Showing papers on "Common law published in 1989"

The Transformation of Family Law: State, Law, and Family in the United States and Western Europe

Abstract: Mary Ann Glendon offers a comparative and historical analysis of rapid and profound changes in the legal system beginning in the 1960s in England, France, West Germany, Sweden, and the United States, while bringing new and insightful interpretation and critical thought to bear on the explosion of legislation in the last decade."Glendon is generally acknowledged to be the premier comparative law scholar in the area of family law. This volume, which offers an analytical survey of the changes in family law over the past twenty-five years, will burnish that reputation. Essential reading for anyone interested in evaluating the major changes that occurred in the law of the family. . . . [And] of serious interest to those in the social sciences as well". --James B. Boskey, "Law Books in Review" "Poses important questions and supplies rich detail". --Barbara Bennett Woodhouse, "Texas Law Review" "An impressive scholarly documentation of the legal changes that comprise the development of a conjugally-centered family system". -- Debra Friedman, "Contemporary Sociology" "She has painted a portrait of the family in which we recognize not only ourselves but also unremembered ideological forefathers. . . . It sends our thoughts out into unexpected adventures". --Inga Markovits, "Michigan Law Review" Mary Ann Glendon is professor of law at Harvard University. Her many books include "Abortion and Divorce in Western Law", winner of the 1988 Scribes Book Award.

The Magic Mirror: Law in American History

Abstract: Introduction Social and Institutional Foundations of Early American Law Law, Society, and Economy in Colonial America The Law in Revolution and Revolution in the Law Law, Politics, and the Rise of the American Legal System The Active State and the Mixed Economy: 1789-1880 Common Law, Jurists, and American Values: Continuity and Change, 1780-1880 Race and the Nineteenth-Century Law of Domestic Relations The Nineteenth-Century Law of Personal Status The Dangerous Classes and the Nineteenth-Century Criminal Justice System Law, Industrialization, and the Beginnings of the Regulatory State: 1860-1920 The Professionalization of the Legal Culture: Bench and Bar, 1860-1920 The Judicial Response to Industrialization: 1860-1920 Cultural Pluralism, Total War, and the Formation of Modern Legal Culture: 1917-1945 The Great Depression and the Emergence of Liberal Legal Culture Contemporary Law and Society The Imperial Judiciary and Contemporary Social and Cultural Change Epilogue: More like a River than a Rock Notes Glossary Bibliographical Essay Table of Cases Index

An inquiry into the merits of copyright: the challenges of consistency, consent, and encouragement theory

Abstract: A. Entitlement Structures: Rights, Privileges, and Powers ....... 1354 1. Entitlement structures in tangible property and torts ...... 1354 2. Common law limits on ownership entitlements 1361 3. Entitlement structures in copyright law 1365 B. Assessing the Patterns ......... 1378 1. "Thingness, " "use, " and the role of boundaries ......... 1378 2. Harms and benefits 1384 3. Diferences in liability criteria 1386 4. Economic functions of the entitlement package 1388 II. ALTERNATIVES TO COPYRIGHT . 1394

Slave law in the Americas

Abstract: In this book, Alan Watson argues that the slave laws of North and South America--the written codes defining the relationship of masters to slaves--reflect not so much the culture and society of the various colonies but the legal traditions of England, Europe, and ancient Rome. A pathbreaking study concerned as much with the nature of comparative law as the specific subject of the law of slavery, "Slave Law in the Americas" posits an essential distance in the Western legal tradition between the tenets of law and the values of the society they govern. Laws, Watson shows, often are made not by governments or rulers but by jurists as in ancient Rome, law professors as in medieval and continental Europe, and judges as in common law England. Bodies of law, often created without reference to particular social and political ideals, are also often transferred whole cloth from one society to another. Tracing the effects of the reception of Roman law throughout Europe (excluding England) and the Americas, Watson reveals the enormous impact of this legal tradition on subsequent lawmakers operating under utterly dissimilar social and political conditions in the New World. Slave law in the colonies, Watson demonstrates, had much to do with the mother country's relations to Roman law. Spain, Portugal, France, and the United Dutch Provinces, all within the Roman legal tradition, imposed on their colonies slave laws that were private and nonracist in character, laws that interfered little in master-slave relations and provided for the relative ease of manumission and the grant of citizenship to freed slaves. England, however, did not ascribe to Roman law and colonists created rather than received slave law. Public and racist, slave law in the English colonies uniquely reflected local concerns, involving every citizen in the protection and perpetuation of slavery, strictly regulating education, manumission, and citizenship status. "Comparative legal history," Watson writes, "is in its infancy." Presenting the laws of slavery in ancient Rome and in the slaveholding colonies of America, Watson demonstrates how comparative law can elucidate the relationship of law, legal rules, and institutions to the society in which they operate. Investigating not the dynamics of slavery but of slave law, he reveals the working of a legal culture and its peculiar history.

