Open Access. Powered by Scholars. Published by Universities.®

Common Law Commons

Open Access. Powered by Scholars. Published by Universities.®

983 Full-Text Articles 798 Authors 536,095 Downloads 104 Institutions

All Articles in Common Law

Faceted Search

983 full-text articles. Page 1 of 22.

In The Shadow Of The Legislature: The Common Law In The Age Of The New Public Law, Daniel A. Farber, Philip P. Frickey 2019 University of Minnesota

In The Shadow Of The Legislature: The Common Law In The Age Of The New Public Law, Daniel A. Farber, Philip P. Frickey

Daniel A Farber

In this essay, we explore how modem common law judges should view their role vis-a-vis the legislature. We suggest that the perspective of the "New Public Law," as we conceptualize it, is surprisingly helpful in considering this problem.

In Part I, we briefly summarize two important aspects of the New Public Law: republicanism and public choice. We then address an obvious objection to our project - that our topic relates to private law, and is therefore outside the purview of the New Public Law. Part II turns to important questions about the relationship between statutes and the common law: When should ...


A New History Of Waste Law: How A Misunderstood Doctrine Shaped Ideas About The Transformation Of Law, Jill M. Fraley 2019 Washington and Lee School of Law

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

Jill M. Fraley

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 ...


A Corporate Duty To Rescue: Biopharmaceutical Companies And Access To Medications, Rebecca E. Wolitz 2019 Stanford Center for Law and the Biosciences

A Corporate Duty To Rescue: Biopharmaceutical Companies And Access To Medications, Rebecca E. Wolitz

Indiana Law Journal

Controversies regarding the pricing of biopharmaceutical products are pervasive. Patients must choose between treatment and rent, prescriptions go unfilled, and health systems are forced to restrict access to life-saving medications— all because of cost. Though there is often consensus that these issues are problematic, there is disagreement as to what are appropriate solutions and who has responsibility to bring about those solutions. Most efforts to address biopharmaceutical pricing concerns focus on governmental regulation. This Article has a different focus. It provides a legal and normative analysis of a form of corporate self-regulation that could help address access and pricing concerns ...


Ordinary Causation: A Study In Experimental Statutory Interpretation, James Macleod 2019 Columbia Law School

Ordinary Causation: A Study In Experimental Statutory Interpretation, James Macleod

Indiana Law Journal

In a series of recent split decisions interpreting criminal and tort-like legislation, the Supreme Court has purported to give statutory causation requirements their ordinary, plain meaning. Armed with dictionaries, examples from everyday speech, and commonsense intuitions, the Court’s majority has explained that statutory phrases like “because of” and “results from” entail but-for causation as a matter of ordinary usage. There’s just one problem: The Court’s majority (and the many state and federal courts following its lead) is wrong on the facts—specifically, the facts about how people ordinarily interpret, understand, and use causal language.

This Article considers ...


Drone Invasion: Unmanned Aerial Vehicles And The Right To Privacy, Rebecca L. Scharf 2019 University of Nevada, Las Vegas

Drone Invasion: Unmanned Aerial Vehicles And The Right To Privacy, Rebecca L. Scharf

Indiana Law Journal

Since the birth of the concept of a legally recognized right to privacy in Samuel D. Warren and Louis D. Brandeis’ influential 1890 law review article, “The Right to Privacy,” common law—with the aid of influential scholars—has massaged the concept of privacy torts into actionable claims. But now, one of the most innovative technological advancements in recent years, the unmanned aerial vehicle, or drone, has created difficult challenges for plaintiffs and courts navigating common law privacy tort claims.

This Article explores the challenges of prosecution of the specific privacy tort of intrusion upon seclusion involving nongovernmental use of ...


Recognition Of Validity And Incidents Of Marriages Between Blacks And Whites, Lewis F. Powell Jr. 2019 Washington and Lee University School of Law

Recognition Of Validity And Incidents Of Marriages Between Blacks And Whites, Lewis F. Powell Jr.

Powell Writings

No abstract provided.


Offshore Drilling: Combating Regulatory Uncertainty With Contract Law Protection, Jordan M. Steele 2019 Brooklyn Law School

Offshore Drilling: Combating Regulatory Uncertainty With Contract Law Protection, Jordan M. Steele

Brooklyn Journal of Corporate, Financial & Commercial Law

Offshore drilling accounts for billions of dollars in tax revenue every year. It is a pillar of the energy industry and is crucial to the economy. A recent flurry of deregulation, accelerating with the arrival of the Trump administration, highlights the tremendous impact politics has upon the profitability of this sector. The Secretary of the Interior, under the direction of the President, wields the power to regulate and make determinations into where, when, and how private companies can drill offshore. These private companies have contracts with the government for the opportunity to produce and develop oil or gas on the ...


