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Articles 31 - 60 of 92
Full-Text Articles in Common Law
Employment-At-Will—Is The Model Act The Answer?, Theodore J. St. Antoine
Employment-At-Will—Is The Model Act The Answer?, Theodore J. St. Antoine
Articles
Over the last quarter century, the most significant development in the field of labor and employment law has been a nationwide movement toward a revision of the at-will employment doctrine. Courts in over forty-five jurisdictions have used one or more of three main theories to carve out exceptions to the previously allpervasive principle. Unfortunately, though one can applaud the values embodied in these decisions, there are serious deficiencies in the common law modifications. The purpose of this Article is to outline those defects and to demonstrate that the interests of employees and employers alike would be better served by new …
The Twilight Of Employment At Will? An Update, Theodore J. St. Antoine
The Twilight Of Employment At Will? An Update, Theodore J. St. Antoine
Articles
A 55-year-old white male, who has spent thirty years working his way up to a responsible middle-management position in his company, is asked for his resignation. No reason given. Even though the employee could demonstrate that he still is qualified to perform his duties, the employer's action in dismissing him would be quite unexceptionable under the conventional American common law doctrine of employment at will. The situation could be even more disturbing. If the employment-at-will principle were allowed its full scope, an employee would have no recourse even if he knew he was being discharged because he had refused to …
Government Responsibility For Constitutional Torts, Christina B. Whitman
Government Responsibility For Constitutional Torts, Christina B. Whitman
Articles
This essay is about the language used to decide when governments should be held responsible for constitutional torts.' Debate about what is required of government officials, and what is required of government itself, is scarcely new. What is new, at least to American jurisprudence, is litigation against government units (rather than government officials) for constitutional injuries. 2 The extension of liability to institutional defendants introduces special problems for the language of responsibility. In a suit against an individual official it is easy to describe the wrong as the consequence of individual behavior that is inconsistent with community norms; the language …
The Uniform Statutory Rule Against Perpetuities, Lawrence W. Waggoner
The Uniform Statutory Rule Against Perpetuities, Lawrence W. Waggoner
Articles
When the National Conference of Commissioners on Uniform State Laws recently approved the Uniform Statutory Rule Against Perpetuities, it may at long last have made perpetuity reform achievable in this country. Coming, as it does, on the heels of the 1981 promulgation of the Restatement (Second) of Property (Donative Transfers), which adopts the same general type of perpetuity reform, and having been unanimously endorsed by the House of Delegates of the American Bar Association, the Board of Regents of the American College of Probate Counsel, and the Board of Governors of the American College of Real Estate Lawyers, the Uniform …
Perpetuities: A Perspective On Wait-And-See, Lawrence W. Waggoner
Perpetuities: A Perspective On Wait-And-See, Lawrence W. Waggoner
Articles
Professor Dukeminier and I agree on most of the important points concerning perpetuity law and perpetuity reform. We agree that the Rule Against Perpetuities still serves a socially useful function of limiting dead hand control, and should not be abolished. We also agree that the common law Rule is needlessly harsh and should be softened. Finally, we agree on the type of reform that is most desirable-waitand- see. Our only disagreeihent-concerns the best method of marking off the wait-and-see perpetuity pe]iqod-the period of time during which dispositions that would have been invalid under the common law Rule are to be …
A Rejoinder By Professor Waggoner, Lawrence W. Waggoner
A Rejoinder By Professor Waggoner, Lawrence W. Waggoner
Articles
Since the patience of the reader and the space in this issue of the Law Review are nearing their limits, I wish to publish only two points in response to what Professor Dukeminier has written.. These points further support my position that Dukeminier's proposed statute would lead almost anyone to conclude that A, not X, is the causal relationship measuring life in Example 1 of my article.1 By implication, these points, along with the others made in my article, corroborate my overall thesis: Professor Dukeminier's proposed one-sentence statute2 cannot be counted a responsible way of identifying the measuring lives for …
Perpetuity Reform, Lawrence W. Waggoner
Perpetuity Reform, Lawrence W. Waggoner
Articles
After years of debate, perpetuity reform is still controversial. To be sure, there is agreement among virtually all of the commentators and experts in the field that the Rule Against Perpetuities is in need of reform. The disagreement, on the surface, centers on the methods of reform to be employed. At least three basic methods have been advanced: (1) specific statutory repair of discrete problem areas; (2) reformation; and (3) wait-and-see. Each method has its sponsors, and each has in one form or another been adopted as part of the law of a few states. These methods are not mutually …
The Emergence Of A General Reformation Doctrine For Wills, Lawrence W. Waggoner, John H. Langbein
The Emergence Of A General Reformation Doctrine For Wills, Lawrence W. Waggoner, John H. Langbein
Articles
In this article, which both summarizes and updates an extensively footnoted article published last year ("Reformation of Wills on the Ground of Mistake: Change of Direction in American Law?" 130 University of Pennsylvania Law Rmiew 521 (1982)), we report on this new case law and discuss the analytic framework that we think it suggests and requires.
