Common Law Commons^™

Tortious Interference Revisited, Danielle D'Onfro, Cathy Hwang

Scholarship@WashULaw

Tortious interference with contract has bedeviled legal commentators for over a century. It can provide relief in some situations where straightforward contract breach cannot reach. But these claims have also been derided for threatening competition, at-will employment, free speech, and important guardrails on other private law claims. The doctrine is also difficult to square with theories of efficient contract breach and the long-held view that contracts on their own are not property interests.

Perhaps because of its intellectual awkwardness, tortious interference claims were relatively rare until the twenty-first century. In the last twenty years, the doctrine has exploded in popularity, …

The Balance Between The Individual's Right To Property And The Requirements Of The Administration In The Provision Of Public Service: A Comparative Study, Mohamed Hamly

UAEU Law Journal

In order to exercise its functions efficiently, the public administration possesses several areas of expertise, among them is the expropriation for the reason of public utility. It represents a major danger to the right of private property; it has been surrounded by several arrangements; included in the law n° 91-11, and put in execution by the decree ministerial n° 93-186, in order to establish a balance between the individual's right to the private property and the requirements of the public service. Indeed, the above stated legal texts could regulate many operations of expropriation during one decade and half. Nevertheless; their …

Privacy-As-Property: A New Fundamental Approach To The Right To Privacy And The Impact This Will Have On The Law And Corporations, Sevion Dacosta

CMC Senior Theses

The most popular conception of the right to privacy stems from Warren and Brandeis’s description of privacy as “the right to be left alone.” This theory ultimately points to a more fundamental approach to the right to privacy rooted in property rights. This fundamental approach - which I call privacy-as-property - is what I establish in this paper. I argue that the Lockean concept of property that “every man has a property in his own person” provides the foundation for the right to privacy. Privacy-as-property begins with the fundamental right to control oneself. Because of this intrinsic right, your property …

Equity In American And Jewish Law, Itzchak E. Kornfeld , Ph.D.

Touro Law Review

No abstract provided.

Drone Invasion: Unmanned Aerial Vehicles And The Right To Privacy, Rebecca L. Scharf

Indiana Law Journal

Since the birth of the concept of a legally recognized right to privacy in Samuel D. Warren and Louis D. Brandeis’ influential 1890 law review article, “The Right to Privacy,” common law—with the aid of influential scholars—has massaged the concept of privacy torts into actionable claims. But now, one of the most innovative technological advancements in recent years, the unmanned aerial vehicle, or drone, has created difficult challenges for plaintiffs and courts navigating common law privacy tort claims.

This Article explores the challenges of prosecution of the specific privacy tort of intrusion upon seclusion involving nongovernmental use of drone technology. …

The “Mendacious” Common-Law Mortgage, David P. Waddilove

Journal Articles

The common-law mortgage has been much maligned. Legal historians have called it everything from "clumsy" to "mendacious." Following their lead, the current Restatement (Third) of Property: Mortgages and the leading treatise on mortgage law denounce the modern incarnation of the common-law mortgage - the "title theory" of mortgages - in favor of the "lien theory."

As many states have adopted this view, the common-law mortgage has been nearly eliminated from the modern legal landscape. But the consensus is wrong. Critics of the common-law mortgage have relied upon a superficial view of the device. They appreciated neither the background law that …

An Empirical Study Of Property Divisions At Divorce, Margaret Ryznar

Pace Law Review

Much has been written about family law and how to fairly divide property between divorcing spouses. Without a good understanding of what courts are doing in the field, however, there is no baseline for theoretical frameworks. This Article fills the void by analyzing all divorce cases involving children that were filed in one county over several months. The resulting empirical data has implications for the meaning of fairness in divorce, the role of judicial discretion, and the incentives for contracting by couples. This Article also examines the underlying law in order to explore the correlation between the family law code …

A New History Of Waste Law: How A Misunderstood Doctrine Shaped Ideas About The Transformation Of Law, Jill M. Fraley

Marquette Law Review

In the traditional account, American courts transformed the law of waste, radically diverging from the British courts around the time of the American Revolution. Some of the most influential theorists of American legal history have used this account as evidence that American law is driven by economics. Due to its adoption by influential scholars, this traditional account of waste law has shaped not only our understanding of property law, but also how we view the process of transforming law.

That traditional account, however, came not from a history of the doctrine, but from an elaboration of the benefits of the …

Procedural Due Process Claims, Erwin Chemerinsky

Touro Law Review

No abstract provided.

