Showing papers on "Common law published in 1983"

Wives and property : reform of the married women's property law in nineteenth-century England

Abstract: In the 1870s Millicent Garrett Fawcett had her purse snatched by a young thief in London. When he appeared in court to testify, she heard the young man charged with 'stealing from the person of Millicent Fawcett a purse containing 1 18s 6d the property of Henry Fawcett.' Long after the episode she recalled: 'I felt as if I had been charged with theft myself.' The English common law which deprived married women of the right to own and control property had far-reaching consequences for the status of women not only in other areas of law and in family life but also in education, and employment, and public life. To win reform of the married women's property law, feminism as an organized movement appeared in the 1850s, and the final success of the campaigns for reform in 1882 was one of the greatest achievements of the Victorian women's movement. Dr Holcombe explores the story of the reform campaign in the context of its time, giving particular attention to the many important men and women who worked for reform and to the debates on the subject which contributed greatly to the formulation of a philosophy of feminism.

Optimal Sanctions for Antitrust Violations

Abstract: Although economic analysis of the common law, crime, and legal decision making are relatively recent areas of research in the field of law and economics, economic analysis of antitrust, particularly the analysis of business practices described in antitrust cases, has been widespread and uncontroversial for many years. What has received less attention is the use of economics to examine antitrust enforcement itself.' This involves analyzing, for example, what is an antitrust injury, the appropriate sanctions for such an injury, the choice between public and private enforcement of antitrust laws and related questions on standing to sue, and the relevance of the antitrust victim's conduct to his ability to recover damages. In this paper I apply economics to some of the above issues. Economic analysis of antitrust enforcement builds on the pioneering papers of Gary Becker and Ronald Coase.2 Becker's paper was the first formal analysis of optimal penalties and probabilities of apprehension and conviction for criminal offenses. He showed

Dynamic Economic Systems: A Post Keynesian Approach

Abstract: Under the 1984 Sino-British Joint Declaration on the future of Hong Kong the previous capitalist system and life-style shall remain unchanged for 50 years This concept has been embedded in the Basic Law of Hong Kong The future of the Common Law judicial system in Hong Kong depends on the perceptions of it by Hong Kong's Chinese population judicial developments prior to July 1, 1997, when Hong Kong passes from British to Chinese control and the Basic Law itself All of these critical issues are addressed in this book It applies survey and statistical analysis to the study of the attitudes toward, and the values inherent to, the Common Law judicial system in the unique cultural and economic milieu of Hong Kong in transition

A New Positive Economic Theory of Negligence

Abstract: Within the last generation, economic analysis has produced a wealth of insights into common law principles and especially into the common law of tort.' Two distinct traditions have emerged within the economic approach to tort law. The normative tradition attempts to evaluate the economic desirability of liability rules with a view toward reforming them.2 In contrast, the positive tradition uses economic concepts to explain common law liability rules with a view toward gaining a better understanding of the rules themselves and of their social consequences.3 The hypothesis

A Common Law for Labor Relations: A Critique of the New Deal Labor Legislation

Abstract: During the nineteenth century, the area of labor relations was governed by a set of legal rules that spanned the law of property, contract, tort, and procedure. There was no special set of rules for labor cases as such. Since the advent of the New Deal, these common law principles have largely given way to a complex body of statutory and administrative law that treats labor law as a separate and self-contained subject. The central question in this paper is whether there is any warrant for the special treatment that labor law receives today. I shall concentrate upon the Norris-LaGuardia Act of 1932,1 and the Wagner Act of 1935,2 the latter a New Deal statute and the former nearly so. My conclusion is that this (for ease of expression) New Deal legislation is in large measure a mistake that, if possible, should be scrapped in favor of the adoption of a sensible common law regime relying heavily upon tort and contract law. The tort principles protect all individuals against the use or threat of force, and-of great relevance here-against the deliberate inducement of breach of contract. The contract principles allow individuals within this

