Common Law Commons^™

Waste And The Governance Of Private And Public Property, Tara K. Righetti, Joseph A. Schremmer

University of Colorado Law Review

Common law waste doctrine is often overlooked as antiquated and irrelevant. At best, waste doctrine is occasionally examined as a lens through which to evaluate evolutions in modern property theory. We argue here that waste doctrine is more than just a historical artifact. Rather, the principle embedded in waste doctrine underpins a great deal of property law generally, both common law and statutory, as well as the law governing oil and gas, water, and public trust resources. Seen for what it is, waste doctrine provides a fresh perspective on property, natural resources, and environmental law.

In this Article, we excavate …

Laprocina V. Lourie, 250 A.3d 1281 (R.I. 2021), Jeffrey Prystowsky

Roger Williams University Law Review

No abstract provided.

The Common Law And The Self-Driving Car, Mbilike M. Mwafulirwa

University of San Francisco Law Review

No abstract provided.

Race And Washington’S Criminal Justice System 2021: Report To The Washington Supreme Court, Task Force 2.0 Research Working Group

Seattle University Law Review

This report is an update on the 2011 Preliminary Report on Race and Washington’s Criminal Justice System. This update does not include as context the history of race discrimination in Washington, and readers are encouraged to view the 2011 report for its brief historical overview.14 The 2011 report began with that historical overview because the criminal justice system does not exist in a vacuum. Instead, it exists as part of a legal system that for decades actively managed and controlled where people could live, work, recreate, and even be buried.

Members of communities impacted by race disproportionality in Washington’s criminal …

Waste And The Governance Of Private And Public Property, Joseph A. Schremmer, Tara K. Righetti

Faculty Scholarship

Common law waste doctrine is often overlooked as antiquated and irrelevant. At best, waste doctrine is occasionally examined as a lens through which to evaluate evolutions in modern property theory. We argue here that waste doctrine is more than just a historical artifact. Rather, the principle embedded in waste doctrine underpins a great deal of property law generally, both common law and statutory, as well as the law governing oil and gas, water, and public trust resources. Seen for what it is, waste doctrine provides a fresh perspective on property, natural resources, and environmental law.

In this Article, we excavate …

Law's Duct Tape? Using Public Nuisance To Fix The Holes In Administrative Law, Anthony J. Sebok

Articles

No abstract provided.

What War Did To The Academy, What The Academy Did To War: A 20-Year Retrospective On The Effects Of The Post-9/11 Wars, Deborah Pearlstein

Articles

The history of the legal academy’s impact on the way states fight wars is hardly one of unmixed glory. It was a law professor moonlighting for President Lincoln who authored “Instructions for the Government of Armies of the United States in the Field” during the Civil War, a code still recognized worldwide today for having laid critical groundwork for the modern law of war. It was likewise a law professor whose work came to serve as both theoretical and practical justification for the sweeping powers of the Nazi state. So it should perhaps be unsurprising that, two decades of engagement …

The Genius Of Common-Law Intellectual Property, Shyamkrishna Balganesh

Faculty Scholarship

Among Richard Epstein’s influential contributions to legal scholarship over the years is his writing on common-law intellectual property. In it, we see his attempt to meld the innate logic of the common law’s conceptual structure with the realities of the modern information economy. Common-law intellectual property refers to different judge-made causes of action that create forms of exclusive rights and privileges in intangibles, interferences that are then rendered enforceable through private liability. In this essay, I examine Epstein’s writing on two such doctrines, hot-news misappropriation and cybertrespass, which embrace several important ideas to which modern discussions of intellectual property would …

Equity's Federalism, Kellen R. Funk

Faculty Scholarship

The United States has had a dual court system since its founding. One might expect such a pronouncement to refer to the division between state and federal courts, but in the early republic the equally obvious referent would have been to the division between courts of common law and the court of chancery — the distinction, that is, between law and equity. This Essay sketches a history of how the distinction between law and equity was gradually transformed into a doctrine of federalism by the Supreme Court. Congress’s earliest legislation jealously guarded federal equity against fusion with common law at …

Relying On Restatements, Shyamkrishna Balganesh

Faculty Scholarship

Restatements of the Law occupy a unique place in the Americanlegal system. For nearly a century, they have played a prominent and influential role as legal texts that courts routinely rely on in a wide variety of fields. Despite their ubiquitous and pervasive use by courts, Restatements are not formal sources of law. While they resemble statutes in their form and structure, Restatements are produced entirely by a private organization of experts set up to clarify and simplify the law and thus lack the force of law on their own. And yet, courts treat them as formal and authoritative sources …

Public Nuisance As Risk Regulation, Thomas W. Merrill

Faculty Scholarship

Public nuisance has always been defined in terms of the object of protection – the community, the public, or perhaps even the state as a whole. Public nuisance in this regard has been juxtaposed to private nuisance, which protects individual persons and their use and enjoyment of land. Commentary on public nuisance has thus long been concerned with defining (without notable success) what it means to advance a public as opposed to a private right.

