Common Law Commons^™

Death In America Under Color Of Law: Our Long, Inglorious Experience With Capital Punishment, Rob Warden, Daniel Lennard

Northwestern Journal of Law & Social Policy

No abstract provided.

A Lesson From Goodfellas: Why Current Illinois Consideration Based Pension Reform Proposals Still Fail, Lari A. Dierks

Northwestern Journal of Law & Social Policy

No abstract provided.

Take This Job And Shove It: The Pragmatic Philosophy Of Johnny Paycheck And A Prayer For Strict Liability In Appalachia, Eugene "Trey" Moore Iii

The Scholar: St. Mary's Law Review on Race and Social Justice

Abstract forthcoming

Fiction In The Code: Reading Legislation As Literature, Thomas J. Mcsweeney

Georgia State University Law Review

One of the major branches of the field of law and literature is often described as “law as literature.” Scholars of law as literature examine the law using the tools of literary analysis. The scholarship in this subfield is dominated by the discussion of narrative texts: confessions, victim-impact statements, and, above all, the judicial opinion. This article will argue that we can use some of the same tools to help us understand non-narrative texts, such as law codes and statutes.

Genres create expectations. We do not expect a law code to be literary. Indeed, we tend to dissociate the law …

When Courts Run Amuck: A Book Review Of Unequal: How America's Courts Undermine Discrimination Law By Sandra F. Sperino And Suja A. Thomas (Oxford 2017), Theresa M. Beiner

Texas A&M Law Review

In Unequal: How America’s Courts Undermine Discrimination Law (“Unequal”), law professors Sandra F. Sperino and Suja A. Thomas provide a point-by-point analysis of how the federal courts’ interpretations of federal anti-discrimination laws have undermined their efficacy to provide relief to workers whose employers have allegedly engaged in discrimination. The cases’ results are consistently pro-employer, even while the Supreme Court of the United States—a court not known for being particularly pro-plaintiff—has occasionally ruled in favor of plaintiff employees. The authors suggest some reasons for this apparent anti-plaintiff bias among the federal courts, although they do not settle on a particular reason …

China's Anti-Corruption Crackdown And The Foreign Corrupt Practices Act, Daniel C.K. Chow

Texas A&M Law Review

China’s highly publicized crackdown on corruption may affect the type and number of cases in China that arise under the Foreign Corrupt Practices Act (“FCPA”), but it should not be assumed that the crackdown will necessarily lead to fewer FCPA prosecutions. Although there is some overlap of the goals of China’s corruption crackdown and the goals of the FCPA, China’s crackdown also serves important goals of the ruling Communist Party. The main goal of the current crackdown is to reinforce the Party’s power by targeting enemies and rivals of the current leadership. The crackdown is not aimed at prohibiting bribes …

Entering The Trump Ice Age: Contextualizing The New Immigration Enforcement Regime, Bill Ong Hing

Texas A&M Law Review

During the early stages of the Trump ICE age, America seemed to be witnessing and experiencing an unparalleled era of immigration enforcement. But is it unparalleled? Did we not label Barack Obama the “deporter-inchief?” Was it not George W. Bush who used the authority of the Patriot Act to round up nonimmigrants from Muslim and Arab countries, and did his ICE not commonly engage in armed raids at factories and other worksites? Are there not strong parallels that can be drawn between Trump enforcement plans and actions and those of other eras? What about the fear and hysteria that seems …

National Association Of Manufacturers V. Department Of Defense, Summer L. Carmack

Public Land & Resources Law Review

In an attempt to provide consistency to the interpretation and application of the statutory phrase “waters of the United States,” as used in the Clean Water Act, the EPA and Army Corps of Engineers together passed the WOTUS Rule. Unfortunately, the Rule has created more confusion than clarity, resulting in a number of lawsuits challenging substantive portions of the Rule’s language. National Association of Manufacturers v. Department of Defense did not address those substantive challenges, but instead determined whether those claims challenging the Rule must be filed in federal district courts or federal courts of appeals. In its decision, the …

Cardozo's "Law And Literature": A Guide To His Judicial Writing Style, Richard H. Weisberg

Articles

The article discusses Benjamin N. Cardozo's essay "Law and Literature," which emphasizes the essential unity of style and substance in legal writing. Cardozo argues against the notion that law and literature are separate domains, asserting that effective legal communication requires a harmonious integration of form and function. He advocates for a judicial writing style that prioritizes clarity, precision, and the "magisterial" approach, which eschews ornamentation in favor of substance.

Possession Of Child Exploitation Material In Computer Temporary Internet Cache, Sungmi Park, Yunsik Jake Jang, Joshua I. James

Journal of Digital Forensics, Security and Law

When considering the possession of child exploitation material U.S. and German courts have the same focus, but slightly different interpretations. This slight difference in interpretation could mean that in one country a defendant will be found guilty of possession while in the other country he or she could be found not guilty. In this work we examine the standards courts in Germany and the United States have used to combat child pornography, and analyze the approaches specifically related to viewing and possession of CEM. A uniform solution is suggested that criminalizes “knowing access with the intention to view” as a …

A Chance For Positive Change: Exploring The Legal Hurdles Putative Fathers Face In The 21st Century, Shamala Florant

The Scholar: St. Mary's Law Review on Race and Social Justice

Abstract forthcoming.

