Showing papers on "Common law published in 1986"

To Run a Constitution: The Legitimacy of the Administrative State

Abstract: In 1887, the centennial year of the American Constitution, Woodrow Wilson wrote that "it is getting to be harder to run a constitution than to frame one." The context for Wilson's comment was an essay calling for sound principles of administration that would enable government officials to "run" a constitution well. Wilson and his fellow civil-service reformers had a profound influence on the development of American administrative institutions. Unfortunately, the reformers paid more attention to the exigencies of running a constitution than to the Constitution itself. They and their intellectual progeny developed a theory of administration that was at odds with the theory of the Constitution. As a result, we find ourselves living today in what we often call an "administrative state" a state seemingly bereft of legitimating principles grounded in the political thought of the framers of the Constitution. In "To Run a Constitution," John A. Rohr takes seriously two basic premises: d Tocqueville's belief that citizens are corrupted by ebeying powers they believe to be illegitimate, and the view that, despite present political sentiment, the administrative state is here to stay. The book focuses on the important question of whether the administrative state, an abiding presence in American politics, can be justified in terms of the American constitutional tradition. In addressing this question, Rohr goes beyond considerations of case law to examine the principles of the Constitution both at its founding and in its subsequent development. Reying on the normative character of political "foundings," Rohr analyzes three significant founding periods: 1) the founding of the Republic, 1787-1795; 2) the foundin of public administration, 1883-1899; and 3) the founding of the administrative state, 1933-1941. He judges the last two foundings by the first in developing his argument that the modern administrative state can be justified in terms of the kind of government the framers of the Constitution envisaged. On the eve of the bicentennial of the Constitution, Rohr's argument advances a new, normative theory of public administration that is intended to "support and defend the Constitution of the United States," in accordance with the oath of office taken by public administrators. It is critical reading for scholars in the fields of public administration, political science, and constitutional studies."

Legalism: Law, Morals, and Political Trials

Abstract: Introduction: Law and Ideology PART I: Law and Morals Definitions and Ideologies The Differential Characteristics: Sin, Immorality, and Crime Natural Law and Legal Ideology The Ideology of Agreement PART II: Law and Politics Introduction Justice: the Policy of Legalism Law and International Politics Political Trials: Politics What? The Spirit of Political Judgment A War on Trial A National Ideology as Law: Tokyo Justice and the Remote Past Trying the Remote Future Domestic Political Trials Epilogue Conclusion Notes Index

A history of the land law

Abstract: An account of the historical development of the common law of landed property. Work published since the first edition (1961) is taken into account, and the treatment of the nineteenth century period has been enlarged.

Imperfect Decisions and the Law: On the Evolution of Legal Precedent and Rules

Abstract: THE law is rich in doctrine and rules. It also evolves. Changes in its doctrines and rules result from complex interactions involving many people and over relatively long periods. Consequently, they typically do not arise from the foresight of any one or few individuals. Yet in the midst of these "unintended" changes certain dominant features tend to emerge and persist, thereby systematically shaping the course of subsequent change. I wish to explain why such persistent features develop in the law, especially those involving the rules followed in resolving disputes. My analysis in part derives from the model of choice that has a long history in economics. However, it differs from this model in a basic way: agents need not be assumed always to behave optimally. Instead, optimizing becomes a limiting case in a more general theory of behavior under certainty where agents make decisions with information that is not only costly and imperfect but in addition their ability to use information is also imperfect. I will argue that it is the latter factor (uncertainty due to imperfectly using information) that is responsible for certain major procedures that have evolved in the law. This topic is far too broad to be analyzed in a single paper. Consequently, I will focus mainly on the evolution of stare decisis as a dominant mode of decision in the common law.

Sentencing : State and Federal Law in Victoria

Abstract: Fox and Freiberg have written a comprehensive book on federal and state law relating to the sentencing of offenders in the state of Victoria, Australia. In providing such a guide, the authors have meticulously brought together a wealth of statutory and case law material including the extensive recent amendments to the statutes regulating the sentencing powers of the criminal courts. Sentencing in Victoria: State and Federal Law is a significant advance in the jurisprudence of sentencing in Australia and will be an essential reference for those in the field.

