Common Law Commons^™

The Prosser Myth Of Transferred Intent, Peter B. Kutner

Indiana Law Journal

The main theme of this Article is that Prosser advanced a mythical doctrine of transferred intent. What Prosser asserted to be the law was not the law when he wrote his article on transferred intent and amended his treatise. The cases he relied on to support his conclusions on transferred intent did not support them. Moreover, despite Prosser’s great influence on American tort law, Prosser’s position on transferred intent is not the law now and should not be. Its consequences are undesirable. Recognition of transferred intent as a basis of liability is due primarily to its inclusion in the First …

Outlining The Case For A Common Law Duty Of Care Of Business To Exercise Human Rights Due Diligence, Douglass Cassel

Journal Articles

This article outlines the case for a business duty of care to exercise human rights due diligence, judicially enforceable in common law countries by tort suits for negligence brought by persons whose potential injuries were reasonably foreseeable. A parent company’s duty of care would extend to the human rights impacts of all entities in the enterprise, including subsidiaries. A company would not be liable for breach of the duty of care if it proves that it reasonably exercised due diligence as set forth in the Guiding Principles on Business and Human Rights. On the other hand, a company’s failure to …

The Device Of Fiction In Public International Law, Jean J. A. Salmon

Georgia Journal of International & Comparative Law

No abstract provided.

The Scrivener’S Error, Ryan D. Doerfler

Northwestern University Law Review

It is widely accepted that courts may correct legislative drafting mistakes, i.e., so-called scrivener’s errors, if and only if such mistakes are “absolutely clear.” The rationale is that if a court were to recognize a less clear error, it might be “rewriting” the statute rather than correcting a technical mistake.

This Article argues that the standard is much too strict. The current rationale ignores that courts can “rewrite,” i.e., misinterpret, a statute both by recognizing an error and by failing to do so. Accordingly, because the current doctrine is designed to protect against one type of mistake (false positives) but …

Terrorism: The Proposed United States Draft Convention, William T. Bennett

Georgia Journal of International & Comparative Law

No abstract provided.

A Day In Court For Data Breach Plaintiffs: Preserving Standing Based On Increased Risk Of Identity Theft After Clapper V. Amnesty International Usa, Thomas Martecchini

Michigan Law Review

Following a data breach, consumers suffer an increased risk of identity theft because of the exposure of their personal information. Limited protection by data-breach statutes has made it difficult for consumers to seek compensation for these injuries and penalize the companies that fail to protect their information, leading consumers to bring common law claims in court. Yet courts have disagreed about whether an increased risk of identity theft qualifies as an injury-in-fact under Article III standing principles: the Seventh and Ninth Circuits have approved of increased risk standing, while the Third Circuit has rejected it. The Supreme Court has further …

Deterring Innovation: New York V. Actavis And The Duty To Subsidize Competitors' Market Theory, Joanna M. Shepherd

Minnesota Journal of Law, Science & Technology

No abstract provided.

Intellectual Property And Additive Manufacturing / 3d Printing: Strategies And Challenges Of Applying Traditional Ip Laws To A Transformative Technology, Bryan J. Vogel

Minnesota Journal of Law, Science & Technology

No abstract provided.

The Uniform Trust Code And The Common Law: An Analysis Of Three Sections Of The Code That Deviate From The Common Law And Why The Drafters Changed The Law, Christina Bogdanski

Cardozo Law Review

No abstract provided.

Remarks On 3d Printing, Free Speech, And Lochner, Kyle Langvardt

Minnesota Journal of Law, Science & Technology

No abstract provided.

Slade V. Caesars Entm’T Corp, 132 Nev. Adv. Op. 36 (May 12, 2016), Katherine Maher

Nevada Supreme Court Summaries

The Court generally upheld the common-law principles, referenced in NRS 463.0129(3)(a), permitting gaming establishments to exclude any persons from their premises for any reason, unless for discriminatory or otherwise unlawful purposes. Thus the district court properly dismissed the complaint.

Finding Common Law Duty Of Care From Statutory Duties: All Within The Anns Framework, Gary Kok Yew Chan

Research Collection Yong Pung How School Of Law

This paper examines the relationship between statutory duties and the common law duty of care in the tort of negligence. There are apparently divergent judicial statements on the general approach towards duty of care to be owed by persons under a statutory duty. One central question arises: should the courts treat the common law duty of care as subsisting generally unless it is excluded by the statute or must the plaintiff show that the Parliament intended to confer a private right of action or impose a common law duty? This paper argues that the two approaches may be properly accommodated …

Habeas Corpus And The Exceptions Clause : Exploring Intergenerational Institutional Struggle., Kevin Grout

College of Arts & Sciences Senior Theses

No abstract provided.

Four Problems With The Draft Restatement’S Treatment Of Treaty Self-Execution, Carlos Manuel Vázquez

Georgetown Law Faculty Publications and Other Works

The American Law Institute has embarked on the challenging task of restating the confounding distinction between self-executing and non-self-executing treaties. In some respects, the current draft of the Fourth Restatement of Foreign Relations Law represents an advance from the treatment of the subject in the Third Restatement (Third). At the same time, the current draft retains, and may even aggravate, some of the flaws of that earlier treatment. This Essay suggests four ways the current draft could be improved. First, the draft should explicitly recognize that the concept of self-execution is not a unitary one. The "self-executing" label encompasses four …

Foreign Policy And The Government Legal Adviser, Henry Darwin

Georgia Journal of International & Comparative Law

No abstract provided.

Foreign Policy And The Government Legal Adviser, Joyce Gutteridge

Georgia Journal of International & Comparative Law

No abstract provided.

Conceptions Of Authority And The Anglo-American Common Law Divide, Dan Priel

Articles & Book Chapters

This essay seeks to explain the puzzle of the divergence of American law from the rest of the common law world through the lens of legal theory. I argue that there are four competing ideal-type theories of the authority of the common law: reason, practice, custom, and will. The reason view explains the authority of the common law in terms of correspondence to the demands of pure practical reason; the practice view sees the authority of the common law as derived from the expertise of practitioners (especially judges and practice-oriented academics) who try to develop the common law as a …

Some Comparative Legal History: Robbery And Brigandage, Bernard S. Jackson

Georgia Journal of International & Comparative Law

No abstract provided.

Artificial Insemination: I - Legal Aspects, Anthony F. Logatto, M.S.S.S., Ll.B.

The Catholic Lawyer

No abstract provided.

Procedural Due Process Claims, Erwin Chemerinsky

Touro Law Review

No abstract provided.