Common Law Commons^™

Lack Of Marketability And Minority Discounts In Valuing Close Corporation Stock: Elusiveness And Judicial Synchrony In Pursuit Of Equitable Consensus, Stephen J. Leacock

Faculty Scholarship

No abstract provided.

Law And Regime Change: The Common Law, Knowledge Regimes, And Democracy Between The Nineteenth And Twentieth Centuries, Kunal Parker

Articles

Using a change in knowledge regime as a paradigm of regime change, this paper explores the career of common law thinking in the United States between the nineteenth and twentieth centuries. It shows how, under the pressures of anti-foundational thinking, knowledge moved from a nineteenth-century regime of “knowledge that,” a regime of foundational knowledge, to an early-twentieth-century regime of “knowledge how,” a regime of anti-foundational knowledge concerned with the procedures, processes, and protocols of arriving at knowledge. It then shows how common law thinkers adapted to this change in knowledge regimes, transforming the common law from a body of substantive …

Prior Consistent Statements: The Dangers Of Misinterpreting Recently Amended Federal Rule Of Evidence 801(D)(1)(B), Laird C. Kirkpatrick, Christopher B. Mueller

Publications

A recent amendment to Federal Rule of Evidence 801(d)(1)(B) expands the situations in which prior consistent statements by testifying witnesses can be used as substantive evidence, and not merely as rehabilitating evidence. In this piece, the Authors argue that the revised rule may mislead judges and lawyers to conclude that prior consistent statements are always usable as substantive evidence when offered to rehabilitate a witness. Nothing could be further from the truth. The intent, although hard to discern on the face of the revised rule, is only to allow substantive use of consistent statements that are otherwise admissible to rehabilitate …

The Common Law Of Contract And The Default Rule Project, Alan Schwartz, Robert E. Scott

Faculty Scholarship

The common law developed over centuries a small set of default rules that courts have used to fill gaps in otherwise incomplete contracts between commercial parties. These rules can be applied almost independently of context: the market damages rule, for example, requires a court only to know the difference between market and contract prices. When parties in various sectors of the economy write sales contracts but leave terms blank, courts fill in the blanks with their own rules. As a consequence, a judicial rule that many parties accept must be "transcontextual": parties in varied commercial contexts accept the courts' rule …

The Diffusion Of Doctrinal Innovations In Tort Law, Kyle Graham

Marquette Law Review

This Article examines the spread of “successful” common-law doctrinal innovations in the law of torts. Its analysis reveals recurring influences upon and tendencies within the diffusion of novel tort doctrines across the states. The studied diffusion patterns also document a trend toward common-law doctrinal “stabilization” over the past quarter-century. As detailed herein, this stabilization owes in part to altered adoption dynamics associated with the ongoing shrinkage and fragmentation of the common-law tort dockets entertained by state supreme courts. Prevailing conditions will make it difficult, this Article concludes, for even well-received common-law doctrinal innovations of the future to match the rapid …

Tortious Necessity; The Privileged Defense, John P. Finan, John Ritson

Akron Law Review

The similarities between the laws of torts in the United States of America and England enable one to make an interesting comparison between the two sets of rules applicable to the general defense of necessity. Although both tort systems are derivatives to a greater or lesser extent of the English common law, they have inevitably developed their own individual jurisprudence over the years. Concepts have been refined and extended to produce significant and curious differences which provide an interesting exercise in legal forensic. The similarities of the two tort systems make a comparative study possible, and the differences provide the …

Refusing To Remove An Obstacle To The Remedy: The Supreme Court's Decision In Town Of Castle Rock V. Gonzales Continues To Deny Domestic Violence Victims Meaningful Recourse, Nicole M. Quester

Akron Law Review

The Supreme Court’s opinion in Castle Rock illustrates that more conscious efforts must be made by every branch of the legal system to eradicate domestic abuse. The entire legal system must work together to raise the curtain on domestic violence. Legislatures must continue to promote social change in the area of domestic violence, and courts must enforce legislation without questioning the legislature’s policy determinations. Police departments must enforce strict policies aimed at protecting the abused, while being held accountable when failing to provide any measure of protection. The legal system must heed a woman’s pleas for help and prevent court …

Regulating The Dead: Rights For The Corpse And The Removal Of San Francisco's Cemeteries, Lance Muckey

UNLV Theses, Dissertations, Professional Papers, and Capstones

A specialized facet of American common law developed throughout the nineteenth century; that being mortuary law or the law of the corpse. This jurisprudence transferred limited property rights to dead bodies, which was a radical departure from the treatment of the dead under the English common law tradition that the United States had adopted after the American Revolution.