Sources of English legal history : private law to 1750

Abstract: 1. Tenure: services and incidents 2. Actions concerning land 3. Family interests and settlements at common law 4. Uses, wills and trusts 5. Executory interests under the Statute of Uses 6. The term of years 7. Copyhold 8. Debt 9. Detinue 10. Covenant 11. Account 12. Trespass 13. Trespass on the case 14. Assumpsit for misfeasance 15. Assumpsit for nonfeasance 16. Assumpsit in lieu of debt 17. Assumpsit against executors for money 18. Various developments of the money counts 19. Consideration 20. Actions on the case for deceit 21. Actions on the case for conversion 22. Actions on the case for negligence 23. Actions on the case for nuisance 24. Actions on the case for various kinds of economic loss 25. Actions on the case for defamation

Dr. thomas fastolf and the history of law reporting

Abstract: It is sometimes supposed by English lawyers that one of the principal differences between their law and other European legal systems is that the common law is founded on decided cases, whereas systems influenced by Roman law depend on texts and doctrinal literature.1 Some Civilians might accept the distinction. But the canonist knows that it is hardly accurate. In the first place, his decretals can be regarded both as case-law and as texts. Moreover, once the pope began to commit his adjudicative authority to a court composed of doctors of law, canon law became increasingly the jurisprudence of a learned tribunal.2 The supreme papal court was the "Audience," where cases were heard before the auditors of the papal palace (domini auditores sacripalacii apostolici)?'The pope had appointed auditors of causes since early times, and their procedure had become regularised during the thirteenth century. By the fourteenth century, when these judges were lawyers of distinction from all over Europe, the Court of Audience had become a collegiate body; and under Pope John XXII (1316-34) it was given a written constitution and a settled home. John settled his curia at Avignon, and built a hall of audience alongside his palace there.4 In 1331 he promulgated the bull Ratio iuris, which was intended to govern for all time what it described as "the highest court established under divine inspiration, where the quality of justice abounds in excellence and brilliance."5 The court was to sit regularly,

Restructuring Employment Rights

Abstract: CURRENT proposals to extend workers' positive legal rights, within a framework that encourages effective collective bargaining, tend to ignore a fundamental problem. This is whether statutory rights should continue to rest on the foundation of the common law contract of service. Among the central themes that run through the various proposals are the following. (1) The coverage of legislation should be extended to the increasing number of "marginal" workers, such as part-timers, temporary and casual workers, who at present make up an estimated one-third of the labour force and among whom it is difficult to extend union organisation. (2) Statutory rights should reflect and support collective bargaining arrangements and the freedom of workers to withdraw their labour. (3) Ways must be found to prevent courts and tribunals from undermining statutory rights by restrictive interpretations. (4) The inordinate complexity of labour legislation and the excessive legalism which has been introduced into the disputes settlement process must be reduced. This article argues that these objectives are likely to be frustrated if statutory rights are built on the traditional "corner-stone" of the common law contract of service, and suggests the outlines of an alternative structure on which to base positive rights. The article is not concerned with the content of those rights, which is a matter for political debate, but with the appropriate form of legislation which is compatible with the above four objectives.

Richard Roose and the use of Parliamentary Attainder in the Reign of Henry VIII

Abstract: In the past decade scholars such as Stanford Lehmberg. G. R. Elton, and J. G. Bellamy have increased our understanding of the use of parliamentary attainder in the reign of Henry VIII. Traditionally attainder had been used to punish fugitives in flight, a form of parliamentary outlawry, or to affirm and supplement prior convictions achieved through the common law or the law of arms in order to extend the crown's rights to forfeited estates. At common law a traitor's forfeiture was limited to lands in fee simple, and by the law of arms his lands were totally immune to forfeiture. Passage of an act of attainder, however, enabled the king to seize any or all of a traitor's land, whether held in fee simple, fee tail, or to the use of the traitor. In the crucial decade of the 1530s attainder assumed a new role, condemning and ordering the execution of offenders solely by authority of parliament, without any prior judicial proceedings and despite an absence of obstacles which might have made a trial impossible. Lehmberg emphasizes the significance of this transformation in his detailed study of attainder in the reign of Henry VIII and suggests that the ‘pivotal act’ was the attainder of Elizabeth Barton and her followers in 1534. Certainly Barton's attainder was the first of many utilized by Henry's government to enforce the Reformation, and it did so without recourse to the common law. Lehmberg is mistaken, however, in his belief that this was the first attainder of the reign to attaint an individual without prior common law proceedings, for that distinction belongs to the attainder of Richard Roose in 1531.

Limitation of Liability for Maritime Claims

Abstract: This fourth edition addresses certain developments, including the 1996 Protocol to the 1976 Limitation Convention, which have come into effect since publication of the previous edition. The chapters on limitation of liability for passenger claims and in relation to the carriage of goods have been updated, as has the chapter on limitation regimes worldwide. The book also focuses upon the practicalities of seeking to limit by reference to case law and procedural rules.