Racial Indirection, Yuvraj Joshi 2019 Yale Law School

Racial Indirection, Yuvraj Joshi

Yuvraj Joshi

Racial indirection describes practices that produce racially disproportionate results without the overt use of race. This Article demonstrates how racial indirection has allowed — and may continue to allow — efforts to desegregate America’s universities. By analyzing the Supreme Court’s affirmative action cases, the Article shows how specific features of affirmative action doctrine have required and incentivized racial indirection, and how these same features have helped sustain the constitutionality of affirmative action to this point. There is a basic constitutional principle that emerges from these cases: so long as the end is constitutionally permissible, the less direct the reliance on ...


The Paradox Of Christian-Based Political Advocacy: A Reply To Professor Calhoun, Wayne R. Barnes 2019 Texas A&M University School of Law

The Paradox Of Christian-Based Political Advocacy: A Reply To Professor Calhoun, Wayne R. Barnes

Wayne R. Barnes

Professor Calhoun, in his Article around which this symposium is based, has asserted that it is permissible for citizens to publicly argue for laws or public policy solutions based on explicitly religious reasons. Calhoun candidly admits that he has “long grappled” with this question (as have I, though he for longer), and, in probably the biggest understatement in this entire symposium, notes that Professor Kent Greenawalt identified this as “a particularly significant, debatable, and highly complex problem.” Is it ever. I have a position that I will advance in this article, but I wish to acknowledge at the outset that ...


Protecting Users Of Social Media, Margaret Ryznar 2019 Indiana University McKinney School of Law

Protecting Users Of Social Media, Margaret Ryznar

Notre Dame Law Review Online

Social media platforms started as a fun way to connect with friends and family. Since then, they have become a science fiction nightmare due to their capacity to gather and misuse the data on their users.

It is not irrational for social media providers to seek to capitalize on their data when they provide the platforms for free. Indeed, their business model is to sell data to third parties for marketing and other purposes. Yet, users should be able to expect that their data is not used to hurt them or is not sent to disreputable companies. Indeed, fewer people ...


Common Ownership And Executive Incentives: The Implausibility Of Compensation As An Anticompetitive Mechanism, David Walker 2019 Boston Univeristy School of Law

Common Ownership And Executive Incentives: The Implausibility Of Compensation As An Anticompetitive Mechanism, David Walker

Faculty Scholarship

Mutual funds, pension funds and other institutional investors are a growing presence in U.S. equity markets, and these investors frequently hold large stakes in shares of competing companies. Because these common owners might prefer to maximize the values of their portfolios of companies, rather than the value of individual companies in isolation, this new reality has lead to a concern that companies in concentrated industries with high degrees of common ownership might compete less vigorously with each other than they otherwise would. But what mechanism would link common ownership with reduced competition? Some commentators argue that one of the ...


Table Of Contents, Seattle University Law Review 2019 Seattle University School of Law

Table Of Contents, Seattle University Law Review

Seattle University Law Review

No abstract provided.


Book Review: An Examination Of Maine's Public Beach Access, Ariel A. Hampton 2019 University of Maine School of Law

Book Review: An Examination Of Maine's Public Beach Access, Ariel A. Hampton

Ocean and Coastal Law Journal

Many people assume that access rights to public resources are unwavering. Two Maine Supreme Judicial Court cases concerning limitations to public access to Maine beaches rebut this assumption. In his book, Maine's Beaches Are Public Property: The Bell Cases Must Be Reexamined, Professor Orlando E. Delogu challenges the modifications to public beach access that resulted from these two cases. This Review focuses on the historical and legal arguments that Professor Delogu presents as justification for the reversal of the Bell cases. Professor Delogu gives compelling reasons for his take on the Bell cases and why the State of Maine ...


Global Judicial Transparency Norms: A Peek Behind The Robes In A Whole New World — A Look At Global “Democratizing” Trends In Judicial Opinion-Issuing Practices, J. Lyn Entrikin 2019 William H. Bowen School of Law, University of Arkansas Little Rock

Global Judicial Transparency Norms: A Peek Behind The Robes In A Whole New World — A Look At Global “Democratizing” Trends In Judicial Opinion-Issuing Practices, J. Lyn Entrikin

Washington University Global Studies Law Review

Global developments over the last two decades have debunked the traditional understanding that separate opinions are idiosyncratic of courts in nations following the common law tradition. History reflects that judicial opinion-issuing practices have evolved around the world, adapting to the increasing globalization of legal systems. And recent research confirms that most international and supranational tribunals, even those headquartered in continental Europe, expressly permit individual judges to issue separate opinions, although in some courts various internal norms and customs operate to discourage the practice. In addition, the majority of European national constitutional courts now permit individual judges to publish separate opinions ...


