Common Law Commons^™

What Is A House?: Searching For The Meaning And Scope Of Curtilage At Common Law, Mitchell A. Del Bianco

Fordham Law Review Online

No abstract provided.

Relevance Matters After Patel: Where The Economic Substance Doctrine Goes From Here, Daniel Chung

The Journal of Business, Entrepreneurship & the Law

This article examines the modern Economic Substance Doctrine (ESD) through the framework of the Tax Court's decision in Patel v. Commissioner. The author argues that Patel serves as a "doctrinal reset," restoring the ESD to its intended role as a narrow, purpose-driven judicial backstop rather than a generalized anti-abuse tool. Central to this analysis is the reemergence of a "relevance" inquiry, which requires courts to determine if the ESD applies to a transaction at all—based on pre-codification common law—before engaging the statutory two-prong test under Section 7701(o) . While the court in Patel ultimately found the doctrine relevant and sustained …

Should Judicial Opinions Be Read Like Statutes?, Margaret H. Lemos

Northwestern University Law Review

Should judicial opinions be interpreted with an eye to their purpose, context, or the intent of their authors, or should interpreters focus on the ordinary meaning of the text? Opinions present the same sorts of interpretive puzzles as other legal texts, and yet they have been omitted from the debates over interpretive methodology that dominate the fields of constitutional and statutory interpretation. The omission is no accident: the Supreme Court has stated repeatedly—and with increasing frequency in recent years—that judicial opinions are not to be read like statutes. Yet neither courts nor commentators have explained why the principles that ground …

The Ex Parte Young Cause Of Action: A Riddle, Wrapped In A Mystery, Inside An Enigma, Andrew S. Oldham, Adam I. Steene, John W. Tienken

Northwestern University Law Review

Ex parte Young ushered in a new era of the American judicial system. Most famously, the decision allowed plaintiffs, in certain circumstances, to sue state officials without having to worry about sovereign immunity. Young’s other holding, though perhaps lesser known, is no less important: individuals, the Supreme Court held, have an equitable cause of action to sue government officials for injunctive relief.

Even today, that second holding remains something of a riddle. Did this cause of action always exist in American law? Or was it an invention of the Young Court? And, at any rate, does the Ex parte …

Protecting Cultural Personality, J. Janewa Osei-Tutu

Articles

When companies use cultural symbols or cultural heritage from an indigenous or local community without their knowledge or permission, it can lead to claims of cultural appropriation, particularly in the fashion industry. Yet, the law provides little to no remedy. Trademarks and geographical indications can be used to protect collective cultural identities. However, these intellectual property laws are not helpful if the affected cultural group has not commercialized its identity by offering goods or services to the public. This Article contributes to the literature by theorizing a dignitary-based intellectual property model for protecting cultural identities. It draws on the U.S. …

Behind The Suit: How Recovering A Biblical Worldview And Implementing Spiritual Formation Practices Can Improve The Mental Health Crisis In The Legal Profession, Makayla G. Johnson

Senior Honors Theses

A Biblical worldview is the foundation upon which the United States government and legal system is built, however in recent years the understanding of a Biblical Worldview has been in decline. This shift has had a profound impact on the legal field, causing a loss of purpose and meaning in the profession, which research asserts has in part caused many mental health issues found in the legal field. With this in mind, the following study will include information regarding the extent to which the implementation of spiritual formation practices, when practiced specifically by those in the legal profession, could impact …

Order And Orthodox: The Influence Of Ecclesiastical Courts On The Federal Rules Of Civil Procedure And A Biblical Worldview, Rachel Auld

Senior Honors Theses

When analyzing the English history of American civil procedure, one could stop at the common law; however, England had two distinct courts at the time of the American Revolution: King’s courts and Ecclesiastical courts. At this time, the Ecclesiastical courts governed religious and moral issues including divorce, defamation, and probate. As a result, the Ecclesiastical courts had separate procedures from the common law King’s courts. America adopted the Ecclesiastical courts’ legal fields, and in turn, aspects of the Ecclesiastical court procedure. This thesis addresses the influence of the Ecclesiastical courts on the modern American Federal Rules of Civil Procedure by …

Long Live The Good King: A Niebuhrian Analysis Of Arthur’S Ethical Kingship In The Once And Future King, Camille Bewley

Tenor of Our Times

The classic The Once and Future King, written by T.H. White, is a selection of four fantasy novels with one, linear plot: the story of Arthur, the mythological King of England. Reinhold Niebuhr’s book Moral Man and Immoral Society details the Christian realism of a world in need of justice without the ability to achieve perfect application. Through good education, Arthur is well endowed with Niebuhr’s requirements for a functional society: knowledge, honor, wisdom, and compassion. Such king-like qualities make him one of the most influential mythological characters in history, and a grand exemplar for maintaining ethical goals and personal …