Common Law Intellectual Property and the Legacy of International News Service v. Associated Press

Abstract: That information once published should be presumptively free for all to use is a commonplace of intellectual property law. As Benjamin Kaplan has observed, "if man has any 'natural' rights, not the least must be a right to imitate his fellows, and thus to reap where he has not sown. Education, after all, proceeds from a kind of mimicry, and 'progress,' if it is not entirely an illusion, depends on generous indulgence of copying."' It might thus seem to follow that judges should have only modest powers to find that individuals have common law intellectual property rights. Common law judges, however, often discover such rights under the branch of unfair competition law known as misappropriation.

Environmental Law in a Nutshell

Abstract: Judicial Review of Government Decisions; Judicial Role in Environmental Law; National Environmental Policy Act; Federalism and the Environment; Scope of Federal Power; Commerce Clause Restrictions on State Power; Federal Preemption; Pollution Control; Common Law Remedies; Regulation Under the Clean Air Act; Regulation Under the Clean Water Act; Economic Incentives for Environmental Protection; Risk Management and Scientific Uncertainty; Introduction to Risk Assessment and Risk Management; Judicial Views Concerning Management of Uncertain Risks; Control of Toxic Substances; Regulating the Sale of Toxic Substances; Toxic Substances Under the General Pollution Statutes; Resource Conservation and Recovery Act; Comprehensive Environmental Response, Compensation and Liability Act; Common Law Remedies; Preservation of Natural Areas; Preservation as a Goal; Restrictions on Development of Private Land; Protecting Coastal Waters; Protecting of Public Lands; Preserving Endangered Species.

An introduction to the legal system of the United States

Abstract: In this classic text, translated into over a dozen languages, constitutional scholar and Columbia Law School professor E. Allan Farnsworth provides a clear explanation of the structure and function of the U.S. legal system, analysing the legislative and judicial systems on both the federal and state levels. For decades, students of American law have relied on this lucid text as an invaluable guide to basic case law and as a means of interpreting statutes, differences between civil and criminal procedure, and the distinction between private and public law.

Crime, Compurgation and the Courts of the Medieval Church

Abstract: The history of criminal law has claimed an increasing share of the attention of legal and social historians in recent years. Undeterred by Professor Milsom's verdict that in the area of English criminal law, ‘nothing worthwhile was created,’ historians have plunged into the study of doctrine and practice in the common law courts. The attractions of the source material are undoubtedly great. The law is relatively straightforward, at least compared to land litigation. The cases are interesting and sometimes sensational. The subject matter promises rewards in understanding the relationship between social change and legal development. And the study may even be immediately relevant, shedding light on current law enforcement problems.

From Representation to Expectation: Estoppel as a Cause of Action

Abstract: In recent years, one of the most vibrant doctrines has been that of equitable estoppel. This doctrine is generally seen as having two main branches: the defensive doctrine of promissory estoppell and the older and more aggressive doctrine of proprietary estoppel, which can itself be used to obtain rights: to be the cause of action itself. The aim of this article is to analyse the central concepts of equitable estoppel in order to distinguish it from its common law counterpart, to consider its relationship to the law of contract and also to present the two main branches as being closely related concepts, based on common underlying themes.

How to Find the Law

Abstract: Characteristics of American Law and Legal Resources; Court Reports; Shepard's Citations; Online Updating Tools; West Key-Number Digests; ALR Annotations; Federal Statutory Research; State Statutory Research; Local Law Sources; Constitutional Law; Legislative History; Administrative Regulations and Decisions; Court Rules; Practice Materials; Looseleaf Services; Legal Periodicals; Periodical Indexes; Legal Encyclopedias; Restatements; Texts; Legal Dictionaries; Directories; Formbooks; Nonlegal Research Sources; Treaties; International Law; International Organizations; English Legal Research; Canadian Legal Research; Foreign and Comparative Law; Research Strategies.

