Common Law Commons^™

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 …

Scrutiny Of Employee Covenants Not To Compete Under The Rule Of Reason: An Empirical Inquiry, Daniel A. Crane

Notre Dame Law Review Reflection

For over 300 years, the common law has scrutinized employee covenants not to compete for their reasonableness. That is about to change. On April 23, 2024, the Federal Trade Commission announced a rule that will prohibit employers from imposing noncompete agreements on workers. The rule declares all covenants not to compete in the employment context to be unfair methods of competition under section 5 of the FTC Act. If the rule takes effect, thirty million contracts will become illegal. The FTC justifies this rule based on the ostensibly pernicious effects of employee covenants not to compete—limiting employee opportunities to pursue …

The General-Law Right To Bear Arms, William Baude, Robert Leider

Notre Dame Law Review

In this Article, we argue that Bruen's intended methodological shift has been widely misunderstood by the bench and bar. This has led to confusion and misapplication in the lower courts, as well as much scholarly criticism of the test that is, we think, misdirected. As we will explain, Bruen calls for a form of legal originalism, applying a classical view of fundamental rights as a form of unwritten customary law. This is consistent with the text and history of the Constitution and leads to results that are less mechanical and more sensible than many lower courts have thought. Understanding …

Common Law Statutes, Charles W. Tyler

Notre Dame Law Review

The defining feature of a “common law statute” is that it resists standard methods of statutory interpretation. The category includes such important federal statutes as the Sherman Act, § 1983, and the Labor Management Relations Act, among others. Despite the manifest significance of common law statutes, existing caselaw and legal scholarship lack a minimally defensible account of how courts should decide cases arising under them. This Article supplies such an account. It argues that judges should decide cases arising under common law statutes by applying rules representing a consensus among American courts today—i.e., rules that jurisdictions generally have in common. …

An Originalist Approach To Prospective Overruling, John O. Mcginnis, Michael Rappaport

Notre Dame Law Review

Originalism has become a dominant jurisprudential theory on the Supreme Court. But a large number of precedents are inconsistent with the Constitution’s original meaning and overturning them risks creating enormous disruption to the legal order. This article defends a prospective overruling approach that would harmonize precedent with originalism’s rise and reduce the disruption from overrulings. Under prospective overruling, the Court declares that an existing statute violates the original meaning but will continue to be enforced because declaring it unconstitutional would produce enormous costs; however, future statutes of this type will be voided as unconstitutional. Under our approach, the Court would …

Advisory Opinions And The Problem Of Legal Authority, Christian R. Burset

Journal Articles

The prohibition against advisory opinions is fundamental to our understanding of federal judicial power, but we’ve misunderstood its origins. Discussions of the doctrine begin not with a constitutional text or even a court case, but a letter in which the Jay Court rejected President Washington’s request for legal advice. Courts and scholars have offered a variety of explanations for the Jay Court’s behavior. But they all depict the earliest Justices as responding to uniquely American concerns about advisory opinions.

This Article offers a different explanation. Drawing on previously untapped archival sources, it shows that judges throughout the anglophone world—not only …

Three Questions About "Stand Your Ground" Laws, Cynthia V. Ward

Notre Dame Law Review Reflection

Stand Your Ground laws, and the issues they generate, do raise serious questions about what constitutes justice in cases that give rise to claims of self-defense. In order to resolve those questions, we first need to understand what the self-defense doctrine actually says and how it was designed to work. It is necessary to specify the ways in which Stand Your Ground provisions do, and do not, affect that doctrine.

In this Essay I will raise three issues about Stand Your Ground and self-defense. In addressing these issues I will use Florida law as a template because the Stand …

Rethinking The Efficiency Of The Common Law, D. Daniel Sokol

Notre Dame Law Review

This Article shows how Posner and other scholars who claimed that common law was efficient misunderstood the structure of common law. If common law was more efficient, there would have been a noticeable push across most, if not all, doctrines to greater efficiency. This has not been the case. Rather, common law, better recast as a “platform,” could, under a certain set of parameters, lead to efficient outcomes. Next, the Article’s analysis suggests that while not every judge thinks about efficiency in decisionmaking, there must be some architectural or governance feature pushing in the direction of efficiency—which exists in some …

Protecting Users Of Social Media, Margaret Ryznar

Notre Dame Law Review Reflection

Social media platforms started as a fun way to connect with friends and family. Since then, they have become a science fiction nightmare due to their capacity to gather and misuse the data on their users.

It is not irrational for social media providers to seek to capitalize on their data when they provide the platforms for free. Indeed, their business model is to sell data to third parties for marketing and other purposes. Yet, users should be able to expect that their data is not used to hurt them or is not sent to disreputable companies. Indeed, fewer people …

The “Mendacious” Common-Law Mortgage, David P. Waddilove

Journal Articles

The common-law mortgage has been much maligned. Legal historians have called it everything from "clumsy" to "mendacious." Following their lead, the current Restatement (Third) of Property: Mortgages and the leading treatise on mortgage law denounce the modern incarnation of the common-law mortgage - the "title theory" of mortgages - in favor of the "lien theory."

