Common Law Commons^™

The Movement Toward Statute-Based Conspiracy Law In The United Kingdom And The United States, Kenneth A. David

Vanderbilt Journal of Transnational Law

A single criminal charge of conspiracy, because it simultaneously involves an inchoate as well as a substantive offense, is characterized by a duality that for years has created confusion and uncertainty as to the proper prosecution and punishment for the crime. The author of this Note places responsibility for this confusion primarily on the judges whose rulings have produced a highly incoherent body of common law and secondarily on the complacent legislatures that have allowed judicial interpretation to shape conspiracy law in a haphazard manner.

The Note compares the approaches to conspiracy law taken by the United Kingdom and the …

An "Internal" Critique Of Justice Scalia's Theory Of Statutory Interpretation, William D. Popkin

Articles by Maurer Faculty

No abstract provided.

The Matrix Of The Common Law, George L. Haskins

Cleveland State Law Review

Great men have admonished us never to forget the continuing relevance of history in the Anglo-American legal system. We are cautioned to remember that the highly individualistic character of much of our law is explained by its Germanic rather than its Roman roots and, further, that the Anglo-American system has built upon countervailing concepts of relationships which are feudal in origin, and to which rights and duties attach without regard to the will of individuals, which is the underlying principle of classical Roman law. Thus, in our law, powers, rights, and duties stem from relationships such as principal-agent, vendor-purchaser, landlord-tenant …

Possibilities Of Reverter And Rights Of Re-Entry For Condition Broken: The Modern Context For Determinable And Conditional Interests In Land, Peter Devonshire

Dalhousie Law Journal

The transfer of ownership in real property is usually characterised by an outright grant of the fee simple which operates to vest an absolute interest in the grantee. Sometimes, however, land is conveyed in circumstances where the grantor purports to reserve a right to recover the property if a stipulated event occurs or if the grantee does, or abstains from doing, a particular thing. Depending upon the form of the instrument, this may give rise to a determinable fee simple or a fee simple upon condition subsequent.

Book Review Of Images Of A Constitution, B. L. Strayer

Journal of Legal Education

No abstract provided.

The Common Law As Cricket, David F. Partlett

Vanderbilt Law Review

Cricket and baseball are the summer national pastimes of England and America. They both involve players, one of whom propels a hard leather ball toward another with the intent of getting that other "out."The hitter tries to avoid getting out and attempts to hit the ball as far as possible. Umpires preside. Despite all these and other common factors, the games are different. Baseball is brash and dusty, and umpires endure frequent abuse; cricket is restrained and village greenish, and umpires rarely suffer abuse. Both games draw from history and culture.Where transplanted the games assume a different guise. In the …

A Plea For Help: Pleading Problems In Section 1983 Municipal Liability Claims, Evan S. Schwartz

Touro Law Review

No abstract provided.

The Impact Of Freedom Of Information Legislation On Criminal Discovery In Comparative Common Law Perspective, Michael Taggart

Vanderbilt Journal of Transnational Law

This Article examines the effect of freedom of information legislation on criminal discovery in the United States, Canada, Australia, and New Zealand. While all of these countries share the common law tradition and have comparable freedom of information legislation, Professor Taggart notes that the impact of that legislation on the law and practice of criminal discovery varies in each country.

The United States courts generally have resisted attempts by criminal defendants to gain access to a wider range of material under the Freedom of Information Act than available by conventional discovery. So far the courts are unwilling to allow that …

Books Received, Law Review Staff

Vanderbilt Journal of Transnational Law

In Common Law in Southern Africa, Kutner surveys the judgments that are published in South African Law Reports and the official law reports of other southern African states from 1947 to the present. English language commentaries on the cases and statutes discussed in the text are cited in the notes. A Table of Statutes, Table of Cases, Conflict of Laws Index and Torts Index also are provided.

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 …

A Critical Approach To Section 1983 With Special Attention To Sources Of Law, Jack M. Beermann

Faculty Scholarship

The Civil Rights Act of 1871¹ ("§ 1983") establishes a tort-like remedy for persons deprived of federally protected rights "under color of law."'² While the statute's broad language provides a remedy for violations of federal constitutional and statutory rights, the statute itself provides little or no guidance regarding important subjects such as the measure of damages, the availability of punitive damages, the requirements for equitable relief, the statute of limitations, survival of claims, proper parties, and immunities from suit.³...