Building and Civil Engineering Claims in Perspective

Abstract: Part 1 Definition and classification of claims - generally current usages proper usage common law background life cycle of claims standpoint. Part 2 Contracts and common law - introduction generally sources of law construction law common law and equitable remedies extra-contractual relief. Part 3 The life cycle of a claim - the four phases of a project the seven stages of claims implications and requirements of legal procedure germination and notification presentation establishment examination. Part 4 Claims concerning the existence of a contract - generally parties intention to create legal relations consideration agreement certainty formalities letters of intent illustrative cases. Part 5 Claims arising from documentation - generally the various documents rectifiction discrepancies contract terms express terms overridden rules of construction illustrative cases. Part 6 Claims arising in connection with execution of the work - generally categories of events illustrative cases. Part 7 Claims concerning payment for work - generally valuation of contract work valuation of varied work extra time for varied work payments illustrative cases. Part 8 Claims concerning time - generally extensions of time evaluation of delay claims illustrative cases. Part 9 Claims arising from breach or termination - general breach by contractor breach by employer termination illustrative cases. Part 10 Compound claims - generally separation and amalgamation of individual claims illustrative case. Part 11 The finance claim pursued - introduction re-submission and settlement of claim points of principle involved subsequent developments in the law interest under standard forms. Part 12 The process of negotiation - generally involvement of people psychology ground rules process of negotiation getting into arbitration alternative dispute resolution illustrative cases.

Incompetency to Stand Trial

Abstract: The incompetency doctrine has common law origins, going back at least to mid-seventeenth century England (Group for the Advancement of Psychiatry 1974, pp. 912–915). Blackstone wrote that a defendant who became “mad” after the commission of an offense should not be arraigned “because he is not able to plead... with the advice and caution that he ought” and should not be tried, for “how can he make his defense?” (Blackstone 1783, p. 94; see also Hale 1736, pp. 34–35). Some have traced the common law prohibition on trying the incompetent defendant to the ban against trials in absentia (Foote 1960, p. 834; see, e.g., Frith’s Case 1790; Kinloch’s Case 1746). Others have traced the origins of the doctrine to the difficulties resulting when a defendant frustrated the ritual of the English common law trial by remaining mute instead of pleading to the charge. Without such a plea, the trial could not go forward. In such cases the English court was obliged to determine whether the defendant was “mute by visitation of God” or “mute of malice.” If “mute of malice,” the defendant was subjected to a form of medieval torture—the peine forte et dure—in which increasingly heavier weights were placed upon his chest in an effort to compel him to plead. The category “mute by visitation of God,” the members of whom were spared this painful ritual, originally encompassed the “deaf and dumb,” but gradually was expanded to include “lunatics.” At the discretion of the Chancellor, a jury could be impaneled to conduct an inquest into the defendant’s competency (Group for the Advancement of Psychiatry 1974, pp. 887–88, 912–13; Slovenko 1977, p. 168).

The Early History of the Grand Jury and the Canon Law

Abstract: The modern grand jury traces its origins to the Assize of Clarendon, an enactment of King Henry II in 1166.1 The Assize called for inquiry to be made, by the oath of twelve men from every hundred and four men from every vill, as to what persons were publicly suspected of robbery, murder, or theft or of receiving men guilty of those crimes. The crimes covered were expanded ten years later by the Assize of Northampton to include forgery and arson,2 and over the course of succeeding years the group grew to include almost all serious crimes. Under the procedure called for by the Assize of Clarendon, the suspected criminals were presented before royal justices, and then their guilt or innocence was determined by the judgment of God, that is, by ordeal. From this method of inquiry and presentment of persons suspected of serious crimes, later expanded and adapted to changed circumstances, grew the two-stage process of indictment and trial that we recognize as the essence of common law criminal procedure. The Assize has naturally attracted its share of scholarly attention. Its centrality in the history of criminal procedure, as well as the mists of uncertainty that surround its adoption, its intent, and even the accuracy of the text that has come down to us, have made it a subject of interest for anyone curious about the development of our law. Bishop Stubbs regarded it as "of the greatest impor-