Procedural Due Process Claims, Erwin Chemerinsky

Touro Law Review

No abstract provided.

The English East India Company And The Modern Corporation: Legacies, Lessons, And Limitations, Philip J. Stern

Seattle University Law Review

The English East India Company was first chartered in 1600, endured until the late nineteenth century, and, in a clever act of corporate resurrection, has even recently returned as a global, upmarket retail outlet selling fine foods and commemorative coins. It has also endured in the popular imagination and culture, churning out heroes and villains alike in film, television, and video games. The script writer for a forthcoming BBC miniseries, in which the East India Company stars as the prime antagonist, even noted recently that the Company was like “the CIA, the NSA, and the biggest, baddest multinational corporation on …

The Impasse Of Tibetan Justice: Spain's Exercise Of Universal Jurisdiction In Prosecuting Chinese Genocide, Craig Peters

Seattle University Law Review

Universal jurisdiction is the progressive and contentious legal principle that courts have competence to adjudicate cases involving alleged violations of international law regardless of the nation in which those crimes occurred, the nationality of the victim, or the nationality of the perpetrator. While the limits of more conventional theories of jurisdiction are defined by sovereignty, territory, and nationality, the exercise of universal jurisdiction is based solely on the nature of the crime alleged. That is, when a crime is so serious that it violates peremptory norms of international law, courts are entitled, or even obliged, to hear those cases regardless …

Blood And Privacy: Towards A "Testing-As-Search" Paradigm Under The Fourth Amendment, Andrei Nedelcu

Seattle University Law Review

A vehicle on a public thoroughfare is observed driving erratically and careening across the roadway. After the vehicle strikes another passenger car and comes to a stop, the responding officer notices in the driver the telltale symptoms of intoxication—bloodshot eyes, slurred speech, and a distinct odor of intoxicants. On these facts, a lawfully-procured warrant authorizing the extraction of the driver’s blood is obtained. However, the document fails to circumscribe the manner and variety of testing that may be performed on the sample. Does this lack of particularity render the warrant constitutionally infirm as a mandate for chemical analysis of the …

Juries, Judges, And The Politics Of Tort Reform, David Logan

Law Faculty Scholarship

No abstract provided.

The New Old Legal Realism, Tracey E. George, Mitu Gulati, Ann C. Mcginley

Northwestern University Law Review

No abstract provided.

The Federal Rules At 75: Dispute Resolution, Private Enforcement Or Decisions According To Law?, James R. Maxeiner

Georgia State University Law Review

This essay is a critical response to the 2013 commemorations of the75th anniversary of the Federal Rules of Civil Procedure.The Federal Rules of Civil Procedure were introduced in 1938 to provide procedure to decide cases on their merits. The Rules were designed to replace decisions under the “sporting theory of justice”with decisions according to law.

By 1976, at midlife, it was clear that they were not achieving their goal. America’s proceduralists split into two sides about what to do. One side promotes rules that control and conclude litigation: e.g.,plausibility pleading, case management, limited discovery, cost indemnity for discovery, and summary …

Historical Antecedents Of Challenges Facing The Georgia Appellate Courts, Michael B. Terry

Georgia State University Law Review

The Georgia appellate courts face challenges common to many courts in these days of reduced governmental resources. At the same time, the Georgia appellate courts face unusual challenges that can be traced to their historical antecedents and one unique constitutional provision: the “Two-Term Rule.” Just as “[t]he law embodies the story of a nation’s development through many centuries,” the current rules and practices of both the Supreme Court of Georgia and the Court of Appeals of Georgia embody the story of the development of those courts since their founding.

Several aspects of the history of the courts directly impact the …

Common Law Decision-Making, Constitutional Shadows, And The Value Of Consistency: The Jurisprudence Of William F. Batchelder, Lawrence Friedman

The University of New Hampshire Law Review

[Excerpt] “This is an essay about common law decision-making, with an emphasis on the value of consistency as it relates to claims about the legitimacy of judicial lawmaking. The legitimacy of judicial lawmaking is ever an issue, particularly, of course, in the cases at the margins—those instances in which precedent points the court in no obviously correct direction, a choice must be made between plausible alternative paths, and “a decision one way or the other,” as Benjamin Cardozo observed, “will count for the future, will advance or retard, sometimes much, sometimes little, the development of the law.””

