Common Law Commons^™

Apportioning Liability In Maryland Tort Cases: Time To End Contributory Negligence And Joint And Several Liability, Donald G. Gifford, Christopher J. Robinette

Faculty Scholarship

The Article presents a comprehensive proposal for assigning liability in tort cases according to the parties’ respective degrees of fault. The authors criticize the Court of Appeals of Maryland’s recent decision in Coleman v. Soccer Association of Columbia declining to abrogate contributory negligence, particularly the court’s notion that it should not act because of the legislature’s repeated failure to do so. The Article provides a comprehensive analysis of the advantages and disadvantages of comparative fault, including its effect on administrative costs, claims frequency, claims severity, insurance premiums, and economic performance. The authors propose the legislative enactment of comparative fault and …

The Restatement (Second) Of Contracts Reasonably Certain Terms Requirement: A Model Of Neoclassical Contract Law And A Model Of Confusion And Inconsistency, Daniel P. O'Gorman

Faculty Scholarship

No abstract provided.

The Islamic Influence In (Pre-)Colonial And Early America: A Historico-Legal Snapshot, Nadia B. Ahmad

Faculty Scholarship

No abstract provided.

Of Trees, Vegetation, And Torts: Re-Conceptualizing Reasonable Land Use, L. Daniel Bidwell

Catholic University Law Review

No abstract provided.

Canadian Bijuralism At A Crossroad? The Impact Of Section 8.1 Of The Interpretation Act On Judicial Interpretation Of Federal Legislation, Aline Grenon

Osgoode Hall Law Journal

Section 8.1 of the Interpretation Act affirms the equal authority of the common law and civil law in the field of property and civil rights. The section states, subject to two exceptions, that federal enactments based on rules and concepts that are part of the law of property and civil rights are to be interpreted in accordance with these rules and concepts. Prior to the enactment of section 8.1 in 2001, courts had a tendency to opt for a uniform application of federal legislation based on common law concepts, with often negative results for Quebec civil law. Since then, the …

Sweet Caroline: The Backslide From Federal Rule Of Evidence 613(B) To The Rule In Queen Caroline's Case, Katharine T. Schaffzin

University of Michigan Journal of Law Reform

Since 1975, Rule 613(b) of the Federal Rules of Evidence has governed the admission of extrinsic evidence of a prior inconsistent statement in federal court. Rule 613(b) requires the proponent of the prior inconsistent statement to provide the declarant an opportunity to explain or deny it. There is no requirement that the proponent provide that opportunity at any particular time or in any particular sequence. Rule 613 reflected a change from the common law that had fallen out of fashion in the federal courts. That common law rule, known as the Rule in Queen Caroline’s Case, required the proponent of …

Common Law Decision-Making, Constitutional Shadows, And The Value Of Consistency: The Jurisprudence Of William F. Batchelder, Lawrence Friedman

The University of New Hampshire Law Review

[Excerpt] “This is an essay about common law decision-making, with an emphasis on the value of consistency as it relates to claims about the legitimacy of judicial lawmaking. The legitimacy of judicial lawmaking is ever an issue, particularly, of course, in the cases at the margins—those instances in which precedent points the court in no obviously correct direction, a choice must be made between plausible alternative paths, and “a decision one way or the other,” as Benjamin Cardozo observed, “will count for the future, will advance or retard, sometimes much, sometimes little, the development of the law.””

Extraterritoriality And Comparative Institutional Analysis: A Response To Professor Meyer, Zachary D. Clopton, P. Bartholomew Quintans

Cornell Law Faculty Publications

In the last few years, the Supreme Court has applied the presumption against extraterritoriality to narrow the reach of U.S. securities law in Morrison v. National Australia Bank and international-law tort claims in Kiobel v. Royal Dutch Petroleum. By their terms, these decisions are limited to the interpretation of ambiguous federal statutes and claims under the Alien Tort Statute. A potential unintended consequence of these decisions, therefore, is that future plaintiffs will turn to common-law causes of action derived from state and foreign law, potentially filing such suits in state courts. These causes of action may include “human rights claims …

Measuring The Transplantation Of English Commercial Law In A Small Jurisdiction: An Empirical Study Of Singapore’S Insurance Judgments Between 1965 And 2012, Christopher Chen

Research Collection Yong Pung How School Of Law

This article seeks to measure the development of law after transplanting common law and statutes from another country by conducting an empirical study of the citation of precedents and demography of disputes of insurance cases in Singapore. This article recognizes that there are justifications for Singapore to transplant English insurance law. However, this research shows that the transplantation of English commercial law into a small jurisdiction, even within the common law family, may cause the law to be in a static state if courts do not have enough cases to maintain the development of law or to consider new development …

Comparative Theory, Judges And Legal Transplants: A Practical Lesson From Singapore And Its Relevance To Transnational Convergence, Basil C. Bitas

Research Collection Yong Pung How School Of Law

Legal evolution in a hyper-connected world will increasingly come through, or otherwise be informed by, legal borrowing and transplants from without whether in the form of laws, techniques, concepts or simple inspiration. The pressures of globalisation and the resulting need for some form of operational, transnational convergence and harmonisation will require diverse legal systems to seek out the best rules and approaches regardless of provenance to address the demands of the modern legal and commercial environment. Judges, particularly in common law jurisdictions, will be at the forefront of this process of transnational legal selection fraught with both promise and peril. …

