Common Law Commons^™

Book Review: An Examination Of Maine's Public Beach Access, Ariel A. Hampton

Ocean and Coastal Law Journal

Many people assume that access rights to public resources are unwavering. Two Maine Supreme Judicial Court cases concerning limitations to public access to Maine beaches rebut this assumption. In his book, Maine's Beaches Are Public Property: The Bell Cases Must Be Reexamined, Professor Orlando E. Delogu challenges the modifications to public beach access that resulted from these two cases. This Review focuses on the historical and legal arguments that Professor Delogu presents as justification for the reversal of the Bell cases. Professor Delogu gives compelling reasons for his take on the Bell cases and why the State of Maine should …

John Makdisi On The Intercultural Origins Of The Common Law, Marc-Tizoc Gonzalez

Intercultural Human Rights Law Review

In this Essay, I pay homage to John Makdisi on the occasion of his retirement. Since joining the St. Thomas Law faculty in 2011, I have esteemed him as one of the law school's senior Property Law professors, yet-truth be told-at times also felt intimidated by him for his deep knowledge of the subject, particularly present estates and future interests, coupled with his serious demeanor, penetrating gaze, and cogent arguments at faculty meetings. 4 Especially during tenuretrack faculty reviews of my teaching, I worried that my relative inexperience in teaching the subject might cause me to commit an embarrassing error. …

One Chuck, Two Chuck: Analyzing Whether Federally Registered Trademarks Should Be Distinguished From Unregistered, Common-Law Trademarks In The Context Of Converse, Inc. V. International Trade Commission, Mckenzie Subart

Marquette Intellectual Property Law Review

This Comment analyzes which trademark model (the pyramid model or the box model) is a better representation and characterization of trademarks and trademark rights. Under the pyramid model, there is one trademark: both common law rights and federal registration rights attach to this single trademark. For the pyramid model, trademark rights resemble a pyramid because federal registration rights build upon the foundation created by common law rights. Common law rights and federal registration rights are interdependent. Under the box model, there is a common-law trademark and a federal trademark: common law rights attach to the common-law trademark, and federal registration …

Calming Troubled Waters: Local Solutions, Part I, John R. Nolon

Elisabeth Haub School of Law Faculty Publications

In 1861, the Ohio Supreme Court adopted the Absolute Use Rule to govern groundwater, essentially allowing landowners its unencumbered use. The opinion noted that the behavior of subterranean water was “occult and mysterious” and that it was beyond the competence of judges to determine its appropriate use. The Ohio court reversed course in 1984 and adopted the Reasonable Use Rule. By then, scientific knowledge had advanced to the point that the interconnected movement of water was more readily discoverable. The court noted that a primary goal of water law should be to conform to hydrologic fact. This Article explores the …

The American Negligence Rule, Mark F. Grady

Valparaiso University Law Review

No abstract provided.

The Common Law As Silver Slippers, Bridget J. Crawford

Elisabeth Haub School of Law Faculty Publications

Professor Anita Bernstein's book, The Common Law Inside the Female Body, is an erudite investigation into the history and operation of the common law. Bernstein's careful and wide-ranging study leads to her arresting thesis: The common law--an old, unpredictable, and slow system that has been there all along--has tremendous power to support and even advance women's legal claims to personal liberty. In other words, women have always had the common law right to be treated equally to men. We simply have not realized it.

Bernstein makes a convincing argument that the common law tradition has a unifying theoretical commitment: “[T]he …

A Common Law Of Zoning, Michael Allan Wolf

UF Law Faculty Publications

This Article for the first time identifies a common law of zoning, describes the typology of this essential and overlooked element of American land use law, and establishes the historical and structural context for its pervasive set of rules and principles. Over the past 100 years, American judges, filling in the gaps and resolving the ambiguities of a surprisingly uniform set of state enabling statutes, have produced this body of common law. The story will take the reader to Iowa cornfields that surround an iconic baseball diamond; to a federal agency that gave an important impetus to the nationwide adoption …

Invoking Federal Common Law Defenses In Immigration Cases, Fatma Marouf

Faculty Scholarship

This Article argues that we should take a deeper look at the applicability of federal common law defenses in immigration cases. In the rare cases where noncitizens attempt to raise common law defenses, such arguments tend to be dismissed offhand by immigration judges simply because removal proceedings are technically civil, not criminal. Yet many common-law defenses may be raised in civil cases. Additionally, immigration proceedings have become increasingly intertwined with the criminal system. After examining how judges already rely on federal common law to fill in gaps in the Immigration and Nationality Act (INA), this Article proposes three categories of …

Harmless Constitutional Error: How A Minor Doctrine Meant To Improve Judicial Efficiency Is Eroding America's Founding Ideals, Ross C. Reggio

CMC Senior Theses

The United States Constitution had been in existence for almost two hundred years before the Supreme Court decided that some violations of constitutional rights may be too insignificant to warrant remedial action. Known as "harmless error," this statutory doctrine allows a court to affirm a conviction when a mere technicality or minor defect did not affect the defendant's substantial rights. The doctrine aims to promote judicial efficiency and judgment finality. The Court first applied harmless error to constitutional violations by shifting the statutory test away from the error's effect on substantial rights to its impact on the jury's verdict. Over …