Bauer V. Beamon: Clothing Equitable Rescission’S Flexible Nature In A Rigid Straitjacket, Hunter Canfield

Arkansas Law Notes

Fraudulent deals, shady contracts, and questionable transactions occur daily. But when the truth is not disclosed and deceit seeps into the heart of a transaction, is there recourse for those affected? Historically, courts of equity have provided remedies where legal relief often fails. For instance, consider a home buyer who, after closing, discovers previously undisclosed toxic mold or structural defects that compromise the property’s habitability. Monetary damages alone may not truly restore the home buyer—especially if the property’s condition is so severe that the buyer would never have purchased the home had the truth been disclosed. In precisely these situations, …

Negligent Hiring: Recidivism And Employment With A Criminal Record, Benjamin Pyle

Northwestern University Law Review

This Article tackles a difficult legal and policy challenge— reducing the impact of criminal records on job applicants’ chances in a manner that does not spur more discrimination—by looking at how another area of law, tort liability, impacts employers’ decision-making. It uses theoretical and empirical methods to study the most common reason employers report being reluctant to hire workers with a criminal record: legal liability generated by the tort of negligent hiring. While the purpose of the tort is ostensibly to protect and make whole those harmed when an employee misbehaves in a foreseeable manner, I show that, in practice, …

Against The Drafter: An Empirical And Theoretical Analysis Of The Doctrine Of Contra Proferentem, Farshad Ghodoosi, Tal Kastner

Fordham Law Review

Contra proferentem, the enduring maxim that directs courts to interpret an ambiguity in a contract against its drafter, appears simple on its face. Although it might be best known as a fundamental principle of insurance law, contra proferentem figures in courts’ interpretation of a range of contract types. As an interpretive rule of thumb that parties can easily override with a simple contract provision, the doctrine and its boilerplate antidote seem to offer a straightforward means to facilitate private ordering—a central goal of contract law.

However, neither courts’ application of the doctrine in case law nor contract drafters’ treatment …

Outbound Investment Restrictions And International Law’S Challenge, Harlan Grant Cohen

Seattle University Law Review

The Outbound Investment Rule, restricting U.S. investment in certain Chinese advanced technology sectors, has largely been portrayed as an incremental measure, a modest extension to fill loopholes in the existing investment screening regime. But while perhaps the logical next step in the securitization of the economy, the Outbound Investment Rule actually reflects a momentous shift in the relationship between governments and business, one playing out in the United States and around the world and worth attention. Unlike traditional investment screening, the Outbound Investment Rule operates like a sanctions regime, designed not to protect the U.S. economy, but to hamper the …

Resilient Dispute Resolution Systems For International Energy Conflicts, Guillermo J. Garcia Sanchez

Seattle University Law Review

Energy-related conflicts are on the rise, spanning diverse issues such as the impacts of rare mineral mining on local communities, the impacts of sanctions on energy investments due to the Russia-Ukraine war, and the impacts of expanded subsidies on the electric vehicle and solar panel industries. Increasingly, companies, communities, and governments are clashing over the challenges of pursuing disparate and sometimes competing energy policies. This Article argues that dispute resolution mechanisms in the energy investment sector must be fundamentally rethought. Traditional semi-adjudicatory models, which focus on winners and losers, fail to accommodate the complex and multifaceted nature of contemporary energy …

Restricting Data Flows Is A Sign Of Weakness, Nikolas Guggenberger

Seattle University Law Review

There has been a seismic shift in American attitudes toward the free flow of data across borders.  In less than a decade, the United States has transitioned from condemning barriers to digital trade to constructing a digital fortress of its own. It passed legislation requiring TikTok’s parent company to divest its U.S. operations or face a nationwide ban affecting 170 million U.S. users, citing national security concerns about its ties to China and the potential for data surveillance and content manipulation. Upon legal challenge by TikTok on First Amendment grounds, the Supreme Court affirmed the ban’s constitutionality. Recent federal legislation …

Product Nationality And Corporate Identity, Trang (Mae) Nguyen

Seattle University Law Review

Global supply chains have long depended on a deceptively technical device: the attribution of a “nationality” to goods. A trade law principle, rules of origin assign products an “economic passport” that governs how they are treated at the border, including what markets they may enter and which tariff rates apply. In recent years, however, product nationality has taken on a new and far more ambitious role. As U.S. trade policy increasingly intersects with national security and human rights policy, policymakers rely on nationality-based measures to police supply chain linkages, curb geopolitical issues, and discipline firms for their links to forced …