Extrinsic Evidence, Parol Evidence, And The Parol Evidence Rule: A Call For Courts To Use The Reasoning Of The Restatements Rather Than The Rhetoric Of Common Law, Timothy Archer, Shalayne Davis, David G. Epstein

Law Student Publications

This article is an example of what Professor Richard Epstein would call "Contracts small." According to Professor Richard Epstein, "'Contracts small' relates to contract law at the doctrinal level; it focuses on the rules of contract formation and performance; the everyday 'stuff of lawyer's law.' "This article looks to the Restatement of Contracts (hereafter "Restatement") and the Restatement (Second) of Contracts (hereafter "Restatement Second") for answers to the questions raised by the two problems. The Restatements generally have both been praised and condemned for their focus on doctrinal issues-on what Richard Epstein calls the "everyday stuff of lawyer's law." As …

A Canadian Model Of Corporate Governance, Carol Liao

All Faculty Publications

What is Canada’s actual legal model to govern its corporations? Recent landmark judicial decisions indicate Canada is shifting away from an Anglo-American definition of shareholder primacy. Yet the Canadian securities commissions have become increasingly influential in the governance sphere, and by nature are shareholder-focused. Shareholders’ rights have increased well beyond what was ever contemplated by Canadian corporate laws, and the issue of greater shareholder vs. board control has now become the topic of live debate. The future of Canada's overall model seems to rest on what will be more compelling: the constancy of the corporate statutes and trajectory of the …

Restatements And Non-State Codifications Of Private Law, Deborah A. Demott

Faculty Scholarship

This paper offers a vantage point through which to assess the phenomenon of projects codifying private law that are undertaken by private persons or institutions, distinct from legislatures and state-sponsored codification and law-revision projects. The private institution on which this paper focuses is the American Law Institute (ALI). ALI works in statutory form—most notably the Uniform Commercial Code and the Model Penal Code—as well as through projects that generate “Principles” to guide legal development within their specific fields and “Restatements” that authoritatively cover the law in a field.

The history of the Restatements sketched in this essay fits within the …

The Economics Of The Restatement And Of The Common Law, Keith N. Hylton

Faculty Scholarship

Perhaps the most optimistic view of the American Law Institute's Restatement project was provided at its inception by Benjamin Cardozo:

When, finally, it goes out under the name and with the sanction of the Institute, after all this testing and retesting, it will be something less than a code and something more than a treatise. It will be invested with unique authority, not to command, but to persuade. It will embody a composite thought and speak a composite voice. Universities and bench and bar will have had a part in its creation. I have great faith in the power of …

Constitutional Implications Of School Punishment For Cyber Bullying, Raul R. Calvoz, Bradley W. Davis, Mark A. Gooden

Cardozo Law Review de•novo

In this article, we address the scope of student free speech rights as it relates to cyber bullying. We provide a review of legal theories under which school administrators can address cyber bullying while still respecting student free speech rights and the First Amendment. Additionally, we address the jurisdiction of administrators to deal with off-campus bullying conduct.

The Controversy Over Citations To Foreign Authorities In American Constitutional Adjudication And The Conflict Of Judicial Philosophies: A Reply To Professor Glendon, Michel Rosenfeld

Articles

The controversy over U.S. Supreme Court justices citing foreign authorities in constitutional cases reflects a deeper ideological divide between restrictive and expansive judicial philosophies. This debate, evident in cases like Lawrence v. Texas and Roper v. Simmons, transcends traditional labels like originalism or political ideology, focusing instead on whether judges should defer to majoritarian decisionmaking or actively shape evolving rights. The article argues that the furor over foreign citations will diminish once the broader philosophical clash over judicial interpretation is resolved, as differences over foreign authorities are secondary to this central divide.

Law Reform Agenda As Ali Approaches Its Centennial, Lance Liebman

Faculty Scholarship

The American Law Institute and I are happy and proud that the Brooklyn Law School and its Law Review chose to hold an important conference about ALI work, to persuade such an outstanding group of scholars to write such varied and interesting papers, and now to publish their work. I am especially happy because, as I near the end of my service as ALI Director, these papers give me an opportunity to reflect on the projects, perfect and imperfect, that the ALI accomplished (or attempted and failed to accomplish) in our effort to improve the American legal system.

The Evolution Of The Common Law And Efficiency, Nuno Garoupa, Carlos I. Gómez Ligüerre

Georgia Journal of International & Comparative Law

No abstract provided.

Saving The Trees One Constitutional Provision At A Time: Judicial Activism And Deforestation In India, Lennon Banks Haas

Georgia Journal of International & Comparative Law

No abstract provided.

Criminal Forfeiture And The Sixth Amendment: The Role Of The Jury At Common Law, Richard E. Finneran, Steven K. Luther

Cardozo Law Review

Throughout its recent jurisprudence after Apprendi v. New Jersey, the Supreme Court has emphasized that its analysis of the Sixth Amendment jury trial right centers upon the historical role of the jury at common law. Just last year, in Southern Union Co. v. United States, the Court extended the Sixth Amendment jury trial right to criminal fines after concluding that the jury's verdict determined the maximum fine that could be imposed at common law. The Court remained silent, however, with regard to another financial penalty commonly applied in the federal system: criminal forfeitures. Given that the Supreme Court …