The Right of the People to Keep and Bear Arms: The Common Law Tradition

Abstract: Visiting Scholar, Harvard Law School; B.A., 1963, Barnard College; Ph.D., 1977, Brandeis University. ** This article is part of a larger project on the history of the right to bear arms, the research for which has been made possible from the following generous awards: a Research Fellowship from the National Endowment for the Humanities, a Fellowship in Legal History from the American Bar Foundation, a Summer Fellowship from the Liberty Fund, and a Mark DeWolfe Howe research grant from Harvard Law School. 1 1 T. MACAULAY, CRITICAL AND HISTORICAL ESSAYS, CONTRIBUTED TO THE EDINBURGH REVIEW 154, 162 (Leipzig 1850). 2 See 1 W. BLACKSTONE, COMMENTARIES *139-40 (1st ed. Oxford 1765). 3 De Lolme's book, THE CONSTITUTION OF ENGLAND, was first published in 1771 and quickly went through an impressive number of editions. D'Israeli later referred to De Lolme as \"the English Montesquieu.\" See OXFORD UNIVERSITY PRESS, 1 THE CONCISE DICTIONARY OF NATIONAL BIOGRAPHY 332 (2d ed. 1903); 7 ENCYCLOPAEDIA BRITANNICA 970 (11th ed. 1910). [Copyright © 1983 Hastings Constitutional Law Quarterly. Originally published as 10 HASTINGS CONST. L. Q. 285-314 (1983). For educational use only. The printed edition remains canonical. For citational use please obtain a back issue from O'Brien Center for Scholarly Publications (www.uchastings.edu/pubs/subs.html), Attn: Subscriptions, UC Hastings College of the Law, 200 McAllister Street, San Francisco, CA 94102-4978, Telephone 415 565-4816, Fax 415 565-4814. Professor Malcolm is the author of numerous books on English History including TO KEEP AND BEAR ARMS: THE ORIGINS OF AN ANGLO-AMERICAN RIGHT which may be obtained from www.amazon.com]

The State of Law in Richard II

Abstract: Although it is evident that Gaunt is expressing displeasure with Richard, the substance of his complaint has not always been clear. A. P. Rossiter, for example, has described the passage as "hopelessly obscure."2 At issue is the relationship between king and law. To understand Gaunt's speech one must sort out the distinction the old man is drawing between landlord and king. When this passage is glossed in modern editions of the play, the readings nearly always suggest that the second line stands in apposition to the first, presumably repeating in different words what the first line says. A consequence of this assumption is the interpretation that Gaunt is accusing Richard, as J. Dover Wilson says, of having "diminish[ed] the royal prerogative. " Citing J. C. Smith, Wilson offers the following paraphrase of the second line: "Your legal status as king ('in all causes supreme') is now amenable to the common law like that of any other mortgagee." Similarly G. L. Kittredge, basing his reading on the glosses of Samuel Johnson and Edmund Malone, writes, "Your legal status is no longer that of supreme King of England by divine right; for you are now as subject to the law in regard to the whole realm as any landlord is with reference to his private estate when he has given a lease of it. ',4 The Arden, Pelican, and Riverside editions of the play all offer essentially the same explanation.5

Law of Federal Courts

Abstract: This title offers practical guidance and comprehensive coverage on all aspects of federal court jurisdiction and litigation procedure, as well as the relationship between the state and federal courts. Text reviews the federal judicial system; judicial power of the United States; diversity of citizenship; venue; law applied in federal courts; pleadings, trials, and judgments; and appellate court and Supreme Court jurisdiction.

