Showing papers on "Common law published in 1981"

The Economics of Justice

Abstract: Richard A. Posner is probably the leading scholar in the rapidly growing field of the economics of law; he is also an extremely lucid writer. In this book, he applies economic theory to four areas of interest to students of social and legal institutions: the theory of justice, primitive and ancient social and legal institutions, the law and economics of privacy and reputation, and the law and economics of racial discrimination. The book is designed to display the power of economics to organize and illuminate diverse fields in the study of nonmarket behavior and institutions. A central theme is the importance of uncertainty to an understanding of social and legal institutions. Another major theme is that the logic of the law, in many ways but not all, appears to be an economic one: that judges, for example, in interpreting the common law, act as if they were trying to maximize economic welfare. Part I examines the deficiencies of utilitarianism as both a positive and a normative basis of understanding law, ethics, and social institutions, and suggests in its place the economist's concept of "wealth maximization." Part II, an examination of the social and legal institutions of archaic societies, notably that of ancient Greece and primitive societies, argues that economic analysis holds the key to understanding such diverse features of these societies as reciprocal gift-giving, blood guilt, marriage customs, liability rules, and the prestige accorded to generosity. Many topics relevant to modern social and philosophical debate, including the origin of the state and the retributive theory of punishment, are addressed. Parts III and IV deal with more contemporary social andjurisprudential questions. Part III is an economic analysis of privacy and the statutory and common law rules that protect privacy and related interests-rules that include the tort law of privacy, assault and battery, and defamation. Finally, Part IV examines, again from an economic standpoint, the controversial areas of racial and sexual discrimination, with special reference to affirmative action. Both Part III and Part IV develop as a subtheme the issue of proper standards of constitutional adjudication by the Supreme Court.

Intellectual Property: Patents, Copyright, Trade Marks and Allied Rights

Abstract: Part 1: Common Ground Starting Points The Enforcement of Rights Part 2: Patents Growth and Purpose of Patents The Patent: Grant and Content Validity Scope of Monopoly Property Rights and Exploitation Part 3: Confidence and Personal Privacy Confidential Information Personal Privacy Part 4: Copyright and Designs Range and Aims of Copyright Subsistence of Copyright Infringement of Copyright and Moral Rights Property Rights and Exploitation Copyright: Particular Cases Industrial Design Part 5: Trade Marks and Names Competitor and Consumer Common Law Liability Registered Trade Marks Part 6: The European Dimension and New Technologies Intellectual Property in the European Union Digital Technology: Computers and the Internet Intellectual Property in Biotechnology

Anchoring and adjustment in probabilistic inference in auditing

Abstract: Auditors are faced with the task of formulating opinions about the fairness of their clients' financial statements. In doing so, they use their professional judgment to determine the type and amount of information to collect, the timing and manner of collecting it, and the implications of the information collected. This information is rarely, if ever, perfectly reliable or perfectly predictive of the "true" state of a client's financial statements. Nevertheless, auditors may be held liable at common law or under the federal securities laws should the audited financial statements prove to be unrepresentative of this true state. Thus, it is important for auditors to have the ability to formulate appropriately judgments based on probabilistic data. In this paper, we describe the results of experiments designed to assess whether auditors formulate judgments in accordance' with normative principles of decision making or whether a particular alternative to the normative model of decision making under uncertainty 's employed. In the next section, we discuss several alternatives to normative decision models, focusing on the anchoring and adjustment heuristic which forms the basis for our experiments.

Are auditors' judgments sufficiently regressive?