The dead fit into a unique category in law. Legally they do not exist and therefore have no voice. It thus falls to the state to speak for them in the form of statutes and judicial decisions, which represents a continuation of …

A Government Of Laws Not Of Precedents 1776-1876: The Google Challenge To Common Law Myth, James Maxeiner

All Faculty Scholarship

The United States, it is said, is a common law country. The genius of American common law, according to American jurists, is its flexibility in adapting to change and in developing new causes of action. Courts make law even as they apply it. This permits them better to do justice and effectuate public policy in individual cases, say American jurists.

Not all Americans are convinced of the virtues of this American common law method. Many in the public protest, we want judges that apply and do not make law. American jurists discount these protests as criticisms of naive laymen. They …

Religious Tribunals And Secular Courts: Navigating Power And Powerlessness, Michelle Greenberg-Kobrin

Pepperdine Law Review

In this article, the author discusses the ways such as common law, and contracts employed by religious systems for navigating their relationship with legal systems of secular states. Topics discussed include the role of religious contracts in helping religious systems negotiate with secularism, the role of religious contracts in protecting autonomy of religious systems, and the structure of marriage and divorce in Jewish law.

The New Old Legal Realism, Tracey E. George, Mitu Gulati, Ann C. Mcginley

Northwestern University Law Review

No abstract provided.

Reasoned Awards In International Commercial Arbitration: Embracing And Exceeding The Common Law-Civil Law Dichotomy, S. I. Strong

Faculty Articles

The primary focus of this Article is to analyze various process-oriented and structural issues relating to reasoned awards in international commercial arbitration so as to improve the practical and theoretical understanding of international awards. That discussion, which is found in Section IV, considers various factors from both the common law and civil law perspectives so as to take into account the blended nature of international commercial arbitration.

Of course, to be fully comprehensible, the detailed analysis in Section IV must first be put into context. Therefore, Section II describes the difficulties associated with defining a reasoned award in international commercial …

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 …

Changing Tides: The Introduction Of Punitive Damages Into The French Legal System, Matthew K.J. Parker

Georgia Journal of International & Comparative Law

No abstract provided.

Americanization Of The Common Law: The Intellectual Migration Meets The Great Migration, David Thomas Konig

Chicago-Kent Law Review

This essay is an appreciation of William E. Nelson’s Americanization of the Common Law: The Impact of Legal Change on Massachusetts Society, 1760–1830 (1975) and the complementary study published six years later as Dispute and Conflict Resolution in Plymouth County, Massachusetts, 1725–1825 (1981). The essay places Nelson’s research project in the immediate context of historical writing on colonial New England at the time of their publication but steps back from that narrow context to identify the significance of the book in the long trajectory of great legal historical writing on the Anglo-American legal tradition.

Towards Universal Fiduciary Principles, Tamar Frankel

Faculty Scholarship

Fiduciary relationships play an important role in civil law and common law jurisdictions. While both legal systems offer similar outcomes in upholding fiduciary law principles, the way they achieve these ends is fundamentally different. In common law jurisdictions, fiduciary law is rooted in the law of property. By contrast, in civil law jurisdictions, fiduciary principles find their source in contract law. This article seeks to reconcile these differences, by identifying universal principles that apply to both systems. The author describes the sources of fiduciary law in the common law and the civil law, then highlights underlying differences between the two …

Apportioning Liability In Maryland Tort Cases: Time To End Contributory Negligence And Joint And Several Liability, Donald G. Gifford, Christopher J. Robinette

Faculty Scholarship

The Article presents a comprehensive proposal for assigning liability in tort cases according to the parties’ respective degrees of fault. The authors criticize the Court of Appeals of Maryland’s recent decision in Coleman v. Soccer Association of Columbia declining to abrogate contributory negligence, particularly the court’s notion that it should not act because of the legislature’s repeated failure to do so. The Article provides a comprehensive analysis of the advantages and disadvantages of comparative fault, including its effect on administrative costs, claims frequency, claims severity, insurance premiums, and economic performance. The authors propose the legislative enactment of comparative fault and …

The Restatement (Second) Of Contracts Reasonably Certain Terms Requirement: A Model Of Neoclassical Contract Law And A Model Of Confusion And Inconsistency, Daniel P. O'Gorman

Faculty Scholarship

No abstract provided.

