Common Law Commons^™

Judging In The Days Of The Early Republic: A Critique Of Judge Richard Arnold's Use Of History In Anastasoff V. United States, R. Ben Brown

The Journal of Appellate Practice and Process

Judge Arnold writes in his opinion that courts have the power to interpret or find the law but not create it. He argues that this practice was well established during colonial times and that it was adopted at the nation’s creation. The source of law during the formation of the United States is not as clear as Judge Arnold claims. Courts applied their roles differently in each jurisdiction. The complex history of the appropriate role of the judiciary contradicts Judge Arnold’s claim.

The Unpublished, Non-Precedential Decision: An Uncomfortable Legality?, Melissa H. Weresh

The Journal of Appellate Practice and Process

The United States Court of Appeals for the Eighth Circuit ruled in 2000 that its rule prohibiting the citation of unpublished opinions was unconstitutional. The decision was ultimately vacated en banc. The legality of this prohibition merits consideration by the United States Supreme Court.

California's Curious Practice Of "Pocket Review", Steven B. Katz

The Journal of Appellate Practice and Process

The majority of any California appellate panel is permitted to certify an opinion for publication that establishes new law or modifies existing rules. The California Supreme court can reverse any publication decision without giving any reason. This practice is called "pocket review." Pocket reviews risk thwarting legislative intent and sweeping the results under the rug.

Objective Interpretation And Objective Meaning In Holmes And Dickerson: Interpretive Practice And Interpretive Theory, Patrick J. Kelley

Nevada Law Journal

No abstract provided.

Do Judges Deploy Policy?, Mitchel De S.-O.-L'E. Lasser

Cardozo Law Review

No abstract provided.

Rejection Versus Termination: A Sublessee's Rights In A Lease Rejected In A Bankruptcy Proceeding Under 11 U.S.C. § 365(D)(4), Vivek Sankaran

Michigan Law Review

When a party files for bankruptcy under chapter 11 of the United States Code, the court typically appoints a trustee to handle all of the party's financial obligations. The trustee's responsibilities include investigating the financial condition of the debtor, the operation of the business, the desirability of continuing the business, and any other matter relevant to the disposition of the bankrupt estate. If a bankrupt party holds a commercial lease, the trustee possesses two options for dealing with the lease. One option is to reject the lease, which ends the bankrupt party's obligation to adhere to the provisions of the …

Are Some Words Better Left Unpublished?: Precedent And The Role Of Unpublished Decisions, K.K. Duvivier

Sturm College of Law: Faculty Scholarship

The practice of unpublished decisions and their precedential value causes much controversy. The practice of unpublished opinions creates a solution for how to deal effectively with heavy caseloads. Electronic databases make unpublished decisions readily available, which removes any secrecy that critics fear. Unpublished opinions are treated in one of three ways by the courts. In addition, three pragmatic issues are created by allowing opinions to go unpublished: 1) the availability of these decisions, 2) the quality of the reasoning in unpublished decisions, and 3) the treatment of unpublished opinions as precedent.

Revamping Veil Piercing For All Limited Liability Entities: Forcing The Common Law Doctrine Into The Statutory Age, Rebecca J. Huss

Law Faculty Publications

No abstract provided.

Inherited Legal Systems And Effective Rule Of Law: Africa And The Colonial Legacy, Sandra F. Joireman

Political Science Faculty Publications

The question of whether particular types of legal institutions influence the effectiveness of the rule of law has long been answered with conjecture. Common law lawyers and judges tend to believe that the common law system is superior. This opinion is based on the idea that the common law system inherited from the British is more able to protect the rights of the individual than civil law judicial systems. Quite the opposite point of view can be found in lawyers from civil law countries, who may view the common law system as capricious and disorganised. This paper compares the effectiveness …

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. …

Cases Concerning Equity And The Courts Of Equity 1550-1660, William Hamilton Bryson

Law Faculty Publications

This volume of previously unpublished equity reports in the period 1550-1660 includes cases of substantive equity prosecuted by English bill procedure, cases that explain the jurisdiction, procedures, and practices of the courts of equity in England, and a few cases from the courts of common law that touch on and consider the jurisdiction of the equity courts. Also included are cases in the equity courts that involve equitable remedies needed to protect common law rights. Frequently the equity judge had to determine a common law right before an equitable remedy could be granted.

