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The Death Of The Common Law: Judicial Abdication And Contributory Negligence In Maryland, Donald G. Gifford 2013 Selected Works

The Death Of The Common Law: Judicial Abdication And Contributory Negligence In Maryland, Donald G. Gifford

Donald G Gifford

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 ...


The Economics Of The Restatement And Of The Common Law, Keith Hylton 2013 Boston University School of Law

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

Faculty Scholarship

The common law process appears to have checks and balances that prevent the self-interest of a particular embedded actor (judge or lawyer) from having a substantial distortive effect. The question that follows is whether the Restatement project is also immune, to the same extent as the common law, from the self-interested incentives of actors involved in its creation. I argue that the Restatement process is far more vulnerable to distortion from self-interest than is the common law process.


An All Of The Above Theory Of Legal Development, Larry A. DiMatteo 2013 University of Florida

An All Of The Above Theory Of Legal Development, Larry A. Dimatteo

Larry A DiMatteo

This paper reviews different theories of legal development in order to highlight their similarities and differences. In the end, as in contract theories, no monist view of legal development possesses the explanatory power needed to understand how law has come to be and where it may take us in the future. What we do have is a foundation built on at least two millennia of legal history. The intellectual starting point for this project is Nathan Isaacs’ unfinished work on a cycle theory of legal development. His view of legal development takes issue with Henry Sumner Maine’s thesis that ...


The Arkansas Proposal On Access To Court Records: Upgrading The Common Law With Electronic Freedom Of Information Norms, Richard Peltz-Steele, Joi Leonard, Amanda Andrews 2013 University of Massachusetts School of Law - Dartmouth

The Arkansas Proposal On Access To Court Records: Upgrading The Common Law With Electronic Freedom Of Information Norms, Richard Peltz-Steele, Joi Leonard, Amanda Andrews

Richard J. Peltz-Steele

The law and practice of court record access across United States jurisdictions is in a confused state. Public access to records in the hands of government, including court records, is a desirable norm of public policy; on this point, there is universal agreement. But there is disagreement on questions as fundamental as whether public access to court records is founded in constitutional law, or only in common law; and the extent to which court record access is the province of the courts or the legislature. And most importantly, there is widely divergent disagreement about what circumstances warrant restriction on public ...


Illegitimate Children And Constitutional Review, Clayton W. Plotkin, John Vodonick 2013 Pepperdine University

Illegitimate Children And Constitutional Review, Clayton W. Plotkin, John Vodonick

Pepperdine Law Review

No abstract provided.


The Unwritten Law And Its Writers, Frederick J. Moreau 2013 Pepperdine University

The Unwritten Law And Its Writers, Frederick J. Moreau

Pepperdine Law Review

No abstract provided.


Dirt Lawyers And Dirty Remics, Bradley T. Borden, David J. Reiss 2013 Brooklyn Law School

Dirt Lawyers And Dirty Remics, Bradley T. Borden, David J. Reiss

Faculty Scholarship

No abstract provided.


Is The Rule Of Necessity Really Necessary In State Administrative Law: The Central Panel Solution, Arnold Rochvarg 2013 Pepperdine University

Is The Rule Of Necessity Really Necessary In State Administrative Law: The Central Panel Solution, Arnold Rochvarg

Journal of the National Association of Administrative Law Judiciary

The rule of necessity is a judicial doctrine that permits a judge or agency decision maker to decide a case even if he or she would ordinarily be disqualified due to bias or prejudice . The rationale of the doctrine is that if there is no other person who can make the decision, let the biased person decide the case rather than have no decision made at all. The rule of necessity has been used in state administrative proceedings liberally despite the fact that it is widely recognized as unfair. This article analyzes current approaches to the doctrine, and after concluding ...


Past The Pillars Of Hercules: Francis Bacon And The Science Of Rulemaking, Daniel R. Coquillette 2013 Boston College Law School

Past The Pillars Of Hercules: Francis Bacon And The Science Of Rulemaking, Daniel R. Coquillette

Daniel R. Coquillette

The parallels between Francis Bacon’s career and that of Edward H. Cooper are obvious. Bacon was one of the great legal minds of his day and, 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). 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 forebearer of the likes of ...


