Showing papers on "Common law published in 1975"

Unconscionability: A Critical Reappraisal

Abstract: THE classical conception of contract at common law had as its first premise the belief that private agreements should be enforced in accordance with their terms. That premise of course was subject to important qualifications. Promises procured by fraud, duress, or undue influence were not generally enforced by the courts; and the same was true with certain exceptions of promises made by infants and incompetents. Again, agreements that had as their object illegal ends were usually not enforced, as, for example, in cases of bribes of public officials or contracts to kill third persons. Yet even after these exceptions are taken into account, there was still one ground on which the initial premise could not be challenged: the terms of private agreements could not be set aside because the court found them to be harsh, unconscionable, or unjust. The reasonableness of the terms of a private agreement was the business of the parties to that agreement. True, there were numerous cases in which the language of the contract stood in need of judicial interpretation, but once that task was done there was no place for a court to impose upon the parties its own views about their rights and duties. "Public policy" was an "unruly horse,"' to be mounted only in exceptional cases and then only with care. This general regime of freedom of contract can be defended from two points of view. One defense is utilitarian. So long as the tort law protects the interests of strangers to the agreement, its enforcement will tend to maximize the welfare of the parties to it, and therefore the good of the society as a whole.2 The alternative defense is on libertarian grounds. One of the first functions of the law is to guarantee to individuals a sphere of influence in which they will be able to operate, without having to justify themselves to the state or to third parties: if one individual is entitled to do within the

A History of the Common Law of Contract: The Rise of the Action of Assumpsit

Abstract: The Common Law is one of the two major and successful systems of law developed in Western Europe, and in one form or another is now in force not only in the country of its origin but also in the United States and large parts of the British Commonwealth and former parts of the Empire. Perhaps its most typical product is English Contract Law, developed continuously since the birth of the common law almost wholly by judicial decision. Although in its modern form primarily a product of the nineteenth century, the common law of contract as we know it developed around the action of assumpsit which evolved at the close of the fourteenth century, and many of its characteristic doctrines first emerged in the sixteenth and seventeenth centuries. This book, which takes the story up to 1677 (the date of Statute of Frauds) forms the first part of the history of contract law, and is written primarily from a doctrinal standpoint.

The Effect of Foreign Law on the Law of Israel: Remnants of the Ottoman Period*

Abstract: This series of articles is intended to deal with one aspect of the sources of Israel law, namely the influence of foreign legal systems and principles derived therefrom on Israel law and on the attempt in recent years to independent creation of local law.Foreign law constitutes on occasion an actual legal source for the law of Israel. This occurs when a local enactment refers to foreign law and makes it applicable in certain situations. In such case the foreign law which we are to apply constitutes an obligatory legal norm in Israel and is, in fact, part of the Israel legal system. In other cases foreign law influences the process of creation of local law but does not constitute a formal source of law in the Israel system. This happens, for example, when Israel case law relies for authority upon some rule established in an American decision (which is, of course, not binding in Israel) or when the Israel legislator is influenced by a principle of law derived from another legal system. We might say there that the foreign law is an historical source for the Israel rule.

Damages in Equity—A Study of Lord Cairns' Act

Abstract: When, if ever, may a court award damages to a plaintiff whose case sounds only in equity, not in law? In Hooper v. Rogers an award of damages in respect of a nuisance which had not yet resulted in any relevant damage was upheld by the Court of Appeal. In Wrotham Park Estate Co. Ltd. v. Parkside Homes Ltd. Brightman J. awarded substantial damages for breach of a restrictive covenant to the successors in title of the covenantee against the successors in title of the covenantor. In Wroth v. Tyler damages for the non-performance of a contract for the sale of a house were assessed by reference to the value of the house at the date of the hearing, not the date of breach. In none of these cases could the decisions have been justified on common law principles alone and all are in fact founded upon the Chancery Amendment Act 1858, commonly known as Lord Cairns' Act. Yet in Redland Bricks Ltd. v. Morris, while the Court of Appeal considered that an elaborate discussion of that Act was necessary and, indeed, differed in opinion as to the result of its application to the circumstances of the case, the House of Lords, through Lord Upjohn, dismissed the matter briefly and categorically with the observation that Lord Cairns' Act had nothing whatever to do with the principles of law applicable to the case. The time seems ripe for an examination of the meaning and present status of the Act.

