Common Law Commons^™

The Role Of Unfair Competition In The Common Law, Shyamkrishna Balganesh, Gideon Parchomovsky

Faculty Scholarship

Does the idea of “unfair competition” present the law with a viable alternative to thinking about the regulation of information and informational resources, independent of the traditional categories of the common law (e.g., property/tort) and the assumptions that these categories entail? In this chapter, we argue that, although the answer to that question is no, unfair competition nevertheless plays an important role in complementing the categories of property and torts as they apply to competitive settings. Specifically, unfair competition allows courts to both broaden and narrow the traditional notions of property and torts – especially as they apply to the …

Punishment Without Culpability, John F. Stinneford

UF Law Faculty Publications

For more than half a century, academic commentators have criticized the Supreme Court for failing to articulate a substantive constitutional conception of criminal law. Although the Court enforces various procedural protections that the Constitution provides for criminal defendants, it has left the question of what a crime is purely to the discretion of the legislature. This failure has permitted legislatures to evade the Constitution’s procedural protections by reclassifying crimes as civil causes of action, eliminating key elements (such as mens rea) or reclassifying them as defenses or sentencing factors, and authorizing severe punishments for crimes traditionally considered relatively minor.

The …

Response: There Is No New General Common Law Of Severability, Kevin C. Walsh

Law Faculty Publications

In this solicited response to The New General Common Law of Severability, I first offer an interpretation of Ayotte and subsequent Supreme Court decisions as continuous with existing doctrine instead of a departure from it. I then suggest that much of Scoville’s evidence for a federalization of severability doctrine is better viewed as evidence of doctrinal looseness rather than of doctrinal change. I conclude by returning to the lessons of severability’s doctrinal history, suggesting that the prehistory of severability doctrine may supply a better guide for how courts should deal with problems of partial unconstitutionality in the future.

Prosecution Appeals Of Court-Ordered Midtrial Acquittals: Permissible Under The Double Jeopardy Clause?, David S. Rudstein

Catholic University Law Review

No abstract provided.

Necessity Defense To Felon-In-Possession Charges: The Third Circuit Justifies A Federal Justification Defense In Virgin Islands V. Lewis, Kathryn Maza

Villanova Law Review (1956 - )

The article presents information on the conceptions of morality and justice and the maximization of social welfare. The defense of necessity, its common law justification and the recognition of federal justification defense are discussed. The decisions made by the Third Circuit of the U.S. Court of Appeals in the trial of Virgin Islands v. Lewis, the judicial duty and the justification doctrine are also discussed.

Codifying Custom, Timothy Meyer

Vanderbilt Law School Faculty Publications

Codifying decentralized forms of law, such as the common law and customary law, has been a cornerstone of the positivist turn in legal theory since at least the nineteenth century. Commentators laud codification’s purported virtues, including systematizing, centralizing, and clarifying the law. These attributes are thought to increase the general welfare of those subject to legal rules, and therefore to justify and explain codification. The codification literature, however, overlooks codification’s distributive consequences. In so doing, the literature misses the primary motive for codification: to define legal rules in a way that advantages individual codifying institutions, regardless of how codification affects …

Constitutional Backdrops, Stephen E. Sachs

Faculty Scholarship

The Constitution is often said to leave important questions unanswered. These include, for example, the existence of a congressional contempt power or an executive removal power, the role of stare decisis, and the scope of state sovereign immunity. Bereft of clear text, many scholars have sought answers to such questions in Founding-era history. But why should the historical answers be valid today, if they were never codified in the Constitution's text?

This Article describes a category of legal rules that weren't adopted in the text, expressly or implicitly, but which nonetheless have continuing legal force under the written Constitution. These …

Finding Possession: Labor, Waste And The Evolution Of Property, Jill M. Fraley

Scholarly Articles

Although possession has long been intimately linked to labor, recent historical work on land claims during the sixteenth and seventeenth centuries suggests that the clash of divergent legal cultures of possession drove the two apart. This clash yielded an American concept of possession much more deeply connected to industrialization than the traditional understanding of labor. By providing evidence of how our concept of labor was industrialized, this article questions the outcomes in modem possession cases, particularly as they impact development and environmental preservation in rural areas.

The Dog That Caught The Car: Observations On The Past, Present, And Future Approaches Of The Office Of The Legal Adviser To Official Acts Immnunities, John B. Bellinger Iii

Vanderbilt Journal of Transnational Law

The Supreme Court's decision in Samantar v. Yousuf vindicated the position of the State Department's Office of the Legal Adviser, which had long argued that the immunities of current and former foreign government officials in U.S. courts are defined by common law and customary international law as articulated by the Executive Branch, rather than by the Foreign Sovereign Immunities Act of 1976. But the decision will place a burden on the Office of the Legal Adviser, which will now be asked to submit its views on the potential immunity of every foreign government official sued in the United States. The …

Law "In" And "As" History: The Common Law In The American Polity, 1790-1900, Kunal Parker

Articles

No abstract provided.