Abstract: In the course of an audit engagement, audit practitioners must make numerous judgments and express an opinion on the basis of information and test results that are never perfectly diagnostic with respect to the underlying economic state of the client. The ability of auditors to for- mulate these judgments appropriately is crucial, since they may be held liable at common law or under the federal securities laws should the audited financial statements prove to be materially in error. Thus, the ability of auditors to process information in audit-related tasks has recently become the subject of research (e.g., Ashton [1974], Gibbins [1977], Joyce [1976], Joyce and Biddle [1981], Moriarity and Barron [1976; 1979], Uecker and Kinney [1977]). In many audit situations, the auditor obtains an item of evidence and must determine the extent to which his (her) opinions about the relative likelihood of two or more hypotheses should be revised. If, for example, the collectibility of a large past-due receivable is at issue, the report of a reliable, independent credit agency stating that the customer is solvent but sometimes tardy in paying bills will probably cause the auditor's opinions concerning the relative likelihood of collection versus noncollec- tion to change.

The Norman Conquest and the Common Law: The Levellers and the Argument from Continuity

Abstract: Twenty-five years ago J. G. A. Pocock first argued that the Norman conquest was the rock upon which all arguments for the continuity of the common law finally came to wreck. Believe in the conquest qua conquest, and you could not believe that English law represented a continuous stream of unviolated custom or fail to see it as very much the offspring of Norman parentage. In the English revolution, the Levellers exemplified the logical necessity of Pocock's argu ment. Having seen the conquest for what it was, the group criticized the common law as none other than a Norman yoke and surrendered all appeals to history. By re-examining the Leveller use of history, this essay tests that proposition, turning it not upside down but on its side, and suggests an alternative conclusion both about the Levellers and the doctrine of continuity itself.

The Concept of Corrective Justice in Recent Theories of Tort Law

Abstract: FOR the last 100 years, which is to say since the publication of Holmes's The Common Law,1 most tort scholars have thought that tort doctrines were, and should be, based on utilitarian (or, more recently, economic) concepts.2 This was the view of Holmes, of Ames, and of Terry; of the draftsmen of the first and second Restatement of Torts; and of the legal realists who thought the focus of tort law should be on loss spreading rather than on assessment of fault.3 It is also the view of economic

Law and Economic Policy in America: The Evolution of the Sherman Antitrust Act

Abstract: William Letwin's thorough, carefully argued, and elegantly written work is the only book length study of the Sherman Antitrust Act, a law designed to shape the economic life of a large complex society through maintaining the "correct" level of competition in the economy. This is a superb history and complete analysis of the Act, from its English and American common law antecedents to the events that led to the first revisions of the Act in the form of the Clayton Antitrust and Federal Trade Commission Acts.

State Supreme Courts: A Century of Style and Citation

Abstract: Appellate court opinions, carefully indexed and preserved in law libraries, are a tremendous resource for historians and social scientists. In the theory of the common law, these opinions are the law; they stand in the center of the legal system. Their power is enhanced by the common law doctrine that links them in a chain of influence and causation-the doctrine of precedent. Their precedential value means that they are also powerful resources for the practicing lawyer-often the basic material with which he works. But these appellate opinions also are crucial documents for any study of judicial culture. The reasoning of the judges, over the years, reveals judges' notions of law and of the judicial role; it is an essential window into the legal culture of the judges. The style of opinions is as good an indicator as we have of what counts as sound legal reasoning for any given era. Even objective aspects of judicial opinions can be revealing, as Merryman's studies of California citation since 1950 and Goutal's work on opinion length show.' Moreover, a more policy-oriented conception of the judicial role arguably could be re-

Implications of performance appraisal litigation for personnel ecisions

Abstract: Eight prescriptions for performance appraisal systems are considered in the context of case law at the Federal Supreme and Appeals Court level. Numerous cases are cited involving organizations that have violated one or more of the prescriptions. Implications for personnel decision making are discussed.