A Funhouse Mirror Of Law: The Entailment In Jane Austen's Pride And Prejudice, Peter A. Appel

Georgia Journal of International & Comparative Law

No abstract provided.

The Common Law Foundations Of The Takings Clause: The Disconnect Between Public And Private Law, Richard A. Epstein

Touro Law Review

No abstract provided.

Dreading He Knew Not What: Masculinities, Structural Spaces, Law And The Gothic In The Castle Of Otranto, Pride And Prejudice, And Wuthering Heights, Samantha E. Morse

Pitzer Senior Theses

This essay investigates the integral linkages between Gothic spaces and Gothic masculinities in three texts: Horace Walpole’s The Castle of Otranto (1764), Jane Austen’s Pride and Prejudice (1813), and Emily Brontë’s Wuthering Heights (1847). At the core of this examination is architecture, or more specifically, the physical constructions and built environments that comprise a man’s property. I explore how a man uses his property to construct, legitimize, and perform his identity. In the Female Gothic, the home is a place of anxiety for women, where patriarchal dominance and violence reign to constrain female agency. I argue that the home is …

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 Illusory Right To Abandon, Eduardo M. Penalver

Michigan Law Review

The unilateral and unqualified nature of the right to abandon (at least as it is usually described) appears to make it a robust example of the law's concern to safeguard the individual autonomy interests that many contemporary commentators have identified as lying at the heart of the concept of private ownership. The doctrine supposedly empowers owners of chattels freely and unilaterally to abandon them by manifesting the clear intent to do so, typically by renouncing possession of the object in a way that communicates the intent to forgo any future claim to it. A complication immediately arises, however due to …

Common Law Property Metaphors On The Internet: The Real Problem With The Doctrine Of Cybertrespass, Shyamkrishna Balganesh

Michigan Telecommunications & Technology Law Review

The doctrine of cybertrespass represents one of the most recent attempts by courts to apply concepts and principles from the real world to the virtual world of the Internet. A creation of state common law, the doctrine essentially involved extending the tort of trespass to chattels to the electronic world. Consequently, unauthorized electronic interferences are deemed trespassory intrusions and rendered actionable. The present paper aims to undertake a conceptual study of the evolution of the doctrine, examining the doctrinal modifications courts were required to make to mould the doctrine to meet the specificities of cyberspace. It then uses cybertrespass to …

Untying The Knot: An Analysis Of The English Divorce And Matrimonial Causes Court Records, 1858-1866, Danaya C. Wright

UF Law Faculty Publications

Historians of Anglo-American family law consider 1857 as a turning point in the development of modern family law and the first big step in the breakdown of coverture and the recognition of women's legal rights. In 1857, The United Kingdom Parliament ("Parliament") created a new civil court to handle all divorce and matrimonial causes, removing the jurisdiction of: the ecclesiastical courts over marital validity; the Chancery over custody of children and separate estates; the royal courts over marital property; and Parliament over full divorce. The new Divorce and Matrimonial Causes Court, a wing of the admiralty and probate courts, would …

The Uniform Probate Code's Elective Share: Time For A Reassessment, Lawrence W. Waggoner

Articles

In this Article, Professor Waggoner proposes reforms to the Uniform Probate Code's (UPC) treatment of the elective share of the surviving spouse. First, the Article recommends that the UPC adopt a form of presentation that more transparently reflects the normative theories and empirical assumptions underlying the UPC's elective share framework. Second, the Article presents demographic data suggesting that the UPC's current elective share approximation schedule may be inappropriatef or a sizable faction of married couples, those remarryingf ollowing widowhood. Finally, the Article proposes two substantive revisions to the UPC's election share framework-the first proposal is to lengthen the approximation schedule; …

Eminent Domain, Exactions, And Railbanking: Can Recreational Trails Survive The Court’S Fifth Amendment Takings Jurisprudence?, Danaya C. Wright

UF Law Faculty Publications

This article attempts to locate the legal aspects of recreational trail development within the increasingly powerful property rights movement. The most complex result of this rising property rights rhetoric is a clear shift in constitutional takings doctrine to be more sympathetic to landowners' arguments. Thus, the interplay of takings decisions and trails development will be the focus of most of this article.

Part II provides a brief account of the legal structure of governmental land use controls and the current state of takings jurisprudence to form a basic background for the different ways in which recreational trails have been developed. …

Tribute To William F. Fratcher: Marital Property Rights In Transition, Lawrence W. Waggoner

Articles

"Marital property rights," a term that covers a vast multitude of rights or interests conferred by law on persons who occupy the status of spouse, are in a state of transition. To discuss the themes and trends that are emerging, this Article is divided into four discrete, yet related segments. The first segment addresses how the law allocates original ownership between spouses in a marriage. The second segment turns to the intestate share of the surviving spouse. This is not a topic that much concerns high-powered estate planners because intestate estates are usually fairly small. But to the surviving spouse, …

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.