Developing Constitutional Rights of, in, and for Children

Abstract: The Supreme Court has in recent years decided many cases challenging state substitute-parenting activities. The increasing number of such cases on the recent Supreme Court docket is itself a striking fact, most likely reflecting the Court's perception of widespread concern about family structure in the society. Taken together, these decisions appear to vest constitutional rights in both parents and children against state interventions and increasingly to curtail state authority to intervene against parental wishes on behalf of children. But the Court has not yet formulated a coherent rationale for this stance, nor has it acknowledged that its application of constitutional norms in these cases yields some generalizations about the permissible scope of state substitute-parenting activities. This discussion will address that task. It will not consider state inter-

Infusion of the Common Law into the Legal System of Israel

Abstract: At the end of the Ottoman rule the legal system in Israel was ripe for change. The British conquest was welcomed, at least by the Jewish population, and under the circumstances there was no objection to absorbing the legal system of the new conqueror.British conquest in 1917 brought military rule but by 1920 a civil administration headed by High Commissioner Sir Herbert Samuel had already been installed. On July 24, 1922 the League of Nations bestowed upon Britain the Mandate over Palestine, and less than a month thereafter, on August 10, 1922, the Palestine Order-in-Council was enacted. This legislation was designed to serve as a “Constitution” for Mandatory Palestine. It established institutions of the Government—the executive authority, the legislative branch, the judiciary—and defined their powers. In particular, the sources of law to be applied by the civil courts were enumerated in Art. 46, while matters of personal status jurisdiction remained vested in the courts of the various religious communities.

Standing Armies and Armed Citizens: An Historical Analysis of the Second Amendment

Abstract: There has been very little case law construing the Second Amendment, perhaps because there has been very little federal legislation on the subject of firearms. This may change, and it may become necessary for the Supreme Court to rule upon constitutional challenges to federal statutes based on the Second Amendment. Even before this occurs, it would be helpful to dispel the uncertainties that exist in Congress about the extent of federal legislative power. In order to determine accurately the intended meaning of the Second Amendment, it is necessary to delve into history. It is necessary to consider the very nature of a constitutional guarantee -- whether it is an inherent, fundamental right, derived from abstract human nature and natural law or, alternatively, a restriction on governmental power imposed after experience with abuse of power. Historically, the right to keep and bear arms has been closely intertwined with questions of political sovereignty, the right of revolution, civil and military power, military organization, crime and personal security. The Second Amendment was written neither by accident nor without purpose; it was the product of centuries of Anglo-American legal and political experience. This development will be examined in order to determine whether the "collectivist" or "individualist" construction of the Second Amendment is correct.

