Common Law Commons^™

Foreword: The Books Of Justices, Linda Greenhouse

Michigan Law Review

For this Michigan Law Review issue devoted to recently published books about law, I thought it would be interesting to see what books made an appearance in the past year’s work of the Supreme Court. I catalogued every citation to every book in those forty opinions in order to see what patterns emerged: what books the justices cited, which justices cited which books, and what use they made of the citations. To begin with, I should define what I mean by “books". For the purposes of this Foreword, I excluded some types of reading matter that may have a book-like …

Self-Driving Cars: Autonomous Technology That Needs A Designated Duty Passenger, Michelle L.D. Hanlon

Barry Law Review

No abstract provided.

The Defend Trade Secrets Act: Why Interpreting The New Law On Its Own Terms Promotes Uniformity, Patrick Ruelle

Marquette Intellectual Property Law Review

Trade secrets, a category of intellectual property recognized at state and federal law, are integral parts of many corporations’ intellectual property portfolios. A trade secret is a type of intellectual property that is not disclosed by its owner, and is therefore unlike patents, trademarks, or copyrights—all types of information that are disclosed to the public. As a result, trade secrets may represent a viable alternative to patents and copyrights since its value is derived from its secrecy.

In the United States, the laws governing trade secrets have typically been the offspring of the state common law. As each state developed …

A New History Of Waste Law: How A Misunderstood Doctrine Shaped Ideas About The Transformation Of Law, Jill M. Fraley

Marquette Law Review

In the traditional account, American courts transformed the law of waste, radically diverging from the British courts around the time of the American Revolution. Some of the most influential theorists of American legal history have used this account as evidence that American law is driven by economics. Due to its adoption by influential scholars, this traditional account of waste law has shaped not only our understanding of property law, but also how we view the process of transforming law.

That traditional account, however, came not from a history of the doctrine, but from an elaboration of the benefits of the …

Value Hypocrisy And Policy Sincerity: A Food Law Case Study, Joshua Ulan Galperin

Elisabeth Haub School of Law Faculty Publications

t is tempting to say that in 2017 there is a unique problem of hypocrisy in politics, where words and behaviors are so often in opposition. In fact, hypocrisy is nothing new. A robust legal and psychological literature on the importance of procedural justice demonstrates a longstanding concern with developing more just governing processes. One of the important features of this scholarship is that it does not focus only on the consequences of policymaking, in which behaviors, but not words, are relevant. Instead, it respects the intrinsic importance of fair process, lending credence not only to votes but also to …

Wisdom And Reason In Law, Steven D. Smith

University of Colorado Law Review

No abstract provided.

Save Some For The Fishes: Analyzing The St. Jude's Co. Decision And What It Means For Beneficial Use In Colorado, John Sittler

University of Colorado Law Review

No abstract provided.

Contemplating Masterpiece Cakeshop, Terri R. Day

Faculty Scholarship

No abstract provided.

Michigan's Reception Of The Common Law: A Study In Legal Development, Vincent A. Wellman

Law Faculty Research Publications

No abstract provided.

Directv, Inc. V. Imburgia And The Continued Ascendance Of Federal Common Law: Class-Action Waivers And Mandatory Arbitration Under The Federal Arbitration Act, Michael Yelnosky

Law Faculty Scholarship

No abstract provided.

The Selection Of Litigation Against Government Agencies: Evidence From China, Wei Cui, Zhiyuan Wang

All Faculty Publications

We test the relevance of the selection theory of litigation in a contemporary, civil law setting, using Chinese judicial data that span 25 years regarding lawsuits against government agencies. Civil law systems may be characterized by lower costs of litigation and lower rates of settlement than the U.S. legal system, and therefore the presence of selection effects cannot be assumed. We show that selection effects are indeed manifest in Chinese administrative litigation, and suggest that this may be explained by hidden or intangible litigation costs. Our test for selection effects builds on the approach of previous U.S. studies and potentially …

