Common Law Commons^™

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 …

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 …

Casar Auc Community Lecture: ‘Gender-Based Violence,Women And The Law In Egypt And The Us’, The Prince Alwaleed Center For American Studies And Research Casar

Performances, Events, and Presentations

This engaging - AUC community only - special topics lecture discussed the social challenges and legal obstacles women face when discussing gender based violence crimes in Egypt shedding a comparative light on the US given the recent election results.

This event hosted Counselor Mohamed Samir Ahmed, Spokesperson of the Administrative Prosecution Authority (APA) in Egypt, Independent Lecturer in Political Science & Gender Based Violence Crimes.

The event was moderated by CASAR Assistant to Director & Adjunct Faculty Yasmeen El-Ghazaly.

This lecture was a collaboration between The Prince Alwaleed Center for American Studies and Research (CASAR AUC EGYPT ) and the …

Takings, Original Meaning, And Applying Property Law Principles To Fix Penn Central, John M. Groen

Touro Law Review

No abstract provided.

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 …

Obstructing Precedent, Bill Watson

Northwestern University Law Review

Critics of the Supreme Court sometimes accuse the Justices of disrespecting or being unfaithful to precedent—of undermining certain precedents while leaving them formally in place. Yet it remains unclear what exactly these criticisms mean or why they point to anything objectionable. This Article proposes that critics are often drawing attention to a particular practice: obstructing precedent. A better grasp of what obstructing precedent is and when it is legitimate is important to understanding the Roberts Court’s treatment of precedent in a range of cases.

A court obstructs precedent when it refuses to cooperate with its prior self in building a …

Legal Hurdles And Pathways: The Evolution (Progress?) Of Climate Change Adjudication In Canada, Camille Cameron, Riley Weyman, Claire Nicholson

Dalhousie Law Journal

Citizens, civil society, and environmental justice organizations are increasingly turning to courts to find solutions to climate change challenges. As of November 2022, the number of climate change litigation cases throughout the world was at least 2.5 times higher than in 2017. A dominant wave of this litigation is one in which claimants assert that governments’ failures to take appropriate mitigation and adaptation measures violate claimants’ rights. We analyze this jurisprudence in this article, with a focus on the recent Ontario Superior Court of Justice decision in Mathur v Ontario. While the claims in this case were dismissed, it is …

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 …

University Of The District Of Columbia Law Review, University Of The District Of Columbia Law Review

University of the District of Columbia Law Review

No abstract provided.

Masthead, Table Of Contents & Introduction, Genevieve Renard Painter, Liam Mchugh-Russell

Dalhousie Law Journal

The short reflections in this Dalhousie Law Journal symposium, “Thinking With and Against Pierre Schlag,” run in many directions. Somewhere in these pages, readers will find knowledge, provocation, distraction, and humour. Above all, though, the collection brings together five legal scholars to celebrate Pierre’s oeuvre, reflect on the ways it has inspired their own work, and examine how Pierre’s scholarship embodies the limits that it was pushing against. Pierre has graciously provided a response to round out the issue and set us all straight.

Law, Critique And The Believer's Experience, Jean D'Aspremont

Dalhousie Law Journal

I have come to think that, most of the time, radical critics of a given discursive practice were once believers in that practice’s necessities and realities. In particular, I am of the opinion that one comes to appreciate the power of a discourse only when one has genuinely and personally experienced the necessitarian pull as well as the realities such discourse creates. To put it in phenomenological terms, I think that radical scepticism is often the expression of some self-revulsion at one’s earlier beliefs. The phenomenological causality described here is thus not simply about the devastating rage that one can …

Edward's New Welsh: The Foundations Of English Colonialism, 1282-1343, Joshua Lembke

University Honors Theses

This thesis, Edward’s New Welsh: The Foundations of English Colonialism, 1282-1343, examines the tumultuous period following the English conquest of the last independent Welsh kingdom, focusing on the English Crown's efforts under King Edward I to integrate Wales administratively and culturally. By reevaluating the appropriation of the Prince of Wales title, the study highlights the creation of a 'New Welsh' identity aligned with English interests. Key legal acts, such as the Statute of Rhuddlan and the establishment of English-style boroughs and castles, are analyzed to reveal the Crown's strategic embedding of English governance and suppression of native Welsh resistance. …

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 …

Locke’S “Wild Indian” In United States Supreme Court Jurisprudence, Anthony W. Hobert Phd