Q: What has Reform of Rape Legislation Wrought? A: Truth in Criminal Labelling

Abstract: This article compares the impact of common law and reform rape legislation on prosecution, based on an analysis of 445 forcible and statutory rape cases in King County, Washington. In both types of cases, reform of the legal definition of rape resulted in (1) no change in the overall rates of convictions and pleas, although the new gradations of the crime led to more convictions and pleas labelled “rape” rather than some surrogate offense (e.g., assault), and (2) no change in the overall rate of charging, because the decision-making criteria used by prosecutors at their discretion have remained the same under both statutory schemes. Reform of the penalties for rape, adapted to the degrees of culpability, resulted in more certain but not necessarily more severe punishment, an outcome embraced by general deterrence theory. The conclusion is that the main impact of the statutory reform has been a symbolic and educative one for society at large, rather than an instrumental one for law enforcement. Implications are drawn from the results for the reformulation of rape law in terms of a well-reasoned principle of nonconsent, and for administrative policy in rape prosecutions based upon standards for the exercise of charging discretion.

The nature of Blackstone's achievement

Abstract: That Pembroke College should devote its annual Blackstone Lecture to Blackstone himself in the bicentenary year of his death is entirely proper. On reflection, I am not sure that the Selden Society will further its objects by going in much for the commemoration of individual lawyers.1 It may encourage legal historians in their chronic error: we attribute too much to particular causes and expect too much, as it were, of particular people. Because we know that law is the product of people thinking about problems, it is curiously hard to avoid imagining its history as a kind of Pilgrim's Progress, with a single professional mind addressing the problems raised by a changing world. The mistake is one of scale. The changes the historian can see were too large to be seen by the lawyers he is thinking about; and the problems the lawyers were thinking about were too small for the historian to see. The mechanism of common law response has been indirect, involving a kind of market in ideas. What the large change does is to concentrate demand, raising small daily problems in a particular area; and small and marginal solutions accumulate into central changes. There are no great ideas, and in that sense no great lawyers. An anonymous profession serves its day, or not. Legal writers, of course, do not. They serve the servants; and their business is to arrange yesterday's results in whatever way will be most convenient for those working on today's problems. But you can order the past about more confidently than the present; and the writer's arrangement of yesterday's results may reach further into the future than the results themselves. We have lately, I think, attributed too little to Blackstone. He first gave his lectures in 1753. The syllabus was published in 1756,2 and the Commentaries themselves between i765 and 1769. Excluding, of course, reprints of that first edition produced for the antiquarian and scholarly markets in recent years, working editions appeared in England until about about the time of the Judicature Acts, in the United States until about the turn of the century. And of Stephen's version, first produced between I841 and i845 as a more up-to-date survey especially for students, an edition was actually produced after the second world war.

Federal public land and resources law

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A Strictly Evolutionary Model of Common Law

Abstract: PAUL H. Rubin and George L. Priest have developed similar models to argue that the common law evolves largely independently of the desires of individual judges and that this evolutionary process favors the selection of rules that promote economic efficiency.' The central assumption of both authors was that rules that are litigated most often have the greatest probability of being overturned.2 Rubin pointed out that, when litigants have a continuing interest in the legal rules involved in litigation, the potential private gain from overturning inefficient legal precedents is greater than the potential gain from overturning efficient precedents. Therefore, when both parties have a continuing interest, inefficient legal rules will be litigated more frequently and have a smaller probability of survival than efficient rules. Priest carried the argument further by asserting that continuing interest was not necessary:

The Foundations of European Community Law: An Introduction to the Constitutional and Administrative Law of the European Community

Abstract: COMMUNITY INSTITUTIONS 1 The Political Institutions 2 The European Court and the Court of Auditors THE COMMUNITY LEGAL SYSTEM 3 Acts of the Member States 4 Community Acts 5 General Principles of Law 6 Agreements with Third Countries COMMUNITY LAW AND THE MEMBER STATES 7 Direct Effect and National Remedies 8 The National Response 9 Preliminary References 10 Enforcement Actions ADMINISTRATIVE LAW 11 Reviewable Acts 12 Locus Standi 13 Failure to Act 14 Indirect Challenge 15 Review and Annulment 16 Community Obligations