Global Supply Chain Resilience In Emerging Technologies: A Case Study Of Bitcoin Mining, Kishanthi Parella, Carla L. Reyes

Seattle University Law Review

The United States has put into motion bold plans in critical and emerging technologies to bolster its national and economic security.  For example, the federal government created a national bitcoin strategic reserve and a stockpile of other cryptocurrency; while several states have committed to or are considering similar goals.  However, the security of these reserves is dependent on two types of supply chains within the Bitcoin mining industry: analogue supply chains, relating to the physical components needed for Bitcoin mining, and data supply chains, relating to the complex and layered logistical network of actors that create input into the software …

Third-Party Funding: Balancing Transparency, National Security, And Access To Justice, Victoria Shannon Sahani

Seattle University Law Review

Many lawmakers who have recently become aware of the multi-billion-dollar global third-party funding industry are raising new national security concerns that further complicate preexisting, longstanding debates about transparency, disclosure, access to justice, and the best way to regulate third-party funding. In response, this Article briefly asserts three main points relating to the question of how best to regulate third-party funding. First, this Article explains the third-party funding industry, including its global regulatory landscape and how it serves three distinct populations: consumers, businesses, and law firms. Second, this Article explains that third-party funding is one tool that can help expand access …

The Field Of International Business Transactions Law, Kathleen Claussen

Seattle University Law Review

This Article studies the evolution of the scholarly subfield referred to as the law of “international business transactions” (IBT). It reviews data on academic articles, courses, textbooks and other signifiers of the growth of this research area. Beginning around 1960, scholars began to use the term “international business transactions” and by the 1980s, several law schools were offering a course by that title. A handful of dedicated textbooks soon followed. These data reflect a gradual increase in research on the topic of IBT, particularly in the United States, but also considerable diversity of subject matters covered by those works. The …

Kim Gyeong-Seok And The Origins Of Northeast Asia’S Corporate Accountability Movement For War And Colonialism, Timothy Webster

Seattle University Law Review

For the past three decades, a transnational reparations movement has unfolded across Northeast Asia. Hundreds of victims—assisted by attorneys, academics, and activists—seek remedies from Japan for various atrocities committed during World War II, colonialism, and other historical injustices.  They press their claims in street protests, legislative hearings, dramatic performances, and other fora.  The “comfort women” are the best known of these claimants; their global redress campaign ex-tends from noisy protests outside of Japan’s embassy in Seoul, to mute statues in raucous boroughs of Berlin.  More obscure, though larger in number, were the roughly one million Koreans who performed forced labor …

Navigating Compliance In A Geopolitical Era: The Case Of Chinese Multinationals In The United States, Ji Li

Seattle University Law Review

This Article examines how Chinese multinational companies (MNCs) approach compliance in the United States amid deepening geo-political rivalry and intensified regulatory scrutiny. Drawing on original survey data, this Article maps variations in compliance structures, staffing, and governance mechanisms across Chinese firms and identifies key determinants such as industry-specific regulatory intensity, listing status, and organizational imprinting from headquarters. The analysis employs a dual institutional framework to explain how compliance systems emerge from the interplay between host-state regulatory demands and home-state institutional legacies, producing hybrid structures that blend local adaptation with headquarters-driven replication. Findings reveal that while certain compliance features—such as committee …

Volume 49 Masthead

Seattle University Law Review

Volume 49 Masthead

A Comparative Study Of Chinese And American Approaches To Shaping International Outer Space Law And Norms, Ariel G. Silverman

Seattle University Law Review

This article explores convergences and divergencies in the United States and PRC’s responses to the stalemate in the United Nations over the future of outer space resource governance. I do so by systematically analyzing these leading space-faring nations’ policy-positions and tactics deployed to shape norms around three substantive areas of outer space resource governance: rights of ownership and scope of utilization of space resources, mechanization of the “benefits sharing” principle, and the rights and responsibilities of the private sector. I theorize that these leading space-faring nations have adopted divergent approaches due to their differing historical relationships with international law and …

Table Of Contents

Seattle University Law Review

Table of Contents

The Mind Has A Firewall: An Attempt To Preserve Human Mind Integrity., Sayed G. Batran

Theses and Dissertations

This thesis argues for the recognition of mind integrity as a distinct human right. It contends that existing protections, such as bodily integrity, privacy, and freedom of thought, are no longer sufficient to shield an individual’s mental domain from new forms of external interference enabled by neurotechnology, artificial intelligence, and pervasive data-driven systems. Mind integrity is defined as the right to govern one’s own mental life—to form, revise, and hold thoughts, beliefs, and desires based on reasons one endorses—free from significant, non-consensual interference or manipulation, regardless of the method used. The thesis first identifies concrete risks and regulatory vacuums by …

Masthead & Table Of Contents

Dalhousie Law Journal

No abstract provided.

