Common Law Commons^™

Recusal Reform: Treating A Justice's Disqualification As A Legal Issue, Michael J. Broyde, Hayden H. Hall

Faculty Articles

This article addresses the pressing issue of recusal in the U.S. Supreme Court. It critiques the current practice of Supreme Court Justices deciding individually whether to recuse themselves from cases, highlighting the flaws and potential biases inherent in this practice. The authors advocate for a reform where initial recusal decisions are made by individual Justices but then are subject to review by the Supreme Court as a whole.

The article offers several arguments to support this proposal. First, the authors explore the evolution of recusal laws, focusing on the significant amendments to 28 U.S.C. § 455 in 1948 and 1974. …

Pitching For Reform: Cangrejeros' Push To Level The Legal Playing Field By Challenging Baseball's Antitrust Exemption, Justin P. Chaljub

Fordham Journal of Corporate & Financial Law

For over one-hundred years, professional baseball has enjoyed an antitrust exemption unique among American major sports leagues, stemming from Supreme Court decisions in Federal Baseball and its progeny. This exemption has significantly influenced the evolution and structure of Major League Baseball (MLB). Despite extensive criticism and challenges for judicial and legislative reform, the exemption persists today.

However, new efforts have emerged to comprehensively disrupt this framework. In 2023, Nostalgic Partners was brought and structured to reach the U.S. Supreme Court. Plaintiffs anticipated they would lose at the lower court levels and garnered widespread support for the Court to grant a …

Alternatives To Delaware? Evaluating Corporate Law In Nevada, Texas, And Wyoming, Joseph Landau, Bailey Swartz, Anthony Rickey, Robert Ragazzo, Benjamin Edwards, George A. Mocsary

Fordham Journal of Corporate & Financial Law

No abstract provided.

Perceptions And Treatment Decisions For A Drug Offender Based On Social Class, Cocaine Type, Personal Characteristics, And Compassionate Love: A Vignette Study, Yasmin A. Odeh

Theses and Dissertations

Problem: The shift from a focus on rehabilitation to the more punitive, “tough on crime” approach to illegal behavior in the U.S. has been enacted in no small way by policies connected to the use and abuse of drugs. The disparities between crack and powder cocaine—two chemically similar substances—have headlined this shift (Vagins and McCurdy 2006). However, research is scarce on laypeople’s approval of deterrence approaches for drug offenses, including as a function of types (e.g., powder vs. cocaine possession). This study examined people’s perceptions of prosecutorial decisions for drug offenders—whether they are punished, rehabilitated, or both—and whether people perceived …

Masthead & Table Of Contents

Dalhousie Law Journal

No abstract provided.

Like It Or Not: Recognizing A Special Relationship Between Social Media Companies And Their Users, Alexandra Tran

Fordham Law Review

When the internet plays a role in a plaintiff’s injury, there can be considerable roadblocks barring recovery. At the heart of the dispute over how social media should be legally addressed is the balance between maintaining freedom of expression on the open internet and imposing regulations on social media companies to ensure online safety. When plaintiffs allege that a social media company had a duty to warn them about dangers on its site, courts are generally reluctant to extend the special relationship doctrine to encompass the social media-user relationship. In addition to the high bar set by courts, different jurisdictions …

Tortious Interference Revisited, Danielle D'Onfro, Cathy Hwang

Scholarship@WashULaw

Tortious interference with contract has bedeviled legal commentators for over a century. It can provide relief in some situations where straightforward contract breach cannot reach. But these claims have also been derided for threatening competition, at-will employment, free speech, and important guardrails on other private law claims. The doctrine is also difficult to square with theories of efficient contract breach and the long-held view that contracts on their own are not property interests.

Perhaps because of its intellectual awkwardness, tortious interference claims were relatively rare until the twenty-first century. In the last twenty years, the doctrine has exploded in popularity, …

Private Law Without Precedent, Danielle D'Onfro

Scholarship@WashULaw

A common-law system assumes that judges regularly issue new opinions that clarify and update the law over time. At the same time, our federal system assumes that state courts will do the bulk of judicial lawmaking, especially in private law. And, with a few exceptions, our broader legal system assumes that state private law has allocated entitlements and obligations into a coherent system. None of these assumptions has been true for a long time.