The Social Foundations of Privacy: Community and Self in the Common Law Tort

Abstract: In this Article Professor Post argues that the common law tort of invasion of privacy safeguards social norms, which he calls \"rules of civility,\" that in significant measure constitute both individual and community identity. The tort is predicated upon the assumption that personality, as well as human dignity, are injured by the violation of these norms. Civility rules also create a \"ritual idiom\" that allows individuals to recognize and differentiate between respect and intimacy; fluency in this idiom enables individuals to become autonomous persons. In protecting civility rules, however, the law must transform social norms into workable legal doctrine, and it must determine the nature of the community whose norms it will preserve. Civility rules that control the dissemination of information conflict with the prerequisites of the 'public,\" which is a social formation created when persons, otherwise unrelated, are united by access to common social stimuli. Within the \"public,\" communication is driven by a logic of accountability that is largely indifferent to norms of civility. The values of privacy, and the identity ofpersons and communities predicated upon those values, are thus endangered by the vast contemporary expansion of the public created by the mass media.

The Efficient Breach Fallacy

Abstract: So wrote Oliver Wendell Holmes in his seminal discussion of contract remedies in The Common Law. That position, while widely discussed, is not acceptable as a normative (nor, as will be shown, as a positive) account of the question of contract remedies. Stated in a phrase, the weakness of Holmes's approach lies in its conclusion that the remedy provides a perfect substitute for the right, when in truth the purpose of the remedy is to vindicate that right, not to replace it. Holmes's analysis mistakenly converts the remedy into a kind of indulgence that the wrongdoer is unilaterally always entitled to purchase. As with any unifying ideal, Holmes's proposition is difficult to confine to the contract cases to which it was originally applied. Why not generalize the proposition so that every person has an "option" to transgress another's rights and to violate the law, so long as he is willing to suffer the consequences?2 The legal system could thus be viewed only as establishing a set of prices, some high and some low, which then act as the only constraints to induce lawful conduct.

The Province of Legislation Determined: Legal Theory in Eighteenth-Century Britain

Abstract: Preface Abbreviations Introduction Part I. Blackstone and the Commentaries: 1. The law of England 2. Blackstone's science of legislation Part II. The Judiciary: 3. Equity, principle and precedent 4. Legal principles and law reform 5. Mansfield and the commercial code 6. Common law, principle and precedent 7. Kames, legal history and law reform 8. Kames and the principles of equity Part III. Parliamentary Statute: 9. Statute consolidation 10. Penal law reform Part IV. Bentham: 11. The critique of common law 12. The Digest 13. From Blackstone to the Pannomion Conclusion Bibliography Index.

Common law aboriginal title

Abstract: Possession and title to land in English law - the old real actions, the action of ejectment, abandonment of possession the Crown's title to lands in England - the origin and effect of the Doctrine of Tenures, possession and the record of the Crown's title, exceptional lands the acquisition of territorial sovereignty by the Crown - methods of acquisition of territory, criteria for classifying colonies title to land in uninhabited settled territories - Barbados, British Honduras, Pitcairn Island the effect of Crown acquisition of territory on customary law rights to land - conquered and ceded territories and the Act of State Doctrine, settled territories and customary law title common law aboriginal title - indigenous land use and English law, the doctrine of tenures and the position of the Crown, related issues application of the doctrine of common law aboriginal title - the United States, Canada, Australia.

