Common Law Commons^™

Whether The Federal Rules Of Evidence Should Be Conceived As A Perpetual Index Code: Blindness Is Worse Than Myopia, Edward J. Imwinkelried

William & Mary Law Review

No abstract provided.

The Elusive Identity Of The Federal Rules Of Evidence, Glen Weissenberger

William & Mary Law Review

No abstract provided.

Evidence Myopia: The Failure To See The Federal Rules Of Evidence As A Codification Of The Common Law, Glen Weissenberger

William & Mary Law Review

No abstract provided.

The Erie Doctrine Revisited: How A Conflicts Perspective Can Aid The Analysis, Joseph P. Bauer

Journal Articles

I have taught Civil Procedure for the past twenty-five years. Having returned to teaching Conflict of Laws last year, after not having taught that course since the mid-1980s, I was interested in re-examining the Erie doctrine from the vantage point of both of these subject areas. My goal was to see whether a combination of learning from these two related disciplines would introduce additional coherence into the analysis of this topic.

In one sense, the Erie doctrine and traditional choice of law determinations present analogous questions, since they both involve making a selection between competing legal rules. Choice of law …

The Common Law In Cyberspace, Tom W. Bell

Michigan Law Review

Wrong in interesting ways, counts for high praise among academics. Peter Huber's stirring new book, Law and Disorder in Cyberspace, certainly merits acclaim by that standard. The very subtitle of the book, Abolish the FCC and Let Common Law Rule the Telecosm, announces the daring arguments to follow. A book so bold could hardly fail to make some stimulating errors, the most provocative of which this review discusses. Thanks to his willingness to challenge musty doctrines of telecommunications law and policy, moreover, Huber gets a great deal right. Law and Disorder in Cyberspace argues at length that the Federal Communications …

Franchisor Liability For The Torts Of Its Franchisees: The Case For Substituting Liability As A Guarantor For The Current Vicarious Liability, John L. Hanks

Articles

The author reviews the justifications for applying the law of vicarious liability in the franchising context and concludes that its application is often inefficient and arbitrary. He argues that the employee-independent contractor dichotomy used by courts to determine franchisor liability is not well-suited to franchising, where the relationship encompasses both concepts. He proposes that vicarious liability not be applied in the franchising context. Instead, the courts by case law or state legislatures by statute should impose a guarantor status on franchisors that would expose them to liability for the torts of the franchisees only if the franchisee was unavailable to …

In Defense Of The Good Samaritan, Hanoch Dagan

Michigan Law Review

In the year 1880, in Dalles City, Oregon, a large and valuable load of lumber fell into the Columbia River and was about to be carried away by the river's waters. Since Savage, the owner of this lumber, was absent from the scene, Glenn - who, at that time, was doing construction work for Savage - "furnished help and did service" in saving the lumber "from being washed away and lost." Seven years later, the Supreme Court of Oregon rejected Glenn's claim that Savage owed him "the reasonable value" of his services as well as of the services of the …

The Precedent Setters: De Facto Stare Decisis In Two Adjudication (Part Two Of A Trilogy), Raj Bhala

Florida State University Journal of Transnational Law & Policy

No abstract provided.

Law's Territory (A History Of Jurisdiction), Richard T. Ford

Michigan Law Review

Pop quiz: New York City. The United Kingdom. The East Bay Area Municipal Utilities District. Kwazulu, South Africa. The Cathedral of Notre Dame. The State of California. Vatican City. Switzerland. The American Embassy in the U.S.S.R. What do the foregoing items have in common? Answer: they are, or were, all territorial jurisdictions. A thesis of this Article is that territorial jurisdictions - the rigidly mapped territories within which formally defined legal powers are exercised by formally organized governmental institutions - are relatively new and intuitively surprising technological developments. New, because until the development of modern cartography, legal authority generally followed …

The Common Law And Statutes, Peter J. Strauss

University of Colorado Law Review

No abstract provided.