Tradition And Culture In Africa: Practices That Facilitate Trafficking Of Women And Children, Norah Hashim Msuya

Dignity: A Journal of Analysis of Exploitation and Violence

Many states in Africa have adopted legislative, administrative and institutional measures to combat trafficking in human beings. These measures include, among other things, the formulation and implementation of both national and regional action plans by African states to provide for comprehensive and coordinated interventions. Many African countries have also enacted an anti-trafficking legislation at the country level. Despite these measures, African women and children have been trafficked annually worldwide for purposes of forced labor, sexual exploitation, and domestic servitude. Additionally, women and children are trafficked within their countries from rural to urban areas. Misconception and abuse of African tradition and …

Putting The Substance Back Into The Economic Substance Doctrine, Nicholas Giordano

Brooklyn Journal of Corporate, Financial & Commercial Law

The foreign tax credit, which saves U.S. taxpayers from paying both foreign and domestic income taxes on the same income, is critical to facilitating global commerce. However, as savvy taxpayers discover increasingly complicated ways to abuse the foreign tax credit regime through the structuring of business transactions, courts have become increasingly skeptical of the validity of those transactions. Using the economic substance doctrine, a common law doctrine codified in 2010 at I.R.C. § 7701(o), courts will disallow tax benefits stemming from a transaction that is not profitable absent its tax benefits, and which the taxpayer had no incentive to undertake …

The Value Of The Restatement Of Employment Law, Based On 50-State Empirical Analyses And The Importance Of Clarifying Disputed Issues – But With Caveats About The Restatement’S Imperfect Work Product, Scott A. Moss

Publications

No abstract provided.

Directv, Inc. V. Imburgia And The Continued Ascendance Of Federal Common Law: Class-Action Waivers And Mandatory Arbitration Under The Federal Arbitration Act, Michael J. Yelnosky

Roger Williams University Law Review

No abstract provided.

Franchise Tax Board Of California V. Hyatt: A Split Court, Full Faith And Credit, And Federal Common Law, Jonathan M. Gutoff

Roger Williams University Law Review

No abstract provided.

Franchise Tax Board Of California V. Hyatt: A Split Court, Full Faith And Credit, And Federal Common Law, Jonathan M. Gutoff

Law Faculty Scholarship

No abstract provided.

Jailhouse Informants In Canadian Criminal Courts, Olena Beshley

Theses and Dissertations (Comprehensive)

Criminal justice systems in Canada and around the world have been established to deal with matters that require attention, punishment, and justice. An important function of criminal justice systems is the evaluation of evidence presented in the court of law. Evidence from jailhouse informants who testify that they have been privy to confessions of crimes is a contentious issue. Much of the scholarly literature available to date on wrongful conviction cases focuses on causes of insufficient and unreliable evidence obtained through different techniques and from different sources. Despite the high number of investigations into wrongful conviction cases, the subject of …

Agency Law And The New Economy, Mark J. Loewenstein

Publications

This article considers the status of workers in the "new economy," defined as the sharing economy (e.g., Uber, Lyft) and the on-demand economy. The latter refers to the extensive and growing use of staffing companies by established businesses in many different industries to provide all or a portion of their workforce. Workers in both the sharing economy and the on-demand economy are, generally speaking, at a disadvantage in comparison to traditional employees. Uber drivers, for example, are typically considered independent contractors, not employees, and therefore are not covered under federal and state laws that protect or provide benefits to employees. …

The Law Of Interpretation, William Baude, Stephen E. Sachs

Faculty Scholarship

How should we interpret legal instruments? How do we identify the law they create? Current approaches largely fall into two broad camps. The standard picture of interpretation is focused on language, using various linguistic conventions to discover a document's meaning or a drafter's intent. Those who see language as less determinate take a more skeptical view, urging judges to make interpretive choices on policy grounds. Yet both approaches neglect the most important resource available: the already applicable rules of law.

Legal interpretation is neither a subfield of linguistics nor an exercise in policymaking. Rather, it is deeply shaped by preexisting …