Comparative Theory, Judges And Legal Transplants: A Practical Lesson From Singapore And Its Relevance To Transnational Convergence, Basil C. Bitas

Research Collection Yong Pung How School Of Law

Legal evolution in a hyper-connected world will increasingly come through, or otherwise be informed by, legal borrowing and transplants from without whether in the form of laws, techniques, concepts or simple inspiration. The pressures of globalisation and the resulting need for some form of operational, transnational convergence and harmonisation will require diverse legal systems to seek out the best rules and approaches regardless of provenance to address the demands of the modern legal and commercial environment. Judges, particularly in common law jurisdictions, will be at the forefront of this process of transnational legal selection fraught with both promise and peril. …

Dreading He Knew Not What: Masculinities, Structural Spaces, Law And The Gothic In The Castle Of Otranto, Pride And Prejudice, And Wuthering Heights, Samantha E. Morse

Pitzer Senior Theses

This essay investigates the integral linkages between Gothic spaces and Gothic masculinities in three texts: Horace Walpole’s The Castle of Otranto (1764), Jane Austen’s Pride and Prejudice (1813), and Emily Brontë’s Wuthering Heights (1847). At the core of this examination is architecture, or more specifically, the physical constructions and built environments that comprise a man’s property. I explore how a man uses his property to construct, legitimize, and perform his identity. In the Female Gothic, the home is a place of anxiety for women, where patriarchal dominance and violence reign to constrain female agency. I argue that the home is …

Allocating The Costs Of Parental Free Exercise: Striking A New Balance Between Sincere Religious Belief And A Child's Right To Medical Treatment , Paul A. Monopoli

Pepperdine Law Review

No abstract provided.

Negligent Infliction Of Emotional Distress: A Proposal For A Consistent Theory Of Tort Recovery For Bystanders And Direct Victims, Julie A. Greenberg

Pepperdine Law Review

No abstract provided.

The Effect Of Location In The Courtroom On Jury Perception Of Lawyer Performance, Jeffrey S. Wolfe

Pepperdine Law Review

No abstract provided.

Spandrel Or Frankenstein's Monster? The Vices And Virtues Of Retrofitting In American Law, Michael C. Dorf

Cornell Law Faculty Publications

Ancient mythology, literary fiction, and modern science fiction films all recount a similar cautionary tale: human ingenuity gives rise to a powerful invention, but through human fallibility and, in some tellings, venality, the invention becomes a monster and turns on its creators. Perhaps the most famous example is Mary Shelley's Frankenstein, in which Dr. Frankenstein's attempt to fashion a living man from the dead remains of others succeeds, only then to go horribly awry. Such stories are timeless because they warn of the dangers of indelible features of human nature: hubris and short-sightedness. Recent large-scale catastrophes such as the 2010 …

Taking, Tort, Or Crown Right?: The Confused Early History Of Government Patent Policy, 12 J. Marshall Rev. Intell. Prop. L. 145 (2012), Sean M. O'Connor

UIC Review of Intellectual Property Law

From the early days of the Republic, Congress and the federal courts grappled with the government’s rights to own or use patents it issued. Courts rejected the British “Crown Rights” rule that allowed the sovereign to practice whatever patents it issued. Instead, the federal government was conceptualized as a legal person on par with any other persons with regard to issued patents. But, this simple rule presented challenges as complexities arose in three intertwined patent rights scenarios. The first involved inventions by government employees. The second revolved around government and government contractor use of patents held by private citizens. And …

Forgotten Namesake: The Illinois Good Samaritan Act's Inexcusable Failure To Provide Immunity To Non-Medical Rescuers, 43 J. Marshall L. Rev. 1097 (2010), David Weldon

UIC Law Review

No abstract provided.

Converging Queer And Feminist Legal Theories: Family Feuds And Family Ties, Elaine Craig

Articles, Book Chapters, & Popular Press

The notion that queer theory and feminism are inevitably in tension with one another has been well developed both by queer and feminist theorists. Queer theorists have critiqued feminist theories for being anti-sex, overly moralistic, essentialist, and statist. Feminist theorists have rejected queer theory as being un-critically pro-sex and dangerously protective of the private sphere. Unfortunately these reductionist accounts of what constitutes a plethora of diverse, eclectic and overlapping theoretical approaches to issues of sex, gender, and sexuality, often fail to account for the circumstances where these methodological approaches converge on legal projects aimed at advancing the complex justice interests …

Converging Queer And Feminist Legal Theories: Family Feuds And Family Ties, Elaine Craig

Articles, Book Chapters, & Popular Press

The notion that queer theory and feminism are inevitably in tension with one another has been well developed both by queer and feminist theorists. Queer theorists have critiqued feminist theories for being anti-sex, overly moralistic, essentialist, and statist. Feminist theorists have rejected queer theory as being un-critically pro-sex and dangerously protective of the private sphere. Unfortunately these reductionist accounts of what constitutes a plethora of diverse, eclectic and overlapping theoretical approaches to issues of sex, gender, and sexuality, often fail to account for the circumstances where these methodological approaches converge on legal projects aimed at advancing the complex justice interests …