Civilly Disobedient: Justifying Juror Misconduct, Grace K. Wilson 2019 Claremont McKenna College

Civilly Disobedient: Justifying Juror Misconduct, Grace K. Wilson

CMC Senior Theses

A fair, unbiased jury that follows the courts instructions is a crucial aspect of the American criminal justice system, mandated by both the California and United States Constitution. When jurors violate judicial instructions, it can jeopardize the impartiality of a case. Despite this, little research has been completed on what individual differences are indicative of greater willingness to commit jury misconduct. Misconduct can occur when jurors fail to follow judicial instructions in circumstances that a reasonable person may be tempted to disobey. This study explores potential individual differences that correlate with a greater likelihood of excusing and even committing juror ...


Gun Control: The Gun Violence Epidemic In The U.S., ANNA KODURU 2019 The University of Akron

Gun Control: The Gun Violence Epidemic In The U.S., Anna Koduru

Williams Honors College, Honors Research Projects

While holding almost half of all civilian-owned guns around the globe and yet only 4.4 percent of the world’s population, the United States of America is heavily centered around gun rights due to the 2nd amendment in the U.S. Constitution. But gun violence is on the rise as deaths due to gun violence are at its highest rate in nearly 40 years. Americans are divided amongst themselves when it comes to how we must approach this issue. In order to reduce gun violence in the U.S., both Republican and Democrat leaders must come together and make ...


The Genius Of Common Law Intellectual Property, Shyamkrishna Balganesh 2019 University of Pennsylvania Law School

The Genius Of Common Law Intellectual Property, Shyamkrishna Balganesh

Faculty Scholarship at Penn Law

Among Richard Epstein’s influential contributions to legal scholarship over the years is his writing on common law intellectual property. In it, we see Epstein’s attempt to meld the innate logic of the common law’s conceptual structure with the realities of the modern information economy. Common law intellectual property refers to different judge made causes of action that create forms of exclusive rights and privileges in intangibles, interferences with which are then rendered enforceable through private liability. In this Essay, I examine Epstein’s writing on two such doctrines: “hot news misappropriation” and “cyber-trespass”, which embraces several important ...


Invoking Common Law Defenses In Immigration Cases, Fatma Marouf 2019 Texas A&M University School of Law

Invoking Common Law Defenses In Immigration Cases, Fatma Marouf

Faculty Scholarship

This Article argues that we should take a deeper look at the applicability of federal common law defenses in immigration cases. In the rare cases where noncitizens attempt to raise common law defenses, such arguments tend to be dismissed offhand by immigration judges simply because removal proceedings are technically civil, not criminal. Yet many common-law defenses may be raised in civil cases. Additionally, immigration proceedings have become increasingly intertwined with the criminal system. After examining how judges already rely on federal common law to fill in gaps in the Immigration and Nationality Act (INA), this Article proposes three categories of ...


Calming Troubled Waters: Local Solutions, Part I, John R. Nolon 2019 Elisabeth Haub School of Law at Pace University

Calming Troubled Waters: Local Solutions, Part I, John R. Nolon

Pace Law Faculty Publications

In 1861, the Ohio Supreme Court adopted the Absolute Use Rule to govern groundwater, essentially allowing landowners its unencumbered use. The opinion noted that the behavior of subterranean water was “occult and mysterious” and that it was beyond the competence of judges to determine its appropriate use. The Ohio court reversed course in 1984 and adopted the Reasonable Use Rule. By then, scientific knowledge had advanced to the point that the interconnected movement of water was more readily discoverable. The court noted that a primary goal of water law should be to conform to hydrologic fact. This Article explores the ...


Finding Law, Stephen E. Sachs 2019 Duke Law School

Finding Law, Stephen E. Sachs

Faculty Scholarship

That the judge's task is to find the law, not to make it, was once a commonplace of our legal culture. Today, decades after Erie, the idea of a common law discovered by judges is commonly dismissed -- as a "fallacy," an "illusion," a "brooding omnipresence in the sky." That dismissive view is wrong. Expecting judges to find unwritten law is no childish fiction of the benighted past, but a real and plausible option for a modern legal system.

This Essay seeks to restore the respectability of finding law, in part by responding to two criticisms made by Erie and ...


Digital Commons powered by bepress