Common Law Commons^™

Global Warming As A Public Nuisance, Thomas W. Merrill

Faculty Scholarship

On July 21, 2004, eight State Attorneys General and the City of New York brought suit in federal district court in the Southern District of New York, seeking to adjudicate the issue of global warming as a public nuisance. Six large electric power producers were named as defendants. The complaint filed in Connecticut v. American Electric Power Co., as the action is styled, alleges that emissions of greenhouse gases from the defendants' plants, in particular carbon dioxide (C02), are contributing to global warming. Count I claims that these greenhouse gas emissions are an actionable public nuisance governed by federal …

Courts Or Tribunals? Federal Courts And The Common Law, Peter L. Strauss

Faculty Scholarship

Every Justice, save perhaps Justice Breyer, has recently subscribed to an opinion raising questions in one or another context about whether federal courts can appropriately exercise common law law-making functions that had, until these questions began to appear, been characteristic of all American courts. To invoke a special class of "federal tribunal" whose actions are not to be confused with those of common law courts suggests broader implications than the long-familiar debates about Erie RR. Co. v. Tompkins, or more recent contentions over when, if ever, it is appropriate to infer privately enforceable judicial remedies in aid of federal statutes; …

Optimal Standardization In The Law Of Property: The Numerus Clausus Principle, Thomas W. Merrill, Henry E. Smith

Faculty Scholarship

A central difference between contract and property concerns the freedom to "customize" legally enforceable interests. The law of contract recognizes no inherent limitations on the nature or the duration of the interests that can be the subject of a legally binding contract. Certain types of promises – such as promises to commit a crime – are declared unenforceable as a matter of public policy. But outside these relatively narrow areas of proscription and requirements such as definiteness and (maybe) consideration, there is a potentially infinite range of promises that the law will honor. The parties to a contract are free …

The Common Law And Statutes, Peter L. Strauss

Faculty Scholarship

Controversies about statutory interpretation and the proper roles for judges in interpretation are particularly noticeable in the Supreme Court but have penetrated downward throughout the judicial system. What I mean to explore here are some implications of our common law heritage and the presuppositions of a common law system for these controversies, that seem rarely noticed in the ongoing debates. I mean by this not only common law judging, but also what we might call common law legislating – that is, the practice of creating statutes to achieve marginal changes in existing law in response to perceived deficiencies, rather than …

Modern Mail Fraud: The Restoration Of The Public/Private Distinction, John C. Coffee Jr.

Faculty Scholarship

Over their long history, the mail and wire fraud statutes have gone through repeated periods of rapid expansion and contraction. The 1970s saw the flowering of the "intangible rights doctrine," an exotic flower that quickly overgrew the legal landscape in the manner of the kudzu vine until by the mid- 1980s few ethical or fiduciary breaches seemed beyond its potential reach. That doctrine was radically pruned by the Supreme Court in 1987 in the McNally decision, which held that the federal mail and wire fraud statutes reached only those schemes that intentionally sought to deprive their victims of money or …

Copyright, Common Law, And Sui Generis Protection Of Databases In The United States And Abroad, Jane C. Ginsburg

Faculty Scholarship

What protection remains for compilations of information, particularly digital databases, since the United States Supreme Court swept away "sweat copyright" in its 1991 Feist decision? "Thin" copyright protection is still available, but it covers only the original contributions (if any) that the compiler brings to the public domain information. Moreover, Feist makes clear that padding the compilation with original added value will not flesh out the skeletal figure beneath: the information, stripped of selection, arrangement, or other copyrightable frills, remains free for the taking.

If copyright is unavailing, contract is appearing more promising, as mass-market, "shrinkwrap" and "click-on" licenses gain …

How Law Can Be Determinate, Kent Greenawalt

Faculty Scholarship

This Article, part of a longer study, considers one problem about the objectivity of law. The problem is whether the law as it exists provides determinate answers to many legal questions for judges, other officials, and citizens. I emphasize the word many. This Article does not focus on "hard cases" and then ask whether single correct answers for them exist. It does not inquire whether in some complicated sense all legal questions have determinate answers. This is a treatment of easy legal questions. To most lawyers, it may seem self-evident that many legal questions do have determinate answers; and that …

Time, Property Rights, And The Common Law, Thomas W. Merrill

Faculty Scholarship

The fee simple is often defined as an estate or interest of "potentially infinite duration." This way of speaking suggests that property rights are fixed and permanent – indeed, that they last forever. Similarly, property rights are regarded in classical liberal thought as sources of stability and security that foster individual autonomy and protect owners against the vicissitudes of life. This too suggests that property rights are not contingent upon a particular temporal context, but rather are impervious to the passage of time.

When we look at the common law, however, we quickly discover a much more complex relationship between …

The Common Law Powers Of Federal Courts, Thomas W. Merrill

Faculty Scholarship

Lawmaking by federal courts has been a matter of controversy since the early days of the Republic. In the last forty years, the debate has fallen into roughly two periods, with Roe v. Wade marking the dividing line. During what might be called the "legal process" era of the 1950's and 1960's, scholarly energy was focused on Erie Railroad v. Tompkins and what was then called the "new federal common law." To be sure, important work on judicial review was also done in those years, particularly in the wake of the Supreme Court's dramatic decision in Brown v. Board of …

The Right And The Reasonable, George P. Fletcher

Faculty Scholarship

As the common law relies on the concept of "reasonableness," the civil law relies on the concept of "Right." Professor Fletcher argues that reliance on reasonableness enables the common law to develop rules that can be voiced in a single standard. Such rules permit what Professor Fletcher terms 'flat" legal thinking. In contrast, the civil law's reliance on the concept of Right leads it to develop rules that proceed in two stages: the first rule asserts an absolute right; the second, a limitation based upon criteria other than Right. The application of such rules proceeds by what Professor Fletcher terms …

The Perplexing Borders Of Justification And Excuse, Kent Greenawalt

Faculty Scholarship

This Article's central theme is that Anglo-American criminal law should not attempt to distinguish between justification and excuse in a fully systematic way. I explore three possible bases for drawing the distinction: (1) a distinction between warranted and wrongful conduct; (2) a division between general and individual claims; and (3) a distinction based on the rights of others. I show why none of these bases yields a clear and simple criterion for categorization. The difficulty rests largely on the conceptual fuzziness of the terms ''justification" and "excuse" in ordinary usage and on the uneasy quality of many of the moral …

The Right Deed For The Wrong Reason: A Reply To Mr. Robinson, George P. Fletcher

Faculty Scholarship

So far as there is a school of criminal theory in the United States, it is a school devoted to sifting and celebrating the purposes of the criminal law. Discussions in the literature are dominated by endless recitals of the deterrent, rehabilitative and retributive functions of criminal sanctions. The orthodox view is that all of these purposes are relevant and that any proposed rule of criminal law must be measured by its tendency to further one or all of these goals. If the issue is punishing negligence, for example, the standard mode of analysis is to ask whether punishing negligent …