Eminent Domain Law, Riparian Doctrine, And Early American Land Settlement: An Evolutionary History Of Vested Property Rights From The Late 18th Through The 19th Century, Scott Beckstead

Undergraduate Honors Capstone Projects

This paper is an effort to present a synopsis of the jurisprudence of eminent domain law and riparian doctrine and their place in the history of American property law. Both areas are vast and complicated bodies of law, and both are still undergoing scrutiny and change. We therefore will concentrate on those cases and doctrines that culminated in the eminent domain jurisprudence of the early West. In the context of early American land settlement and development, the paper will define what is known among legal and historical scholars as "takings," expounding on different aspects of that concept. We will examine …

The Uniform Statutory Rule Against Perpetuities, Lawrence W. Waggoner

Articles

When the National Conference of Commissioners on Uniform State Laws recently approved the Uniform Statutory Rule Against Perpetuities, it may at long last have made perpetuity reform achievable in this country. Coming, as it does, on the heels of the 1981 promulgation of the Restatement (Second) of Property (Donative Transfers), which adopts the same general type of perpetuity reform, and having been unanimously endorsed by the House of Delegates of the American Bar Association, the Board of Regents of the American College of Probate Counsel, and the Board of Governors of the American College of Real Estate Lawyers, the Uniform …

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 …

Adopted Children In Pennsylvania: A Class Without A Clause, Bruce M. Dolfman, James Charles Schwartzman

Villanova Law Review (1956 - )

No abstract provided.

Is The Rule Against Perpetuities Doomed?, Lewis M. Simes

Michigan Law Review

Few rules of the common law have shown such amazing vitality as the rule against perpetuities. Emerging in the Duke of Norfolk's Case in 1682, as a rule to restrict unbarrable entails in land, it is now applied, not only to interests in land, legal and equitable, but also to personal estate, tangible and intangible, including beneficial interests in trusts. It is regarded as a part of the common law of nearly every English speaking country, except a few of the United States where statutory substitutes have been provided. Since 1930, statutory substitutes have been abolished and there has been …

Rights Of Finders, Ralph W. Aigler

Articles

Much of the confusion and uncertainty in the law regarding the topic indicated above is due to a failure to distinguish between several types of situations and to appreciate the applicability of certain fundamental principles. The words "lost" and "find" are used in such widely varying senses that the all too common method of reaching a conclusion by first applying a name to a thing or situation has in this particular field led to special difficulty.

Rights Of Finders, Ralph W. Aigler

Articles

Much of the confusion and uncertainty in the law regarding the topic indicated above is due to a failure to distinguish between several types of situations and to appreciate the applicability of certain fundamental principles. The words "lost" and "find" are used in such widely varying senses that the all too common method of reaching a conclusion by first applying a name to a thing or situation has in this particular field led to special difficulty.

Alienation Of Contingent Remainders, Ralph W. Aigler

Articles

The recent case of Bisby v. Walker, 169 N. W. 467, decided by the Supreme Court of Iowa November 23, 1918, is an interesting instance of an all too common lack of appreciation and understanding of the very fundamentals of property law. Under the will of her grandfather B became entitled to a contingent remainder (at least the court treated it as such) in certain lands; the contingency upon which her taking depended was her being one of the surviving children of her mother at the time of the death of the life tenant, the testator's widow. During the continuance …

The Disposition To Be Made Of Property The Subject Of A Power If The Power Is Not Exercised, John R. Rood

Articles

The object sought in this article is to collect and classify the cases in which the courts have passed on the question as to what shall be done with property over which a power of appointment has been given; when it finally turns out for some reason that the power has not been exercised. It is not the object to establish any particular thesis, but rather to ascertain how the adjudicated cases stand.

The Patentability Of A Mental Process, John B. Waite

Articles

The fact of possession has been so correlated with the theory of property that it is difficult to dissociate ownership from the possibility of physical possession. One finds that the average lawyer, even though he may defind a right in rem as a right enforcible against any person, is extremely apt, unless after especial thought, to explain that it is enforcible against anyone because it pertains to a thing capable of physical possession and control, a thing that could be actually sequestered, from all other persons. Not at all infrequently the term property has been judicially stripped even of its …