American Indian Law Journal

This article explores the impact of John Locke’s Two Treatises on United States Indigenous property rights jurisprudence. After discussing Locke’s arguments, the article turns to the rationales of the first and last cases of the Marshall Trilogy—Johnson v. McIntosh (1823) and Worcester v. Georgia (1832)—arguing that, contrary to prevailing political theory, Marshall’s opinion for the Court in Johnson puts forth a fundamentally Lockean justification for the dispossession of Indigenous property. This article also provides a brief analysis of Marshall’s explicit Vattelian rationale in Worcester, commentary on recent developments regarding the precedents, and recommendations for reconciling them within contemporary …

Equity's System Of Open-Ended Wrongs And Limited Remedies, Mark P. Gergen

Texas A&M Law Review

It is well-known that equity gives courts considerable discretion to override the normal operation of legal rules to prevent an injustice in a particular case. This Article shows equity combined this discretion with limited remedies (rescission, restitution, reformation, and estoppel), and that these limited remedies strike a balance between the value of doing justice in a particular case and the cost of destabilizing the law in a way that places a heavy thumb on the scale favoring stability over justice. Henry Smith has described equity as a “second-order safety valve.” Equity’s limited remedies make it a weak “second-order safety valve.” …

Scholarship As Fun, Thomas Schultz

Dalhousie Law Journal

One theme that traverses much of Pierre Schlag’s work is a sense of profound humanity—the idea that thinking and writing about the law can and should be a deeply, genuinely human activity—an activity for which we can, and should, break up many of the barriers that stand between us, between who we really are, and what we think and write. It is an activity for which we should put aside our pretences and insecurities and the attached formalisms and exaggerations behind which we so often hide, and which in the end constrain our humanity so much, as they take on …

Un Ésprit Sérieux, Pierre Schlag

Dalhousie Law Journal

It was a sunny day when we all met in a classroom at McGill University The gathering went on all day and at the end someone proposed writing up the discussion as essays. Hence, this collection.

I’d like to take a moment of gratitude to express heartfelt thanks to all the participants. And especially to Vincent Forray and Jean d’Aspremont for organizing the event, and to Genevieve Renard Painter and Liam McHugh-Russell for bringing this collection over the finish line. I don’t know whether the intellectual generosity of the participants was because of Canada, or Montreal, or McGill, or the …

Section 898: Targeting The Companies Behind Gun Violence In New York With Public Nuisance Doctrine, Mara Kravitz

William & Mary Law Review

On July 6, 2021, the New York State Legislature enacted sections 898-a to -e of the New York General Business Law (section 898), creating a clear path for public entities and private gun violence victims to sue gun industry members for their role in the gun violence public nuisance in New York. This Note explores why the legislature took a public nuisance approach to curbing gun violence, framing section 898 within public nuisance doctrine’s broader common law history and legal elements.

To unpack how and why New York took this approach, the first Part of this Note traces the history …

Amending The Foreign Sovereign Immunity Act To Promote Accountability For Violations Of Peremptory Norms Of International Law, Joshua Newman

Brooklyn Journal of International Law

The current state of the United States legal system, and international law at large, fails to afford victims of violations of international law with proper redress, when those violations were facilitated by a domestic taking. The Foreign Sovereign Immunity Act provides foreign sovereigns immunity from the jurisdiction of United States courts when those foreign sovereigns effectuate of a violation of international law through domestic takings. Courts have attempted to circumvent the restrictions of the Foreign Sovereign Immunity Act with exceptions such as the genocide exception. Unfortunately, the Supreme Court’s recent decision in Federal Republic of Germany v Philipp renounced the …

How Close Is Close Enough: A Step-By-Step Analysis To Resolve The Circuit Split Created By Misunderstanding The Spokeo Ruling, Cason Shipp

St. Mary's Law Journal

No abstract provided.

Show And Tell, Liam Mchugh-Russell

Dalhousie Law Journal

...to break the rules wisely, you have to know the rules well.