Commercial Common Law, The United Nations Convention On The International Sale Of Goods, And The Inertia Of Habit, David Frisch

Law Faculty Publications

This Article develops a model of judicial behavior that rests on the idea that a judge's decision is a function of her attitudes and role orientations and these, in turn, are heavily influenced by her law school education. The result is an intellectual stubbornness that may lead judges to reject not only optional innovations that may present themselves, but may also cause them to construe mandatory provisions as if no change had occurred. This model and the Convention on the International Sale of Goods illustrate situations in which the emerging international commercial code may play an important role in the …

The Public Trust Doctrine: A Tragedy Of The Common Law, James R. Rasband

Faculty Scholarship

No abstract provided.

Confrontation Confronted, Richard D. Friedman, Margaret A. Berger, Steven R. Shapiro

Articles

The following article is an edited version of the amicus curiae brief filed with the Supreme Court of the United States in the October Term, 1998, in the case of Benjamin Lee Lilly v. Commonwealth of Virginia (No. 98-5881). "This case raises important questions about the meaning of the confrontation clause, which has been a vital ingredient of the fair trial right for hundreds of years," Professor Richard Friedman and his co-authors say. "In particular, this case presents the Court with an opportunity to reconsider the relationship between the confrontation clause and the law of hearsay." On June 10 the …

Federal Common Law In Admiralty: An Introduction To The Beginning Of An Exchange, Joel K. Goldstein

All Faculty Scholarship

Most scholars and practitioners of admiralty law have long relied upon two central assumptions regarding their subject. First, they have understood that uniformity was a requisite of maritime law such that, generally speaking, national, rather than state, law governed most maritime events and transactions. Second, they have believed that in order to preserve the uniformity of maritime law, federal admiralty courts are empowered to fashion federal common law.[1] The commitment to these related propositions has been attested to or illustrated by a collection of Supreme Court decisions.[2] For instance, in Southern Pacific Co. v. Jensen,[3] the case that stands as …

The Common Law And Statutes, Peter L. Strauss

Faculty Scholarship

Controversies about statutory interpretation and the proper roles for judges in interpretation are particularly noticeable in the Supreme Court but have penetrated downward throughout the judicial system. What I mean to explore here are some implications of our common law heritage and the presuppositions of a common law system for these controversies, that seem rarely noticed in the ongoing debates. I mean by this not only common law judging, but also what we might call common law legislating – that is, the practice of creating statutes to achieve marginal changes in existing law in response to perceived deficiencies, rather than …

Ultra Vires Takings, Matthew D. Zinn

Michigan Law Review

When does legislative or administrative regulatory action "go[] too far" and effectively amount to an .appropriation of private property for which the Fifth Amendment requires just compensation? This question has turned out to be one of the thorniest in American constitutional law. The Supreme Court has identified several circumstances in which one can expect to find a regulatory taking, but its numerous pronouncements on the subject give no clear rule to distinguish compensable takings from noncompensable interference with property rights. Notwithstanding its volume, the commentary on the Takings Clause by and large addresses only proper governmental action that rises to …

The Common Law "Duty To Serve" And Protection Of Consumers In An Age Of Competitive Retail Public Utility Restructuring, Jim Rossi

Vanderbilt Law School Faculty Publications

This article addresses the implications of retail competition in public utility industries, particularly electricity, for utility service obligations. After tracing the history of the common law duty to serve applicable to public utilities, the efficiency of utility service obligations in the context of rate regulation is explored. Retail competition, many suggest, poses a threat to utility service obligations. However, regulators can minimize the inefficiency of traditional utility service obligations without sacrificing the benefits of retail competition if they pay attention to the structural efficiency of competitive retail markets. The article advocates imposition of basic service obligations on the DisCo and …

Torts—Dramshop Liability In Arkansas—Illegal Sales Of Liquor To Minors May Expose Alcohol Vendors To Expensive Liability. Shannon V. Wilson, 329 Ark. 143, 947 S.W.2d 349 (1997)., Dustin Blake Mcdaniel

University of Arkansas at Little Rock Law Review

No abstract provided.