Personal Information: Privacy and the Law

Abstract: Part 1 "Privacy" and "personal" information: the private and the public defining "privacy" an alternative approach "personal" information the economics of "personal information". Part 2 "Privacy, "personal information" and the law: the American law the American common law and "personal information" the English law "personal information" as "property". Part 3 "Personal information" and breach of confidence: the action for breach of confidence cases involving "personal information" breach of confidence and "personal information". Part 4 Measuring the extent of the problem. Part 5 The public disclosure of "personal information": the conventional analysis the alternative analysis. Part 6 The collection of "personal information": the problems the remedies data banks and "personal information". Part 7 "Personal information" and intrusion: spying and electronic surveillance telephone-tapping interception of correspondence searches and other physical intrusions gathering of information by the news media exclusion of evidence improperly obtained.

An Introduction to Contemporary International Law: A Policy-Oriented Perspective

Abstract: An introduction to all major aspects of contemporary international law. It applies a policy-oriented perspective, that views law not as a fixed set of rules, but as an ongoing process of decision-making through which the members of the world community secure their common interests.

Comparative Law, Law Reform and Legal Theory

Abstract: Zweigert and KoStz's An Introduction to Comparative Law, an English translation of which was published in 1977, has been described as 'indisputably one of the masterpieces of comparative law literature'.' Ten years on a second edition has appeared,2 and although the authors have had to undertake revision in the light of recent developments, the structure of the work has remained substantially unchanged. Volume I provides an introduction to the nature of comparative law, and the world's major legal systems; the second volume attempts a comparative analysis of the law of obligations (contract, unjust enrichment and tort), with particular reference to Germanic, Romanistic and Anglo-American legal systems. As with the first edition, it is impossible to fault either the authors' scholarship or the elegance of the translation. Nevertheless, Zweigert and K6tz's An Introduction to Comparative Law reveals a number of theoretical problems which underlie the whole enterprise of comparative law. Comparative law has suffered from 'a surfeit of methodology and self-inspection'.3 Although comparatists have indulged in seemingly endless discussion not only over what comparative law is, but over whether it can be said to exist at all, the range of theoretical issues which comparative lawyers have traditionally considered tends to be narrowly circumscribed. In this article it is proposed to consider four wider questions which are raised by Zweigert and K6itz's work. (I) Is it possible to justify the role which comparative law is said to play in the field of law reform? (II) Does comparative law involve an acceptance of certain assumptions about the role of law in society? (III) To what extent is comparative law influenced by the political climate? (IV) What contribution, if any, can comparative law make in the realm of legal theory?

Statutory Interpretation and the Balance of Power in the Administrative State

Abstract: For those who study the interaction of courts and agencies, one of the most persistently intriguing puzzles has been to define the appropriate judicial and administrative roles in the interpretation of regulatory statutes.2 Assume, for example, that Congress enacts legislation which establishes a system of rights and responsibilities for "employees" and creates an agency to administer that system. Should the court or the agency decide whether the critical statutory term "employees" encompasses persons who would be considered independent contractors under the common law, or workers who are foremen and so, at least arguably, part of management?3 To determine "what the law is" in the context of an actual controversy that turns on a question of statutory meaning is the quintessential judicial function.4 At the same time,

Justification and excuse in the criminal law

Abstract: Professor Smith considers a subject of great importance to the criminal law, both as a topic of extensive academic debate and also in the context of the problems faced by the ordinary citizen who may be confronted with a choice between breaking the letter of the law, or seeing others suffer harm. Issues discussed in this text include: the distinction between justification and excuse, and the consequences that may result from it; the "Stephen Waldorf" case in the context of potential resistance to mistakenly applied but lawful force; whether circumstances unknown to the defendant may amount to a defence; judicial interpretation as statutory "let-out" clauses, such as "without reasonable excuse", "dishonesty" and "recklessness"; necessity and duress; "mercy killings" and the judicial discovery of the defence of circumstances, and the future of justification and excuse in case law, legislation or codification.

Honorable Justice: The Life of Oliver Wendell Holmes

Abstract: The first biography of Supreme Court Justice Oliver Wendell Holmes, the best known figure in the history of American law. His book "The Common Law" is still in print after 100 years, and is considered to be one of the great works of American legal history. Holmes was a complex figure, considerably different from the grandfatherly figure of popular legend. Although he was seen as a role model by three generations of liberal reformers, he at one time adhered to a primitive type of fascism. This account of his life and work spans the years from the Civil War battlefields of his youth, to the impassioned constitutional battles of his old age.