This Article offers a comprehensive account of when and why these assumptions about the proper functioning of private law fail. It then uses this account to …

Policy And Poppycock In Proximate Cause Cases A/K/A Scope Of Liability And Starting To Make Sense, Thomas Galligan

FIU Law Review

Studying proximate cause is like trying to decode mumbo jumbo. Courts continue to use words like direct, remote, natural and probable, foreseeable, hindsight, and intervening and superseding causes, and they make them sound like tests. They make them sound like law. Furthermore, as one test is debunked and another appears, courts continue to apply the debunked tests. They just pile on a new one as well. Then, they calm themselves and say that proximate cause is all a matter of policy. After all, Leon Green said that; William Prosser said that. It must be true. But courts fail to ever …

The Hunger Games: Food As A Right, Not A Privilege, Camesha F. Little

FIU Law Review

Despite the United Nations' explicit declaration that all humans have a right to food, food insecurity and hunger remain persistent problems in the United States and around the globe. The dystopian landscapes depicted in novels such as The Hunger Games and Parable of the Sower—societies crippled by poverty, oppression, and pervasive starvation—resonate with sobering contemporary realities. This Article examines existing food laws, food rights, and the current protections safeguarding the United States food supply from a humanitarian perspective. Ultimately, this Article argues that the human right to food must expand to encompass a right to healthy or natural food, and …

Fifty Years Of Protecting The Surviving Spouse: The Origin And Evolution Of Florida's Elective Share, Flavia Argamasilla

FIU Law Review

Currently, Florida’s elective share framework calculates the amount a surviving spouse is entitled to based on a decedent’s “elective estate.” Although this “elective estate” represents a significant improvement from previous law, where a decedent was free to completely disinherit a surviving spouse, issues still loom regarding the fairness of the framework. Granting a surviving spouse a fixed share of 30 percent of the decedent’s “elective estate” regardless of the length of the marriage can lead to inequitable outcomes. For instance, a surviving spouse who was married to the decedent for any period of time, one month even, can elect to …

Cross-Talk, Alicia Bannon, John Q. Barrett, Tyler Rose Clemons, Wilfred U. Codrington Iii, Mark C. Niles

Articles

The symposium examines the Supreme Court's recent trend of overturning precedent, arguing that this practice undermines the principle of *stare decisis* and the Court's legitimacy. Historically, the Court has used precedent to protect marginalized groups, but recent decisions suggest a shift toward benefiting non-marginalized interests, such as big businesses and conservative groups. This change is seen as a departure from the Court's traditional role and raises concerns about judicial humility and the politicization of the judiciary.

Enhancing The Uniform Partition Of Heirs Property Act: The Need For Broader Use And Essential Modifications, Donna Arzanipour

Touro Law Review

The Uniform Partition of Heirs Property Act (“UPHPA”) seeks to address complex and inequitable conflicts that arise when partitioning heirs property. This Note explores the legislative history of the UPHPA, along with the legal and societal significance of the UPHPA, which provides mechanisms to prevent forced sales of family-owned property. Through a comparative analysis of states that have adopted their versions of the UPHPA, this Note considers the law’s potential to protect family land, reduce the risk of displacement, and promote longterm economic stability for communities, especially those in rural and minority populations. While recommending that all states should adopt …

The Three Lives Of Mamengwaa: Toward An Indigenous Canon Of Construction, Matthew L.M. Fletcher

Articles

For too long, tribal judiciaries have been an afterthought in the story of tribal selfdetermination. Until the last half-century, many tribal nations relied on federally administered courts or had no court systems at all. As tribal nations continue to develop their law-enforcement and police powers, tribal justice systems now play a critical role in tribal self-determination. But because tribal codes and constitutions tend to borrow extensively from federal and state law, tribal judges find themselves forced to apply and enforce laws that are poor cultural fits for Indian communities—an unfortunate reality that hampers tribal judges’ ability to regulate and improve …

Scrutiny Of Employee Covenants Not To Compete Under The Rule Of Reason: An Empirical Inquiry, Daniel A. Crane

Notre Dame Law Review Reflection

For over 300 years, the common law has scrutinized employee covenants not to compete for their reasonableness. That is about to change. On April 23, 2024, the Federal Trade Commission announced a rule that will prohibit employers from imposing noncompete agreements on workers. The rule declares all covenants not to compete in the employment context to be unfair methods of competition under section 5 of the FTC Act. If the rule takes effect, thirty million contracts will become illegal. The FTC justifies this rule based on the ostensibly pernicious effects of employee covenants not to compete—limiting employee opportunities to pursue …