Civilly Disobedient: Justifying Juror Misconduct, Grace K. Wilson

CMC Senior Theses

A fair, unbiased jury that follows the courts instructions is a crucial aspect of the American criminal justice system, mandated by both the California and United States Constitution. When jurors violate judicial instructions, it can jeopardize the impartiality of a case. Despite this, little research has been completed on what individual differences are indicative of greater willingness to commit jury misconduct. Misconduct can occur when jurors fail to follow judicial instructions in circumstances that a reasonable person may be tempted to disobey. This study explores potential individual differences that correlate with a greater likelihood of excusing and even committing juror …

Contractual Incapacity And The Americans With Disabilities Act, Sean M. Scott

Dickinson Law Review (2017-Present)

The doctrine of contractual incapacity allows people with mental disabilities to avoid their contractual liability. Its underlying premise is that the law has an obligation to protect people with such disabilities both from themselves and from unscrupulous people who would take advantage of them; mental incapacity provides this protection by rendering certain contracts unenforceable. The Disability Rights Movement (“DRM”), however, has challenged such protective legal doctrines, as they rest on outmoded concepts about people with mental disabilities.

This essay argues that the mental incapacity doctrine undermines the goals of the DRM and the legislative goals of the Americans with Disabilities …

Gun Control: The Gun Violence Epidemic In The U.S., Anna Koduru

Williams Honors College, Honors Research Projects

While holding almost half of all civilian-owned guns around the globe and yet only 4.4 percent of the world’s population, the United States of America is heavily centered around gun rights due to the 2nd amendment in the U.S. Constitution. But gun violence is on the rise as deaths due to gun violence are at its highest rate in nearly 40 years. Americans are divided amongst themselves when it comes to how we must approach this issue. In order to reduce gun violence in the U.S., both Republican and Democrat leaders must come together and make bipartisan moves to implement …

Legal Sets, Jeremy N. Sheff

Faculty Publications

In this Article, I propose that the practices of legal reasoning and analysis are helpfully understood as being primarily concerned not with rules or propositions, but with sets. This Article develops a formal model of the role of sets in the practices of legal actors in a common-law system defined by a recursive relationship between cases and rules. In doing so, it demonstrates how conceiving of legal doctrines as a universe of discourse comprising (sometimes nested or overlapping) sets of cases can clarify the logical structure that governs marginal cases and help organize the available options for resolving such cases …

The Female Body In The Workplace: Judges And The Common Law, Maritza I. Reyes

Journal Publications

If the common law serves to liberate women, everybody, including judges, should understand the role they do play and should play in the development of the common law. As a career law clerk in the federal courts, I witnessed the decision-making process inside the chambers of federal judges and in the courtrooms. I came to the conclusion that judges, more than statutory law, influence what happens to female bodies in the workplace. Litigants initially drive the common law by filing complaints. However, judicial decisions affect not only the litigants in their individual cases, they also serve as precedent for future …

Limiting Lessons From Property: Re-Imagining The Public Domain In The Image Of The Public Trust Doctrine, Deidre Keller

Journal Publications

No abstract provided.

Oklahoma’S State Question 780: Criminal Justice Reform And Resistance, Stephen R. Galoob, Colleen Mccarty, Ryan Gentzler

Articles, Chapters in Books and Other Contributions to Scholarly Works

No abstract provided.

The “Mendacious” Common-Law Mortgage, David P. Waddilove

Journal Articles

The common-law mortgage has been much maligned. Legal historians have called it everything from "clumsy" to "mendacious." Following their lead, the current Restatement (Third) of Property: Mortgages and the leading treatise on mortgage law denounce the modern incarnation of the common-law mortgage - the "title theory" of mortgages - in favor of the "lien theory."

As many states have adopted this view, the common-law mortgage has been nearly eliminated from the modern legal landscape. But the consensus is wrong. Critics of the common-law mortgage have relied upon a superficial view of the device. They appreciated neither the background law that …

Testimonial Exclusions And Religious Freedom In Early America, Jud Campbell

Law Faculty Publications

At the end of his presidency, George Washington published a letter reflecting on the character of the nascent American republic. Later known as his Farewell Address, the letter famously warned against the dangers of domestic political parties and entangling foreign alliances. In addition, Washington extolled the foundations of a virtuous citizenry: “Of all the dispositions and habits, which lead to political prosperity,” he proclaimed, “Religion and morality are indispensable supports.” Washington then offered an example: “Let it simply be asked where is the security for property, for reputation, for life, if the sense of religious obligation desert the oaths, which …

A School Divided: A Historicist Legal Analysis Of Good Spirit School Division No 204 V Christ Teacher Roman Catholic Separate School Division No 212, Edward (Ted) R. Lewis

Dalhousie Journal of Legal Studies

On the cusp of a judgment by the Saskatchewan Court of Appeal, this article examines the 2017 Saskatchewan Court of Queen’s Bench decision in Good Spirit School Division No 204 v Christ the Teacher Roman Catholic Separate School Division No 212. In this case, the SKQB ruled that non-Catholic students attending a publicly funded Catholic school were not entitled to per-student funding grants administered by the provincial government. This article reviews the case using a historicist lens informed by the philosophy of Edmund Burke, which the author suggests is appropriate in the Canadian constitutional context. Through this constitutional lens, the …

Facing The Growing Tension Between Conservation Easements And The Common Law, J. Brady Hagan

Kentucky Law Journal

No abstract provided.