Introduction to law and the legal system

Abstract: Note: Each chapter concludes with Chapter Questions and Notes. I. Introduction What Is Law? Sociological Jurisprudence, Legal Realism, and Legal Sociology Objectives of Law Origin of Law in the United States A Procedural Primer Reading Cases. E.I. Du Pont de Nemours & Co., Inc. v. Christopher Case Analysis Constitutional Policymaking. Cruzan v. Director, Missouri Dept. of Health Due Process. Washington et al., Petitioners, v. Harold Glucksberg et al. City of Chicago v. Jesus Morales et al. State v. Bani Criminal and Civil Law. Katko v. Briney Equal Protection of the Law Tort and Contract Law. Suggs v. Norris II. Ethics and Law Gregg v. Georgia Ethics. State v. Mobbley Holland v. State of Florida Commonwealth of Pennsylvania v. Bonadio Commonwealth of Kentucky v. Wasson Textile Workers v. Darlington Manufacturing Company State of New Jersey in the Interest of S.G. DCH Health Services Corp. v. Waite III. The Judicial System Courts Trial Courts Appellate Courts State Court Systems Jurisdiction. In the Matter of the Application of Arthur Hyde RICE to Register and Confirm Title to Land Situated in Kailua, District of Koolaupolo, Oahu, City and County of Honolulu, State of Hawaii Kerry Steel, Inc., v. Paragon Industries, Inc. David Mink v. AAAA Development LLC Cronin v. Sierra Medical Center The Federal Court System The U.S. District Courts. Marathon Oil Company v. A.G. Ruhrgas Kopp v. Kopp Catherine Gebbia v. Wal-Mart Stores, Inc. Carson v. National Bank The Thirteen U.S. Courts of Appeals The U. S. Supreme Court IV. Civil Procedure Proceedings Before a Civil Trial. Olsen and Brown v. City of Englewood Dorsey v. Gregg Debra Clark v. Frederick J. Klein Civil Trials Rules of Evidence. Terry L. LaGuesse v. Storytown U.S.A. Raymond Binkley v. Georgette Allen Cody v. Atkins Armon v. Griggs V. Institutional Sources of American Law Common Law and Civil Law Legal Systems Constitutions Legislation. United States v. Lopez Administrative Agencies Judicial Decision Making. State v. Butler Adkins v. Sky Blue, Inc. Strunk v. Strunk Recongnizing Laws of Other States. Hubbard Manufacturing Co., Inc. v. Greeson Baker et al. v. General Motors VI. Limitations in Seeking Relief Case or Controversy Requirement Justiciability. Thomas v. Anchorage Equal Rights Commission Mootness. DeFunis v. Odegaard Political Questions. Belk v. United States The Act of State Doctrine Statute of Limitations. Marybeth Atkins v. Jiminy Peak, Inc. Res Judicata. Henry B.Y. Shin v. Portals Confederation Corporation Immunity from Legal Action Immunity of Governmental Officials. Brent v. Ashley Thompson v. Mercy Hospital Juanita Boone v. Freddie Boone Gimpel v. Host Enterprises, Inc. VII. Judicial Remedies Common Law Remedies. Macomber v. Dillman Kansas City Southern Railway Co., Inc. vs. J.C. Johnson and Kerry Lynn Johnson Volz v. Coleman Co., Inc. Equitable Remedies. Gano v. School District No. 411 of Twin Falls County, Idaho Department of Transportation v. Ronlee, Inc. Campbell Soup Company v. Wentz Isbell v. Brighton Area Schools Block v. Hillel Torah North Suburban Day School Iacomini v. Liberty Mutual Insurance Company State v. Yelsen Land Company VIII. Criminal Law and Procedure Criminal Law. Loving v. Commonwealth of Virginia The Basic Components of a Criminal Offense. People v. Shaughnessy State v. Gordon Commonwealth v. Berggren United States v. Scott Criminal Procedure Proceedings Prior to Trial. Draper v. United States Charles T. Dickerson v. United States Crystal M. Ferguson v. City of Charleston Adams v. Williams United States v. Salerno The Criminal Trial. Sullivan v. Louisiana IX. Family Law Introduction. Moore v. City of East Cleveland, Ohio Creating Family Relationships. Zablocki v. Redhail Burns v. Burns Adoption of Tammy Lehr v. Robertson Family Relations in Ongoing Families. Wisconsin v. Yoder State ex rel. Hermesmann v. Seyer Nash v. Mulle Ending Spousal Relationships. In re Marriage of Riddle O'Brien v. O'Brien X. Contracts A Brief History of American Contract Law Nature and Classification of Contracts Agreement. Cook's Pest Control, Inc. v. Robert and Margo Rebar Reality of Consent. Carter v. Matthews Consideration. Modern Laundry and Dry Cleaning v. Farrer Capacity Illegality. Principal Casualty Insurance Company v. Blair Redlee/SCS, Inc. v. Carl J. Pieper Writing. Douglas D. Owens v. Leonard Goldhammer Mulford v. Borg-Warner Acceptance Ronald A. Yocca v. The Pittsburgh Steelers Sports, Inc. Aspects of Contract Performance. Macke Company v. Pizza of Gaithersburg, Inc. Castorino v. Unifast Bldg. Products Clarkson v. Orkin Exterminating Co., Inc. Remedies for Breach of Contract. Anuszewski v. Jurevic Hibschman Pontiac, Inc. v. Batchelor XI. The Law of Torts Historical Evolution of American Tort Law Functions of Tort Law Intentional Torts. Estate of Berthiaume v. Pratt, M.D. Ivancic v. Olmstead Debra McCann v. Wal-Mart Stores, Inc. Elli Lake vs. Wal-Mart Stores, Inc. Negligence. Gilhooley v. Star Market Co., Inc. Weirum v. RKO General, Inc. Benejam v. Detroit Tigers, Inc. Anglin v. Florida Department of Transportation Defenses to Negligence. Carolyn Alford v. Wanda E. Lowery Stein v. Langer Laaperi v. Sears Roebuck & Co., Inc. Todd Hillabrand v. Drypers Corporation Strict Liability. Westberry v. Blackwell Leichtamer v. American Motors Corp. XII. Property Historical Development of the Regulation of Real Property Classifications of Property Trademarks, Patents, and Copyrights. In re The Boston Beer Company Ltd. Partnership Matthews v. Freedman Far West Modular Home Sales, Inc. v. Proaps In re Estate of Clayton Gulledge Government's Right to Regulate and Take Private Property. Dolan v. City of Tigard Gloria B. Lane v. W.J. Curry & Sons Real Property Personal Property. Favorite v. Miller Rick Kenyon v. Claude Abel Bailments. James W. Croskey v. Carl Leach XIII. Administrative Law and Administrative Agencies The Rise of Administrative Agencies Organization and Classification of Federal Agencies. Askildson v. Commissioner of Public Safety Administrative Agency Powers. Ethyl Corporation v. Environmental Protection Agency Inspector General of U.S. Department of Agriculture v. Glenn Sturm, Ruger & Co., Inc. v. Elaine Chao, Sec., U.S. Dept. of Labor Maximum Home Health Care, Inc. v. Donna E. Shalala Administrative Agencies and the Regulation of Business. Trans Union Corporation v. Federal Trade Commission XIV. Alternative Dispute Resolution Voluntary ADR Court-Annexed ADR. In Re Atlantic Pipe Corporation ADR Techniques. Estate of John Skalka v. Mark Skalka Sears Authorized Termite and Pest Control, Inc. v. Shelly J. Sullivan Ronald Crowell v. Downey Community Hospital Foundation Allstate Insurance Company v. A. William Mottolese Jointly Used ADR Methods. Team Design v. Anthony Gottlieb Mini-Trials The Constitution of the United States Glossary of Selected Terms from The Law Dictionary Case Index Subject Index