–Le Guin, Steering the Craft

I finished my doctorate in June of 2019. Most of my waking hours that late summer and early fall were spent writing and rewriting cover letters, teaching statements, and research agendas (and equity statements, long CVs, short CVs, etc.)—all the variegated materials demanded from applicants to tenure-track positions in North American law faculties. Writing those materials, and integrating the feedback on early drafts that I received from a host of generous peers and colleagues, became an accidental study in the principal subtext of …

Why The Multilateral Investment Court Is A Bad Idea For Africa, Akinwumi Ogunranti

Dalhousie Law Journal

The UNCITRAL Working Group III (WG III) is discussing procedural reforms in the investor state dispute settlement system (ISDS). The ISDS framework is criticized on various grounds, including arbitrator bias, lack of transparency, and inconsistent arbitral decisions. One of the recent reform proposals before the WG III is the possibility of a multilateral investment court (MIC). This proposal is championed by European Union states and supported by Canada. The proposal recommends replacing ISDS’ Ad hoc investment tribunals with an established and permanent court where states appoint judges. This paper examines the MIC reform option and argues that replacing the ISDS …

Humour, A Meditation, John Henry Schlegel

Dalhousie Law Journal

Back in 1987 when Critical Legal Studies was still “hot,” I was shopping a piece that was a long review essay on Laura Kalman’s history, Legal Realism at Yale. An acquaintance who was on that faculty invited me to present the piece—which I am still quite proud of—at the workshop he was running. Owen Fiss was the first person to ask a question. He wanted to know whether the piece was “serious” work or whether it was just an elaborate joke. Surprised and bewildered by the question, I answered, “Both.” In response he asserted that unless it were one or …

Conflicting Decisions: Why The Privy Council Drifted From Precedent In Deciding Cunningham V Homma, Keita Szemok-Uto

Dalhousie Law Journal

*This contribution has not been peer-reviewed.

This paper highlights the structural barriers to voting rights that Japanese-Canadians in BC faced in the early 20th century. It documents Tomekichi Homma’s challenge of provincial legislation which prevented the Japanese from voting in local elections. His fight went to the Judicial Committee of the Privy Council, then the highest court of appeal in Canada. While Homma challenged the law because it denied voting rights based on racial grounds, the courts made little to no reference to race or ethnicity in hearing the issue; their focus was on questions of constitutionality and the division …

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 …

No Need To Reinvent The Wheel: The Positive Relationship Between Green Technology And Patent Enforcement, Addison S. Fowler

Villanova Environmental Law Journal (1991 - )

No abstract provided.

The Problem Of Extravagant Inferences, Cass Sunstein

Georgia Law Review

Judges and lawyers sometimes act as if a constitutional or statutory term must, as a matter of semantics, be understood to have a particular meaning, when it could easily be understood to have another meaning, or several other meanings. When judges and lawyers act as if a legal term has a unique semantic meaning, even though it does not, they should be seen to be drawing extravagant inferences. Some constitutional provisions are treated this way; consider the idea that the vesting of executive power in a President of the United States necessarily includes the power to remove, at will, a …

Franchising Law In The United States Between Theory And Practice: Heads Up For Foreign Investors, Radwa Elsaman

Touro Law Review

As a dynamic vehicle for fostering investment opportunities, both domestically and internationally, franchising spans a diverse array of industrial sectors, encompassing both goods and services. The United States plays a highly influential role in global franchise industry promotion, with a vast majority of International Franchise Association members representing American companies. Present data underscores that franchising has extended its reach to virtually every sector of the American economy. Notably, the United States stands among just four common law nations that have established dedicated franchise legislation, operating at both state and federal levels. This framework includes provisions for pre-sale disclosure, registration of …

A History Of Corporate Law Federalism In The Twentieth Century, William W. Bratton

Seattle University Law Review

This Article describes the emergence of corporate law federalism across a long twentieth century. The period begins with New Jersey’s successful initiation of charter competition in 1888 and ends with the enactment of the Sarbanes-Oxley Act in 2002. The federalism in question describes the interrelation of state and federal regulation of corporate internal affairs. This Article takes a positive approach, pursuing no normative bottom line. It makes six observations: (1) the federalism describes a division of subject matter, with internal affairs regulated by the states and securities issuance and trading regulated by the federal government; (2) the federalism is an …

Reconciling Disjunct Cryptocurrency Securities Enforcement With Purchaser Expectations, Jacob E. Simmons

Seattle University Law Review

The Southern District of New York’s July 2023 decision in SEC v. Ripple Labs, Inc. has been touted as a monumental win for cryptocurrency purchasers and related businesses. The Ripple court held that, except institutional investor transactions, all sales of Ripple’s XRP token were not investment contracts, a class of security subject to federal securities law. The court’s ruling meant that Ripple could not be held liable for the unregistered trading of XRP beyond its sales to institutional investors. Ripple adds new insights to a pervasive policymaking dilemma addressed in this Note: is the Securities and Exchange Commission’s (SEC) regulatory …