scholarly journals Between Code and Treatise: The Hard Challenge of the Restatement of Copyright

2021 ◽  
Vol 44 (3) ◽  
Author(s):  
Joseph P. Liu
Keyword(s):  
United States ◽  
Common Law ◽  
The United States ◽  
Central Feature ◽  
Black Letter ◽  
The Law ◽  
Federal Statute ◽  
The Many ◽  
Growing Mass

The proposed Restatement of Copyright raises a question that has been obvious to everyone from the very start of the project:  How do you restate an area of the law governed by a comprehensive federal statute? Restatements have, to date, focused near-exclusively on common law subjects.  The Reporters of other Restatements thus did not operate in the shadow of an authoritative uniform federal statute.  Instead, they faced an unruly and “ever-growing mass of decisions in the many different jurisdictions, state and federal, within the United States.”  From this mass of decisions, the Reporters derived the “black-letter law” and “restated” the law in a form resembling a code.  In doing so, reporters sought to bring order, clarity, and coherence to a body of law that lacked any other means of doing so.  But if this act of restating the law in the form of a code is a central feature of a Restatement, then how do you restate an area of law that already has a comprehensive code?  What is to be gained by essentially re-codifying the law?

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.

Incorporation of the Law of Nations During the American Revolution—The Case of the San Antonio

1977 ◽  
Vol 71 (2) ◽  
pp. 270-295 ◽  
Author(s):  
Henry J. Bourguignon
Keyword(s):  
United States ◽  
International Law ◽  
American Revolution ◽  
San Antonio ◽  
Common Law ◽  
The United States ◽  
Law Of Nations ◽  
The Supreme Court ◽  
The Law ◽  
Anglo American

In an article published in this Journal in 1932, Professor Edwin Dickinson pointed out that the Supreme Court, in the first thirty years of its existence, dealt with 82 cases which raised questions of international law. The Court and counsel before it repeatedly cited the familiar writers on the law of nations: Grotius, Pufendorf, Bynkershoek, Burlamaqui, Rutherforth, and Vattel. As Dickinson pointed out, “It is an ancient doctrine of the Anglo-American common law that the law of nations is incorporated in and in some sense forms part of the national law.” Largely through decisions based on the principles expressed by the classical writers, the law of nations was early incorporated as part of the law of the United States.

scholarly journals A Primer on the LAW in the United States: Part III Scope of Liability in Product Liability Cases

2012 ◽  
Vol 2 (4) ◽  
pp. 1 ◽  
Author(s):  
Jr. Richard J. Hunter ◽  
Henry J. Amoroso ◽  
John H. Shannon
Keyword(s):  
United States ◽  
Market Share ◽  
Common Law ◽  
Product Liability ◽  
The United States ◽  
Products Liability ◽  
Liability Law ◽  
Commercial Code ◽  
The Law ◽  
Used Goods

In Part III of our study, the authors describe the types of transactions that are most common in products liability cases and also delineate the parties to the transaction.  This article concludes by discussing some “special topics” in modern product liability law: enterprise liability, alternative liability, and market share liability.  The article relies on references to the Uniform Commercial Code, the Restatement of the Law of Torts, and cites the major common law cases that have impacted on these important issues. Key Words:  Products Liability; Bailments; Franchising; Used Goods; Enterprise Liability; Market Share; Alternative Liability

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.

Explaining Difference in the Quantity of Cases Heard by Courts of Last Resort

2019 ◽  
Vol 21 (2) ◽  
pp. 346-393 ◽  
Author(s):  
Bravo-Hurtado Pablo ◽  
Álvaro Bustos
Keyword(s):  
United States ◽  
Common Law ◽  
Civil Law ◽  
The United States ◽  
Optimal Number ◽  
Supreme Courts ◽  
Lower Courts ◽  
The Law ◽  
Law Courts ◽  
Law Making

Abstract While civil law courts of last resort—e.g., cassation courts in France, Italy, and Chile—review up to 90% of appealed cases, common law courts of last resort—e.g., supreme courts of the United States, United Kingdom, and Canada—hear as few as 1% of the same petitions. In this study, we postulate that these different policies can be explained by a comparatively larger commitment from common law courts of last resort to judicial law-making rather than judicial uniformity. While courts require few hearings to update the law (in theory one decision is sufficient), they need a large number of hearings to maximize consistency in the lower courts’ interpretation of the law. We show that the optimal number of hearings increases with an increment in the courts’ concern for uniformity. We also show that if hearing costs are linear then the hearing policies of all courts can be classified in only two types. In addition, we predict important changes in hearing policies when the number of petitions increases. Finally, we find that hearing rates and reversal disutility operate as two ways in which a legal system can achieve a given level of judicial uniformity.

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.

scholarly journals CHARITY FOR THE AUTONOMOUS SELF

2017 ◽  
Vol 32 (1) ◽  
pp. 185-196
Author(s):  
Carl H. Esbeck
Keyword(s):  
United States ◽  
Religious Freedom ◽  
Common Law ◽  
Basic Structure ◽  
The United States ◽  
Religious Liberty ◽  
Marriage Equality ◽  
The World ◽  
The Future ◽  
The Law

Australia adopted the Charities Act of 2013, consolidating and restating the country's governing statutes on the registration and qualification of charities, but leaving to the future any reconciliation between faith-related charities claiming religious liberty and others demanding marriage equality and no discrimination based on sexuality. Concurrent to this development, but with an eye to the direction of charity law in common law systems throughout the world, major works have come to us from two Australian scholars. In this review I offer much about these two monographs, but the discussion that immediately follows concerns the law of charitable nonprofits in the United States, the basic structure of that law, and current issues implicating religious freedom.

Negotiable Instruments and the Federal Courts in Antebellum American Business

1976 ◽  
Vol 50 (4) ◽  
pp. 435-455 ◽  
Author(s):  
Tony A. Freyer
Keyword(s):  
United States ◽  
Common Law ◽  
The United States ◽  
Federal Courts ◽  
American Business ◽  
Colonial Era ◽  
Human Needs ◽  
The Law ◽  
Made In

That human needs and social realities are the roots of all systems of jurisprudence is nowhere more demonstrable than in the evolution of the law of business. Professor Freyer shows that neither the English common law of negotiable instruments nor the modifications made in it in the colonial era were adequate in the lusty, far-flung, and rapidly growing young nation that the Constitution of the United States created. Innovation, he reveals, promptly followed.

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 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’.

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