Reformation Of Wills On The Ground Of Mistake: Change Of Direction In American Law?, John H. Langbein, Lawrence W. Waggoner
Reformation Of Wills On The Ground Of Mistake: Change Of Direction In American Law?, John H. Langbein, Lawrence W. Waggoner
Articles
Although it has been "axiomatic" that our courts do not entertain suits to reform wills on the ground of mistake, appellate courts in California, New Jersey, and New York have decided cases within the last five years that may presage the abandonment of the ancient "no-reformation" rule. The new cases do not purport to make this fundamental doctrinal change, although the California Court of Appeal in Estate of Taff and the New Jersey Supreme Court in Engle v. Siegel did expressly disclaim a related rule, sometimes called the "plain meaning" rule. That rule, which hereafter we will call the "no-extrinsic-evidence …
Constitutional Torts, Christina B. Whitman
Constitutional Torts, Christina B. Whitman
Articles
In this Article, I analyze the significance of the overlap between state tort law remedies and remedies under section 1983. I conclude that the dissatisfaction with section 1983 cannot fairly be attributed to the fact that it has been read to provide a remedy that "supplements" state law. I argue that most of the anxiety over constitutional damage actions under section 1983 can be understood - and resolved - only by focusing on two other questions. The first of these concerns the appropriate reach of the Constitution. Ambivalence about section 1983 reflects, in part, a fear that the federal Constitution …
Allocation Of Scarce Goods Under Section 2-615 Of The Uniform Commercial Code: A Comparison Of Some Rival Models, James J. White
Allocation Of Scarce Goods Under Section 2-615 Of The Uniform Commercial Code: A Comparison Of Some Rival Models, James J. White
Articles
Section 2-615 of the Uniform Commercial Code authorizes a contract seller to allocate goods in short supply when full performance has become commercially impracticable. Most of the cases under and commentary on that section have focused on the issue of commercial impracticability. The allocation aspects of the section have attracted much more modest attention in the cases and in the scholarly journals. The purpose of this article is to examine critically the allocation rule set out in section 2-615(b). That subsection authorizes a seller, upon a finding of commercial impracticability, to allocate "in any manner which is fair and reasonable." …
The Jury And The English Law Of Homicide, 1200-1600, Thomas A. Green
The Jury And The English Law Of Homicide, 1200-1600, Thomas A. Green
Articles
The early English jury was self-informing and composed of persons supposed to have first-hand knowledge of the events and persons in question. The judge instructed the jury on the law, but was himself almost entirely dependent upon the jury for his knowledge of the case. By stating the evidence in a way that made the result it wanted a necessary conclusion, the medieval jury was able to alter the impact of formal rules of law to conform with prevailing social attitudes.
Rights Of Finders, Ralph W. Aigler
Rights Of Finders, Ralph W. Aigler
Articles
Much of the confusion and uncertainty in the law regarding the topic indicated above is due to a failure to distinguish between several types of situations and to appreciate the applicability of certain fundamental principles. The words "lost" and "find" are used in such widely varying senses that the all too common method of reaching a conclusion by first applying a name to a thing or situation has in this particular field led to special difficulty.
Change In The Meaning Of Consortium, Evans Holbrook
Change In The Meaning Of Consortium, Evans Holbrook
Articles
LAWYERS have long boasted of the flexibility of the common law, of its ability to adapt itself to the needs of changing conditions of society, of its responsiveness to sociological progress. And while eager reformers have often-and with much reason complained that the law is laggard in its response to the needs of the people, yet it is clear that sooner or later the courts generally bring themselves into accord with "what is sanctioned by usage, or held by the prevailing morality or strong and preponderant public 'opinion to be greatly and immediately necessary to the public welfare." This responsiveness …
Rights Of Finders, Ralph W. Aigler
Rights Of Finders, Ralph W. Aigler
Articles
Much of the confusion and uncertainty in the law regarding the topic indicated above is due to a failure to distinguish between several types of situations and to appreciate the applicability of certain fundamental principles. The words "lost" and "find" are used in such widely varying senses that the all too common method of reaching a conclusion by first applying a name to a thing or situation has in this particular field led to special difficulty.