Rhetoric And Somatics: Training The Body To Do The Work Of Law, Peter Goodrich

Articles

The article explores the intersection of law, rhetoric, and corporeality, arguing that law is deeply embedded in the human body and its emotional and sensory experiences. It posits that legal dogmatics, while often seen as abstract, is shaped by the body's characteristics and movements, which serve as a substrate for legal logic. The analysis centers on Abraham Fraunce and his contemporaries, who critique the strict legality by emphasizing rhetoric, decorum, and the form of life that rhetoric implies. This critique challenges the notion of law as a detached, abstract system by highlighting its corporeal and emotional dimensions.

Free-Standing Due Process And Criminal Procedure: The Supreme Court's Search For Interpretive Guidelines, Jerold H. Israel

Articles

When I was first introduced to the constitutional regulation of criminal procedure in the mid-1950s, a single issue dominated the field: To what extent did the due process clause of the Fourteenth Amendment impose upon states the same constitutional restraints that the Fourth, Fifth, Sixth and Eighth Amendments imposed upon the federal government? While those Bill of Rights provisions, as even then construed, imposed a broad range of constitutional restraints upon the federal criminal justice system, the federal system was (and still is) minuscule as compared to the combined systems of the fifty states. With the Bill of Rights provisions …

Federal Common Law, Cooperative Federalism, And The Enforcement Of The Telecom Act, Philip J. Weiser

Publications

Congress increasingly has enacted cooperative federalism programs to achieve complex regulatory policy objectives. Such programs combine the authority of federal regulators, state regulators, and federal courts in creative and often pathmarking ways, but the failure of these actors to appreciate fully their respective roles threatens to undermine cooperative federalism's effectiveness. In this Article, Professor Philip Weiser develops a coherent vision of how federal courts should enforce cooperative federalism regulatory programs. In particular, he relates the rise and purpose of cooperative federalism to the federal courts' increased reluctance to make federal common law under the Erie doctrine and their greater deference …

The Idea Of The Common Law In West Virginia Jurisprudential History: Morningstar V. Black & Decker Revisited, James Audley Mclaughlin

West Virginia Law Review

No abstract provided.

Judgement As A Matter Of Law On Punitive Damages, Colleen P. Murphy

Law Faculty Scholarship

No abstract provided.

Business Partners As Fiduciaries: Reflections On The Limits Of Doctrine, Robert W. Hillman

Cardozo Law Review

No abstract provided.

Readings In The Common Law, Paul L. Sayre

Indiana Law Journal

No abstract provided.

Should State Corporate Law Define Successor Liability - The Demise Of Cercla's Federal Common Law, Bradford Mank

Faculty Articles and Other Publications

During the 1980s and early 1990s, a series of decisions broadly interpreting the liability provisions of the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (CERCIA) appeared destined to transform corporate law practice. CERCIA does not directly address successor liability, but the statute's complex and contradictory legislative history arguably implies that Congress wanted federal courts to apply broad liability principles to achieve the statute's fundamental remedial goal of making polluters and their successors pay for cleaning up hazardous substances.

Notably, a number of courts rejected state corporate law principles that usually limit the liability of successor corporations and instead …

Cisg And The Problem With Common Law Jurisdictions, Monica Kilian

Florida State University Journal of Transnational Law & Policy

No abstract provided.

The Utilitarian Role Of A Restatement Of Conflicts In A Common Law System: How Much Judicial Deference Is Due To The Restaters Or "Who Are These Guys, Anyway?", Harold G. Maier

Indiana Law Journal

Symposium: Preparing for the Next Century-A New Restatement of Conflicts?

Pipes, Wires, And Bicycles: Rails-To-Trails, Utility Licenses, And The Shifting Scope Of Railroad Easements From The Nineteenth To The Twenty-First Centuries, Danaya C. Wright, Jeffrey M. Hester

UF Law Faculty Publications

This Article responds to a series of class action suits filed against railroads, telecommunication companies, and the federal government claiming that once railroads abandon their corridors, all property rights shift to adjacent landowners. This Article reviews the state law on this matter and offers a theory of how courts should handle these cases. After discussing the history of nineteenth-century railroad land acquisition practices, we analyze the scope of the easement limited for railroad purposes. We then discuss the role abandonment plays in affecting the rights of third party users of these corridors as well as successor trail owners. We conclude …