Common Law Decision-Making, Constitutional Shadows, And The Value Of Consistency: The Jurisprudence Of William F. Batchelder, Lawrence Friedman

The University of New Hampshire Law Review

[Excerpt] “This is an essay about common law decision-making, with an emphasis on the value of consistency as it relates to claims about the legitimacy of judicial lawmaking. The legitimacy of judicial lawmaking is ever an issue, particularly, of course, in the cases at the margins—those instances in which precedent points the court in no obviously correct direction, a choice must be made between plausible alternative paths, and “a decision one way or the other,” as Benjamin Cardozo observed, “will count for the future, will advance or retard, sometimes much, sometimes little, the development of the law.””

Measuring The Transplantation Of English Commercial Law In A Small Jurisdiction: An Empirical Study Of Singapore’S Insurance Judgments Between 1965 And 2012, Christopher Chen

Research Collection Yong Pung How School Of Law

This article seeks to measure the development of law after transplanting common law and statutes from another country by conducting an empirical study of the citation of precedents and demography of disputes of insurance cases in Singapore. This article recognizes that there are justifications for Singapore to transplant English insurance law. However, this research shows that the transplantation of English commercial law into a small jurisdiction, even within the common law family, may cause the law to be in a static state if courts do not have enough cases to maintain the development of law or to consider new development …

Extrinsic Evidence, Parol Evidence, And The Parol Evidence Rule: A Call For Courts To Use The Reasoning Of The Restatements Rather Than The Rhetoric Of Common Law, Timothy Archer, Shalayne Davis, David G. Epstein

Law Student Publications

This article is an example of what Professor Richard Epstein would call "Contracts small." According to Professor Richard Epstein, "'Contracts small' relates to contract law at the doctrinal level; it focuses on the rules of contract formation and performance; the everyday 'stuff of lawyer's law.' "This article looks to the Restatement of Contracts (hereafter "Restatement") and the Restatement (Second) of Contracts (hereafter "Restatement Second") for answers to the questions raised by the two problems. The Restatements generally have both been praised and condemned for their focus on doctrinal issues-on what Richard Epstein calls the "everyday stuff of lawyer's law." As …

A Canadian Model Of Corporate Governance, Carol Liao

All Faculty Publications

What is Canada’s actual legal model to govern its corporations? Recent landmark judicial decisions indicate Canada is shifting away from an Anglo-American definition of shareholder primacy. Yet the Canadian securities commissions have become increasingly influential in the governance sphere, and by nature are shareholder-focused. Shareholders’ rights have increased well beyond what was ever contemplated by Canadian corporate laws, and the issue of greater shareholder vs. board control has now become the topic of live debate. The future of Canada's overall model seems to rest on what will be more compelling: the constancy of the corporate statutes and trajectory of the …

Law Reform Agenda As Ali Approaches Its Centennial, Lance Liebman

Faculty Scholarship

The American Law Institute and I are happy and proud that the Brooklyn Law School and its Law Review chose to hold an important conference about ALI work, to persuade such an outstanding group of scholars to write such varied and interesting papers, and now to publish their work. I am especially happy because, as I near the end of my service as ALI Director, these papers give me an opportunity to reflect on the projects, perfect and imperfect, that the ALI accomplished (or attempted and failed to accomplish) in our effort to improve the American legal system.

The Evolution Of The Common Law And Efficiency, Nuno Garoupa, Carlos I. Gómez Ligüerre

Georgia Journal of International & Comparative Law

No abstract provided.

The Unwritten Law And Its Writers, Frederick J. Moreau

Pepperdine Law Review

No abstract provided.

Nlra Preemption Of State Common Law Wrongful Discharge Claims: The Bhopal Brigade Goes Home , Joseph R. Weeks

Pepperdine Law Review

No abstract provided.

The Restatement (Second): Its Misleading Quality And A Proposal For Its Amelioration, W. Noel Keyes

Pepperdine Law Review

No abstract provided.

The Restatement (Second): A Tribute To Its Increasingly Advantageous Quality, And An Encouragement To Continue The Trend, John W. Wade

Pepperdine Law Review

No abstract provided.

Kiobel V. Royal Dutch Petroleum: A Practitioner's Viewpoint, Marco Simons

Maryland Journal of International Law

No abstract provided.

Interpretive Methodology And Delegations To Courts: Are "Common-Law Statutes" Different?, Margaret H. Lemos

Faculty Scholarship

No abstract provided.