Too Much Order With Too Little Law

Abstract: INTRODUCTION n In September 1977 Johannes Bjelke-Petersen, the premier of Queensland,nproclaimed, qThe day of the political street march is over.q Thisnproclamation became government policy, was echoed by the actingnpolice commissioner, and was police policy until April 1978. Brisbanenpolice prohibited most political street marches until August 1979.n n Government supporters claimed that the political street march wasna recent phenomenon staged for the benefit of modern news media.nThey said there was no common law right to demonstrate, and policenhad no choice but to implement the law in its full rigour. They claimednthe Queensland system for regulating public meetings and processionsnwas no different in principle and in substance from that adopted in anynother state of Australia.n n Civil liberties advocates said the new government policy highlightednthe defect in public order machinery which required the obtaining ofnpolice permission for a political demonstration on a street or footpath.nThey claimed the inalienable right to demonstrate against governmentnpolicies was the hallmark of constitutional democracies, and they urgednpolice to avoid a needless polarization of the community.n n The police refused to confer with demonstration organizers andnadopted the tactic of all-out confrontation at demonstrations, whichnresulted in 1,972 arrests. Church and community leaders urged an endnto the violence.n n The impact of the premier's proclamation has to be studied in thencontext of the English and Australian constitutional development ofnthe legitimate role granted to public political protest. Up till theneighteenth century, much protest activity in England was found to bentreason and was punished as such. The criminal law was based on thenconstitutional premise that the people had no role to play in advocatingnreform of the law. And yet public protest inevitably accompanied criesnfor constitutional reform and was prevalent at times of social and economicnupheaval. n There was no co-ordinated and comprehensive public ordernmachinery in England during these times. Violent protest could be putndown only by the military. The Riot Act and other measures werenintroduced to equip the disparate public order machinery with an arraynof powers to deal with protest.n n During the latter half of the eighteenth century, the cry qLibertyqnuttered by the philosophers of the time and invoked by French andnAmerican revolutionaries was also heard on English soil. While thenparliamentary franchise was restricted, public political activity in thenstreets and fields was common. The qWilkes and libertyq movementnwas born. Thereafter the law of treason was inapplicable to violent,npopular political protesters. The cries for constitutional reform werenmore prevalent; the Peterloo Massacre resulted.n n When reform did come, there was no doubt about the role played bynpublic protest in achieving it. Having a proved political function, publicnprotest had to be tolerated unless it constituted a threat to the peace.n n The newly created independent police forces had the task of preservingnthe peace and therefore of determining the limits of tolerance.nThe new colony of New South Wales inherited the common law andnwas administered by Englishmen who instituted several ad hoc measuresnfor a public order machinery similar to those extant in England. Publicnprotest was not a significant problem in the colony's early years, butnthe qdeluded Irishq occasionally plotted to overthrow the administration.nSome repressive English public order statutes were proclaimed tonhave application in the colony. The military was vested with power notnonly to contain Irish protests but also to try the participants and punishnthem, by hanging if necessary.n n The military's stronghold on the public order machinery andncriminal justice system was removed only after the Rum Rebellion,nwhen the governor himself was subjected to the military's arbitrarynrule. An independent police force was created and ultimately wasnmodelled on the new London force. Public meetings calling for constituionalnreform and processions were tolerated provided they were not anthreat to the peaceh.n

Problems of Informed Consent with the Cognitively Impaired

Abstract: The doctrine of informed consent for treatment and research is by now firmly embedded in health law and medical ethics. Federal regulations govern all research conducted on human subjects and supported by federal funds (Code of Federal Regulations, 1981); many states have passed legislation that mandates informed consent for treatment (Meisel and Kabnick, 1980); and the common law contains an increasing number of cases dealing both with informed consent for therapy and for research. Although it is interesting to learn the philosophical bases for the doctrine of informed consent (Veatch, 1978; Donagan, 1977) and to trace its history in law in the United States (Simpson, 1981; Trichter and Lewis, 1981), this chapter will be devoted primarily to the concept of informed consent as a moral requirement in the biomedical domain.