America As Pattern And Problem, Carl E. Schneider

Articles

Since the days of Tocqueville, foreign observers have seen America as both a pattern and a problem. They still do, and in ways that illuminate the way law deals with bioethical issues both here and abroad. America was long exceptional in having a written constitution, in allowing its courts the power of judicial review, and in letting courts exercise that power to develop and enforce principles of human rights. Today, that pattern looks markedly less exceptional. After the Second World War, Germany and Japan were persuaded to adopt constitutions that included human rights provisions and that endowed courts with the …

Optimal Standardization In The Law Of Property: The Numerus Clausus Principle, Thomas W. Merrill, Henry E. Smith

Faculty Scholarship

A central difference between contract and property concerns the freedom to "customize" legally enforceable interests. The law of contract recognizes no inherent limitations on the nature or the duration of the interests that can be the subject of a legally binding contract. Certain types of promises – such as promises to commit a crime – are declared unenforceable as a matter of public policy. But outside these relatively narrow areas of proscription and requirements such as definiteness and (maybe) consideration, there is a potentially infinite range of promises that the law will honor. The parties to a contract are free …

Birthright Citizenship In The United Kingdom And The United States, Michael Robert W. Houston

Vanderbilt Journal of Transnational Law

The common law concept of territorial birthright citizenship is the foundation for the Fourteenth Amendment's Citizenship Clause, which confers citizenship on those born within the United States and "subject" to its "jurisdiction." Likewise territorial underpinnings were the basis for over 375 years of birthright citizenship within the United Kingdom. Contemporary discourse with respect to territorial birthright citizenship, however, has shifted from its common law basis and now focuses on whether citizenship ought to inhere in children born to illegal immigrants. In the United Kingdom, the British Nationality Act of 1981 abandoned territorial birthright citizenship in favor of parentage based citizenship. …

Negotiation And Native Title: Why Common Law Courts Are Not Proper Fora For Determining Native Land Title Issues, Geoffrey R. Schiveley

Vanderbilt Journal of Transnational Law

The displacement of indigenous populations is an obvious but often-overlooked consequence of worldwide European colonization. Until relatively recently, the rights of these groups have consistently been held to lower standards of protection than those of their colonizing counterparts, partly through the use of doctrines such as terra nullius. While earlier decades established the groundwork for recognition of these rights, in the 1990s native rights issues became of greater importance to both the international community and individual nations. Some of this heightened interest can be attributed to a series of high-profile common law court cases that provided native populations with favorable …

Recovering The Original Fourth Amendment, Thomas Y. Davies

Michigan Law Review

Claims regarding the original or intended meaning of constitutional texts are commonplace in constitutional argument and analysis. All such claims are subject to an implicit validity criterion - only historically authentic assertions should matter. The rub is that the original meaning commonly attributed to a constitutional text may not be authentic. The historical Fourth Amendment is a case in point. If American judges, lawyers, or law teachers were asked what the Framers intended when they adopted the Fourth Amendment, they would likely answer that the Framers intended that all searches and seizures conducted by government officers must be reasonable given …

A Defense Of Analogical Reasoning In Law, Emily Sherwin

Cornell Law Faculty Publications

This Article defends the practice of reasoning by analogy on the basis of its epistemic and institutional advantages. The advantages identified for analogical reasoning include that it produces a wealth of data for decisonmaking; it represents the collaborative effort of a number of judges over time; it tends to correct biases that might lead judges to discount the force of prior decisions; and it exerts a conservative force in law, holding the development of law to a gradual pace. Notably, these advantages do not depend on the rational force of analogical reasoning. Rather, the author contends that, as open-ended reasoning …

Unpublished Opinions: A Comment, Richard S. Arnold

The Journal of Appellate Practice and Process

The Honorable Richard S. Arnold gives a federal appellate judge’s perspective of the unpublished opinions debate.

Subversive Thoughts On Freedom And The Common Good, Larry Alexander, Maimon Schwarzschild

Michigan Law Review

Richard Epstein is a rare and forceful voice against the conventional academic wisdom of our time. Legal scholarship of the past few decades overwhelmingly supports more government regulation and more power for the courts, partly in order to control businesses for environmental and other reasons, but more broadly in hopes of achieving egalitarian outcomes along the famous lines of race, gender, and class. Epstein is deeply skeptical that any of this is the shining path to a better world. Epstein's moral criterion for evaluating social policy is to look at how fully it allows individual human beings to satisfy their …