Common Law Commons^™

The Rationality Of The Common Law, H. Jefferson Powell

Faculty Scholarship

No abstract provided.

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 …

Tort Liability In France For The Act Of Things: A Study Of Judicial Lawmaking, Edward A. Tomlinson

Faculty Scholarship

No abstract provided.

The Adverse Testimony Privilege: Time To Dispose Of A "Sentimental Relic", David Medine

Articles by Maurer Faculty

No abstract provided.

The Collaborative Model Of Statutory Interpretation, William D. Popkin

Articles by Maurer Faculty

No abstract provided.

Constitutional Challenges To The Partial Rejection And Modification Of The Common Law Rule Of Joint And Several Liability Made By The 1986 Washington Tort Reform Act, Cornelius J. Peck

Washington Law Review

The procedural due process questions raised by Section 401 differ in substantial ways from questions in traditional procedural due process cases. In most of the decided cases a governmental body or a private individual was attempting to harm the interests of the person claiming due process protection. Due process requirements were established as protections for the defendant. Only a few of the cases involved a claim of due process in access to a judicial remedy. Persons contesting the constitutionality of Section 401 will argue that the limitations imposed and the procedures required by that Section fail to meet the requirements …

The Foundations Of The Right To Die, Peggy L. Collins

West Virginia Law Review

No abstract provided.

Legal Theory And Common Law, Robert R. Morse Jr.

Michigan Law Review

A Review of Legal Theory and Common Law edited by William Twining

The Wrong Side Of The Tracks: A Revolutionary Rediscovery Of The Common Law Tradition Of Fairness In The Struggle Against Inequality, Gregory A. Kalscheur

Michigan Law Review

A Review of The Wrong Side of the Tracks: A Revolutionary Rediscovery of the Common Law Tradition of Fairness in the Struggle Against Inequality by Charles M. Haar and Daniel W. Fessler

Conceptions Of The Common Law: Reflections On A Theory Of Contract, Vincent A. Wellman

University of Miami Law Review

No abstract provided.

Crime And The Courts In England 1660-1800, Frank C. Shaw

Michigan Law Review

A Review of Crime and the Courts in England 1660-1800 by J.M. Beattie

The Supreme Court's Limiting Of First Amendment Protection For Defendants In Defamation Cases, Gregory L. Hughes

North Carolina Central Law Review

No abstract provided.

Legal Factors In The Acquisition Of A United State Corporation: Litigation By Hostile Targets, Johan E. Droogmans

LLM Theses and Essays

Acquisitions of United States corporations have become increasingly complex takeover contests, where bidders and target corporations are forced into offensive and defensive litigation strategies to protect their respective interests. Targets often assert that the bidders have violated federal or state securities laws, federal antitrust laws, federal margin regulations, federal and state regulatory systems, and federal anti-racketeering laws. These lawsuits are primarily based on the principal federal regulation of takeovers in section 14(a) of the Securities and Exchange Act of 1934 and the Williams Act. Target litigation is customary, but entails certain disadvantages; a lawsuit rarely stops an offer, is expensive, …

A Shorn Beard, Tim Quigley

Dalhousie Law Journal

One of the prominent features of the common law is the concept of stare decisis. As a mechanism to provide certainty and predictability in the law, it is invaluable. Nonetheless, the doctrine of binding precedent, essential though it is to the orderly development of the law, can be misused. At times, the disingenuous application of stare decisis can lead to severe distortion of the law from what was actually meant in the case being cited as authority. Such, I submit, is the case with the intoxication rules.

The Charter's Relevance To Private Litigation: Does Dolphin Deliver?, Brian Slattery

Articles & Book Chapters

The author critically examines the recent decision of the Supreme Court of Canada in Retail, Wholesale and Department Store Union, Local 580 v. Dolphin Delivery Ltd. This case holds that the Canadian Charter of Rights and Freedoms only applies to the relations between government and private persons and not to relations between private persons alone, with two exceptions. The author argues that the first exception - when a private person invokes a statute, rather than the common law, against another private person - is untenable because both the common law and the droit civil are grounded in legislative instruments, respectively …

Crossing The Lines In Dolphin Delivery: Some Thoughts On The Parameters Of The Charter Application - Unpublished, Dianne Potheier