Law Without Lawyers. A Comparative View of Law in China and the United States

Abstract: The U.S. has 400,000 lawyers in a society of 200 million people. China, a country with four times that population, has a mere 3,500 lawyers. How do the Chinese achieve law without lawyers? Victor Li, one of the world's leading authorities on Chinese law, explores the way the Chinese and U.S. systems have historically viewed law (and still view it), and the way each system functions in everyday life to shape conduct and control deviance. In a straightforward and highly readable manner, the author examines how these highly divergent societies operate. He writes about historical forces and cultural values that are centuries old—and that are still critical influences in shaping life in modern America and China. In explaining the differences in the tradition and operation of law in these two cultures, Li gives us both an invaluable understanding of Chinese society today and his own appraisal of the strengths and weaknesses of U.S. law, lawyers, and courts.

Salmond and Heuston on the law of torts

Abstract: The text has been thoroughly updated throughout to include the many developments in the law of tort over the last few years, both statutory and in case law The House of Lords' decision in Murphy v Brentwood DC is included as are the significant developments relating to liability for misstatements, for causing nervous shock and for allowing the causing of damage by a third party Also included are other important judicial clarifications of the law in relation to causation in fact, liability for animals, the pleading rules in relation to the defences of defamation of justification and fair comment, and the economic torts, the latter in the case of Lonrho v Al Fayed

Unenforceable Contracts: Penalty Clauses and Specific Performance

Abstract: THAT many aspects of the common law may be explained in terms of economic efficiency, defined as wealth maximization, is a proposition that has been well-established by the work of Posner' and others. I have, along with others, provided arguments which partially explain why this is true.2 Thus, it is puzzling when there is some legal rule which cannot be so explained. To date, one of the main anomalies in the economic explanation of common law is the rule against penalty clauses in contracts. If two parties sign a contract specifying a payment in the case of breach and if the courts determine that damages are greater than the actual costs of the breach, the damages will not be allowed. Though there are some economic explanations for this behavior in the literature,3 these explanations have not been fully convincing.4 Another area in which economic analysis has not been fully satisfying is the area of specific performance. Kronman is able to explain some of the reluctance of the courts to order specific performance in the case of contracts, but he is still left with some puzzles.5 In this paper, I provide an explanation for both of these aspects of the courts' refusal to enforce contracts. The argument is based on Telser's

Legal trends and issues in voluntary sterilization.

Abstract: This review considers the current legal status of sterilization in the countries of the world (legal by special statute legal by lack of prohibition illegal and legal status unclear) and the issues in voluntary sterilization -- approaches to law reform; personal choice; therapeutic considerations; spousal consent; age and parity restrictions; assuring availability; informed consent; waiting periods; consent by institutionalized minor and incompetent persons; incentives and disincentives; and rights and liabilities of providers. In both developing and developed countries new legislation court decisions government policy statements and ministerial regulations increasingly leave the sterilization decision to the individuals involved rather than to medical experts or government officials. These legal changes confirm that voluntary sterilization is an acceptable means of fertility regulation and a legitimate medical procedure. In some countries barriers still exist making it difficult for poor and rural populations to obtain voluntary sterilization. These obstacles arise when voluntary sterilization is excluded from national health and family planning programs and from private insurance plans. Countries which explicitly declares that voluntary sterilization is legal include Singapore Panama Japan the Scandinaivan countries 2 republics of Yugoslavia and some US states. Countries where voluntary sterilization is legal because no law forbids it include among others China South Korea and most countries that derive their laws from English or common law including India most other Commonwealth countries and most US states. Criminal statutes prohibiting sterilization continue in Burma Somalia Spain and Turkey. Saudi Arabia banned all contraception including voluntary sterilization in 1975. Countries where the legal status of voluntary sterilization is unclear include France Belgium Eastern Europe Francophone Africa and some Latin American countries. Because sterilization is elective and its effect on fertility is usually irreversible new statutes and regulations often define conditions for the choice of voluntary sterilization. These conditions vary from country to country but virtually all these new laws accept voluntary sterilization as a legitimate family planning method distinct from both involuntary sterilization and therapeutic sterilization. Recent laws and regulations in the US and Europe try to assure that the choice of voluntary sterilization is made by the individual concerned and that it is made after receiving complete information about risks benefits and alternative contraceptive methods. Overall recent law reforms have dual considerations: to remove the procedure from criminal code and to place it within the realm of family planning programs and health law as 1 of several options available to regulate fertility; and to assure voluntary and informed personal consent to the procedure.