Legal Rhetoric And Social Science: A Hypothesis For Why Doctrine Matters In Judicial Decisionmaking, Brett Waldron 2013 Pace University

Legal Rhetoric And Social Science: A Hypothesis For Why Doctrine Matters In Judicial Decisionmaking, Brett Waldron

Pace International Law Review Online Companion

In the realm of American jurisprudence, little draws more excitement or controversy than investigating the role of federal judges in our constitutional order. Yet, at the same time, the scholarly literature has not settled upon a singular descriptive device to explain how federal judges actually carry out this role. In broad strokes, current academic commentary appears to be divided on the issue of whether fidelity to the law or fidelity to political ideology largely determines how judges decide cases. This division, however interesting it may be, should not be afforded the luxury of being examined on a level playing field ...


Combating Obesity With A Right To Nutrition, Paul Diller 2013 Willamette University

Combating Obesity With A Right To Nutrition, Paul Diller

Paul Diller

Domestic and international law have, in different ways, recognized a human right to food since the twentieth century. The original reason for this recognition was the need to alleviate a particular type of food insecurity—“traditional” hunger, as manifested in conditions like malnutrition and underweight. The current public-health crisis of obesity, however, demands a reconsideration of this right. The food environment in the United States today is awash in high-calorie, low-nutrient food products that are often cheaper, on a relative basis, than more nutritious foods, leading to the overconsumption of the former by much of the American population. Merely ensuring ...


Rubin And New Cap: Foreign Judgments And Insolvency, Adrian Briggs 2013 University of Oxford; Visiting Faculty, Singapore Management University

Rubin And New Cap: Foreign Judgments And Insolvency, Adrian Briggs

2013 Jones Day Professorship of Commercial Law Lecture

The decisions of the UK Supreme Court in 2012 in Rubin and New Cap, and of the Singapore High Court in 2013 in Beluga Chartering, raise in acute form the question of how far the common law of international insolvency and of the recognition of foreign judgments can go when a local court is asked by a court in another country to render particular forms of assistance in relation to an insolvency administration which is taking place there. It asks how the instinct to give assistance for the ultimate benefit of creditors needs to be balanced by the caution which ...


A Decade Of Registered And Unregistered Design Rights Decisions In The Uk: What Conclusions Can We Draw For The Future Of Both Types Of Rights?, Estelle Derclaye 2013 University of Nottingham, U.K.

A Decade Of Registered And Unregistered Design Rights Decisions In The Uk: What Conclusions Can We Draw For The Future Of Both Types Of Rights?, Estelle Derclaye

IP Theory

No abstract provided.


Rubin And New Cap: Foreign Judgments And Insolvency, University of Oxford; Visiting Faculty, Singapore Management University 2013 Singapore Management University

Rubin And New Cap: Foreign Judgments And Insolvency, University Of Oxford; Visiting Faculty, Singapore Management University

Research Collection School Of Law

The decisions of the UK Supreme Court in 2012 in Rubin and New Cap, and of the Singapore High Court in 2013 in Beluga Chartering, raise in acute form the question of how far the common law of international insolvency and of the recognition of foreign judgments can go when a local court is asked by a court in another country to render particular forms of assistance in relation to an insolvency administration which is taking place there. It asks how the instinct to give assistance for the ultimate benefit of creditors needs to be balanced by the caution which ...


Forgiving The Unforgivable: Reinvigorating The Use Of Executive Clemency In Capital Cases, Molly Clayton 2013 Boston College Law School

Forgiving The Unforgivable: Reinvigorating The Use Of Executive Clemency In Capital Cases, Molly Clayton

Boston College Law Review

Clemency, the power to reduce the sentence of a convicted criminal, has existed since ancient times. Yet, the use of this power in the United States has significantly declined in recent decades. The U.S. Supreme Court has called executive clemency “the fail safe” of the criminal justice system, and has determined that some minimal procedural safeguards apply in clemency proceedings. Lower courts, however, have failed to require any significant procedural safeguards in the clemency process. Because clemency plays a crucial function in the criminal justice system, this Note argues that states should enact both procedural requirements and substantive guidelines ...