Tax As Hybrid Law: Borrowing And Convergences, Henry Ordower

All Faculty Scholarship

[This article argues that tax is a hybrid of civil and common law, public and private law, and is cross-disciplinary. It observes that tax law has become an all-purpose tool for legislators. It seeks to demonstrate how the U.S., a common law jurisdiction, has turned to civil law models for taxation while civil law jurisdictions and the European Union have sought common law models to combat tax avoidance. The ubiquity of tax and its public law influence on private law transactions, its cross disciplinary nature, and its deployment as a legislative tool to manage the economy make it a candidate …

Casar Auc Community Lecture: ‘Gender-Based Violence,Women And The Law In Egypt And The Us’, The Prince Alwaleed Center For American Studies And Research Casar

Performances, Events, and Presentations

This engaging - AUC community only - special topics lecture discussed the social challenges and legal obstacles women face when discussing gender based violence crimes in Egypt shedding a comparative light on the US given the recent election results.

This event hosted Counselor Mohamed Samir Ahmed, Spokesperson of the Administrative Prosecution Authority (APA) in Egypt, Independent Lecturer in Political Science & Gender Based Violence Crimes.

The event was moderated by CASAR Assistant to Director & Adjunct Faculty Yasmeen El-Ghazaly.

This lecture was a collaboration between The Prince Alwaleed Center for American Studies and Research (CASAR AUC EGYPT ) and the …

The Common Law’S Resistance To Gender Violence, Victoria Frances Nourse

Georgetown Law Faculty Publications and Other Works

Over twenty years ago, Congress developed a “mountain of evidence” that state criminal and civil remedies against sexual assault and battering were inadequate. The Supreme Court rejected that evidence in United States v. Morrison, striking down a federal civil rights remedy for sexual assault and battering. Since then, there have been many civil cases of sexual assault and battering against high-profile individuals, including the recent E. Jean Carroll lawsuit against a former President. This five-year study, surveying fifty states’ civil law, asks the question prompted by Morrison: Does the civil law today provide adequate remedies to survivors of sexual assault …

Takings, Original Meaning, And Applying Property Law Principles To Fix Penn Central, John M. Groen

Touro Law Review

No abstract provided.

Obstructing Precedent, Bill Watson

Northwestern University Law Review

Critics of the Supreme Court sometimes accuse the Justices of disrespecting or being unfaithful to precedent—of undermining certain precedents while leaving them formally in place. Yet it remains unclear what exactly these criticisms mean or why they point to anything objectionable. This Article proposes that critics are often drawing attention to a particular practice: obstructing precedent. A better grasp of what obstructing precedent is and when it is legitimate is important to understanding the Roberts Court’s treatment of precedent in a range of cases.

A court obstructs precedent when it refuses to cooperate with its prior self in building a …

Legal Hurdles And Pathways: The Evolution (Progress?) Of Climate Change Adjudication In Canada, Camille Cameron, Riley Weyman, Claire Nicholson

Dalhousie Law Journal

Citizens, civil society, and environmental justice organizations are increasingly turning to courts to find solutions to climate change challenges. As of November 2022, the number of climate change litigation cases throughout the world was at least 2.5 times higher than in 2017. A dominant wave of this litigation is one in which claimants assert that governments’ failures to take appropriate mitigation and adaptation measures violate claimants’ rights. We analyze this jurisprudence in this article, with a focus on the recent Ontario Superior Court of Justice decision in Mathur v Ontario. While the claims in this case were dismissed, it is …

A Social Status Theory Of Defamation Law, Yonathan A. Arbel

Articles

Despite deep inequality in social status and social capital in American society, legal scholarship has done relatively little to understand the structures that produce status and maintain its distribution. The Article argues that defamation law plays such a role. The orthodox view is that defamation law's goal is to protect dignity. This view was expressed in a famous Supreme Court holding in 1966, which held that defamation law is necessary to protect "the essential dignity" of "every human being. " The later seminal work of Robert Post cemented it. Seemingly unrelated, scholars of defamation law have found its structure mystifying, …

The General-Law Right To Bear Arms, William Baude, Robert Leider

Notre Dame Law Review

In this Article, we argue that Bruen's intended methodological shift has been widely misunderstood by the bench and bar. This has led to confusion and misapplication in the lower courts, as well as much scholarly criticism of the test that is, we think, misdirected. As we will explain, Bruen calls for a form of legal originalism, applying a classical view of fundamental rights as a form of unwritten customary law. This is consistent with the text and history of the Constitution and leads to results that are less mechanical and more sensible than many lower courts have thought. Understanding …

University Of The District Of Columbia Law Review, University Of The District Of Columbia Law Review

University of the District of Columbia Law Review

No abstract provided.