What State Am I In?: Common Law Trademarks On The Internet , Brian L. Berlandi

Michigan Telecommunications & Technology Law Review

This essay explores the interaction between common law trademarks and the Internet--a relationship that has yet to be scrutinized by the intellectual property and Internet communities. More specifically, it strains to identify a common law mark's territorial zone of protection with respect to the Internet. This is an ambitious endeavor from the start, for there is no case law or published academic material available or directly on-point. As a result, this essay will not be a critique of judicial precedent or academic opinion. Instead, it offers a premonition of future case law and a foreshadowing of legal scenarios that might …

Bodies Of Law, Moira Mcconnell

Dalhousie Law Journal

"Don't judge a book by its cover" is a maxim most frequently recited to children by adults to explain the idea that one should not judge people on the basis of appearance. This maxim captures the gist of the topic explored in Alan Hyde's Bodies of Law. Bodies of Law seeks to expose the fact that we simultaneously view a person as an entity distinct from her or his physical manifestation while our understanding and response to a person is affected by our perceptions and judgments regarding their physical characteristics.

The Structure Of Blackstone's Commentaries, Alan Watson

Scholarly Works

Duncan Kennedy's view of Sir William Blackstone's Commentaries on the Laws of England as the first systematic attempt to present a theory of the whole common law system is interesting but wrong. Blackstone himself listed his predecessors, "those who have laboured in reducing our laws to a System": Glanville, Bracton, Britton, the author of Fleta, Fitzherbert, Brook, Lord Bacon, Sir Edward Coke, Dr. Cowell, Sir Henry Finch, Dr. Wood, Sir Matthew Hale. Certainly their arrangements are not free from defects. In particular, as Blackstone pointed out, the arrangement of Fitzherbert and Brook was alphabetical, and Bacon purposely avoided any regular …

Kicking The Legalese Habit: The Sec's Plain English Disclosure Proposal, Andrew T. Serafin

Loyola University Chicago Law Journal

No abstract provided.

Off Broadway: The Supreme Court's Criminal Law Decisions In The 1996 Term Take Second Stage In An Historic Term, William E. Hellerstein

Touro Law Review

No abstract provided.

Governmental Takings, Court Of Appeals: Kim V. City Of New York

Touro Law Review

No abstract provided.

The National Notary Association: A Historical Profile, 31 J. Marshall L. Rev. 971 (1998), Milton G. Valera

UIC Law Review

No abstract provided.

To Notarize, Or Not To Notarize ... Is Not A Question Of Judging Competence Or Willingness Of Document Signers, 31 J. Marshall L. Rev. 1013 (1998), Klint L. Bruno

UIC Law Review

No abstract provided.

Sexual Discrimination And Sexual Misconduct: Applying New York's Gender-Specific Sexual Misconduct Law To Consenting Minors, Douglas Mcnamara

Touro Law Review

No abstract provided.

Anchors And Flotsam: Is Evidence Law 'Adrift'?, Richard D. Friedman

Reviews

Difference, as well as distance, yields perspective. A comparison of legal systems may search for common underlying principles, or for lessons that one system might learn from another. But it may also be aimed primarily at illuminating one system by light shed from another. This is the aim of Evidence Law Adrift, Mirjan Damagka's elegant study of the common law system of evidence, and he is ideally suited for the task. Born and schooled in Continental Europe, he has lived and taught in the United States for twenty-five years. His relation to the common law system of evidence is, I …

Tort Law, Honorable Leon D. Lazer

Touro Law Review

No abstract provided.

Thoughts From Across The Water On Hearsay And Confrontation, Richard D. Friedman

Articles

This article draws on the history of the hearsay rule, and on recent decisions of the European Court of Human Rights, to argue that the right to confrontation should be recognised as a basic principle of the law of evidence, and that aspects of the Law Commission's proposals for reform of the hearsay rule, and of the Home Office's proposals for restrictions on the right of cross-examination, are therefore unsatisfactory.