Therapists' obligations to report their patients' criminal acts

Abstract: The law governing the obligation of therapists to report their patients' previous criminal acts was reviewed. Most often, discussions of this subject fall under the general category of "misprison of a felony," that is, the presumed general obligation of all citizens to report felonies that come to their attention. Review of federal law revealed that the courts have consistently interpreted the federal misprision statute as requiring active concealment of a crime, not a mere failure to report, in order to convict for the offense. State law is more diverse. Only one state has a general misprison statute labeled as such, and several states have recently repealed such statutes. The strong trend in states without statutes is to reject misprison as a common law crime, because of its incompatibility with modern notions of justice. Most states, however, have limited reporting statutes, such as for child abuse or gunshot wounds, that impose similar obligations. Therapists' reporting of past crimes may be affected by clinical and ethical concerns, as well as by obligations to protect future victims. In almost all jurisdictions, however, the fear of prosecution for failure to report a past crime should not be a factor in deciding on a course of action.

European convention on human rights (1950)

Abstract: This chapter highlights various aspects of the European Convention on Human Rights (ECHR) in the year 1955. The ECHR was signed in Rome on November 4, 1950 after a comparatively short drafting period. The ECHR is a treaty concluded under the rules of international law and creates obligations as between the different member States. The machinery of collective enforcement through the convention organs on the basis of individual or state applications is the peculiar feature of the ECHR. In several countries, municipal courts have developed an extensive case law based on the ECHR. The obligations of the member States under the ECHR are primarily to respect the individual rights guaranteed therein. The system created by the ECHR is the only example of judicial protection of human rights and fundamental freedoms by international law that may be assimilated with constitutional procedures of the same sort known in several countries.

The Balance of Power in Family Decisions

Abstract: The Decision of the House of Lords in Gillick v. West Norfolk and Wisbech Area Health Authority raises fundamental questions concerning the nature of the legal relationship between parents and children and the role of the State in regulating decision-making within the family. Public attention has been focused on the issue of the provision of contraceptives to girls under the age of sixteen years, yet the decision has implications which go well beyond this specific matter. First, the decision invites a re-examination of the approach of English law to the concept of parental rights. Secondly, Lord Scarman's reference to “the child's right to make his own decisions” suggests that it may not be long before a coherent concept of children's rights is incorporated into the law. This would constitute a significant development since although the welfare of children is considered paramount in legal disputes concerning their custody or upbringing, references to the “rights” of children either in statute or case law are comparatively rare. On the occasions when the judiciary recognise that children have rights it is considered a matter of some note.

Consolidated arbitrations and the 1958 New York Arbitration Convention

Abstract: The English Commercial Court's Arbitration Sub-Committee considered at length the need for new legislation with the object of improving the efficiency and acceptability of commercial arbitration in England and Wales. In its working report of February 1985 – which is fascinating reading – it observed that there is a strong support for legislation enabling ‘consolidation’ of arbitrations arising out of the same events. The Sub-Committee reported, however, that a workable solution has yet not been proposed. The objections noted by the Sub-Committee are two-fold, though interrelated: 1. any imposition of a unified dispute-settling mechanism will invariably mean a breach of the contractual rights of at least one of the parties; 2. an award which embodies the decision of the tribunal insofar as it falls outside the scope of the arbitration agreement is likely to encounter serious difficulties when it comes to enforcement under the New York Convention. The desirability of consolidation of related arbitrations is indeed significant in a number of areas, in particular maritime and construction arbitration. Some institutions, like the International Chamber of Commerce, are designing schemes to be incorporated in special arbitration clauses and their rules. However, such schemes will work only if all arbitration clauses in question refer to the same institution. A more effective way of dealing with the problem of related arbitrations is a consolidation ordered by the courts. That possibility exists at present in a few countries only. In the United States, consolidation of related arbitrations by the courts is developed by case law. In 1982, Hong Kong enacted a new Arbitration Act which contains specific provisions on judicially ordered consolidation. The latest development in this field is the new Dutch Arbitration Act, which will become effective on 1 December 1986. The new Dutch Act provides for consolidation of related arbitrations ordered by the President …

Economic efficiency and the common law: a critical survey*

Abstract: Since the publication of Ronald H. Coase’s “The Problem of Social Cost” (1960), law and economics scholars have paid increasing attention to the allocative consequences — efficiency — of the common law process in general, and to those of specific common law rules governing liability, in particular. This essay surveys those works that examine the general efficiency of the common law process,1 and it considers various challenges to those works. First, though, we place the common law in historical perspective and consider alternative governmental approaches to its traditional subject matter.

Decentralization and the Precontract Dispute in Soviet Industry

Abstract: Precontract negotiations between enterprises play an important role in determining the detailed product mix and the timing of delivery in the Soviet planning system. This paper uses a comparative institutional framework drawn from the law and economics literature to analyze the legal regulation of these negotiations by Gosarbitrazh. In view of features of the Soviet economy which weaken the buyer's influence on the supplier, the key hypothesis is that Gosarbitrazh should favor the buyer in resolving precontract disputes, thereby forcing the supplier to satisfy the buyer's demand. This hypothesis is supported by the reported case law. Journal of Economic Literature, Classification Numbers: 052, 124.

