Common Law Commons^™

The Negative Constitution: A Critique, Susan Bandes

Michigan Law Review

Part I describes the current approach, which demands adherence to the notion of a negative constitution. Part II critiques the assumptions underlying the current approach and demonstrates its undesirable consequences in decisional law. Part III explores the tenacious barriers to recognition of affirmative governmental duties: the constitutional, philosophical, and common law roots of the notion of a negative constitution, as well as the belief that recognizing affirmative duties would be an invitation to chaos. Finally, Part IV proposes discarding the rhetoric of negative rights and suggests an approach for constructing a theory better designed to effectuate constitutional goals.

Book Review Of Images Of A Constitution, B. L. Strayer

Journal of Legal Education

No abstract provided.

The Common Law As Cricket, David F. Partlett

Vanderbilt Law Review

Cricket and baseball are the summer national pastimes of England and America. They both involve players, one of whom propels a hard leather ball toward another with the intent of getting that other "out."The hitter tries to avoid getting out and attempts to hit the ball as far as possible. Umpires preside. Despite all these and other common factors, the games are different. Baseball is brash and dusty, and umpires endure frequent abuse; cricket is restrained and village greenish, and umpires rarely suffer abuse. Both games draw from history and culture.Where transplanted the games assume a different guise. In the …

Professor Brudner's Crisis, Ernest J. Weinrib

Cardozo Law Review

No abstract provided.

Professor Weinrib's Coherence, Alan Brudner

Cardozo Law Review

No abstract provided.

The Federal Common Law Of Erisa Plan Attorneys, Jay Conison

Law Faculty Publications

No abstract provided.

Modified Contributory Fault And Strict Products Liability: Illinois' Silent Disposal Of Misuse And Assumption Of Risk Turns Back The Evolution, 23 J. Marshall L. Rev. 247 (1990), Frank I. Powers

UIC Law Review

No abstract provided.

A Plea For Help: Pleading Problems In Section 1983 Municipal Liability Claims, Evan S. Schwartz

Touro Law Review

No abstract provided.

The Impact Of Freedom Of Information Legislation On Criminal Discovery In Comparative Common Law Perspective, Michael Taggart

Vanderbilt Journal of Transnational Law

This Article examines the effect of freedom of information legislation on criminal discovery in the United States, Canada, Australia, and New Zealand. While all of these countries share the common law tradition and have comparable freedom of information legislation, Professor Taggart notes that the impact of that legislation on the law and practice of criminal discovery varies in each country.

The United States courts generally have resisted attempts by criminal defendants to gain access to a wider range of material under the Freedom of Information Act than available by conventional discovery. So far the courts are unwilling to allow that …

Books Received, Law Review Staff

Vanderbilt Journal of Transnational Law

In Common Law in Southern Africa, Kutner surveys the judgments that are published in South African Law Reports and the official law reports of other southern African states from 1947 to the present. English language commentaries on the cases and statutes discussed in the text are cited in the notes. A Table of Statutes, Table of Cases, Conflict of Laws Index and Torts Index also are provided.

Nutrition And Hydration Under Ohio's Dpah: Judicial Misconstruction Threatens The Right To Choose Death With Dignity, June Mary Zekan Makdisi

Cleveland State Law Review

Recent count indicates that 10,000 Americans now remain, for whatever reason, in an incurable and persistent vegetative condition, trapped in a state of life made possible by aggressive life support systems. A dilemma exists: How do these non-cognitive individuals fit into the legal definitions of life and death? What rights do they, their guardians, or others have in decisions concerning artificial life support, including nutrition and hydration? To resolve the dilemma, a policy based on sound reasoning needs to be established in Ohio to determine if and when the termination of life support, including nutrition and hydration, can occur. Recently, …

How Law Can Be Determinate, Kent Greenawalt

Faculty Scholarship

This Article, part of a longer study, considers one problem about the objectivity of law. The problem is whether the law as it exists provides determinate answers to many legal questions for judges, other officials, and citizens. I emphasize the word many. This Article does not focus on "hard cases" and then ask whether single correct answers for them exist. It does not inquire whether in some complicated sense all legal questions have determinate answers. This is a treatment of easy legal questions. To most lawyers, it may seem self-evident that many legal questions do have determinate answers; and that …

The Constitution's Accommodation Of Social Change, Philip A. Hamburger

Michigan Law Review

Did the framers and ratifiers of the United States Constitution think that changes in American society would require changes in the text or interpretation of the Constitution? If those who created the Constitution understood or even anticipated the possibility of major social alterations, how did they expect constitutional law - text and interpretation - to accommodate such developments?

The effect of social change upon constitutional law was an issue the framers and ratifiers frequently discussed. For example, when AntiFederalists complained of the Constitution's failure to protect the jury trial in civil cases, Federalists responded that a change of circumstances might, …

A Critical Approach To Section 1983 With Special Attention To Sources Of Law, Jack M. Beermann

Faculty Scholarship

The Civil Rights Act of 1871¹ ("§ 1983") establishes a tort-like remedy for persons deprived of federally protected rights "under color of law."'² While the statute's broad language provides a remedy for violations of federal constitutional and statutory rights, the statute itself provides little or no guidance regarding important subjects such as the measure of damages, the availability of punitive damages, the requirements for equitable relief, the statute of limitations, survival of claims, proper parties, and immunities from suit.³...

