Common Law Commons^™

Nonparty Protective Relief In The Early Republic: Judicial Power To Annul Letters Patent, James E. Pfander, Mary E. Zakowski

Northwestern University Law Review

Much of the debate over the constitutionality of universal or nonparty protective relief in the federal court system has focused on lessons drawn from historical practice. But with its emphasis on injunctive relief, the literature has largely ignored forms of adjudication that arose outside the courts of equity and led to judgments and decrees affecting the rights of nonparties. As a result, the story of nonparty protective relief has not yet been fully told.

This Article offers a more complete story, highlighting proceedings in which federal courts issued judgments that settled a matter once and for all. Some familiar examples …

Take In Case Of Emergency: Reconciling Necessity Takings With The Original Meaning Of The Takings Clause, Tony Smith

Northwestern University Law Review

Does the Fifth Amendment’s Takings Clause permit the state to destroy property without compensation whenever it declares an emergency? The long-standing doctrine of necessity empowers the state to do exactly that.

Courts dating back to common law England have permitted governments to claim a privilege of necessity to avoid paying for private property they destroy in times of crisis. The privilege rests on the principle that the public good sometimes outweighs the harm the individual suffers. Today’s courts and academics stretch this principle to its limits, arguing necessity should be used as a vehicle for combating all manner of social …

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 …

Federal Substantive Due Process Rights Of Homeless Persons, Tim Donladson

University of San Francisco Law Review

No abstract provided.

The Need For Restatement Of The Common Law: A Long Look Back, David J. Seipp

Faculty Scholarship

Restatements of the common law, the chief achievements of the American Law Institute (ALI), fulfilled a need that had long been expressed by lawyers and judges in England and America. Supreme Court Justice Joseph Story, responding in 1837 to the Massachusetts state legislature’s inquiry whether common law should and could be codified, reported that there could be tremendous saving of effort and time by lawyers and judges if a group of experts set out in written form the agreed principles and doctrines of common law. Story did not advise that the legislature should enact this written text of common law, …

Advisory Opinions And The Problem Of Legal Authority, Christian R. Burset

Journal Articles

The prohibition against advisory opinions is fundamental to our understanding of federal judicial power, but we’ve misunderstood its origins. Discussions of the doctrine begin not with a constitutional text or even a court case, but a letter in which the Jay Court rejected President Washington’s request for legal advice. Courts and scholars have offered a variety of explanations for the Jay Court’s behavior. But they all depict the earliest Justices as responding to uniquely American concerns about advisory opinions.

This Article offers a different explanation. Drawing on previously untapped archival sources, it shows that judges throughout the anglophone world—not only …

The Patriation Of Canadian Corporate Law, Camden Hutchison

All Faculty Publications

Canadian corporate law belongs within a broader Anglo-American legal tradition, sharing many of the features of other common law jurisdictions, most notably England and the United States. Prior to Confederation, Canadian corporate law first emerged from nineteenth-century English legislation and continued to resemble English law – at least superficially – well into the twentieth century. Legislation is only one source of corporate law, however. Just as important is the creation of legal rules through the common law adjudicatory process. Thus, examining case law raises an important empirical question distinct from, though relevant to, the issue of legislative influence – namely, …

Equity: Notes On The American Reception, Samuel L. Bray

Book Chapters

From the Publisher

Chapter 2
How has equity been received in the United States? Two themes stand out. One is that of ‘nice adjustment’: the case-specific adjustment of legal rules to avoid the harsh results of applying rules to unforeseen circumstances. The second is the idea of judicial command: ordering the particular defendant in the circumstances to do equity without contradicting the common law. While the former has waned in the US, the latter has overly strengthened. The reasons of legal culture are discussed.

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 …

Civil And Common Law: A Historical Analysis Of Colonial And Postcolonial Canada, Patrick S. Stroud

Butler Journal of Undergraduate Research

Legal historians divide European law into two principal families: common law (British law) and civil law (continental European law). Common law judges favor cases; courts “discover” law on a case-by-case basis and those cases make precedents for future ruling. Civil law courts favor codes; courts compare cases to existing laws and those laws control judges’ rulings. The two rarely interact, save one prominent example: Canada. British common law supposedly superseded French legal traditions in colonial Canada. But is history so binary? Did British common law truly “conquer” French civil law? Through analysis of Canadian legal history, this article demonstrates how …

The Unwritten Law And Its Writers, Frederick J. Moreau

Pepperdine Law Review

No abstract provided.

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

Articles

No abstract provided.

The Emergence Of Public Prosecution In London, 1790-1850, Bruce P. Smith

Sturm College of Law: Faculty Scholarship

Historians of English criminal justice administration have long asserted that criminal prosecution in England before the second half of the nineteenth century was overwhelmingly "private" in nature. Before the mid-nineteenth century, so the received wisdom goes, "prosecution was almost invariably the sole responsibility of the victim." As the subject's leading historian has observed, "the typical prosecution" in England in the eighteenth and early nineteenth century was "at the initiative of a private citizen who was the victim of a crime and who conducted the prosecution in almost all cases." Indeed, Parliament did not even establish a public prosecutor's office until …

The Origins Of American Felony Murder Rules, Guyora Binder

Journal Articles

Contemporary commentators continue to instruct lawyers and law students that England bequeathed America a sweeping default principle of strict liability for all deaths caused in all felonies. This Article exposes the harsh "common law" felony murder rule as a myth. It retraces the origins of American felony murder rules to reveal their modern, American, and legislative sources, the rationality of their original scope, and the fairness of their original application. It demonstrates that the draconian doctrine of strict liability for all deaths resulting from all felonies was never enacted into English law or received into American law. This Article reviews …

The Simplification Of Private Law, Andrew Kull

Journal of Legal Education

No abstract provided.

Learning To Be A Legal Historian: Reflections Of A Nontraditional Student, Jonathan Rose

Journal of Legal Education

No abstract provided.

The Legal Basis Of Aboriginal Title, Brian Slattery

Articles & Book Chapters

This paper considers a range of differing approaches to the question of Aboriginal land rights in the light of the judgment of the B.C. Supreme Court in the Delgamuukw case.

Book Review. Transcending Covenant And Debt, Morris S. Arnold

Articles by Maurer Faculty

No abstract provided.

Book Review. Ex Nihilo Nihil, Morris S. Arnold

Articles by Maurer Faculty

No abstract provided.

Dakota Civil Code: More Notes For An Uncelebrated Centennial, William B. Fisch

Faculty Publications

In an earlier article in this journal, I sketched and discussed the Dakota Civil Code as originally drafted for New York by David Dudley Field, the historical and conceptual background into which the work was cast, and some of the departures made in the Code from what appear to have been then generally accepted common law classifications, terminology and substantive rules. In this sequel I propose to consider the history of the Code after its completion in 1865 by Field's commission, concentrating on three jurisdictions: New York, where it was rejected after twenty-five years of wearying debate, amendment, parliamentary maneuver, …

Book Reviews, Donald P. Kommers, I. C. Rand

Vanderbilt Law Review

Law and Social Process in United States History:

The excellence of Law and Social Process in United States History in every respect matches the high honor accorded Professor Hurst when invited to deliver the ninth series of the Thomas M. Cooley Lectures under the sponsorship of the University of Michigan Law School. This volume, following upon the heels of his Growth of American Law and Law and the Conditions of Freedom, the latter having won the James Barr Ames prize granted quadrennially by the Harvard Law School, merely affirms his stature as an eminent legal historian. Like the earlier volumes, …

What Is Consideration In The Anglo-American Law Of Contracts?, Hugh Evander Willis

Articles by Maurer Faculty

No abstract provided.