...The first part of this article examines the narrowly "legal" analysis of § 1983 in the cases …

America's Oldest Law School, Henry D. Gabriel

Journal of Legal Education

No abstract provided.

Tort Liability In France For The Act Of Things: A Study Of Judicial Lawmaking, Edward A. Tomlinson

Faculty Scholarship

No abstract provided.

Legal Factors In The Acquisition Of A United State Corporation: Litigation By Hostile Targets, Johan E. Droogmans

LLM Theses and Essays

Acquisitions of United States corporations have become increasingly complex takeover contests, where bidders and target corporations are forced into offensive and defensive litigation strategies to protect their respective interests. Targets often assert that the bidders have violated federal or state securities laws, federal antitrust laws, federal margin regulations, federal and state regulatory systems, and federal anti-racketeering laws. These lawsuits are primarily based on the principal federal regulation of takeovers in section 14(a) of the Securities and Exchange Act of 1934 and the Williams Act. Target litigation is customary, but entails certain disadvantages; a lawsuit rarely stops an offer, is expensive, …

A Shorn Beard, Tim Quigley

Dalhousie Law Journal

One of the prominent features of the common law is the concept of stare decisis. As a mechanism to provide certainty and predictability in the law, it is invaluable. Nonetheless, the doctrine of binding precedent, essential though it is to the orderly development of the law, can be misused. At times, the disingenuous application of stare decisis can lead to severe distortion of the law from what was actually meant in the case being cited as authority. Such, I submit, is the case with the intoxication rules.

Statutes And Constitutions In An Age Of Common Law, Reed Dickerson

Articles by Maurer Faculty

No abstract provided.

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 …

Crime Talk, Rights Talk, And Double-Talk: Thoughts On Reading Encyclopedia Of Crime And Justice (Review Essay), Michael E. Tigar

Faculty Scholarship

No abstract provided.

English Common Law In Virgina, William Hamilton Bryson

Law Faculty Publications

By statute the common law of England is the basis of the common law of modern Virginia. This reception statute refers to the customary, unwritten law of the kingdom of England, but only that part which was general and common to all parts of England. That the English common law is the foundation of the law of Virginia is a matter not merely of a modern statute but also of history and reason.

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 Future Of The Common Law Tradition, Alan Watson

Dalhousie Law Journal

The majority of Western systems of private law is habitually divided by scholars into civil law systems and common law systems. Eastern Canada fortunately partakes of both traditions - the civil law in Quebec and common law in the other provinces. One difference between the two traditions is the greater and earlier emphasis that was placed on the teaching of civil law in universities. In conformity to this, Quebec had three university law schools before the common law provinces had any; they were McGill (established in 1848), Laval (established in 1854), and Laval in Montreal (in 1878). But Dalhousie was …

Concealing Legislative Reform In The Common-Law Tradition: The Advancements Doctrine And The Uniform Probate Code, Mary L. Fellows

Vanderbilt Law Review

This essay first sets forth the doctrine of advancements and includes a discussion of its suitability for a study of statutory reform and the purpose and origin of the doctrine. The essay then demonstrates how a presumption against finding an advancement that can be rebutted only by a writing showing a contrary intent operates as a practical repeal of advancements. Next, the essay explores the rationales of the drafters of the Uniform Probate Code(UPC) in repealing the advancements doctrine by subterfuge and analyzes the costs of reform by subterfuge. Finally, the essay recommends an alternative approach to reforming the advancements …

Substantial Similarity Between Video Games: An Old Copyright Problem In A New Medium, Steven G. Mcknight

Vanderbilt Law Review

Courts have faced a variety of imaginative arguments advocating that video games not receive copyright protection but unanimously have rejected them. A more difficult copyright issue for courts has been deciding whether one video game illegally has copied another. Of the cases involving illegal video game copying that courts presently have decided, only Atari, Inc. v. North American Philips Consumer Electric Corp." has found copyright infringement by a video game that was not virtually identical to the original game.

Part II of this Recent Development discusses the requirement in copyright infringement actions that, in proving copying, a defendant's allegedly infringing …

The Reason Of The Common Law, Barbara A. Singer

University of Miami Law Review

Although the present meaning of reason has been reduced to discrete definitions, precise interpretations did not exist in medieval England. Rather, reason was defined by its role in the adjudicatory process. During the late medieval period, reason came to embody the very essence of the common law as courts recognized that it could be used to prevent procedural rules from infringing upon substantive rights. Relying upon Year Book cases and jurisprudential works, the author describes how the chameleon-like character of reason helped to shape the medieval English common law.