Masthead, Table Of Contents & Introduction, Genevieve Renard Painter, Liam Mchugh-Russell

Dalhousie Law Journal

The short reflections in this Dalhousie Law Journal symposium, “Thinking With and Against Pierre Schlag,” run in many directions. Somewhere in these pages, readers will find knowledge, provocation, distraction, and humour. Above all, though, the collection brings together five legal scholars to celebrate Pierre’s oeuvre, reflect on the ways it has inspired their own work, and examine how Pierre’s scholarship embodies the limits that it was pushing against. Pierre has graciously provided a response to round out the issue and set us all straight.

Law, Critique And The Believer's Experience, Jean D'Aspremont

Dalhousie Law Journal

I have come to think that, most of the time, radical critics of a given discursive practice were once believers in that practice’s necessities and realities. In particular, I am of the opinion that one comes to appreciate the power of a discourse only when one has genuinely and personally experienced the necessitarian pull as well as the realities such discourse creates. To put it in phenomenological terms, I think that radical scepticism is often the expression of some self-revulsion at one’s earlier beliefs. The phenomenological causality described here is thus not simply about the devastating rage that one can …

Edward's New Welsh: The Foundations Of English Colonialism, 1282-1343, Joshua Lembke

University Honors Theses

This thesis, Edward’s New Welsh: The Foundations of English Colonialism, 1282-1343, examines the tumultuous period following the English conquest of the last independent Welsh kingdom, focusing on the English Crown's efforts under King Edward I to integrate Wales administratively and culturally. By reevaluating the appropriation of the Prince of Wales title, the study highlights the creation of a 'New Welsh' identity aligned with English interests. Key legal acts, such as the Statute of Rhuddlan and the establishment of English-style boroughs and castles, are analyzed to reveal the Crown's strategic embedding of English governance and suppression of native Welsh resistance. …

Sect And Superstition: The Protestant Framework Of American Codification, Kellen R. Funk

Faculty Scholarship

Elite lawyers who debated codification in the nineteenth-century United States treated codification as inseparable from a liberal Protestant textualism that had taken hold in the early national era. Legislators declared codification to be the necessary final step of the Protestant Reformation and frequently characterized common law lawyers as beholden to ‘superstition’ and ‘priestcraft’. Their opponents denounced the codifiers’ idea that texts alone could adequately convey common meanings and delighted to point out the endlessly fracturing glosses on supposedly ‘clear’ texts that divided the positivists into an ever-increasing number of sects.

Many works have addressed the relationship between populism and positivism …

Locke’S “Wild Indian” In United States Supreme Court Jurisprudence, Anthony W. Hobert Phd

American Indian Law Journal

This article explores the impact of John Locke’s Two Treatises on United States Indigenous property rights jurisprudence. After discussing Locke’s arguments, the article turns to the rationales of the first and last cases of the Marshall Trilogy—Johnson v. McIntosh (1823) and Worcester v. Georgia (1832)—arguing that, contrary to prevailing political theory, Marshall’s opinion for the Court in Johnson puts forth a fundamentally Lockean justification for the dispossession of Indigenous property. This article also provides a brief analysis of Marshall’s explicit Vattelian rationale in Worcester, commentary on recent developments regarding the precedents, and recommendations for reconciling them within contemporary …

Equity's System Of Open-Ended Wrongs And Limited Remedies, Mark P. Gergen

Texas A&M Law Review

It is well-known that equity gives courts considerable discretion to override the normal operation of legal rules to prevent an injustice in a particular case. This Article shows equity combined this discretion with limited remedies (rescission, restitution, reformation, and estoppel), and that these limited remedies strike a balance between the value of doing justice in a particular case and the cost of destabilizing the law in a way that places a heavy thumb on the scale favoring stability over justice. Henry Smith has described equity as a “second-order safety valve.” Equity’s limited remedies make it a weak “second-order safety valve.” …