Mutuality In Specific Performance, Edgar N. Durfee
Mutuality In Specific Performance, Edgar N. Durfee
Articles
Prior to the present century, the subject of mutuality in specific performance was an unsolved puzzle. The decisions of the courts were in the main wise, but the attempts both of courts and text writers to formulate a statement of the principle governing these decisions were far from happy. After two centuries of litigation and discussion, the current formula was that the remedy must be mutual, must be equally available to both parties. The worst fault of this formula was its plausibility. Equality is equity, and perfect equality between the parties to a contract is not attained unless remedies are …
Bringing Third Parties Into Actions At Law—Set-Off Against The Assignor, Edson R. Sunderland
Bringing Third Parties Into Actions At Law—Set-Off Against The Assignor, Edson R. Sunderland
Articles
It frequently happens, in an action by an assignee, that the defendant wishes to use as a cross-action a claim against the assignor. This results in no diffiulty unless the amount of the set-off against the assignor is greater than the claim of the plaintiff, or unless the cross-action calls for a specific remedy against the assigner in addition to its defensive effect upon the plaintiff's demand. In each of these cases we have a three-sided controversy. In the first, the set-off operates against the plaintiff to the extent of his claim and against the assignor for the balance. In …
Epithetical Jurisprudence And The Annexation Of Fixtures, Joseph H. Drake
Epithetical Jurisprudence And The Annexation Of Fixtures, Joseph H. Drake
Articles
If we begin with all the facts of a controversy and proceed inductively to determine the rights of the parties litigant, we thus arrive at a jurisprudence of rights, whereas, if we reason deductively from a rule, a definition, or a maxim of law to its application in the facts of our case, we can at best attain only a jurisprudence of rules, which has been so aptly characterized as an epithetical jurisprudence. The subject of fixtures is one in which we have great difficulty in applying the inductive method because the courts have been slower in approaching the subject …
Verdicts, General And Special, Edson R. Sunderland
Verdicts, General And Special, Edson R. Sunderland
Articles
The most remarkable thing about this case of Georgia v. Brailsford is that a matter of such elementary importance in the daily administration of the law, after being announced in so dramatic a way by the Supreme Court of the United States at the very threshold of its career, could have dropped into oblivion for a hundred years only to be repudiated in a way hardly less dramatic by a sharply divided court. The controversy here disclosed goes to the very heart of the jury system as it has been developed by the common law and is still almost universally …
A New Function For Courts - Declaring The Rights Of Parties, Edson R. Sunderland
A New Function For Courts - Declaring The Rights Of Parties, Edson R. Sunderland
Articles
In a recent opinion of the Supreme Court of the United States Justice Holmes makes this interesting observation:- "The foundation of jurisdiction is physical power, although in civilized times it is not necessary to maintain that power throughout proceedings properly begun." Paraphrased, the statement comes to this: In early times the basis of jurisdiction is the existence and the constant assertion of physical power over the parties to the action, but as civilization advances the mere existence of such power tends to make its exercise less and less essential.
