Common Law Commons^™

Protecting Cultural Personality, J. Janewa Osei-Tutu

Articles

When companies use cultural symbols or cultural heritage from an indigenous or local community without their knowledge or permission, it can lead to claims of cultural appropriation, particularly in the fashion industry. Yet, the law provides little to no remedy. Trademarks and geographical indications can be used to protect collective cultural identities. However, these intellectual property laws are not helpful if the affected cultural group has not commercialized its identity by offering goods or services to the public. This Article contributes to the literature by theorizing a dignitary-based intellectual property model for protecting cultural identities. It draws on the U.S. …

Behind The Suit: How Recovering A Biblical Worldview And Implementing Spiritual Formation Practices Can Improve The Mental Health Crisis In The Legal Profession, Makayla G. Johnson

Senior Honors Theses

A Biblical worldview is the foundation upon which the United States government and legal system is built, however in recent years the understanding of a Biblical Worldview has been in decline. This shift has had a profound impact on the legal field, causing a loss of purpose and meaning in the profession, which research asserts has in part caused many mental health issues found in the legal field. With this in mind, the following study will include information regarding the extent to which the implementation of spiritual formation practices, when practiced specifically by those in the legal profession, could impact …

Order And Orthodox: The Influence Of Ecclesiastical Courts On The Federal Rules Of Civil Procedure And A Biblical Worldview, Rachel Auld

Senior Honors Theses

When analyzing the English history of American civil procedure, one could stop at the common law; however, England had two distinct courts at the time of the American Revolution: King’s courts and Ecclesiastical courts. At this time, the Ecclesiastical courts governed religious and moral issues including divorce, defamation, and probate. As a result, the Ecclesiastical courts had separate procedures from the common law King’s courts. America adopted the Ecclesiastical courts’ legal fields, and in turn, aspects of the Ecclesiastical court procedure. This thesis addresses the influence of the Ecclesiastical courts on the modern American Federal Rules of Civil Procedure by …

Bauer V. Beamon: Clothing Equitable Rescission’S Flexible Nature In A Rigid Straitjacket, Hunter Canfield

Arkansas Law Notes

Fraudulent deals, shady contracts, and questionable transactions occur daily. But when the truth is not disclosed and deceit seeps into the heart of a transaction, is there recourse for those affected? Historically, courts of equity have provided remedies where legal relief often fails. For instance, consider a home buyer who, after closing, discovers previously undisclosed toxic mold or structural defects that compromise the property’s habitability. Monetary damages alone may not truly restore the home buyer—especially if the property’s condition is so severe that the buyer would never have purchased the home had the truth been disclosed. In precisely these situations, …

The Obverse-Turing Test: Rethinking Authorship, Trust, And Time In An Accelerated Age, Michael J. Miller, Chatgpt (Ai~Nesbo+)

Psychology

In this paper, we propose a new test for scientific accountability in the era of artificial intelligence: the Obverse Turing Test for Authorship. While the traditional Turing test focuses on a machine's ability to mimic human intelligence, our test addresses the question: when should a scientific contribution involving artificial intelligence be attributed joint authorship? We argue that more and more authors are using AI in the idea generation and elaboration stages of their work, but rarely acknowledge this use explicitly. To examine this gap, we analyze examples of human–AI interactions across fields and propose a new approach to authorship based …

From Myers To Slaughter: A Brief Theory Of The Constitutionalization Of Secondary Sources, Dana Neacsu, Paul D. Callister

Faculty Works

For more than two centuries, American constitutional adjudication has relied upon secondary sources. Yet constitutional theory has almost entirely ignored them. Originalism debates constitutional text. Living constitutionalism debates constitutional evolution. Theories of precedent debate judicial authority. None asks a more fundamental question: What role do secondary sources play in constitutional adjudication? This Article argues that the answer has fundamentally changed in the last 100 of years. Chief Justice William Howard Taft's opinion in Myers v. United States (1926) marked a constitutional revolution by transforming secondary authorities from explanatory materials into evidence of constitutional continuity. Exactly one century later, Chief Justice …