Public Nuisance—A Critical Examination

Abstract: Why is making obscene telephone calls like laying manure in the street? Answer: in the same way as importing Irish cattle is like building a thatched house in the borough of Blandford Forum; and as digging up the wall of a church is like helping a homicidal maniac to escape from Broadmoor; and as operating a joint-stock company without a royal charter is like being a common cold; and as keeping a tiger in a pen adjoining the highway is like depositing a mutilated corpse on a doorstep; and as selling unsound meat is like embezzling public funds; and as garaging a lorry in the street is like an inn-keeper refusing to feed a traveller; and as keeping treasure-trove is like subdividing houses which so “become hurtful to the place by overpestering it with poor.” All are, or at some time have been said to be, a common (alias public) nuisance. The definition of this offence, according to Archbold's Criminal Pleading and Practice, is as follows: “Every person is guilty of an offence at common law, known as public nuisance, who does an act not warranted by law, or omits to discharge a legal duty, if the effect of the act or omission is to endanger the life, health, property, morals, or comfort of the public, or to obstruct the public in the exercise or enjoyment of rights common to all Her Majesty's subjects.” The person who commits a public nuisance incurs liability to life imprisonment and unlimited fines. He can be made vicariously liable for the offence if it is committed by his servants. He can be ordered to stop it by an injunction, and made to pay damages in tort if it causes anyone loss. With such a broad concept in existence, backed with such broad remedies, what need have we of any other criminal offence?—or torts?—or remedies in administrative law?

The case law system in America

Abstract: I had with each case carried the analysis of its import to the limits of my ability. Yet again and again, as our discussions proceeded, he would challenge or add, defend what he had added, if defending were needed, with inexhaustible brilliance, until I in awe one day queried, "Karl, how do you do it?" "Why, Ad," he replied, with more pride in his profession than in himself, "I am a case-trained lawyer-and what is more, I am one of the three best in the country!"

The law of insurance contracts

Abstract: Winner of the BILA book prize for contribution to insurance law, "The Law of Insurance Contracts" is now in its sixth edition. It is widely regarded as the premier source on insurance contract law. Providing you with an exhaustive guide to insurance contract law, this book includes: coverage of all non-marine insurance contracts from proposal to expiry stage; detailed notes that you can cite in court; and full coverage of the UK, plus other major common law jurisdictions.

Foundations of American Constitutionalism

Abstract: David Richards here argues the position that understanding the intent of the Founders is essential to the legal interpretation of the United States Constitution. To this extent he makes common cause with conservative constitutional theorists, but he arrives at conclusions that differ radically from theirs. Indeed, his stated project here is to `reclaim' the Founders intent on behalf of the liberal humanist tradition they embodied. Richards examines the role of the Founders' understanding of history, philosophy, political theory, and political science in the evolution of their constitutional design. In his reconstruction, the Constitution emerges as a brilliant expression of European humanist and critical thought, shaped by such influences as the political ideas of Machiavelli, Harrington, Montesquieu, and Hume, the Lockean theory of legitimate government, and the common law model of interpretive practice. Armed with this new understanding of the Founders' intent, Richards is able to fully develop the methodology of constitutional interpretation sketched in his earlier book, TOLERATION AND THE CONSTITUTION (OUP 1986), and uses it effectively to defend a liberal reading of constitutional guarantees of individual rights.

Socialist Law and the Civil Law Tradition

Abstract: Revolutions leading to socialist legal systems occurred in countries of the civil law tradition, not in common law countries.' Eastern Europe had been controlled by Germany, Austria-Hungary, and Russia, all of which were civil law countries.2 China had in the early twentieth century incorporated elements of civil law as an overlay on its Confucian base. Vietnam used French law from the late nineteenth century.3 Cuba had a legal system established by Spain. After socialist revolutions, significant changes were made in the legal systems of these countries. Just how significant these changes have been is a matter of controversy. Many Western and socialistcountry comparatists argue that sufficient innovations have been introduced to constitute socialist law a separate family of law. Other comparatists reject this separationist thesis but have not systematically scrutinized the separationists' arguments.4 This article examines those arguments, taking particular account of developments of the late 1980s in socialist law. The issue of the proper classification of socialist law, it will be suggested, is of more than academic interest. Improper classification yields misunderstanding about the role and function of law in both socialist and non-socialist legal systems.