The American Codification Movement, A Study Of Antebellum Legal Reform, Robert W. Gordon

Vanderbilt Law Review

Between 1820 and 1850 American legal commentators became obsessed with whether legislatures should codify, either in whole or in part, the common law of the American states. Indeed, "[a]lmost every law writer after 1825 felt compelled to include his views [on codification] in his works of whatever sort."" The enormous literature that emerged from this period survives today to fascinate modern legal historians, who seem to have developed their own obsession for the "codification" issue. As Lawrence Friedman has said, "The codification movement is one of the set pieces of American legal history." Charles M. Cook's "The American Codification Movement: …

The Abolition Of The Forms Of Action In Virginia, William Hamilton Bryson

Law Faculty Publications

The common law procedure for initiating actions at law in the English courts required a plaintiff to obtain a writ invoking the jurisdiction of the court and to file a declaration setting forth the facts that justified instigation of the suit and established the cause of the action. This clumsy and archaic system of litigation was abolished by a single chop of the legislative guillotine in New York in 1848. England followed suit in 1875, and the United States federal courts in 1938. Writs and declarations were replaced by simple forms which were copied from the practice of the equity …

Case Digest, Journal Staff

Vanderbilt Journal of Transnational Law

ADMIRALTY JURISDICTION EXISTS IN CASES STEMMING FROM BOAT COLLISIONS ON NAVIGABLE WATERS REGARDLESS OF THE COMMERCIAL OR NONCOMMERCIAL NATURE OF THE VESSELS INVOLVED--Foremost Insurance Co. v. Richardson, 102 S. Ct. 2654 (1982).

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SHIPOWNER MAY ATTACH CHARACTER'S PROPERTY AS SECURITY FOR BREACH OF A CHARTER CONTAINING A FORUM SELECTION CLAUSE--Polar Shipping, Ltd. v. Oriental Shipping Corp., 680 F.2d 627 (9th Cir. 1982).

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WORKER EMPLOYED ABOARD AN OFFSHORE DRILLING PLATFORM MAY BRING A CLAIM UNDER MARITIME TORT LAW FOR WRONGFUL DISCHARGE--Roberie v. Gulf Oil Corp., No. 820013 (W.D. La.Aug. 4, 1982)

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THE IMMIGRATION AND NATURALIZATION ACT DOES NOT APPLY …

Judicial Experimentation With A Strict Products Liability Rule: A Comparison Of The Law In The United Kingdom, Louisiana, And United States' Common Law Jurisdictions, Thomas E. Carbonneau, Catherine Garvey

Faculty Scholarship

Since the mid-nineteenth century, products liability law has undergone significant modifications. The applicable doctrine has oscillated between contract and tort theories; fault and no-fault liability schemes have competed for predominance. Despite attempts to create an internationally accepted liability norm, different legal systems continue to espouse differing perceptions of the liability formula in the products area. In addition, even in jurisdictions in which courts adhere to identical liability theories, there is disagreement as to the application and implications of the same standard. This article attempts to set the shifting doctrinal character of products liability analysis into a comparative perspective principally between …

The Uniform Foreign Money-Judgments Recognition Act: A Survey Of The Case Law, Carol C. Honigberg

Vanderbilt Journal of Transnational Law

The Uniform Foreign Money-Judgments Recognition Act's genesis lay in the belief that a state's codification of its rules on the recognition of foreign money-judgments would increase the likelihood that similar judgments rendered by that state would be recognized abroad. The treatment of United States judgments in the courts of foreign nations concerned the Commissioners on Uniform State Laws because United States courts traditionally accord far better treatment to foreign judgments than is accorded United States judgments abroad. The recognition and enforcement of foreign judgments, or recognition practice, has long posed special problems because of the vast differences in the various …

Book Review, Igor I. Kavass

Vanderbilt Journal of Transnational Law

The limited use of American case law in the Commonwealth countries should not be surprising. With the exception of English cases, the decisions of other Commonwealth countries receive the same indifferent treatment in all Commonwealth jurisdictions; the English courts studiously ignore the decisions of other Commonwealth countries. For that matter, American courts do not consult the case law of English and other Commonwealth countries all too frequently. Espinoza v. Farah Manufacturing Co. is a recent example in point. In that case, the Supreme Court was asked to interpret the meaning of the terms "nationality" and "national origin" as used. in …