The Value Of Jury Rights, Philip A. Hamburger

Faculty Scholarship

The right to a civil jury trial is often dismissed as an inefficient anachronism ill suited to the complexities of modern litigation, and these efficiency concerns have long overshadowed any serious defense of the Seventh Amendment. This Article argues that such skepticism profoundly misunderstands the constitutional function and enduring value of civil jury rights. The Article observes that the Seventh Amendment’s jury right was adopted with the understanding that it would come with some inefficiencies and that contemporary concerns about its inefficiencies tend to be overstated. Ultimately, the Article finds that civil juries are essential for structural reasons such as …

Common Law Notice-And-Takedown, Michael Goodyear

Articles & Chapters

Platform liability is a complex landscape under U.S. law. The immunity for users’ torts provided by Section 230 of the Communications Decency Act has understandably garnered the most attention. In addition, many intellectual property law scholars have also examined the requirements of the Digital Millennium Copyright Act (“DMCA”), which provides safe harbors for users’ copyright infringements. The DMCA enumerates a long series of requirements that online platforms must satisfy to be immunized for their users’ infringements, including a notice-and-takedown regime, a repeat infringer policy, and a prohibition on having the right and ability to control and a direct financial benefit. …

The Political Theories Of The Legal Realists, Dan Priel

All Papers

A popular view about the legal realists is that, either knowingly or inadvertently, they advanced ideas inconsistent with traditional values, democracy, and the rule of law. Another view about them suggested that the realists had no political theory: they only offered a descriptive (empirical) theory of adjudication, albeit one that has normatively “quietist” implications. In this essay, I challenge both views. I argue that there were two legal realist camps whose jurisprudential ideas presupposed two quite different political theories. One group of legal realists consisted of public utilitarians who were consciously inspired by Bentham, wanted to turn legal and political …

Administrative Law And The Pandemic, Gillian E. Metzger

Faculty Scholarship

American administrative law’s relationship to change is, as they say, compli­cated. On the one hand, continual evolution has been an endemic feature of American administrative law. Doctrines such as Chevron deference to agency statutory interpretations were born, grew, and declined in just the period from the 1980s to today. On the other, the United States (US) Supreme Court regularly rejects such common law development in administrative law as illegitimate and insists that federal judges must adhere to the original terms of the 1946 Administrative Procedure Act (APA) and other statutes, unless the Constitution requires otherwise. And to this day scholars …

Should Tort Law Care About Police Officers?, Ellen M. Bublick, Jane R. Bambauer

UF Law Faculty Publications

Should police officers be able to file tort lawsuits for injuries that they suffer while on duty? In this article, written in response to Professor Sarah L. Swan's The Plaintiff Police, Professors Ellen M. Bublick and Jane R. Bambauer contend that racial equality is not served by complete immunities for civilian misconduct any more than “law and order” is served by complete immunities for police officers who abuse their power. Rather, they argue that the common law has expanded, and should continue to expand, the civil legal rights of wrongfully injured people, including people wrongfully injured while employed as police …

Recusal Reform: Treating A Justice's Disqualification As A Legal Issue, Michael J. Broyde, Hayden H. Hall

Faculty Articles

This article addresses the pressing issue of recusal in the U.S. Supreme Court. It critiques the current practice of Supreme Court Justices deciding individually whether to recuse themselves from cases, highlighting the flaws and potential biases inherent in this practice. The authors advocate for a reform where initial recusal decisions are made by individual Justices but then are subject to review by the Supreme Court as a whole.

The article offers several arguments to support this proposal. First, the authors explore the evolution of recusal laws, focusing on the significant amendments to 28 U.S.C. § 455 in 1948 and 1974. …

The Three Lives Of Mamengwaa: Toward An Indigenous Canon Of Construction, Matthew L.M. Fletcher

Articles

For too long, tribal judiciaries have been an afterthought in the story of tribal selfdetermination. Until the last half-century, many tribal nations relied on federally administered courts or had no court systems at all. As tribal nations continue to develop their law-enforcement and police powers, tribal justice systems now play a critical role in tribal self-determination. But because tribal codes and constitutions tend to borrow extensively from federal and state law, tribal judges find themselves forced to apply and enforce laws that are poor cultural fits for Indian communities—an unfortunate reality that hampers tribal judges’ ability to regulate and improve …

Cross-Talk, Alicia Bannon, John Q. Barrett, Tyler Rose Clemons, Wilfred U. Codrington Iii, Mark C. Niles

Articles

The symposium examines the Supreme Court's recent trend of overturning precedent, arguing that this practice undermines the principle of *stare decisis* and the Court's legitimacy. Historically, the Court has used precedent to protect marginalized groups, but recent decisions suggest a shift toward benefiting non-marginalized interests, such as big businesses and conservative groups. This change is seen as a departure from the Court's traditional role and raises concerns about judicial humility and the politicization of the judiciary.