Roman Law in England Before the Time of Bracton

Abstract: In Maitland's words, “Of all the centuries the twelfth was the most legal.” It was a time of growth for the great legal systems in the West: English common law, revived Roman law, and canon law. Students of medieval England have rarely concerned themselves with the question of the connection between these legal systems. For six centuries, from Bracton until the rise of modern legal history with Maitland, the study of English law was insular, ignoring the continental legal systems. When a seventeenth-century civilian wrote that “our common law, as we call it, is nothing else than a mixture of the Roman and the feudal,” he aroused the anger of Coke and the common lawyers. Recently scholars have taken such a view more seriously, and a number of studies have sought Roman or canonistic influences on English law. It might be useful, then, to reconsider the matter of the impact of Rome on English law in the light of recent scholarship, asking three questions: To what extent was Roman law known and studied in England before the time of Bracton? What influences, if any, do scholars find that it had on the legal innovations of Henry II and his sons? Why did the English fail to ‘receive’ Roman law in the way that countries on the Continent did?Any influence of Roman law in England during the centuries after the withdrawal of Roman legions and before the Norman Conquest can be dismissed quickly. Once Christianity was re-introduced to the island, the revival of Roman Law, or at least of some notion of Roman legal concepts, was possible.

European community law in the United Kingdom

Abstract: Community law and its relationship with national and international law community law as part of United Kingdom law the national court and the European Court challenging community acts

Compensation for Industrial Injury and Disease

Abstract: The article contains the authors' evidence to the Royal Commission on Civil Liability. It discusses the main sources of compensation for industrial injury: the State's industrial injuries scheme, occupational sick pay and common law damages. Under each head the role of trade unions is assessed. State benefits provide compensation for injury, disablement and death, but impose a narrow definition of accident and disease. The adequacy of the level of benefits is also questioned. The common law system, moreover, is criticized on several fundamental grounds including cost, uncertainty, delay, legalism and the adverse effect on industrial safety. The authors propose the abolition of common law damages, provided the resources involved are used within a reformed State scheme. State benefit payable during absence from work is envisaged at 90 per cent of average post-tax earnings, with the employer legally obliged to pay no less than the equivalent amount for the initial period of absence. There would also be payments for loss of earnings after a man returns to employment, for non-pecuniary losses and to compensate the widows of those killed in industrial accidents.

Mass media and the first amendment

Abstract: Free press principles established by the U. S. Supreme Court affect the output of U. S. media, mainly through interpretations of the First Amendment. Far more complicated than the Amendment are the principles established by case law. This article contains four classroom decision‐making exercises based on four recent Supreme Court decisions. It also presents discussion questions raised in the cases as stimuli for discussions of conflict between individual and media liberties versus protection of society. The cases are: Pittsburgh Press v. Pittsburgh Human Relations Commission, Miller v. California, N. Y. Times v. U. S., and U. S. v. Caldwell.

The Convergence of the Law School and the University.