In this paper, I offer a different take on the function of public nuisance. The common law is designed to provide redress for actual harm, …

Theft, Extortion, And The Constitution: Land Use Practice Needs An Ethical Infusion, Michael M. Berger

Touro Law Review

There are many ways in which property owners/developers interact with regulators. To the extent that texts and articles deal with the ethical duties of the regulators, they tend to focus on things like conflicts of interest. But there is more. This article will examine numerous other ways in which regulators may run afoul of ethical practice in dealing with those whom they regulate

Masthead & Table Of Contents

Dalhousie Law Journal

No abstract provided.

The Zoom Paradox: Schrodinger’S Witness, Christopher J. Vidrine

Louisiana Law Review

The article explains the role of the common law and federal civil statutes in the evolution of convenience concept in civil procedure through the development of videoconferencing technology.

You Are Not A Commodity: A More Efficient Approach To Commercial Privacy Rights, Benjamin T. Pardue

Washington Law Review

United States common law provides four torts for privacy invasion: (1) disclosure of private facts, (2) intrusion upon seclusion, (3) placement of a person in a false light, and (4) appropriation of name or likeness. Appropriation of name or likeness occurs when a defendant commandeers the plaintiff’s recognizability, typically for a commercial benefit. Most states allow plaintiffs who establish liability to recover defendants’ profits as damages from the misappropriation under an “unjust enrichment” theory. By contrast, this Comment argues that such an award provides a windfall to plaintiffs and contributes to suboptimal social outcomes. These include overcompensating plaintiffs and incentivizing …

'Good Administration' And The 'Good': The Normative Foundation For The Protection Of Legitimate Expectations, Wei Yao, Kenny Chng

Research Collection Yong Pung How School Of Law

An idea that has gained significant traction in both case law and academic commentary as a justification for the protection of legitimate expectations is the concept of ‘good administration’. Going beyond the usual criticisms of the concept’s ambiguity, this article aims to highlight an additional set of difficulties with the invocation of ‘good administration’ as the normative justification for the doctrine. This article’s central argument is that the concept of ‘good’ invoked by the idea of ‘good administration’ inevitably falls to be substantiated by a particular conception of what the ‘good’ requires as a matter of political philosophy. And given …

Deepfake Privacy: Attitudes And Regulation, Matthew B. Kugler, Carly Pace

Northwestern University Law Review

Using only a series of images of a person’s face and publicly available software, it is now possible to insert the person’s likeness into a video and show them saying or doing almost anything. This “deepfake” technology has permitted an explosion of political satire and, especially, fake pornography. Several states have already passed laws regulating deepfakes, and more are poised to do so. This Article presents three novel empirical studies that assess public attitudes toward this new technology. In our main study, a representative sample of the U.S. adult population perceived nonconsensually created pornographic deepfake videos as extremely harmful and …

Divine Intervention, Part Ii: Narratives Of Norm Entrepreneurship In Canadian Religious Freedom Litigation, Kathryn Chan, Howard Kislowicz

Dalhousie Law Journal

Constitutional litigation has become a central arena for debate about human rights. Groups from all points on the political spectrum have turned to legal advocacy, “intervening” in judicial proceedings in an effort to advance their preferred interpretations of particular rights.

Judges and scholars remain divided on whether and how interveners are valuable. This paper evaluates a main rationale for intervention: interveners improve adjudication by enriching courts’ understandings of the issues before them. We use qualitative analysis to examine the extent to which interveners in Canada have succeeded in contributing to judicial pronouncements on the scope and meaning of religious freedom. …

The Implausibility Standard For Environmental Plaintiffs: The Twiqbal Plausibility Pleading Standard And Affirmative Defenses, Celeste Anquonette Ajayi

Washington Law Review

Environmental plaintiffs often face challenges when pleading their claims. This is due to difficulty in obtaining the particular facts needed to establish causation, and thus liability. In turn, this difficulty inhibits their ability to vindicate their rights. Prior to the shift in pleading standards created by Bell Atlantic Corp. v. Twombly and Ashcroft v. Iqbal, often informally referred to as “Twiqbal,” plaintiffs could assert their claims through the simplified notice pleading standard articulated in Conley v. Gibson. This allowed plaintiffs to gain access to discovery, which aided in proving their claims.

The current heightened pleading standard …

Copyrighting Tiktok Dances: Choreography In The Internet Age, Ali Johnson

Washington Law Review

TikTok is a video-sharing social media application that launched in 2018 and has grown wildly since its inception. Many users are drawn to the platform by “dance challenges”—short dance routines of varying complexity set to popular songs that are recreated by other users, eventually going “viral” (i.e., recreated on a massive scale by other users) on the app. Going viral can provide young dancers and choreographers an opportunity to break into the highly competitive entertainment industry. However, there is a problem: due to TikTok’s interface and community practices, the original creators of a dance (who, significantly, are often young women …