Dianne Pothier Collection

A threatened picket line which never materialized turned into the unlikely setting out of which the Supreme Court of Canada drew the demarcation lines between litigation to which the Charter does and does not apply. I use the description "unlikely setting" not because it is odd that labour picketing was the context for debating the issue of Charter application. The considerable extent to which Canadian law leaves labour picketing to the common law makes it an obvious place to assess the Charter's application to the common law. But it could not have been less planned than Retail, Wholesale and Department …

The Twilight Of Employment At Will? An Update, Theodore J. St. Antoine

Articles

A 55-year-old white male, who has spent thirty years working his way up to a responsible middle-management position in his company, is asked for his resignation. No reason given. Even though the employee could demonstrate that he still is qualified to perform his duties, the employer's action in dismissing him would be quite unexceptionable under the conventional American common law doctrine of employment at will. The situation could be even more disturbing. If the employment-at-will principle were allowed its full scope, an employee would have no recourse even if he knew he was being discharged because he had refused to …

Statutes And Constitutions In An Age Of Common Law, Reed Dickerson

Articles by Maurer Faculty

No abstract provided.

Preventative Pretrial Detention And The Failure Of Interest-Balancing Approaches To Due Process, Albert W. Alschuler

Michigan Law Review

This article, echoing Highmore's treatise of 1783, maintains that neither a legitimate nor a very important governmental interest can justify preventive detention in the absence of significant proof of past wrongdoing or an inability to control one's behavior. Both the Supreme Court's neglect of this issue and Congress' similar neglect in the preventive detention provisions of the Federal Bail Reform Act of 1984 reveal the extent to which cost-benefit analysis has captured American law and threatened core concepts of individual dignity.

The article does not oppose all forms of preventive pretrial detention. To the contrary, it recognizes that the detention …

Government Responsibility For Constitutional Torts, Christina B. Whitman

Articles

This essay is about the language used to decide when governments should be held responsible for constitutional torts.' Debate about what is required of government officials, and what is required of government itself, is scarcely new. What is new, at least to American jurisprudence, is litigation against government units (rather than government officials) for constitutional injuries. 2 The extension of liability to institutional defendants introduces special problems for the language of responsibility. In a suit against an individual official it is easy to describe the wrong as the consequence of individual behavior that is inconsistent with community norms; the language …

The Semantics Of Common Law Predicates, M.B. W. Sinclair

Indiana Law Journal

Symposium: Semiotics, Dialectic, and the Law Held at Indiana University School of Law - Oct. 13, 1984

The Anglo-American Exchange: Our Spiritual Cousinage, Warren E. Burger

William & Mary Law Review

No abstract provided.

The Seventh Anglo-American Exchange, Nigel Bridge

William & Mary Law Review

No abstract provided.

A Vision Of The Exchange, Loren A. Smith

William & Mary Law Review

No abstract provided.

State Constitutional Law: Federalism In The Common Law Tradition, Ellen A. Peters

Michigan Law Review

A Review of Developments in State Constitutional Law edited by Bradley D. McGraw

Origins Of The Common Law (A Three-Part Series) Part Iti: Common Law Under The Early Normans, David A. Thomas

BYU Law Review

No abstract provided.

Burden Of Proof, James Boyd White

Book Chapters

Although the Constitution does not mention burden of proof, certain principles are widely accepted as having constitutional status. The first and most significant of these is the rule that in a criminal case the government must prove its case ‘‘beyond a REASONABLE DOUBT.’’ This is the universal COMMON LAW rule, and was said by the Supreme Court in IN RE WINSHIP (1970) to be an element of DUE PROCESS. This standard is commonly contrasted with proof ‘‘by a preponderance of the evidence’’ or ‘‘by clear and convincing evidence.’’ The standard of proof is in practice not easily susceptible to further …

Tennessee V. Garner And The Democratic Practice Of Judicial Review, Steven L. Winter

Law Faculty Research Publications

No abstract provided.

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 …

Time, Property Rights, And The Common Law, Thomas W. Merrill

Faculty Scholarship

The fee simple is often defined as an estate or interest of "potentially infinite duration." This way of speaking suggests that property rights are fixed and permanent – indeed, that they last forever. Similarly, property rights are regarded in classical liberal thought as sources of stability and security that foster individual autonomy and protect owners against the vicissitudes of life. This too suggests that property rights are not contingent upon a particular temporal context, but rather are impervious to the passage of time.

When we look at the common law, however, we quickly discover a much more complex relationship between …