Tortious Interference Revisited, Danielle D'Onfro, Cathy Hwang

Scholarship@WashULaw

Tortious interference with contract has bedeviled legal commentators for over a century. It can provide relief in some situations where straightforward contract breach cannot reach. But these claims have also been derided for threatening competition, at-will employment, free speech, and important guardrails on other private law claims. The doctrine is also difficult to square with theories of efficient contract breach and the long-held view that contracts on their own are not property interests.

Perhaps because of its intellectual awkwardness, tortious interference claims were relatively rare until the twenty-first century. In the last twenty years, the doctrine has exploded in popularity, …

Tax As Hybrid Law: Borrowing And Convergences, Henry Ordower

All Faculty Scholarship

[This article argues that tax is a hybrid of civil and common law, public and private law, and is cross-disciplinary. It observes that tax law has become an all-purpose tool for legislators. It seeks to demonstrate how the U.S., a common law jurisdiction, has turned to civil law models for taxation while civil law jurisdictions and the European Union have sought common law models to combat tax avoidance. The ubiquity of tax and its public law influence on private law transactions, its cross disciplinary nature, and its deployment as a legislative tool to manage the economy make it a candidate …

The Common Law’S Resistance To Gender Violence, Victoria Frances Nourse

Georgetown Law Faculty Publications and Other Works

Over twenty years ago, Congress developed a “mountain of evidence” that state criminal and civil remedies against sexual assault and battering were inadequate. The Supreme Court rejected that evidence in United States v. Morrison, striking down a federal civil rights remedy for sexual assault and battering. Since then, there have been many civil cases of sexual assault and battering against high-profile individuals, including the recent E. Jean Carroll lawsuit against a former President. This five-year study, surveying fifty states’ civil law, asks the question prompted by Morrison: Does the civil law today provide adequate remedies to survivors of sexual assault …

Sect And Superstition: The Protestant Framework Of American Codification, Kellen R. Funk

Faculty Scholarship

Elite lawyers who debated codification in the nineteenth-century United States treated codification as inseparable from a liberal Protestant textualism that had taken hold in the early national era. Legislators declared codification to be the necessary final step of the Protestant Reformation and frequently characterized common law lawyers as beholden to ‘superstition’ and ‘priestcraft’. Their opponents denounced the codifiers’ idea that texts alone could adequately convey common meanings and delighted to point out the endlessly fracturing glosses on supposedly ‘clear’ texts that divided the positivists into an ever-increasing number of sects.

Many works have addressed the relationship between populism and positivism …

Tort Theory And The Restatement, In Retrospect, Keith N. Hylton

Faculty Scholarship

This is my third paper on the Restatement (Third) of Torts. In my first paper, The Theory of Tort Doctrine and the Restatement (Third) of Torts, I offered a positive economic theory of the tort doctrine that had been presented in the Restatement (Third) of Torts: General Principles, and also an optimistic vision of how positive theoretical analysis could be integrated with the Restatement project. In my second paper, The Economics of the Restatement and of the Common Law, I set out the utilitarian-economic theory of how the common law litigation process could generate optimal (efficient, wealth-maximizing) rules and compared …

The First Amendment, Discrimination, And Public Accommodations At Common Law, Adam J. Macleod

Scholarly Articles

Many recent cases of constitutional conflict have pitted First Amendment liberties of speech, religious exercise, and association against nondiscrimination rules and policies, especially laws governing public accommodations and public forums. To resolve these cases and to understand how civil rights fit together, courts and scholars need a logical and satisfying account of the foundations of public accommodations law. But the law seems to be confused and legal scholars are of different minds. Some assert that proprietors who open their premises and services to the public have no right at common law to exclude or refuse service to anyone. Others find …

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

Other Publications

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 …

An Unprecedented Verdict: Expanding Parental Liability For Children’S Violent Crimes, Jolie Bodner Zangari

Scholarly Works

No abstract provided.

