Imputation, The Adverse Interest Exception, And The Curious Case Of The Restatement (Third) Of Agency,
2013
University of Colorado, Boulder
Imputation, The Adverse Interest Exception, And The Curious Case Of The Restatement (Third) Of Agency, Mark J. Loewenstein
University of Colorado Law Review
The imputation doctrine in the common law of agency provides that knowledge of an agent acquired in the course of the agency relationship is imputed to the principal. An important exception to the imputation doctrine, known as the adverse interest exception, provides that knowledge is not imputed if it is acquired by the agent in a course of conduct that is entirely adverse to the principal. These doctrines play an important role in sorting out liability when senior management of a corporation engages in a financial fraud that harms the company. Typically, new management is brought in and it sues …
The Necessary Opportunism Of The Common Law First Amendment,
2013
West Chester University of Pennsylvania
The Necessary Opportunism Of The Common Law First Amendment, Chris Stangl
Political Science Faculty Publications
No abstract provided.
The Death Of The Common Law: Judicial Abdication And Contributory Negligence In Maryland,
2013
University of Maryland School of Law
The Death Of The Common Law: Judicial Abdication And Contributory Negligence In Maryland, Donald G. Gifford
Maryland Law Review Online
The issue of how to handle a victim’s own contributory negligence that combines with the negligence of a tortfeasor in causing harm is one of the most important, if not the most important, issue in all of tort law. Forty-six states now apply some version of comparative fault that holds the defendant liable for its negligence even when the plaintiff is also careless, but reduces the award in proportion to the plaintiff’s degree of fault when compared with that of the defendant. In contrast, the Maryland Court of Appeals in Coleman v. Soccer Association of Columbia recently refused again to …
Applying Mathematical Set Theory To Statutory Construction Of Municipal Sign Laws,
2013
Touro Law Center
Applying Mathematical Set Theory To Statutory Construction Of Municipal Sign Laws, Ann L. Nowak
Scholarly Works
This case illustrates why municipal lawyers might want to review their high school mathematics lessons about set theory before drafting statutes. The application of set theory—particularly in the form of Venn diagrams—can help to prevent ambiguity of language in statutory construction. It is this ambiguity that gives rise to differences in interpretation, and these differences frequently lead to litigation over the meaning of a statute.
Past The Pillars Of Hercules: Francis Bacon And The Science Of Rulemaking,
2013
Boston
College
Past The Pillars Of Hercules: Francis Bacon And The Science Of Rulemaking, Daniel R. Coquillette
University of Michigan Journal of Law Reform
The parallels between Bacon's career and that of Edward H. Cooper are, of course, obvious. Bacon was one of the great legal minds of his day. Unlike the common-law judges who formed the law by deciding cases, Bacon expressed his greatness in writing brilliant juristic treatises and, as Lord Chancellor, drafting one of the first modern rule systems, the Ordinances in Chancery (1617-1620). Indeed, my thesis is that Bacon invented modern, scientific rulemaking by fusing his new theories of inductive, empirical research with the traditions of equitable pleading and is, in fact, the intellectual forbearer of the likes of Charles …
Creditors And The Feme Covert,
2013
Georgetown University Law Center
Creditors And The Feme Covert, James Oldham
Georgetown Law Faculty Publications and Other Works
As is well-known, the Court of King’s Bench in Marshall v. Rutton (1800), under Chief Justice Lloyd Kenyon, overruled earlier King’s Bench decisions by Lord Mansfield that had allowed creditors to prevail in suits against married women in an expanding set of factual circumstances. As Kenyon confessed in Marshall, he had never been satisfied with the Mansfield decisions, and had wished that a case “should come to take away all the difficulties.” The Marshall case fulfilled his wish. Kenyon, however, was not the powerful leader of King’s Bench that Mansfield had been, and but for fortuities of judicial turnover, …
Antitrust And The Judicial Virtues,
2013
University of Michigan Law School
Antitrust And The Judicial Virtues, Daniel A. Crane
Articles
Although commentators frequently debate how judges should decide antitrust cases substantively, little attention has been paid to theories of judicial virtue in antitrust decision making. This essay considers four pairings of virtues: (1) striving for substantive purity versus conceding to institutional realism; (2) incrementalism versus generalism; (3) presenting a unified face versus candidly conceding differences among judges on an appellate panel; and (4) adhering strictly to stare decisis versus freely updating precedents to reflect evolving economic learning or conditions. While recognizing the complexities that sometimes pull judges in the opposite direction, this Article gives the nod to institutional realism, incrementalism, …
I'Ll Huff And I'Ll Puff And I'Ll Blow Your House Down: The Argument For The Ability To Purchase Your Neighbor's Wind,
2013
University of Colorado Law School
I'Ll Huff And I'Ll Puff And I'Ll Blow Your House Down: The Argument For The Ability To Purchase Your Neighbor's Wind, Emily J. Wasserman
University of Colorado Law Review
Wind power capacity has increased substantially over the past decade. This growth in capacity is partially attributable to the policies that federal and state governments have enacted to help developers overcome the economic barriers to building commercial-scale wind facilities. However, the existing economic policies have a limited ability to continue to incentivize development of new wind power capacity. Therefore, if wind power capacity is going to continue to grow so that wind power eventually supplies enough electricity to meet a significant amount of the United States' energy needs, states need to supplement the economic policies with other, noneconomic policies. Specifically, …
Interpretive Methodology And Delegations To Courts: Are "Common-Law Statutes" Different?,
2013
Duke Law School
Interpretive Methodology And Delegations To Courts: Are "Common-Law Statutes" Different?, Margaret H. Lemos
Faculty Scholarship
No abstract provided.