The implied contract theory of quasi-contract: Civilian opinion current in the century before Blackstone

Abstract: Blackstone was responsible for the vigorous survival into the twentieth century of the doctrine that in the common law quasi-contractual obligations rested on implied promises and therefore belonged within the law of contract. But for his influence, the fact that such obligations had come to be litigated through the action on promises (assumpsit) might have seemed no more than one of the many quirks of pleading which the abolition of the forms of action was meant to remove. Blackstone, however, taught implied contract, not as an accident in the history of pleading, but as a substantive doctrine. Such was the success of the Commentaries that generations of common lawyers learned that in some sense quasi-contract was contract.

Law, Business, and Society

Abstract: Law, Business, and Society, 7/e, by Tony McAdams, takes an interdisciplinary approach utilizing elements of law, political economy, international business, ethics, social responsibility and management. The author's primary goal is to produce a compelling holistic picture of the concepts by giving extensive attention to readings, provocative quotes and factual details. Students learn not merely the law but the law in context.

Constitutional Law in a Nutshell

Abstract: This new 8th edition of Constitutional Law in a Nutshell serves as an updated guide and summary of constitutional law. Expert authors summarize judicial review and its limits, national legislative powers, state power in American federalism, Congress and the executive power, due process of law, equal protection, freedom of expression and religion, state action, and controversial Supreme Court cases. For example, this edition features the opinions of the Justices of the Supreme Court opinions in the Affordable Care Act decision, National Federation of Independent Business v. Sebelius (2012). This edition discusses the impact of the decision on the law concerning the Taxing Power, the Spending Clause and the Commerce Clause. Also, highlighted are extensive case discussions illustrating the Supreme Court's continuing focus on the First Amendment. These cases include the funeral picketing case, Snyder v. Phelps (2011), the dog fight video case,United States v. Stevens (2010), the video games case, Brown v. Entertainment Merchants Association (2011) and a case dealing with the conflict between freedom of expression and national Security, Holder v. Humanitarian Law Project (2010). In short, landmark Supreme Court cases, past and present, in these and other areas of constitutional law are presented in a concise, comprehensive readable and informative way.

The Proof in Law of Suicide

Abstract: The certification of suicide as the manner of death is frequently contested in court by the victim's survivors, particularly when there are life insurance benefits at stake. The evidence upon which the opinion of suicide is based must, therefore, meet the standard of proof required in law, if it is to be sustained by the courts. This standard of proof and some of its contingent common law doctrines are discussed, with references to several judicial opinions from cases which involved contested suicides.

Jurisdiction to Punish: Federal Authority, Federalism and the Common Law of Crimes in the Early Republic

Abstract: Discussion and debate over the nature of federalism is one of the staples of American public discourse. Among historians and lawyers, politicians and judges this constant has remained. It is only the context of the discourse which has changed over time. Given the unusual framework of union provided by the Constitution it is hardly surprising that debate over its nature should continue for concepts of constitutionalism, federalism and law in American culture have melded into an alloy from which it is often impossible to determine which is the baser metal. Continuing inquiry over the proper balance between state and national authority and over the proper reach of federal jurisdiction has prompted as many scholarly endeavors as ever the quest for the Holy Grail led brave knights to their adventures. The endless searches among scholars, lawyers and jurists for ‘the original understanding’ of ‘the Framers’ has been an active industry for generations, seldom more so than in our own time. This is itself a striking cultural fact, and like the quest for the Grail, the center around which a huge corpus of legend, romance, learned scholarship and wishful thinking revolves.

The Myth of the Nomad in Property Law

Abstract: Sir William Blackstone's hyperbolic defense of the common law rights of Englishmen to private property,1 drawn from the immutable law of nature,2 was a comfort to conservative lawyers in the early American republic as a reasoned philosophical and legal defense of property against the uncertainties of John Locke's social contract.3 The seeds of Jacksonian democracy, in which popular sovereignty went hand-in-hand with the people's self-evident right to the pursuit of happiness,4 threatened to relativize and erode the social position of the propertied class.5 In this situation American lawyers vigorously asserted absolute rights to property that could transcend the vagaries of politics. "The title of our lands," wrote Jesse Root proudly in 1798, "is free, clear and absolute, and every proprietor of land is a prince in his own domains, and lord paramount of the fee."6 In the first decades of the Republic Blackstone's Commentaries was the principal sourcebook for American lawyers and judges to learn the common law of England.7 The interpretations of Black-