The Establishment That Time Forgot: The Historical Understanding Of Religious Offenses And Their Unconstitutionality In Modern Law, Benjamin J. Citow

Northwestern University Law Review

This Note argues that religious offenses, meaning laws which penalize conduct for religious purposes, should be barred by the Establishment Clause of the Constitution, as the Clause was interpreted in Kennedy v. Bremerton School District. This is because Kennedy interpreted the Establishment Clause to prohibit each of the several types of laws which early Americans associated with religious establishment—the historical practice wherein early states would adopt a religion as the state religion and pass various types of laws for its support. And religious offenses, this Note argues, were amongst the types of laws which early Americans so associated with …

Roman–Dutch Law, Scottish Civil Procedure And Fusing Of The Common And Civil Jurisprudence, Zia Akhtar

Notre Dame Journal of International & Comparative Law

The range and breadth of Roman law have extended and been assimilated into the distant corners of Europe based on the concept of Jus Commune. Law of Scotland is one of the countries which has adopted Roman legal principles in its substantive law. The Scots law is a non-codified Civil law in which legal principles have been drawn from both the civilian (i.e. Roman law) and common law traditions. It also owes its evolution to the jurists who developed the causes of action in the civil courts of the country. These Roman law foundations still persist in Scottish law and …

Chatgpt Goes To (National)Law School, Rahul Hemrajani, Vedant Gupta, R Srivatsan, Radhika Singhal, Krishne Tanneerbavi, Shristy Chhaparia, Siddharth Johar, Srujan Sangai, Suvanssh Mahajan, Priyansh Dixit, V Sreedharan, Dhruv Holla, Gunjan Modi, Kajal Jamdare, Pratyay Amrit, Sannah Mudbidri, Ishaan Goel, Akshit Singla, Arjun Mehta, Madhav Mitruka, Mannat Mahaey, Nathaniel Warjri, Swapnil Das, Ojas Chandaniha, Yash Ahirwar, Animesh Tiwari, Aman Meena

Indian Journal of Law and Technology

This paper presents the first comprehensive empirical evaluation of Large Language Models’ (‘LLMs’) performance in Indian legal education. We compare six Artificial Intelligence (‘AI’) chatbots with law students at the National Law School of India University, Bengaluru, across four subjects: Contract Law, Corporate Law, Criminal Procedure, and Jurisprudence. Our findings show that LLMs achieve performance comparable to human students (B+ grade), with newer commercial models consistently outperforming older and open-source alternatives. We also find that while LLMs excel in theoretical subjects and structured legal analysis, they show limitations in handling jurisdiction-specific knowledge and complex scenario-based reasoning. These findings have important …

Climate Preemption And Fossil Fuel Entrenchment, Vincent Nolette

Pace Environmental Law Review

Mitigating the worst impacts of climate change demands a rapid reduction in greenhouse gas emissions and a transition to renewable, low-carbon sources of energy. This requires building thousands of gigawatts of clean energy at an unprecedented rate and expeditiously retiring existing fossil fuel infrastructure. Yet both parts of this task have been obstructed by state legislative efforts over the last decade—particularly in Republican-led states—to block local governments from reducing greenhouse gas emissions while legally mandating continued fossil fuel reliance. These efforts are accomplished through state climate preemption laws. Framed in neutral or positive terms like “energy choice,” the actual effect …

From Myers To Slaughter: A Brief Theory Of The Constitutionalization Of Secondary Sources, Dana Neacsu, Paul D. Callister

Faculty Works

For more than two centuries, American constitutional adjudication has relied upon secondary sources. Yet constitutional theory has almost entirely ignored them. Originalism debates constitutional text. Living constitutionalism debates constitutional evolution. Theories of precedent debate judicial authority. None asks a more fundamental question: What role do secondary sources play in constitutional adjudication? This Article argues that the answer has fundamentally changed in the last 100 of years. Chief Justice William Howard Taft's opinion in Myers v. United States (1926) marked a constitutional revolution by transforming secondary authorities from explanatory materials into evidence of constitutional continuity. Exactly one century later, Chief Justice …