Common Law Commons^™

The Reason Of The Common Law, Barbara A. Singer

University of Miami Law Review

Although the present meaning of reason has been reduced to discrete definitions, precise interpretations did not exist in medieval England. Rather, reason was defined by its role in the adjudicatory process. During the late medieval period, reason came to embody the very essence of the common law as courts recognized that it could be used to prevent procedural rules from infringing upon substantive rights. Relying upon Year Book cases and jurisprudential works, the author describes how the chameleon-like character of reason helped to shape the medieval English common law.

Perpetuity Reform, Lawrence W. Waggoner

Articles

After years of debate, perpetuity reform is still controversial. To be sure, there is agreement among virtually all of the commentators and experts in the field that the Rule Against Perpetuities is in need of reform. The disagreement, on the surface, centers on the methods of reform to be employed. At least three basic methods have been advanced: (1) specific statutory repair of discrete problem areas; (2) reformation; and (3) wait-and-see. Each method has its sponsors, and each has in one form or another been adopted as part of the law of a few states. These methods are not mutually …

Equity, Due Process And The Seventh Amendment: A Commentary On The Zenith Case, Patrick Devlin

Michigan Law Review

The seventh amendment to the United States Constitution requires that "[i]n Suits at common law . . . the right of trial by jury shall be preserved." What exactly is a suit at common law? When the amendment was enacted in 1791, there was no law that was common to all the states. In 1812 Supreme Court Justice Story, in a Circuit Court ruling, held that the common law alluded to was the common law of England, "the grand reservoir of all of our jurisprudence." This means that when today an American judge has to decide whether in any set …

Suits To Bind Nonsignatories To Collective Bargaining Agreements Under Section 301: The Emerging Federal Common Law, David A. Anderson

BYU Law Review

No abstract provided.

The American Codification Movement, A Study Of Antebellum Legal Reform, Robert W. Gordon

Vanderbilt Law Review

Between 1820 and 1850 American legal commentators became obsessed with whether legislatures should codify, either in whole or in part, the common law of the American states. Indeed, "[a]lmost every law writer after 1825 felt compelled to include his views [on codification] in his works of whatever sort."" The enormous literature that emerged from this period survives today to fascinate modern legal historians, who seem to have developed their own obsession for the "codification" issue. As Lawrence Friedman has said, "The codification movement is one of the set pieces of American legal history." Charles M. Cook's "The American Codification Movement: …

Common Sense About The Age Of Statutes, Steve Macisaac

Michigan Law Review

A Review of A Common Law for the Age of Statutes by Guido Calabresi

Employment-At-Will Doctrine: Providing A Public Policy Exception To Improve Worker Safety, Daniel T. Schibley

University of Michigan Journal of Law Reform

Occupational safety would be greatly enhanced if employees had a viable option of refusing to work under unsafe conditions without risking their jobs. This Note proposes a public policy exception to the employment-at-will doctrine that would give a cause of action to an employee discharged for refusing to work under unsafe conditions. Part I examines the employment-at-will rule and its recognized exceptions. Part II analyzes the inadequacies of existing statutory remedies for a discharged employee who refused to work under unsafe conditions. Finally, Part III proposes an alternative remedy: providing a common-law exception to the employment-at-will rule that will give …

Marriage: The Status Of Contract, An Essay On Weitzman's The Marriage Contract, Marsha Garrison

Faculty Scholarship

No abstract provided.

The Meaning Of Judicial Self-Restraint, Richard A. Posner

Indiana Law Journal

No abstract provided.

A Common Law For The Age Of Statutes, Louis Vogel

Indiana Law Journal

No abstract provided.

The Abolition Of The Forms Of Action In Virginia, William Hamilton Bryson

Law Faculty Publications

The common law procedure for initiating actions at law in the English courts required a plaintiff to obtain a writ invoking the jurisdiction of the court and to file a declaration setting forth the facts that justified instigation of the suit and established the cause of the action. This clumsy and archaic system of litigation was abolished by a single chop of the legislative guillotine in New York in 1848. England followed suit in 1875, and the United States federal courts in 1938. Writs and declarations were replaced by simple forms which were copied from the practice of the equity …

The Emergence Of A General Reformation Doctrine For Wills, Lawrence W. Waggoner, John H. Langbein

Articles

In this article, which both summarizes and updates an extensively footnoted article published last year ("Reformation of Wills on the Ground of Mistake: Change of Direction in American Law?" 130 University of Pennsylvania Law Rmiew 521 (1982)), we report on this new case law and discuss the analytic framework that we think it suggests and requires.

Collateral Estoppel Without Mutuality: Accepting The Bernhard Doctrine, William S. Byassee

Vanderbilt Law Review

This Note adopts a more moderate position: the Bernhard doctrine is but a minor alteration of collateral estoppel principles. It has not and will not generate the unfairness and injustice that its critics have predicted. After tracing the development of the principle of collateral estoppel from its origins in early English common law, this Note discusses some suggested justifications for the mutuality requirement and some generally accepted exceptions to its use. It then examines the growth of the Bernhard doctrine and compares how the courts have applied both the mutuality requirement and the Bernhard doctrine. Finally, the Note seeks to …

Common Law Judging In A Statutory World: An Address, Ellen Ash Peters

Faculty Articles and Papers

No abstract provided.

Process Constraints In Tort, James A. Henderson Jr.

Cornell Law Faculty Publications

No abstract provided.

