international law emphasize, with equal strength, the importance of the rules regulating marriage. Marriage is the most important of the social institutions; it is, in fact, the very foundation of the present social order. The legal system of civilized states, which is called upon to maintain this social order, contains an elaborate body of rules, protecting the institution of marriage. It is noteworthy, indeed, that mature legal systems secure best interests involved in domestic relations, besides interests of substance such as property and contract. Each legal system developed …

The Institute's Restatement And The Michigan Law, Herbert F. Goodrich

Michigan Law Review

The task which the American Law Institute has undertaken is to make a statement of the common law, in its various branches. The end in view is not codification; indeed the idea is directly opposed to codification. It is hoped to have, when the work is completed, an accurate statement of existing common law, carefully and systematically made, from which local variations and peculiarities have been ironed out. It is hoped, in other words, to restore both accuracy and continuity to the pattern of the common law fabric as it is woven in our judicial mills.

Jurisdiction Over Unincorporated Associations Composed Of Nonresidents

Michigan Law Review

New York has a statute which provides for suits against unincorporated associations consisting of seven or more members. It reads as follows: An action or special proceeding may be maintained, against the president or treasurer of such an association, * * * upon any cause of action, for or upon which the· plaintiff may maintain such action or special proceeding, against all the associates * * *· Any partnership; or other company of persons, which has a president or treasurer, is, deemed an association within the meaning of this section." General Associations Law (Consol. Laws of N. Y.), sec. 13. …