Suboptimal Social Science And Judicial Precedent,
2013
Duke Law
Suboptimal Social Science And Judicial Precedent, Ben Grunwald
Faculty Scholarship
No abstract provided.
Remedies Reveals The Seamless Web,
2013
American University Washington College of Law
Remedies Reveals The Seamless Web, Candace Kovacic-Fleischer
Scholarly Articles in Law Reviews & Journals
INTRODUCTION: Remedies is a course that consolidates many of the concepts learned in the first year of law school and some from the second. A typical Remedies course will reintroduce principles from constitutional law, compare and contrast torts and contracts, and apply criminal concepts in civil contexts. Teaching Remedies can be both challenging and rewarding. Challenging because it crosses a wide variety of subject areas. Rewarding because it weaves a variety of subject areas into the "seamless web" of the law, eliciting from students an occasional "aha." Early classes in law school tend to separate courses into discrete subject areas, …
The Role Of Unfair Competition In The Common Law,
2013
Columbia Law School
The Role Of Unfair Competition In The Common Law, Shyamkrishna Balganesh, Gideon Parchomovsky
Faculty Scholarship
Does the idea of “unfair competition” present the law with a viable alternative to thinking about the regulation of information and informational resources, independent of the traditional categories of the common law (e.g., property/tort) and the assumptions that these categories entail? In this chapter, we argue that, although the answer to that question is no, unfair competition nevertheless plays an important role in complementing the categories of property and torts as they apply to competitive settings. Specifically, unfair competition allows courts to both broaden and narrow the traditional notions of property and torts – especially as they apply to the …
Stewarding The Common Law Of Copyright,
2013
Columbia Law School
Stewarding The Common Law Of Copyright, Shyamkrishna Balganesh
Faculty Scholarship
Copyright law is today perceived as principally statutory in origin. The Copyright Act of 1976 is thought to have codified most questions of copyright policy and doctrine, and delegated a fairly limited set of questions to courts for them to resolve incrementally on a case-by-case basis. This is in contrast to prior copyright enactments, which were brief and open-ended in structure, and seemingly envisaged a more active role for courts in rule- and policy-making. Judge Leval thus notes how over time, the idea of a constructive "partnership" between the legislature and courts in making and developing copyright law that once …
Jacques De Werra (Ed.), Research Handbook On Intellectual Property Licensing,
2013
Dalhousie University Schulich School of Law
Jacques De Werra (Ed.), Research Handbook On Intellectual Property Licensing, Lucie Guibault
Articles, Book Chapters, & Popular Press
In the laws of most jurisdictions in the world, IP licenses are an unnamed form of contract, most often of a hybride nature, for which no specific legal framework exists, save for rare exceptions. As a result, the formation, content and interpretation of IP licences call for the application of relevant norms from numerous other fields of the law, such as contract law, property law, commercial law, consumer law etc. Despite efforts of harmonisation at the international and regional levels, these related areas of the law remain to a large extent nationally determined, influenced by the legal tradition of each …
Ethics In Legal Education: An Augmentation Of Legal Realism,
2012
Pepperdine University
Ethics In Legal Education: An Augmentation Of Legal Realism, Gerald R. Ferrera
Pepperdine Law Review
No abstract provided.
The Best Interest Of The Child And The Law ,
2012
Pepperdine University
The Best Interest Of The Child And The Law , Christian Reichel Van Deusen
Pepperdine Law Review
No abstract provided.
Allocating The Costs Of Parental Free Exercise: Striking A New Balance Between Sincere Religious Belief And A Child's Right To Medical Treatment ,
2012
Pepperdine University
Allocating The Costs Of Parental Free Exercise: Striking A New Balance Between Sincere Religious Belief And A Child's Right To Medical Treatment , Paul A. Monopoli
Pepperdine Law Review
No abstract provided.
Negligent Infliction Of Emotional Distress: A Proposal For A Consistent Theory Of Tort Recovery For Bystanders And Direct Victims,
2012
Pepperdine University
Negligent Infliction Of Emotional Distress: A Proposal For A Consistent Theory Of Tort Recovery For Bystanders And Direct Victims, Julie A. Greenberg
Pepperdine Law Review
No abstract provided.
Separation Of Powers Doctrine On The Modern Supreme Court And Four Doctrinal Approaches To Judicial Decision-Making,
2012
Pepperdine University
Separation Of Powers Doctrine On The Modern Supreme Court And Four Doctrinal Approaches To Judicial Decision-Making, R. Randall Kelso
Pepperdine Law Review
No abstract provided.
The Effect Of Location In The Courtroom On Jury Perception Of Lawyer Performance,
2012
Pepperdine University
The Effect Of Location In The Courtroom On Jury Perception Of Lawyer Performance, Jeffrey S. Wolfe
Pepperdine Law Review
No abstract provided.