The "Common-Law Regime" Of Foreign Sovereign Immunity: The Actual Possession Rule In Admiralty, David J. Bederman

Vanderbilt Journal of Transnational Law

It has been a long-standing rule in admiralty that in order for a foreign sovereign to assert immunity in U.S. courts, the res that is the object of the maritime claim must be in the actual possession of the foreign state at the time the case is brought. Inasmuch as Samantar recognized the existence of a "common-law regime" that preexisted the Foreign Sovereign Immunities Act (FSIA), this Article examines whether the actual possession rule remains in force today. The FSIA codified the actual possession rule in its provisions for the handling of admiralty claims against foreign sovereigns, but this has …

The Immunity Of State Officials Under The Un Convention On Jurisdictional Immunities Of States And Their Property, David P. Stewart

Vanderbilt Journal of Transnational Law

The U.S. Supreme Court decided in Samantar v. Yousuf that claims of immunity by individual foreign officials in U.S. courts will be determined not under the Foreign Sovereign Immunities Act but instead under the common law, drawing on principles of international law. The 2004 UN Convention on the Jurisdictional Immunities of States and Their Properties represents the most recent and comprehensive international thinking on the question of jurisdictional immunities of foreign states and their officials in foreign courts. Under the Convention, individual representatives of a state acting in that capacity are entitled to the same immunities as the state itself. …

The New Common Law Courts, Culture, And The Localization Of The Model Penal Code, Anders Walker

All Faculty Scholarship

Few tropes in American law teaching are more firmly entrenched than the criminal law division between Model Penal Code and common law states. Yet, even a cursory look at current state codes indicates that this bifurcation is outmoded. No state continues to cling to ancient English common law, nor does any state adhere fully to the Model Penal Code. In fact, those states that adopted portions of the Code have since produced a substantial body of case law – what this article terms “new common law” – transforming it. Taking the controversial position that criminal law pedagogy is antiquated, this …

The American Law Institute’S New Principles Of Aggregate Litigation, Sam Issacharoff, Carolyn Kuhl, Francis Mcgovern, Stephanie Middleton, John Beisner

Faculty Scholarship

No abstract provided.

Common Law And Statute Law In Administrative Law, Jack M. Beermann

Faculty Scholarship

The largely statutory appearance of U.S. administrative law be surprising in light of the existence of the federal A Procedure Act of 1946 (APA).1 The APA, including its a amendments, is a relatively comprehensive guide to much of law in the United States. It contains the procedures agencies to follow in both rulemaking and adjudication and provisions on the availability and scope of judicial review of agency action. As includes open meeting and open file requirements as well as negotiated rulemaking and legislative review of agency rules generally held view that federal courts should not make com should act only …

Foreward: Erie's Gift, Jay Tidmarsh

Journal Articles

Sometimes described as "one of the modem cornerstones of our federalism," Erie stands at its narrowest for a simple proposition: When a federal court decides a claim whose source is state law, the court must apply the same substantive common-law rules that a state court would apply to the claim. Dictated by statute, by policy, and by the Constitution, this result seems "superbly right" to many. Indeed, Erie's narrow holding is not controversial today.

Melms V. Pabst Brewing Co. And The Doctrine Of Waste In American Property Law, Thomas W. Merrill

Faculty Scholarship

Melms v. Pabst Brewing Co. may be the most important decision ever rendered by an American court concerning the law of waste. Unless your specialty is property law, that might not be enough to stir your interest. The doctrine of waste, after all, does not loom very large in public consciousness these days.

Nevertheless, waste has held a peculiar fascination for property theorists. The reason, I think, is that it touches directly on an important line of division in how we think about property. Does property exist primarily to protect the subjective expectations that particular owners have in particular things? …

The Common Law Is Not Just About Contracts: How Legal Education Has Been Short-Changing Feminism, Charles E. Rounds Jr.

University of Richmond Law Review

No abstract provided.

The Appropriations Power And Sovereign Immunity,, Jay Tidmarsh, Paul F. Figley

Journal Articles

Discussions of sovereign immunity assume that the Constitution contains no explicit text regarding sovereign immunity. As a result, arguments about the existence-or nonexistence-of sovereign immunity begin with the English and American common-law doctrines. Exploring political, fiscal, and legal developments in England and the American colonies in the seventeenth and eighteenth centuries, this Article shows that focusing on common-law developments is misguided. The common-law approach to sovereign immunity ended in the early 1700s. The Bankers' Case (1690- 1700), which is often regarded as the first modern common-law treatment of sovereign immunity, is in fact the last in the line of English …

Three Stories And Their Morals, Robert B. Bennett

Scholarship and Professional Work - Business

Fundamentally, the common law tradition is a collection of stories. Stories also become the law professor's stock in trade. We tell students stories or have them read stories in the form of cases or hypothetical situations and help them discern the morals to the stories-i.e., what the stories mean in the context of business or in their business lives? In a sense, that is what the Socratic Method is all about: analyzing stories in the form of cases and discerning their greater meaning. In this paper I will relate three true stories within the context of just-in-time production management and …