Rights, Autonomy and Process: Public Interest Litigation in India

Abstract: differences of culture, tradition and the like. This article will be concerned with one such problem, that of standing and public interest litigation as they have developed in the Indian Constitution. The topic will be of considerable interest to those who work within the normal Western legal tradition, precisely because India stands at a cultural and developmental crossroads. Her legal system has inherited much from the English, while the stage of her economic development renders more acute many of the socio-economic problems which can manifest themselves within public law litigation. India presents therefore a testing ground for the application of common law principles where the nature of the substantive problems to be solved will often be more acute than those normally faced within the West. How well such principles withstand this challenge is therefore of considerable interest. The ensuing analysis will be divided into three parts. We will begin with a brief discussion of the relevant provisions of the Indian Constitution. This will be followed by consideration of the leading cases in the development of public interest litigation. In the final part of this article we will relate the judicial developments to the important recent work of Raz,1 and show how his ideas of rights, autonomy and collective goods assist in understanding themes within the case law.

The Delaware Courts, Poison Pills, and Shareholder Wealth

Abstract: The State of Delaware has sought and achieved national prominence in the competition for corporate charters. The remarkable success of Delaware's legal system in this competition is evident in the fact that over 50 percent of the firms listed on the New York and American stock exchanges are incorporated in the state despite it not being the center of their economic activity. Romano (1985; 1987a) argues that the key factors explaining Delaware's major share of reincorporations are its highly responsive state code and comprehensive body of case law deriving from its first-mover advantage. Further, Romano and, separately, Macey and Miller posit that the specificity of Delaware's legal system and its agents, together with the large amount of revenue it stands to lose, ensure that Delaware can offer a credible promise, not easily imitated by competitors, that its legal characteristics will be maintained. These factors predict that Delaware law and courts will exhibit judicial consistency and predictability, thus lowering the legal costs of complex business transactions and thereby attracting corporate charters (see also Herzel and Richman). The consistency of rulings and adherence to precedent in Delaware reduce

Compelled Medical Treatment of Pregnant Women

Abstract: To the Editor.— I wish to correct the statement that "the criminal law historically did not recognize the killing of an unborn fetus as a homicide unless it was born alive," contained in the article entitled "Compelled Medical Treatment of Pregnant Women." 1 The common law was summarized by Judge Boggs, with suitable citation of authority, in his didactic dissenting opinion in Allaire v St Luke's Hospital , 56 NE 638, 641 (Ill 1900), as follows: A child in ventre sa mere was regarded at the common law as in esse from the time of conception for the purpose of taking any estate, whether by descent or devise, or under the statute of distribution, if the infant was born alive after such a period of foetal existence that its continuance in life was or might be reasonably expected. 10 Am. & Eng. Enc. Law, 624; Co. Litt. 36. Blackstone, after declaring

Writing South African Legal History: A Prospectus

Abstract: This article outlines the approach to the writing of South African legal history being taken in a book in progress on the South African legal system between 1902 and 1929. It suggests that legalism has been an important part of the political culture of South Africa and that, therefore, an understanding of legal history is necessary to a comprehension of the South African state. It offers a critique of the liberal notion of the rule of law as a defence against state power, arguing that in the South African context ideological and legitimising explanations of law should be de-emphasised in favour of an approach which emphasises the instrumental nature of law in relation to state power. Elements of the existing legal and historical literature are briefly reviewed.The basic orientation is to consider the South African legal system as essentially a post-colonial British system rather than one of ‘Roman-Dutch law’. The study is divided into four parts. The first looks at the making of the state between 1902 and 1910 and considers the role and meaning of courts, law and police in the nature of the state being constructed. The second discusses ‘social control’. It considers the ideological development of criminology and thought about crime: the nature of ‘common law’ crime and criminal law in an era of intensified industrialisation; the development of statutory criminal control over blacks; and the evolution of the criminalising of political opposition. The third part considers the dual system of civil law. It discusses the development of Roman-Dutch law in relation to the legal profession; and outlines the development of the regime of commercial law, in relation to contemporary class and political forces. It also examines the parallel unfolding of the regime of black law governing the marital and proprietal relations of blacks, and embodied in the Native Administration Act of 1927. The final segment describes the growth of the statutory regime and its use in the re-structuring of the social order. It suggests that the core of South African legalism is to be found in the emergence of government through the modern statutory form with its huge delegated powers of legislating and its wide administrative discretions.