Torts and Other Wrongs

2019 ◽  
pp. 1-26
Author(s):  
John Gardner
Keyword(s):  
United States ◽  
New Zealand ◽  
Common Law ◽  
Tort Law ◽  
The United States ◽  
Common Cause ◽  
England And Wales ◽  
The Common ◽  
The Law

This chapter focuses on the law of torts, not in the United States, but in other major common law jurisdictions (England and Wales, Canada, Australia, and New Zealand) in which tort cases are normally adjudicated by judges sitting without juries. It considers the so-called classical interpretation of the common law of torts by John Goldberg and Ben Zipursky, and how they tend to equivocate on an important point of law in a way that puts them at odds with some writers with whom they would do better to make common cause. It suggests that this equivocation is where the law of the United States parts company with the law in the rest of the common law world. The problem, an English lawyer might then teasingly say, is with American tort law rather than with the Goldberg and Zipursky rendition of it.

The Law of Personal Status: Wives, Paupers, and Slaves

2019 ◽  
pp. 173-212
Author(s):  
Lawrence M. Friedman
Keyword(s):  
United States ◽  
Civil Rights ◽  
Common Law ◽  
White Men ◽  
The United States ◽  
Political Rights ◽  
Poor Laws ◽  
Marriage And Divorce ◽  
The Common ◽  
The Law

This chapter discusses the law on marriage and divorce, family property, adoption, poor laws and social welfare, and slavery and African Americans in the United States. In the colonial period, the United States had no courts to handle matters of marriage and divorce. Marriage was a contract—an agreement between a man and a woman. Under the rules of the common law, the country belonged to the whites; and more specifically, it belonged to white men. Women had civil rights but no political rights. There were no formal provisions for adoption. A Massachusetts law, passed in 1851, was one of the earliest, and most significant, general adoption law. The so-called poor laws were the basic welfare laws.

scholarly journals Trade Union Recognition and Australia’s Neo-Liberal Voluntary Bargaining Laws

2003 ◽  
Vol 57 (2) ◽  
pp. 225-251 ◽  
Author(s):  
Ron McCallum
Keyword(s):  
United States ◽  
New Zealand ◽  
Trade Union ◽  
Trade Unions ◽  
Common Law ◽  
Industrial Relations ◽  
The United States ◽  
Recognition Mechanism ◽  
The Common ◽  
The Right

Summary When Australia deregulated its economy in the 1980s, political pressures built up leading in the 1990s to the dismantling of Australia’s industry-wide conciliation and arbitration systems. New laws established regimes of collective bargaining at the level of the employing undertaking. This article analyzes the 1993 and 1996 federal bargaining laws and argues that they fail to protect the right of trade unions to bargain on behalf of their members. This is because the laws do not contain a statutory trade union recognition mechanism. The recognition mechanisms in the Common Law countries of the United States, Canada, Britain and New Zealand are examined, and it is argued that Australia should enact trade union recognition mechanisms that are consonant with its industrial relations history and practice.

Statutory Sentencing Reform in Israel: Exploring the Sentencing Law of 2012

2013 ◽  
Vol 46 (3) ◽  
pp. 455-479 ◽  
Author(s):  
Julian V Roberts ◽  
Oren Gazal-Ayal
Keyword(s):  
United States ◽  
New Zealand ◽  
The United States ◽  
Judicial Discretion ◽  
England And Wales ◽  
Sentencing Reform ◽  
Novel Approach ◽  
Sentencing Reforms ◽  
The Law

In 2012 the Knesset approved a new sentencing law. Israel thus became the latest jurisdiction to introduce statutory directions for courts to follow in sentencing. The approach of the United States to structuring judicial discretion often entails the use of a sentencing grid with presumptive sentencing ranges. In contrast, the Sentencing Act of Israel reflects a less prescriptive method: it provides guidance by words rather than numbers. Retributivism is clearly identified as the penal philosophy underpinning the new law, which takes a novel approach to promoting more proportionate sentencing. Courts are directed to construct an individualised proportionate sentencing range appropriate to the case in hand. Once this is established, the court then follows additional directions regarding factors and principles related to sentencing. Although other jurisdictions have placed the purposes and principles of sentencing on a statutory footing, this is the first such legislative declaration in Israel. The statute also contains a methodology to implement a proportional approach to sentencing as well as detailed guidance on sentencing factors. This article describes and explores the new Sentencing Act, making limited comparisons to sentencing reforms in other jurisdictions – principally England and Wales, New Zealand and the United States. In concluding, we speculate on the likely consequences of the law: will it achieve the goals of promoting more consistent and principled sentencing?