Abstract: is an occupation. Although the number of economists in the United States, I am told, only equals the number of chiropractors, there must be ten times as many lawyers. God did not decree this number. Ten years ago, when Dean Griswold gave the Hamlyn Lectures in London, he rather apologized for this abundance of riches. It is not because we are naturally more litigious, he suggested, that we have two and one-half times as many lawyers per capita as the British Isles, but rather because, in addition to the federal legal system, we have some fifty-five other legal systems. Not only must almost half a million lawyers be fed, they must also be trained. For despite the urgings of Milton Friedman that anyone be allowed to hang up his shingle as a lawyer or, for that matter, as a brain surgeon we have retreated from the golden age of a century ago. Then, in my native state of Indiana, the doctrine used to be: ' 'Every person of good moral character, being a voter, shall be entitled to admission to practise law in all courts of justice." As we are beginning to realize, however, women are also persons; but, alas, they were not then voters in Indiana. Hence, with that flexibility for which the Anglo-Saxon common law is so justly famous, the 1893 supreme court of Indiana held that a woman, even though she could not vote, was entitled to practice law in the state, provided she be of good character. Thus,

The Codifying Conference as an Instrument Of International Law-Making: From the "Old" Law of the Sea to the "New"

Abstract: The Third United Nations Conference on the Law of the Sea was launched by a United Nations General Assembly Resolution of December 1970.1 In its trials and tribulations since that time, this latest international legal codifying conference may remind us of the mythical Labors of Sisyphus. Four years of preparatory work in committee stage culminated in a marathon series of conference sessions at Caracas in mid-1974, extending over 10 weeks and attended by some 5,000 delegates and observers from 148 states. When the Caracas sessions ended without being able to produce any agreement, the Conference was then adjourned to Geneva in the spring of 1975, where an eight-week series of conference sessions again ended without an agreement. The Conference has now been adjourned to New York for the spring of 1976, with promise of still another round of negotiations after that. With a positive achievement record such as this, the Third United Nations Conference on the Law of the Sea has invited occasional critical comment as to the swollen n um hers of official delegates, observers, and supporting functionaries, and has raised questions as to specialist professional expertise, or at least as to the degree of serious commitment to the postulated objective of a timely codification of the Law of the Sea. Typical of this tendency to denigrate the Third Law of the Sea Conference and its standing armies of political representatives and officials is the appraisal of a well-established North American daily newspaper, nmmally noted for the sobriety of its political assessments and appraisals. The newspaper was moved to describe the Conference as "float[ing] from spa to shining spa, " 2 and compared it to that "oldest established permanent floating crap game in New

Frustration of Purpose

Abstract: For all its merits, case law is incapable of inculcating Cartesian thinking, thinking which is clear and distinct. Admittedly the legislature also is not always careful in making apparent the ratio of its enactments—sometimes it is not even aware thereof—but at least it will not consciously obliterate distinctions. By contrast, case law normally masks its innovations and postulates conceptions which are somewhat vague. It is consequently natural to regard with suspicion any endeavour to mark out clear-cut boundaries, much in the manner of Roman thinking that “all definitions in law are dangerous”.Considerations such as these are awakened, for example, in connection with the leading case of Krell v. Henry, the most well-known of the “Coronation cases”. To determine the force and significance of this precedent is a primary task in English law itself because on that will depend whether or not it is innovatory; but it is especially crucial in point of Israel law for the purpose of deciding whether it has any foothold in this country.

The Common Law Offence of Incitement to Commit Crime

Abstract: Introduction It is an offence to solicit or incite another to commit a crime. Of the inchoate' offencesknown to the law the offenceof incitement has attracted the least amount of judicial and academic comment. Russell states the law as follows: S \"... where a crime is not in fact committed, those who have unsuccessfully solicited or incited another to commit it are, at common law, guilty of an indictable misdemeanour (whether the crime to which the solicitation or incitement related is either by common law or statute a felony or misdemeanour}.\" At common law those who successfully incited or solicited another to Commit a felony were accessories to the completed offence. Coke, in commenting on the Statute of Westminster I, c.14, explained' that accessories before the fact included those who, though absent when the crime was committed, assisted the felon by commandment, by force and by aide and under \"commandment\" he listed \"all those who incite, procure, set on, or stir up any other to do the fact\". In the Criminal Code (Indictable Offences) Bill of 1878, which Stephen believed had the merit of simplifying the law, it was stated that everyone was a party to an indictable offence who \"directly or indirectly incites any other person to commit it\" and an inciter was defined as he who: \" ... counsels, procures, or commands, solicits, encourages, persuades, endeavours to persuade, compels or endeavours to compel another to commit an indictable offence, or proposes to him to do SO.\"5 A person could not be convicted of being an accessory before the fact to felony unless the commission of the felony was proved,\" indeed, at com-