Common Law Commons^™

American Electricpower V. Connecticut: Disaster Averted By Displacing The Federal Common Law Of Nuisance, Damian M. Brychey

Georgia Law Review

Historically, the federal common law of nuisance has
provided a means to regulate interstate pollution. With
the passing of legislative acts such as the Clean Water Act
and the Clean Air Act, however, traditional federal
nuisance lawsuits were displaced. The continued viability
of the federal common law of nuisance to regulate
pollution, specifically greenhouse gases, was brought to
the forefront of American jurisprudence in American
Electric Power Co. v. Connecticut. There, the Supreme
Court held that the Clean Air Act and the EPA actions the
Act authorizes displace any federal common law right to
seek abatement of greenhouse gases-reversing the …

Response: There Is No New General Common Law Of Severability, Kevin C. Walsh

Law Faculty Publications

In this solicited response to The New General Common Law of Severability, I first offer an interpretation of Ayotte and subsequent Supreme Court decisions as continuous with existing doctrine instead of a departure from it. I then suggest that much of Scoville’s evidence for a federalization of severability doctrine is better viewed as evidence of doctrinal looseness rather than of doctrinal change. I conclude by returning to the lessons of severability’s doctrinal history, suggesting that the prehistory of severability doctrine may supply a better guide for how courts should deal with problems of partial unconstitutionality in the future.

Reason, The Common Law, And The Living Constitution (Review Of The Living Constitution By David Strauss), Matthew J. Steilen

Book Reviews

This article reviews David Strauss’s recent book, The Living Constitution. The thesis of Strauss’s book is that constitutional law is a kind of common law, based largely on judicial precedent and common-sense judgments about what works and what is fair. Strauss argues constitutional doctrines prohibiting discrimination and protecting free speech have a common law basis, and that the originalist would have to reject them. However, it is unclear that the common law can justify these rights. This review examines Strauss’s account of the common law and shows why it cannot justify our First Amendment protections of subversive advocacy, as Strauss …

Retrying The Acquitted In England Part Iii: Prosecution Appeals Against Judges' Rulings Of "No Case To Answer", David S. Rudstein

San Diego International Law Journal

The Order in Council permitting the prosecution appeal of "Mo" Courtney's acquittal and allowing him to be retried for the same offense of which he had previously been acquitted stems from the Criminal Justice Act 2003. That Act, which applies in England and Wales, grants the government the right to appeal certain rulings by the trial judge in criminal prosecutions on an indictment, including a ruling that there is no case to answer, i.e., a directed verdict of acquittal, and if the appeal is successful, allows the reviewing court to order that the acquitted defendant?s trial be resumed or that …

Shedding Light On Shady Grove: Further Reflections On The Erie Doctrine From A Conflicts Perspective, Joseph P. Bauer

Journal Articles

This Article, a contribution to the Notre Dame Law Review symposium issue on the Supreme Court’s recent Shady Grove decision, is a follow-up to an article published in the same journal eleven years ago, in which I suggested that the Erie doctrine could be usefully informed by drawing on caselaw and jurisprudence from the horizontal choice of law setting. Shady Grove addressed the question of whether a New York state law, barring the assertion of claims for statutory damages, was binding in an action brought in the federal courts, or whether Federal Rule 23, which does not contain a similar …

Joint Bank Accounts In New York: Confusion, Discrimination, And The Need For Change, Carolyn Satenberg

Cardozo Public Law, Policy & Ethics Journal

The note argues that New York's legal presumption of joint tenancy in joint bank accounts disproportionately burdens same-sex couples, leading to unfair gift and estate tax implications. It advocates for reforming New York's approach to align with the Uniform Probate Code (UPC), which better reflects depositor intent and reduces discrimination. The current system, compounded by federal policies like the Defense of Marriage Act (DOMA), exacerbates financial and emotional hardships for same-sex couples in tax and probate matters.

The Right And Wrong Of “Knowing Receipt” In The Law Of Restitution, Tiong Min Yeo

2009 Yong Pung How Professorship of Law Lecture

One distinctive feature of the common law system is its duality. No legal analysis is complete without considering both the rules of common law and the principles of equity. Civilians (non-lawyers in common law countries and lawyers from civil law countries) struggle to understand why there are two systems of justice in the legal discourse and how they interact with one another. The trite proposition that equity prevails whenever there is a conflict belies the complexity of the relationship. The other distinctive feature is that much of the law continues to be made in the courts rather than by legislation. …

When The Restatement Is Not A Restatement: The Curious Case Of The "Flagrant Trespasser", David Logan

Law Faculty Scholarship

No abstract provided.

Finding Possession: Labor, Waste And The Evolution Of Property, Jill M. Fraley

Scholarly Articles

Although possession has long been intimately linked to labor, recent historical work on land claims during the sixteenth and seventeenth centuries suggests that the clash of divergent legal cultures of possession drove the two apart. This clash yielded an American concept of possession much more deeply connected to industrialization than the traditional understanding of labor. By providing evidence of how our concept of labor was industrialized, this article questions the outcomes in modem possession cases, particularly as they impact development and environmental preservation in rural areas.

The Democratic Common Law, Matthew J. Steilen

Journal Articles

This article explores the democratic features of common-law judicial law-making. It begins by examining the so-called “classical” account of the common law, associated with English jurists Edward Coke and Matthew Hale. These jurists describe the common law as a kind of “reasonable custom” that emerges out of a public process in which lawyers exchange reasons with the court about how to resolve a dispute. The article then turns to modern common-law adjudication, and, drawing on the work of Fred Schauer, Edward Levi, Martin Golding, and others, shows how public deliberation prominently features in the modern adjudicative process as well. The …

Reshaping The Traditional Limits Of Affirmative Duties Under The Third Restatement Of Torts, 44 J. Marshall L. Rev. 319 (2011), Victor E. Schwartz, Christopher E. Appel

UIC Law Review

No abstract provided.