Abortion laws in African Commonwealth countries.

Abstract: PIP: This paper provides an overview of the range of current (1981) abortion laws in the African Commonwealth countries, traces the origins of the laws to their colonial predecessors, and discusses legal reform that would positively provide for legal termination of pregnancy. The authors claim that the range of these laws demonstrates an evolution that leads from customary/common law (Lesotho and Swaziland) to basic law (Botswana, The Gambia, Malawi, Mauritius, Nigeria's Northern States and Seychelles) to developed law (Ghana, Kenya, Nigeria's Southern States, Sierra Leone, and Uganda), and, finally, to advanced law (Zambia and Zimbabwe). The authors call for treating abortion as an issue of health and welfare as opposed to one of crime and punishment. Since most of the basic law de jure is treated and administered as developed law de facto, the authors suggest decriminalizing abortion and propose ways in which to reform the law: clarifying existing law; liberalizing existing law to allow abortion based upon certain indications; limiting/removing women's criminal liability for seeking an abortion; allowing hindsight contraception; protecting providers treating women in good faith; publishing recommended fees for services to protect poor women; protecting providers who treat women with incomplete abortion; and punishing providers who fail to provide care to women in need, with the exception of those seeking protection under a conscience clause. The authors also suggest clarifying the means by which health services involving pregnancy termination may be delivered, including: clarification of the qualifications of practitioners who may treat women; specification of the facilities that may treat women, perhaps broken down by gestational duration of the pregnancy; specifying gestational limits during which the procedure can be performed; clarifying approval procedures and consents; and allowing for conscientious objections to performing the procedure.

Nonmarital Cohabitation in the Common Law Countries: A Study in Judicial-Legislative Interaction

Abstract: A study of nonmarital cohabitation in the common law countries is as much a study of the mechanisms of change as it is a study of the substantive legal rules affecting informal families.1 The movement of the law as it addresses the legal issues posed by recent dramatic changes in lifestyles highlights important differences in the legal systems of the common law world. Traditionally the common law has been viewed as a means of piecemeal, incremental change that operates on a case-by-case basis. Its doctrine of stare decisis coordinates what might otherwise be an unruly phenomenon of ad hoc justice. In addition, the realities of a shared language and a shared tradition of judicial reasoning have fostered a cross-pollination of ideas as courts have looked to persuasive opinions of sister-jurisdictions even when respect was not owed under the rules of precedent. Finally, common history and logic have often prompted independent yet parallel developments of the law.

The Status of Jerusalem under International Law and United Nations Resolutions

Abstract: (1981). The Status of Jerusalem: UNDER INTERNATIONAL LAW AND UNITED NATIONS RESOLUTIONS. Journal of Palestine Studies: Vol. 10, No. 3, pp. 3-15.

The evolution of law and wife abuse

Abstract: For over 2000 years, laws have allowed husbands to beat their wives. Until the last century, American law conformed to this tradition. This article traces the roots of American law to English and Roman law, the latter giving husbands life-and-death authority over wives. In the nineteenth century American state courts permitted husbands to beat their wives for misconduct. Pioneering women in the temperance, abolitionist, and women's rights movements first attacked the common law ofwife-beating and restrictive divorce policies. By the 1870s, wife-beating became outlawed. Earlier in the nineteenth century, legislatures had expanded the grounds for divorce, opening an avenue of escape for physically abused wives. But the law still gives limited protection to assaulted spouses, who are more often wives than husbands.