Alienation Of Contingent Remainders, Ralph W. Aigler
Alienation Of Contingent Remainders, Ralph W. Aigler
Articles
The recent case of Bisby v. Walker, 169 N. W. 467, decided by the Supreme Court of Iowa November 23, 1918, is an interesting instance of an all too common lack of appreciation and understanding of the very fundamentals of property law. Under the will of her grandfather B became entitled to a contingent remainder (at least the court treated it as such) in certain lands; the contingency upon which her taking depended was her being one of the surviving children of her mother at the time of the death of the life tenant, the testator's widow. During the continuance …
Wills - Revocation By Judicial Legislation, Edwin C. Goddard
Wills - Revocation By Judicial Legislation, Edwin C. Goddard
Articles
Wills and their revocation as we know them are peculiarly the result of the actions and reactions of our common and statute law. We are sufficiently familiar with statutes, declaratory of the common law, in derogation thereof, and creating entirely new principles of law. We also know law the result of no legislative act. Whatever may or may not be admitted about court-made law, we see the undoubted fact that the great body of our law is the outgrowth of decisions applying to new conditions principles of law found in analogous cases, whereby the common law is able to adapt …
Sociological Interpretation Of Law, Joseph H. Drake
Sociological Interpretation Of Law, Joseph H. Drake
Articles
It is not the purpose of this paper to essay a definition of either of the formidable words in the title. The object is rather to call attention away from the metaphysical question, what is law? to the sociological question, how may we best attain justice in the administration of law? and, by the aid of some examples from history and comparative law, to justify as legal and constitutional the sociological method of interpretation. That such justification is necessary is evident from the fact that although the dictum of Mr. Justice. HOLMES in the dissenting opinion in Lochner v. New …
Some Aspects Of Fifteenth Century Chancery, Willard T. Barbour
Some Aspects Of Fifteenth Century Chancery, Willard T. Barbour
Articles
IT is now more than thirty years since Justice Holmes in a brilliant and daring essay set on foot an inquiry which has revealed the remote beginnings of English equity. Equity and common law originated in one and the same procedure and existed for a long time, not only side by side, but quite undifferentiated from each other. Their origin is to be found in the system of royal justice which the genius of Henry II converted into the common law; but this royal justice was in the beginning as much outside of, or even antagonistic to, the ordinary judicial …
The Statute Of Uses And Active Trusts, Edgar N. Durfee
The Statute Of Uses And Active Trusts, Edgar N. Durfee
Articles
To explain the survival of uses, alias trusts, after the Statute of Uses, one is probably justified in assuming a sympathetic attitude toward this Equitable institution on the part of the Common Law Judges. Maitland, Equity, 29. But, however predisposed the Judges might be, they would have to satisfy themselves, perhaps others as well, that they were interpreting rather than nullifying the Statute. Only such uses could be saved as could be "distinguished." The case of the use raised upon a chattel interest is clear enough, as it was without the letter, and fairly without the mischief, of the Statute. …
Privilege Of Enemy Aliens To Maintain Actions, Ralph W. Aigler
Privilege Of Enemy Aliens To Maintain Actions, Ralph W. Aigler
Articles
In his History and Practice of Civil Actions, Lord Chief Baron Gilbert (p. 205) states that alienage is a disability which must be pleaded to the action, "because it is forfeited to the King, as a rep-isal for the damages committed by the Dominion in enmity with him. In 1 Hale's Pleas of the Crown, (p. 95) it is said "That by the law of England debts and goods found in this realm belonging to alien enemies belong to the King, and may be seized by him," Y. B. 19 E 4, 6, is cited to that effect. The provisions …
The Disposition To Be Made Of Property The Subject Of A Power If The Power Is Not Exercised, John R. Rood
The Disposition To Be Made Of Property The Subject Of A Power If The Power Is Not Exercised, John R. Rood
Articles
The object sought in this article is to collect and classify the cases in which the courts have passed on the question as to what shall be done with property over which a power of appointment has been given; when it finally turns out for some reason that the power has not been exercised. It is not the object to establish any particular thesis, but rather to ascertain how the adjudicated cases stand.
The 'Right' To Break A Contract, Willard T. Barbour
The 'Right' To Break A Contract, Willard T. Barbour
Articles
It is common knowledge that the fully developed common law affords no means to compel the performance of a contract according to its terms. Does it follow from this that there is no legal obligation to perform a contract, or if obligation there be, that it is alternative: to perform or pay damages? A note in the XIV MICH. L. REV. 480 appears to give an affirmative answer to this question and at least one court (Frye v. Hubbell, 74 N. H. 358, at p. 374) has taken the same view. Probably the most forcible exposition of this position is …
The 'Right' To Break A Contract, Willard T. Barbour
The 'Right' To Break A Contract, Willard T. Barbour
Articles
It is common knowledge that the fully developed common law affords no means to compel the performance of a contract according to its terms. Does it follow from this that there is no legal obligation to perform a contract, or if obligation there be, that it is alternative: to perform or pay damages? A note in the XIV MICH. L. REV. 480 appears to give an affirmative answer to this question and at least one court (Frye v. Hubbell, 74 N. H. 358, at p. 374) has taken the same view. Probably the most forcible exposition of this position is …
The Patentability Of A Mental Process, John B. Waite
The Patentability Of A Mental Process, John B. Waite
Articles
The fact of possession has been so correlated with the theory of property that it is difficult to dissociate ownership from the possibility of physical possession. One finds that the average lawyer, even though he may defind a right in rem as a right enforcible against any person, is extremely apt, unless after especial thought, to explain that it is enforcible against anyone because it pertains to a thing capable of physical possession and control, a thing that could be actually sequestered, from all other persons. Not at all infrequently the term property has been judicially stripped even of its …