Twenty Years After Krieger V Law Society Of Alberta: Law Society Discipline Of Crown Prosecutors And Government Lawyers, Andrew Flavelle Martin

Articles, Book Chapters, & Popular Press

Krieger v. Law Society of Alberta held that provincial and territorial law societies have disciplinary jurisdiction over Crown prosecutors for conduct outside of prosecutorial discretion. The reasoning in Krieger would also apply to government lawyers. The apparent consensus is that law societies rarely exercise that jurisdiction. But in those rare instances, what conduct do Canadian law societies discipline Crown prosecutors and government lawyers for? In this article, I canvass reported disciplinary decisions to demonstrate that, while law societies sometimes discipline Crown prosecutors for violations unique to those lawyers, they often do so for violations applicable to all lawyers — particularly …

Section 25(6) Of The Judicature Act 1873: A ‘Procedural’ Approach, Chee Ho Tham

Research Collection Yong Pung How School Of Law

Section 25(6) was re-enacted as section 136(1), replacing the law French ‘chose in action’ with the more Anglo-Saxon ‘thing in action’, together with other minor differences, but to no substantial effect. Largely unchanged, the construct now found in section 136(1) has been part of English law for 150 years. However, understanding what section 136(1) does, and how it does it, remains muddled. On the one hand, given Lord Macnaghten’s pointed observation in William Brandt’s Sons v Dunlop Rubber that, ‘[section 25(6)] does not forbid or destroy equitable assignments or impair their efficacy in the slightest degree’, Smith & Leslie takes …

Why Indiana Harbor Is The Worst Torts Decision In American History, Carl T. Bogus

Law Faculty Scholarship

No abstract provided.

By Any Other Name, Shay Elbaum

Law Librarian Scholarship

The use of names to refer to individuals is probably as old as language itself, but many features of naming in the United States are much newer. For the most part, our naming laws and norms derive from England, where the use of surnames, for example, can be traced back to the Norman conquest and did not become a common practice until the 13th or 14th century. The idea of a surname as a family name, permanent and hereditary, is even newer.

The common law method of changing one’s name — simply using a different name, for non-fraudulent purposes — …

Transition-Denial And Structural Adjustment: Causation And Culpability In The Cuban Economy Culpability In The Cuban Economy, Jose Gabilondo

Faculty Publications

In 2020, Cuba implemented the Tarea Ordenamiento (Tarea), the most significant economic reform since the construction of the socialist economy after the Revolution. Signaling an eclectic brand of Cuban socialism, the Tarea clears away three decades of tried and failed economic doctrines, drawing a new fiscal border around state enterprises, nodding to market realities, and preparing the island for greater insertion into the world economy. While the political economy of post-Castro Cuba has changed in this way, the United States continues to subject the island to an unprecedented program of unilateral sanctions, universally condemned as a breach of human rights, …

Laws Governing Restrictions On Charitable Gifts: The Consequences Of Codification, Nancy Mclaughlin

Utah Law Faculty Scholarship

Over the last two decades we have seen marked changes in the laws governing donor-imposed restrictions on charitable gifts. These changes have occurred primarily as a result of the adoption in many states of the Uniform Trust Code (the UTC) and the Uniform Prudent Management of Institutional Funds Act (UPMIFA). This Essay explains that codification in the UTC and UPMIFA of liberalized versions of cy pres and deviation, as well as other related changes to the common law, have had unintended negative consequences. Those negative consequences include a lack of coherence in the law, an elevation of form over substance …

Idaho's Law Of Seduction, Michael L. Smith

Faculty Articles

Seduction is a historical cause of action that permitted women's fathers to bring suit on their daughters' behalf in sexual assault and rape cases. This tort emerged long ago when the law's refusal to recognize women's agency left this as the only means of recovering damages in these cases. As time went on, the tort evolved, and women were eventually permitted to bring lawsuits for seduction on their own behalf. Today, most states have abolished seduction, along with other torts permitting recovery for damages arising from intimate conduct. One could be easily forgiven for thinking that such an archaic tort …

Is, Ought, And The Limited Competence Of Experts, Adam J. Macleod

Faculty Articles

The moral innovators whom C. S. Lewis criticized in The Abolition of Man supposed that they could draw imperatives out of their superior understanding of sentiment and instinct. They assumed that to know what human beings want to do is to know what human beings should do. But people want to do all sorts of things that are irrational, pointless, harmful, and even downright evil. And people want inconsistent things. So the innovators are incoherent. As Lewis correctly affirmed, no amount of knowledge about nature or the world is sufficient by itself to direct us to do what is good …