scholarly journals Assignments and Transfers of Contractual Duties: Integrating Theory and Practice

2000 ◽  
Vol 31 (2) ◽  
pp. 317 ◽  
Author(s):  
Justine Kirby
Keyword(s):  
United States ◽  
New Zealand ◽  
Common Law ◽  
Theory And Practice ◽  
The Common ◽  
The Law ◽  
Contractual Obligations ◽  
Contractual Rights

While contractual rights are usually assignable, the extent to which contractual obligations may be "assigned" or otherwise "transferred" is unclear. In this article, Justine Kirby examines the common law, section 11 of the Contractual Remedies Act 1979, and accepted methods of "transferring" obligations, and then compares the effects of a purported assignment of obligations under New Zealand, English and United States law.  She argues that the law should be clarified, and offers drafting suggestions to lawyers to give effect to parties' intentions while the law remains uncertain.  

Choice of Law Methods in the Private International Law of Contract

1981 ◽  
Vol 18 ◽  
pp. 161-200
Author(s):  
Joost Blom
Keyword(s):  
United States ◽  
International Law ◽  
Common Law ◽  
The United States ◽  
Private International Law ◽  
Legal Systems ◽  
Choice Of Law ◽  
The Common ◽  
The Law ◽  
Contractual Obligations

This article examines the choice of law methods developed in four legal systems for problems relating to the substantial or essential validity of contracts. The complicated questions of formation and capacity have had to be left aside. The first two parts of this article discussed the choice of law methods used by courts in France, Germany, and the United States. This concluding part deals with the law in England and the common law jurisdictions in Canada, and also, by way of epilogue, with the recently completed European Communities Convention on the law applicable to contractual obligations. Finally, some general conclusions will be offered about the patterns of law that have emerged in the course of this survey.

scholarly journals VAGUENESS, AUTONOMY, AND R V BROWN

2015 ◽  
Vol 1 ◽  
Author(s):  
David Arnold
Keyword(s):  
New Zealand ◽  
Criminal Law ◽  
Common Law ◽  
Tort Law ◽  
The Third ◽  
The Common ◽  
The Law

This article comments on the article in this volume entitled ‘Is Society Still Shackled with the Chains of a 1993 England?: Consent, Sado-masochism and R v Brown’ by Jordan Moulds. It argues that the defence of consent should not be circumscribed to the extent that it was in Brown for three reasons: the first is based on maintaining the coherence of the law; the second arises from the importance of valuing the liberty of individuals in cases where a statute is vague; and the third is found in the value of autonomy. This comment argues in Part I that the criminal law and tort law should set the same threshold at which consent will no longer afford a defence. Part II draws on the theories of Raz, Fuller and Marmor argues that the liberty of individuals should not be so easily sacrificed where the statute allegedly governing the impugned behaviour is vague; and Part III concludes that the common law position on consent in New Zealand serves as an example of an acceptable balance between the autonomy of the victim and the role that the criminal law has to play in reducing threats to peace and order. 

scholarly journals The Law of Forcible Entry

1969 ◽  
pp. 271
Author(s):  
W. F. Foster ◽  
Joseph E. Magnet
Keyword(s):  
United States ◽  
Criminal Law ◽  
Common Law ◽  
The United States ◽  
Supreme Court Of Canada ◽  
Civil Process ◽  
The Supreme Court ◽  
The Common ◽  
The Law ◽  
Criminal Matters

The author considers the two contradictory interests which the law on forcible entry must try to harmonize, namely the inviolability of the citizen's dwelling place as against the effective enforcement of the criminal law and civil process. He discusses the common law attitude towards forcible entry in civil and criminal matters and its view of the need for announcement prior to such entry. He also deals with developments in the United States in this area and considers the present state of the law of forcible entry in Canada in the light of the decision of the Supreme Court of Canada in Eccles v. Bourque [197S\ S.C.R. 739.