As many states have adopted this view, the common-law mortgage has been nearly eliminated from the modern legal landscape. But the consensus is wrong. Critics of the common-law mortgage have relied upon a superficial view of the device. They appreciated neither the background law that …

Equity: Notes On The American Reception, Samuel L. Bray

Book Chapters

From the Publisher

Chapter 2
How has equity been received in the United States? Two themes stand out. One is that of ‘nice adjustment’: the case-specific adjustment of legal rules to avoid the harsh results of applying rules to unforeseen circumstances. The second is the idea of judicial command: ordering the particular defendant in the circumstances to do equity without contradicting the common law. While the former has waned in the US, the latter has overly strengthened. The reasons of legal culture are discussed.

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.

The Case Against Qualified Immunity, Joanna C. Schwartz

Notre Dame Law Review

If the Court did find an appropriate case to reconsider qualified immunity, and took seriously available evidence about qualified immunity’s historical precedents and current operation, the Court could not justify the continued existence of the doctrine in its current form. Ample evidence undermines the purported common-law foundations for qualified immunity. Research examining contemporary civil rights litigation against state and local law enforcement shows that qualified immunity also fails to achieve its intended policy aims. Qualified immunity does not shield individual officers from financial liability. It almost never shields government officials from costs and burdens associated with discovery and trial in …

Outlining The Case For A Common Law Duty Of Care Of Business To Exercise Human Rights Due Diligence, Douglass Cassel

Journal Articles

This article outlines the case for a business duty of care to exercise human rights due diligence, judicially enforceable in common law countries by tort suits for negligence brought by persons whose potential injuries were reasonably foreseeable. A parent company’s duty of care would extend to the human rights impacts of all entities in the enterprise, including subsidiaries. A company would not be liable for breach of the duty of care if it proves that it reasonably exercised due diligence as set forth in the Guiding Principles on Business and Human Rights. On the other hand, a company’s failure to …

Reading Statutes In The Common Law Tradition, Jeffrey A. Pojanowski

Journal Articles

There is wide agreement in American law and scholarship about the role the common law tradition plays in statutory interpretation. Jurists and scholars of various stripes concur that the common law points away from formalist interpretive approaches like textualism and toward a more creative, independent role for courts. They simply differ over whether the common law tradition is worth preserving. Dynamic and strongly purposive interpreters claim the Anglo-American common law heritage in support of their approach to statutory interpretation, while arguing that formalism is an unjustified break from that tradition. Formalists reply that the common law mindset and methods are …

Statutes In Common Law Courts, Jeffrey A. Pojanowski

Journal Articles

The Supreme Court teaches that federal courts, unlike their counterparts in the states, are not general common law courts. Nevertheless, a perennial point of contention among federal law scholars is whether and how a court’s common law powers affect its treatment of statutes. Textualists point to federal courts’ lack of common law powers to reject purposivist statutory interpretation. Critics of textualism challenge this characterization of federal courts’ powers, leveraging a more robust notion of the judicial power to support purposivist or dynamic interpretation. This disagreement has become more important in recent years with the emergence of a refreshing movement in …

Shedding Light On Shady Grove: Further Reflections On The Erie Doctrine From A Conflicts Perspective, Joseph P. Bauer

Journal Articles

This Article, a contribution to the Notre Dame Law Review symposium issue on the Supreme Court’s recent Shady Grove decision, is a follow-up to an article published in the same journal eleven years ago, in which I suggested that the Erie doctrine could be usefully informed by drawing on caselaw and jurisprudence from the horizontal choice of law setting. Shady Grove addressed the question of whether a New York state law, barring the assertion of claims for statutory damages, was binding in an action brought in the federal courts, or whether Federal Rule 23, which does not contain a similar …

Foreward: Erie's Gift, Jay Tidmarsh

Journal Articles

Sometimes described as "one of the modem cornerstones of our federalism," Erie stands at its narrowest for a simple proposition: When a federal court decides a claim whose source is state law, the court must apply the same substantive common-law rules that a state court would apply to the claim. Dictated by statute, by policy, and by the Constitution, this result seems "superbly right" to many. Indeed, Erie's narrow holding is not controversial today.

Reason And Reasonableness In Review Of Agency Decisions, Jeffrey Pojanowski

Journal Articles

A company markets computer software that provides day traders with real-time data and recommendations for buying and selling futures on commodities markets. In a late night infomercial, the firm touts the spectacular "certified" profits that purchasers would have earned had they been using this one-of-a-kind system over the past seven years. What the suntanned host does not tell viewers at home is that these "certified" results are not based on actual trades, but simulations of what the system would have produced based on historical data. A regulator initiates administrative proceedings against the firm, charging that this omission "defrauded" customers under …