Hot News: The Enduring Myth Of Property In News, Shyamkrishna Balganesh

Faculty Scholarship

The “hot news” doctrine refers to a cause of action for the misappropriation of time-sensitive factual information that state laws afford purveyors of news against free riding by a direct competitor. Entirely the offshoot of the Supreme Court’s decision in International News Service v. Associated Press, the doctrine enables an information gatherer to prevent a competitor from free riding on its efforts at collecting and distributing timely information. Over the last few years, newsgatherers of different kinds have begun using the doctrine with increased frequency, believing it to create and protect an ownership interest in news. This Article argues …

Sex Work By Law: Bedford's Impact On The Municipal Regulation Of Sex Work, Elaine Craig

Articles, Book Chapters, & Popular Press

The recent Ontario trial decision in Bedford suggests three interrelated principles that municipal law makers should consider when formulating bylaws aimed at regulating sex work. These principles, if upheld on appeal, will inform the constitutionality of both current and prospective bylaws regulating sex work in Canadian cities.

In Bedford, Justice Himel concluded that the constitutionality of laws regulating the sex trade must be determined in a legal context which recognizes the violence faced by sex workers. She confirmed that laws that indirectly make sex work more dangerous and harmful must be consistent with those principles that our legal system, through …

Sex Work By Law: Bedford's Impact On The Municipal Regulation Of Sex Work, Elaine Craig

Articles, Book Chapters, & Popular Press

The recent Ontario trial decision in Bedford suggests three interrelated principles that municipal law makers should consider when formulating bylaws aimed at regulating sex work. These principles, if upheld on appeal, will inform the constitutionality of both current and prospective bylaws regulating sex work in Canadian cities. In Bedford, Justice Himel concluded that the constitutionality of laws regulating the sex trade must be determined in a legal context which recognizes the violence faced by sex workers. She confirmed that laws that indirectly make sex work more dangerous and harmful must be consistent with those principles that our legal system, through …

The New Common Law Courts, Culture, And The Localization Of The Model Penal Code, Anders Walker

All Faculty Scholarship

Few tropes in American law teaching are more firmly entrenched than the criminal law division between Model Penal Code and common law states. Yet, even a cursory look at current state codes indicates that this bifurcation is outmoded. No state continues to cling to ancient English common law, nor does any state adhere fully to the Model Penal Code. In fact, those states that adopted portions of the Code have since produced a substantial body of case law – what this article terms “new common law” – transforming it. Taking the controversial position that criminal law pedagogy is antiquated, this …

Melms V. Pabst Brewing Co. And The Doctrine Of Waste In American Property Law, Thomas W. Merrill

Faculty Scholarship

Melms v. Pabst Brewing Co. may be the most important decision ever rendered by an American court concerning the law of waste. Unless your specialty is property law, that might not be enough to stir your interest. The doctrine of waste, after all, does not loom very large in public consciousness these days.

Nevertheless, waste has held a peculiar fascination for property theorists. The reason, I think, is that it touches directly on an important line of division in how we think about property. Does property exist primarily to protect the subjective expectations that particular owners have in particular things? …

Consumer Contract Exchanges And The Problem Of Adhesion, Andrew A. Schwartz

Publications

Businesses and sophisticated parties have long used "contract exchanges," like the Chicago Board of Trade, to obtain a fair price and protect themselves from market volatility. These contract exchanges have greatly benefited both their participants and the public at large, but participation was long limited to a wealthy few. A decade ago, however, Internet websites, including Hotwire and Priceline, brought the power of contract exchanges directly to consumers, allowing regular people to flex their collective bargaining power to obtain low prices on travel services. Even more recently, other such "consumer contract exchanges," including Prosper and MoneyAisle, have organized vibrant markets …

Foreward: Erie's Gift, Jay Tidmarsh

Journal Articles

Sometimes described as "one of the modem cornerstones of our federalism," Erie stands at its narrowest for a simple proposition: When a federal court decides a claim whose source is state law, the court must apply the same substantive common-law rules that a state court would apply to the claim. Dictated by statute, by policy, and by the Constitution, this result seems "superbly right" to many. Indeed, Erie's narrow holding is not controversial today.

Common Law And Statute Law In Administrative Law, Jack M. Beermann

Faculty Scholarship

The largely statutory appearance of U.S. administrative law be surprising in light of the existence of the federal A Procedure Act of 1946 (APA).1 The APA, including its a amendments, is a relatively comprehensive guide to much of law in the United States. It contains the procedures agencies to follow in both rulemaking and adjudication and provisions on the availability and scope of judicial review of agency action. As includes open meeting and open file requirements as well as negotiated rulemaking and legislative review of agency rules generally held view that federal courts should not make com should act only …

Judicial Takings And Collateral Attacks On State Court Property Decisions, Stacey L. Dogan, Ernest A. Young

Faculty Scholarship

In Stop the Beach Renourishment, Inc. v. Florida Department of Environmental Protection,1 the U.S. Supreme Court divided over the question whether takings alleged to have occurred as a result of judicial action should be treated identically to takings by legislative or executive actors. In this essay, we accept the plurality’s basic contention that it makes little sense to treat judicial takings of property categorically differently than takings by other branches of government. If a judge decided to condemn property for a highway project, for example, we agree with Justice Scalia that the Constitution would compel compensation, just as it does …