scholarly journals THE FAILURE OF UNIVERSAL THEORIES OF TORT LAW

Legal Theory ◽  
2015 ◽  
Vol 21 (2) ◽  
pp. 47-85 ◽  
Author(s):  
James Goudkamp ◽  
John Murphy
Keyword(s):  
Common Law ◽  
Economic Loss ◽  
Tort Law ◽  
The United States ◽  
Corrective Justice ◽  
Pure Economic Loss ◽  
The United Kingdom ◽  
Lack Of Fit ◽  
The Common ◽  
The Law

ABSTRACTMany scholars have offered theories that purport to explain the whole of the law of torts. At least some of these theories do not seem to be specific to a single jurisdiction. Several appear to endeavor to account for tort law in at least the major common law jurisdictions or even throughout the common law world. These include Ernest Weinrib's corrective justice theory, Robert Stevens's rights theory, and Richard Posner's economic theory. This article begins by explaining why it is appropriate to understand these three theories as universal theories of tort law and why it is important that they be so understood. This explanation draws upon various overt claims (or other strong intimations) made by the theorists themselves to the effect that this is how their respective accounts should be understood. The article then proceeds to test these theories, all of which are leading accounts of tort law, against the evidence in Australia, Canada, the United Kingdom, and the United States. The parts of tort law on which we focus are (1) the breach element of the action in negligence, (2) the law that determines when a duty of care will be owed in respect of pure economic loss, (3) the law that governs the availability of punitive damages, (4) the defense of illegality, and (5) the rule in Rylands v. Fletcher and its descendants. The article concludes that none of the theories is a satisfactory universal account of tort law. All of them suffer from significant problems of fit in that they cannot accommodate (often even approximately) the areas of law that we discuss. Although each of the theories contains a great many valuable insights, they all nonetheless fall well short of accomplishing that which they are held out as providing. In the course of this analysis, the article explains why this is an appropriate line of criticism and identifies the degree of lack of fit that we regard as being “significant.”

scholarly journals The Sh(e)aring Economy. Debates on the Law on Takings

Laws ◽  
2021 ◽  
Vol 10 (3) ◽  
pp. 54
Author(s):  
Nofar Sheffi
Keyword(s):  
United States ◽  
Nineteenth Century ◽  
United States Of America ◽  
Common Law ◽  
The United States ◽  
The Body ◽  
The Common ◽  
The Law ◽  
Definition Of ◽  
The Relationship

Rethinking ‘sharing’ and the relationship between ‘sharing’ and ‘jurisdiction’, this meander proceeds in three parts. It begins with a journey to and through the forests of the nineteenth-century Rhineland, rereading Marx’s journalistic reports on debates in the Sixth Rhine Province Assembly about proposed amendments to forest regulation (including an extension of the definition of ‘wood theft’ to include the gathering of fallen wood) as a reflection on the making of law by legal bodies. From the forests of the Rhineland, the paper journeys to the forests of England, retracing the common story about the development, by legal bodies, of the body of common law principles applicable to ‘innkeeping’. Traveling to and through the ‘concrete jungles’ of the United States of America, the paper concludes with a reflection on Airbnb’s common story of creation as well as debates about the legality of Airbnb, Airbnb-ing, and ‘sharing’.

Rediscovering Blackstone: wpływ Williama Blackstone’a na rozwój amerykańskiej nauki prawa w recepcji Alberta W. Alschulera

2017 ◽  
Vol 15 (2) ◽  
pp. 175-185
Author(s):  
Edyta Sokalska
Keyword(s):  
United States ◽  
18Th Century ◽  
Common Law ◽  
The United States ◽  
Law School ◽  
Large Measure ◽  
American Colonies ◽  
Late 18Th Century ◽  
American Law ◽  
The Common

The reception of common law in the United States was stimulated by a very popular and influential treatise Commentaries on the Laws of England by Sir William Blackstone, published in the late 18th century. The work of Blackstone strengthened the continued reception of the common law from the American colonies into the constituent states. Because of the large measure of sovereignty of the states, common law had not exactly developed in the same way in every state. Despite the fact that a single common law was originally exported from England to America, a great variety of factors had led to the development of different common law rules in different states. Albert W. Alschuler from University of Chicago Law School is one of the contemporary American professors of law. The part of his works can be assumed as academic historical-legal narrations, especially those concerning Blackstone: Rediscovering Blackstone and Sir William Blackstone and the Shaping of American Law. Alschuler argues that Blackstone’s Commentaries inspired the evolution of American and British law. He introduces not only the profile of William Blackstone, but also examines to which extent the concepts of Blackstone have become the basis for the development of the American legal thought.

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