...The first part of this article examines the narrowly "legal" analysis of § 1983 in the cases …

Corporate Life After Death: Cercla Preemption Of State Corporate Dissolution Law, Audrey J. Anderson

Michigan Law Review

This Note discusses CERCLA's preemption of state corporate dissolution law. Although CERCLA contains a preemption clause intended to specify CERCLA's relationship with other laws, this clause addresses only state laws that impose stricter standards than those contained in CERCLA, and does not address state laws that, like dissolution laws, remove liability from a party otherwise liable under CERCLA. Courts, therefore, have also looked to section 107 of CERCLA, which imposes liability against specified parties "[n]notwithstanding any other provision or rule of law," to determine CERCLA's general relationship with state law. Through such an analysis, courts have agreed that CERCLA does …

America's Oldest Law School, Henry D. Gabriel

Journal of Legal Education

No abstract provided.

Lender Liability: A Survey Of Common-Law Theories, Frances E. Freund

Vanderbilt Law Review

Lender liability litigation has increased dramatically over the past several years. The increase in claims is hardly surprising when one considers recent multimillion dollar recoveries.' Such well-publicized verdicts against lenders serve to encourage borrowers to defend even routine collection claims by striking out at the lender.

Most often borrowers bring lender liability suits following commercial loan defaults. These suits are based on a number of common-law theories for liability including: breach of contract, breach of fiduciary duty,' and breach of good faith, as well as fraud, duress, interference, and negligence. Some suits also raise statutory claims under the bankruptcy laws, …

Perestroika, Glasnost And Law Reform In The Soviet Union Today, V K. Zabigailo

Dalhousie Law Journal

Three years have passed since the elaboration, on the initiative of the Communist Party of the Soviet Union, of a new strategy of action for Soviet society - the acceleration of the country's social-economic development. Today this strategy is finding wide implementation in the policy of perestroika, the revolutionary renewal of society and profound changes in every sphere of its life - political, economical, social and spiritual. Formulated at the April Plenary Session of the Central Committee of the Communist Party of the Soviet Union in 1985 and the 27th Party Congress in 1986, the concept ofperestroika is based on …

Hegel's Legal Plenum, Arthur J. Jacobson

Cardozo Law Review

No abstract provided.

Hegelian Vanity, Common Law Humility: On Legal Theory, Its Expression, And Its Criticism, Thomas M. Eisele

Cardozo Law Review

No abstract provided.

A Comment On "Hegel's Legal Plenum", Agnes Heller

Cardozo Law Review

No abstract provided.

The Warranty Of Quality In Sale Of Goods Under The Perspective Of The American And French Law, Renaud Baguenault De Puchesse

LLM Theses and Essays

While the United States’ common law system is characterized by diversity due to each state having its own set of rules, in certain areas there are nationwide legislative attempts of unification and standardization. One such attempt is the adoption of the Uniform Commercial Code which governs the sale of goods law in the United States. The French civil law system generally differs greatly from the American system in that it is primarily based upon statutes and codes. However, the American Uniform Commercial Code and the French Civil Code provide tangible, comparable bases to assess similarities and differences between American and …

Federal Preemption Of Prescrption Drug Labeling: Antidote For Pharmaceutical Industry Overdosing On State Court Jury Decisions In Products Liability Cases, 22 J. Marshall L. Rev. 629 (1989), John F. Del Giorno

UIC Law Review

No abstract provided.

Punitive Damages: A Cat's Clavicle In Modern Civil Law, 22 J. Marshall L. Rev. 657 (1989), Kurt M. Zitzer

UIC Law Review

No abstract provided.

Jury Nullification: An Historical Perspective On A Modern Debate, Philip B. Scott

West Virginia Law Review

No abstract provided.

Common Mistake In English Law: The Proposed Merger Of Common Law And Equity, Andrew B.L. Phang

Research Collection Yong Pung How School Of Law

Although the law relating to common mistake’ has engendered a plethora of conundrums, many problem areas have in fact been well-traversed in the literature.‘ The present article does not seek to re-cover such welltrodden ground, but attempts, instead, to suggest a different and more systematic approach that would effect a merger of the common law and equitable3 branches of common mistake into one coherent, doctrine.

Common Law Antecendents Of Constitutional Law In Connecticut, Ellen Ash Peters

Faculty Articles and Papers

No abstract provided.

The Common Law Tradition, Mark Weston Janis

Faculty Articles and Papers

No abstract provided.

James Wilson's "Assimilation Of The Common-Law Mind", Stephen A. Conrad

Articles by Maurer Faculty

No abstract provided.

The Deductibility Of A Worthless Right To Contribution For Joint Income Taxes: The Mistaken Line Of Cases Under Rude V. Commissioner, Richard C.E. Beck

Articles & Chapters

No abstract provided.