Mind The Gap: The Equality Bill And Sharia Arbitration In The United Kingdom, Rebecca E. Maret 2013 Boston College Law School

Mind The Gap: The Equality Bill And Sharia Arbitration In The United Kingdom, Rebecca E. Maret

Boston College International and Comparative Law Review

The observance of Sharia principles in Islamic arbitration tribunals operating in the United Kingdom has been heralded for its ability to provide Muslim communities with internal, community-based fora for dispute resolution. Although the judgments issued by these faith-based arbitration tribunals lack binding legal authority, British lawmakers ex-press concerns centered on threats to the existing national legal system and to England’s deeply rooted social policy of equality and non-discrimination. Introduced to address these concerns in 2011, the Equality Bill proposes a legislative solution to further maintain the principle of equality within alternative dispute resolution channels. This Note argues that, despite ...


Critical Analysis And Case Study Of [Mmtc Vs. Sterlite Industries Pvt. Ltd.]- Role Of Arbitrators, Yashvardhan Rana 2013 Symbiosis Law School

Critical Analysis And Case Study Of [Mmtc Vs. Sterlite Industries Pvt. Ltd.]- Role Of Arbitrators, Yashvardhan Rana

Yashvardhan Rana

Critical analysis and Case study of [MMTC vs. Sterlite Industries Pvt. Ltd.]. Supreme Court of India M.M.T.C. Limited - Versus- Sterlite Industries (India) Ltd. Decided on: 18 November, 1996 Equivalent citations: 1996 IXAD SC 25, 1997 AIHC 605, 1996 (2) ARBLR 705 SC Bench: J Verma, B Kirpal Facts: The agreement between the parties: An agreement was entered into on 14th December, 1993 between the petitioner and the respondent by which the respondent appointed the petitioner as a consignment agent for the storage, handling and marketing of continuous cast copper rods manufactured by the respondent. The agreement provided ...


Presidential Pardon In Singapore: A Comment On Yong Vui Kong V Ag, Shubhankar DAM 2013 Singapore Management University

Presidential Pardon In Singapore: A Comment On Yong Vui Kong V Ag, Shubhankar Dam

Research Collection School Of Law

This paper critically analyses the decision of the Singapore Court of Appeal in Yong Vui Kong v Attorney-General in relation to presidential pardon. Two questions were central to the case. First, is the President bound by the decision of the Cabinet in pardon-related matters? Secondly, are decisions regarding pardon—whether made by the Cabinet or President—subject to judicial review? In relation to the first question, the Court based its reasoning on Singapore's political system being a Westminster-inspired model and, therefore, that the President generally undertakes the same functions as the British monarch. However, this paper identifies the unique ...


Statutes In Common Law Courts, Jeffrey Pojanowski 2013 Notre Dame Law School

Statutes In Common Law Courts, Jeffrey Pojanowski

Journal Articles

The Supreme Court teaches that federal courts, unlike their counterparts in the states, are not general common law courts. Nevertheless, a perennial point of contention among federal law scholars is whether and how a court’s common law powers affect its treatment of statutes. Textualists point to federal courts’ lack of common law powers to reject purposivist statutory interpretation. Critics of textualism challenge this characterization of federal courts’ powers, leveraging a more robust notion of the judicial power to support purposivist or dynamic interpretation. This disagreement has become more important in recent years with the emergence of a refreshing movement ...


Hubbard V. Boelt: The Fireman's Rule Extended , Marty K. Deniston 2013 Pepperdine University

Hubbard V. Boelt: The Fireman's Rule Extended , Marty K. Deniston

Pepperdine Law Review

The California Supreme Court, in Hubbard v. Boelt, extended the reach of the fireman's rule to bar a suit brought by a policeman who was injured by the willful and wanton conduct of a speeding motor is while pursuing that motorist. This is an important development in tort law because, traditionally, the fireman's rule had only been applied to bar suits by firemen and policemen who were injured by the negligent conduct of another which was the cause of their presence at the scene. This author suggests that the majority's rationale underlying this extension was flawed because ...


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