The Supreme Common Law Court Of The United States, Jack M. Beermann

Faculty Scholarship

The U.S. Supreme Court's primary role in the history of the United States, especially in constitutional cases (and cases hovering in the universe of the Constitution), has been to limit Congress's ability to redefine and redistribute rights in a direction most people would characterize as liberal. In other words, the Supreme Court, for most of the history of the United States since the adoption of the Constitution, has been a conservative force against change and redistribution. The Court has used five distinct devices to advance its control over the law. First, it has construed rights-creating constitutional provisions narrowly when those …

Procedural Common Law, Amy Coney Barrett

Journal Articles

Debates about the common lawmaking power of the federal courts focus exclusively on substantive common law. But federal common law is not limited to matters of substance; it reaches matters of procedure as well. Federal law includes a robust body of what might be called procedural common law - common law primarily concerned with the regulation of internal court processes rather than substantive rights and obligations. This body of law includes many doctrines that are fixtures in the law of procedure and federal courts. For example, abstention, forum non conveniens, remittitur, stare decisis, and preclusion can all fairly be characterized …

Justifying An Analysis Of The Ecclesiological Development Of Subsidiarity Via Civil And Common Law Jurisprudential Epistemology, William Pieratt Demond

Seton Hall University Dissertations and Theses (ETDs)

This article seeks to justify an examination of subsidiarity's development within Catholicism. Due to the fact that the European Union ["EU"] codified subsidiarity via the Treaty of Maastricht, subsidiarity is now a part of EU law. Although seemingly intended to resolve questions concerning the proper allocation of powers, its codification has generated substantial debate concerning the proper meaning(s) (if any) and/or application(s) of subsidiarity within the EU. Due to the facts that 1) the EU's legal traditions are heavily influenced by both the civil and common law traditions, 2) both of these traditions advocate the use of established jurisprudential methodologies …

The Unseen Track Of Erie Railroad: Why History And Jurisprudence Suggest A More Straightforward Form Of Erie Analysis, Donald L. Doernberg

West Virginia Law Review

No abstract provided.

Why The Supreme Court Lied In Plessy, David S. Bogen

Villanova Law Review (1956 - )

No abstract provided.

Advancing The Rebirth Of Environmental Common Law, Jason J. Czarnezki

Elisabeth Haub School of Law Faculty Publications

Federal law often fails to mitigate environmental harm. An alternative litigation response when federal avenues prove ineffective is reliance on state common law doctrines, especially public and private nuisance. A rebirth of the common law is occurring. This Article provides examples of the rebirth of environmental common law and suggests how common law claims and remedies in the environmental context can mitigate environmental harm.

A Constitutional Significance For Precedent: Originalism, Stare Decisis, And Property Rights, Polly J. Price

Faculty Articles

The discussions in this Article proceed as follows. Part I briefly introduces several areas of contemporary debate for which this inquiry is relevant. In Part II, I examine previous scholarly evaluations of the doctrine of precedent in the formative period. I provide an alternative explanation for the adoption by American courts of rhetoric favoring stare decisis, one that links the rhetoric used by these courts with the predominant property discourse of the Founding period and with the Marshall Court’s subsequent emphasis on vested rights and the Contracts Clause. I suggest that the stare decisis property rule gained widespread acceptance as …

Transparency And Determinacy In Common Law Adjudication: A Philosophical Defense Of Explanatory Economic Analysis, Jody S. Kraus

Faculty Scholarship

Explanatory economic analysis of the common law has long been subject to deep philosophical skepticism for two reasons. First, common law decisions appear to be cast in the language of deontic morality, not the consequentialist language of efficiency. For this reason, philosophers have claimed that explanatory economic analysis cannot satisfy the transparency criterion, which holds that a legal theory's explanation must provide a plausible account of the relationship between the reasoning it claims judges actually use to decide cases and the express reasoning judges provide in their opinions. Philosophers have doubted that the economic analysis has a plausible account of …

Addressing The Incoherency Of The Preemption Provision Of The Copyright Act Of 1976, Joseph P. Bauer

Journal Articles

Section 301 of the Copyright Act of 1976 expressly preempts state law actions that are within the "general scope of copyright" and that assert claims that are "equivalent to" the rights conferred by the Act. The Act eliminated the previous system of common law copyright for unpublished works, which had prevailed under the prior 1909 Copyright Act. By federalizing copyright law, the drafters of the statute sought to achieve uniformity and to avoid the potential for state protection of infinite duration.

The legislative history of § 301 stated that this preemption provision was set forth "in the clearest and most …

Trust Funds In Common Law And Civil Law Systems: A Comparative Analysis, Carly Howard

University of Miami International and Comparative Law Review

No abstract provided.