The Appropriations Power And Sovereign Immunity,, Jay Tidmarsh, Paul F. Figley

Journal Articles

Discussions of sovereign immunity assume that the Constitution contains no explicit text regarding sovereign immunity. As a result, arguments about the existence-or nonexistence-of sovereign immunity begin with the English and American common-law doctrines. Exploring political, fiscal, and legal developments in England and the American colonies in the seventeenth and eighteenth centuries, this Article shows that focusing on common-law developments is misguided. The common-law approach to sovereign immunity ended in the early 1700s. The Bankers' Case (1690- 1700), which is often regarded as the first modern common-law treatment of sovereign immunity, is in fact the last in the line of English …

The Federal Common Law Of Nations, Anthony J. Bellia Jr., Bradford R. Clark

Journal Articles

Courts and scholars have vigorously debated the proper role of customary international law in American courts: To what extent should it be considered federal common law, state law, or general law? The debate has reached something of an impasse, in part because various positions rely on, but also are in tension with, historical practice and constitutional structure. This Article describes the role that the law of nations actually has played throughout American history. In keeping with the original constitutional design, federal courts for much of that history enforced certain rules respecting other nations' perfect rights (or close analogues) under the …

Procedural Common Law, Amy Coney Barrett

Journal Articles

Debates about the common lawmaking power of the federal courts focus exclusively on substantive common law. But federal common law is not limited to matters of substance; it reaches matters of procedure as well. Federal law includes a robust body of what might be called procedural common law - common law primarily concerned with the regulation of internal court processes rather than substantive rights and obligations. This body of law includes many doctrines that are fixtures in the law of procedure and federal courts. For example, abstention, forum non conveniens, remittitur, stare decisis, and preclusion can all fairly be characterized …

Addressing The Incoherency Of The Preemption Provision Of The Copyright Act Of 1976, Joseph P. Bauer

Journal Articles

Section 301 of the Copyright Act of 1976 expressly preempts state law actions that are within the "general scope of copyright" and that assert claims that are "equivalent to" the rights conferred by the Act. The Act eliminated the previous system of common law copyright for unpublished works, which had prevailed under the prior 1909 Copyright Act. By federalizing copyright law, the drafters of the statute sought to achieve uniformity and to avoid the potential for state protection of infinite duration.

The legislative history of § 301 stated that this preemption provision was set forth "in the clearest and most …

A Theory Of Federal Common Law, Jay Tidmarsh, Brian J. Murray

Journal Articles

Federal common law is a puzzle. Despite Erie's declaration that "[t]here is no federal general common law,"' well-established and stable pockets of federal common law persist in several areas: cases affecting the rights and obligations of the United States,2 disputes between states, 3 cases affecting international relations,4 and admiralty.5 If anything, federal common law is expanding. Eighteen years ago, a case in which state law was in "significant conflict" with "uniquely federal interests" provided an occasion for the Supreme Court to create another form of federal common law.6 Five years ago, the Court added yet another piece to the puzzle, …

State Courts And The Making Of Federal Common Law, Anthony J. Bellia Jr.

Journal Articles

The authority of federal courts to make federal common law has been a controversial question for courts and scholars. Several scholars have propounded theories addressing primarily whether and when federal courts are justified in making federal common law. It is a little-noticed phenomenon that state courts, too, make federal common law. This Article brings to light the fact that state courts routinely make federal common law in as real a sense as federal courts make it. It further explains that theories that focus on whether the making of federal common law by federal courts is justified are inadequate to explain …

Shopping For Law In A Coasean Market, G. Marcus Cole

Journal Articles

In the twentieth century, two Nobel-Prize winning economists wrote two seemingly unrelated characterizations of the processes constraining human behavior. One, Ronald Coase, wrote a short article entitled The Nature of the Firm,1 in which he reduced all managerial decision-making to a fundamental choice between making the factors of production, or buying them. This article and the idea of the "make or buy" decision for which it has come to be known, have proven to be among the most seminal in the history of financial economics and organizational behavior.

The second economist, Friedrich Hayek, wrote what he thought to be a …

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 …

Abortion—Whose Decision?, Geoffrey Bennett, Christina M. Lyon

Journal Articles

Major Points

• The decision in Paton v. Trustees of B.P.A.S.
• Does a husband's "veto power" exist in English Law?
• The rights of the Foetus in English Law
• The rights of the "illegitimate father"
• The American position
• Some reflections

A Suggestion For The Renewal Of The Canon Law, Robert E. Rodes

Journal Articles

Among the recommendations adopted by the Canon Law Society of America at its last annual meeting was one for bringing the insights of legal traditions besides the Roman to bear on the canonical system. The following suggestions are derived from the insights of my tradition, the common law tradition. That aspect of the common law tradition that I believe has most to contribute to the development of the canon law is concerned not so much with the particular rules of law as with the basic techniques of legal analysis. The common law tradition of legal analysis, as it has been …

Affidavits And Notice Under Ohio Mechanics' Lien Statute, Joseph O'Meara

Journal Articles

Recent cases under the Ohio Mechanics' Lien Statute have tended to emphasize the existing confusion in the perfecting of mechanics' liens and the need for statutory revision. The scintilla rule should be abandoned. Nor should the doctrine of stare decisis call up misgivings.