Federal Rule Of Evidence 803(3) And The Criminal Defendant: The Limits Of The Hillmon Doctrine, Thomas A. Wiseman, Iii

Vanderbilt Law Review

This Note has examined the use of the common-law Hillmon doctrine and rule 803(3) in a limited context. Several approaches are available to a court that considers whether to admit a Hillmon statement. A court in a jurisdiction that still applies the common-law hearsay rule may adhere to the status quo. Ample authority exists to permit this approach. Nevertheless, because admission of a Hillmon statement risks certain inherent dangers, a common-law court should avoid a perfunctory application of the exception. Instead, the court must examine carefully each Hillmon statement to ensure that it does not prejudice the defendant's right to …

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 …

Reformation Of Wills On The Ground Of Mistake: Change Of Direction In American Law?, John H. Langbein, Lawrence W. Waggoner

Articles

Although it has been "axiomatic" that our courts do not entertain suits to reform wills on the ground of mistake, appellate courts in California, New Jersey, and New York have decided cases within the last five years that may presage the abandonment of the ancient "no-reformation" rule. The new cases do not purport to make this fundamental doctrinal change, although the California Court of Appeal in Estate of Taff and the New Jersey Supreme Court in Engle v. Siegel did expressly disclaim a related rule, sometimes called the "plain meaning" rule. That rule, which hereafter we will call the "no-extrinsic-evidence …

Judicial Experimentation With A Strict Products Liability Rule: A Comparison Of The Law In The United Kingdom, Louisiana, And United States' Common Law Jurisdictions, Thomas E. Carbonneau, Catherine Garvey

Faculty Scholarship

Since the mid-nineteenth century, products liability law has undergone significant modifications. The applicable doctrine has oscillated between contract and tort theories; fault and no-fault liability schemes have competed for predominance. Despite attempts to create an internationally accepted liability norm, different legal systems continue to espouse differing perceptions of the liability formula in the products area. In addition, even in jurisdictions in which courts adhere to identical liability theories, there is disagreement as to the application and implications of the same standard. This article attempts to set the shifting doctrinal character of products liability analysis into a comparative perspective principally between …

The Necessary Demise Of Federal Common Law Nuisance, Jeffrey C. Fort

Loyola University Chicago Law Journal

No abstract provided.

The Uniform Foreign Money-Judgments Recognition Act: A Survey Of The Case Law, Carol C. Honigberg

Vanderbilt Journal of Transnational Law

The Uniform Foreign Money-Judgments Recognition Act's genesis lay in the belief that a state's codification of its rules on the recognition of foreign money-judgments would increase the likelihood that similar judgments rendered by that state would be recognized abroad. The treatment of United States judgments in the courts of foreign nations concerned the Commissioners on Uniform State Laws because United States courts traditionally accord far better treatment to foreign judgments than is accorded United States judgments abroad. The recognition and enforcement of foreign judgments, or recognition practice, has long posed special problems because of the vast differences in the various …

Professor D'Amato On Law And Custom: A Rejoinder, Ernest Nagel

Cardozo Law Review

No abstract provided.

‘Economists’ Reasons' For Common Law Decisions - A Preliminary Inquiry, Robert S. Summers, Leigh B. Kelley

Cornell Law Faculty Publications

No abstract provided.

Constitutional Torts, Christina B. Whitman

Articles

In this Article, I analyze the significance of the overlap between state tort law remedies and remedies under section 1983. I conclude that the dissatisfaction with section 1983 cannot fairly be attributed to the fact that it has been read to provide a remedy that "supplements" state law. I argue that most of the anxiety over constitutional damage actions under section 1983 can be understood - and resolved - only by focusing on two other questions. The first of these concerns the appropriate reach of the Constitution. Ambivalence about section 1983 reflects, in part, a fear that the federal Constitution …

Toxic Substance Contamination: The Risk-Benefit Approach To Causation Analysis, Bradford W. Kuster

University of Michigan Journal of Law Reform

This article argues that the dilemma described above requires change and proposes a new standard for causation in this type of toxic contamination case. Part I examines the difficulties posed by conventional common law relief mechanisms, and the inadequacies of existing statutory relief mechanisms. Part II scrutinizes a more lenient burden of proof standard, the risk-benefit approach, which some courts have applied when faced with situations involving scientific uncertainties. The risk-benefit approach will be applied to causation analysis in the context of damage recoveries, using the. Hemlock, Michigan, situation as a case study. Part III discusses present congressional proposals, and …

Interspousal Immunity In Pennsylvania, John L. Gedid

Duquesne Law Review

No abstract provided.

Comparative Contribution: The Legislative Enactment Of The Skinner Doctrine, 14 J. Marshall L. Rev. 141 (1980), Randall F. Clark

UIC Law Review

No abstract provided.

Commercial Hardship And The Discharge Of Contractual Obligations Under American And British Law, John J. Gorman

Vanderbilt Journal of Transnational Law

There are several doctrines under which contractual obligations have been judicially discharged. This Note will examine the United States doctrine of commercial impracticability or commercial impossibility and the English doctrine of frustration of contract or frustration of the commercial objective. The focus of this Note therefore is on those situations in which discharge from contractual obligations is sought because of supervening economic hardship. Part II provides a brief historical account of the development of the English common law doctrine of impossibility. Part III traces the development of the United States concept of commercial impossibility and commercial impracticability from the early …

Oliver Wendell Holmes And External Standards Of Criminal And Tort Liability: Application Of Theory On The Massachusetts Bench, William A. Lundquist

Buffalo Law Review

No abstract provided.

The Structure Of Blackstone's Commentaries, Duncan Kennedy

Buffalo Law Review

No abstract provided.