Showing papers on "Common law published in 1990"

Getting Justice and Getting Even: Legal Consciousness among Working-Class Americans

Abstract: Ordinary Americans often bring family and neighborhood problems to court, seeking justice or revenge. The litigants in these local squabbles encounter law at its boundaries in the corridors of busy city courthouses, in the offices of court clerks, and in the church parlors used by mediation programs. "Getting Justice and Getting Even" concerns the legal consciousness of working class Americans and their experiences with court and mediation. Following cases into and through the courts, Sally Engle Merry provides an ethnographic study of local law and of the people who use it in a New England city. The litigants, primarily white, native-born, and working class, go to court because as part of mainstream America they feel entitled to use its legal system. Although neither powerful nor highly educated, they expect the law's support when they face intolerable infringements of their rights, privacy, and safety. Yet as personal problems enter the legal system and move through mediation sessions, clerk's hearings, and prosecutor's conferences, the citizen plaintiff rapidly loses control of the process. Court officials and mediators interpret and characterize the meaning of these experiences, reframing and categorizing them in different discourses. Some plaintiffs yield to these interpretations, but others resist, struggling to assert their own version of the problem. Ultimately, Merry exposes the paradox of legal entitlement. While going to court allows an individual to dominate domestic relationships, the litigant must increasingly yield control of the situation to the court that supplies that power.

Law and Society in Modern India

Abstract: Introduction Uses of law in Indian studies: The uses of law in Indian studies The emergence of the modern legal system: The displacement of traditional law in modern India The aborted restoration of indigenous law in India Panchayat justice: An Indian experiment in legal access - with Upendra Baxi Indian law as an indigenous conceptual system Legal conceptions of the social structure: Group membership and group preferences in India Changing legal conceptions of caste Pursuing equality in the land of hierarchy: Pursuing equality in the land of hierarchy: Assessment of India's policies of compensatory discrimination for historically disadvantaged groups Missed opportunitites: The use and non-use of law favourable to untouchables and other specially vulnerable groups Judges, Lawyers and social reform: Hinduism, secularism and the Indian judiciary Symbolic activism: Judicial encounter with the contours of India's compensatory discrimination policy New patterns of legal services in India

Languages of Law: From Logics of Memory to Nomadic Masks

Abstract: Preface Acknowledgements 1. Introduction Part I. Memory, Precedent and Writing Systems of Law: 2. A short history of failure: law and criticism 1580-1620 3. The Eucharist and English law: a genealogy of legal presence in the common law tradition 4. Legal writing systems: rhetoric, grammatology and the linguistic injuries of law 5. Contractions: a linguistic philosophy of the postal rule Part II. Language, Image, Sign and Common Law: 6. Modalities of legal annunciation: a linguistics of courtroom speech 7. The enchanted past: a semiotics of common law 8. Law's emotional body: image and aesthetic in the work of Pierre Legendre 9. Pro persona mori: to die for one's mask Bibliography Index.

Energy and Efficiency in the Realignment of Common-Law Water Rights

Abstract: THIS article is about two stories. The first is a theoretical story about the evolution of property rights generally. The second is a historical story about property rights specifically in water and particularly about the evolution of riparian law during the period of early Anglo-American industrialization. These two stories have been told separately a number of times, but they diverge substantially on several important matters. If they are told together, each needs to be modified in some interesting ways, and that is what this article will attempt to do.

Common law versus common practice: the use of marriage settlements in early modern England

Abstract: T wo varieties of marriage settlement are known to historians. The first and better known is strict settlement, thoroughly explored in the work of Habakkuk, Stone, Clay, Cooper, Bonfield, and Saville and English. The principal feature of strict settlement was the entailment of property upon the eldest son and his eldest son, reinforcing the practice of primogeniture and (according to some) engendering the phenomenon known as the 'rise of great estates' in the late seventeenth and eighteenth centuries. It is generally thought that these settlements were confined to the aristocracy, on the assumption that no one else had so keen an interest in the entail of property, or cash to pay the solicitor to write the conveyance.' Strict settlement has come to be regarded as synonymous with marriage settlements generally, serving to reinforce the idea of early modern England as an intensely patriarchal society in which women were largely victimized by the common law of marriage. In fact, while strict settlement was one type of marriage settlement, it was certainly not what most people meant by a marriage settlement. The other, and less commonly known, type of marriage settlement is the trust for a married woman's 'sole and separate estate', which preserved a woman's independent interest in specified property during her marriage. Separate estate was defensible only in equity, as opposed to common law, and formed the basis of legal reform in the late nineteenth century. For this reason, historians of the Victorian married women's property law reforms have focused on marriage settlements for separate estate. Two legal historians, Kenny and Lawrence, wrote shortly after the reforms; now, a century later, a political analysis has been contributed by Holcombe.2 Although the English practice of separate estate is generally thought to have originated in the late sixteenth century, the only detailed studies of the use of these trusts in the early modern period relate to colonial America.3 Both Victorianists and

Fundamental authority in late medieval English law

Abstract: Authority and consent - the populist thesis human law - the positivist thesis natural law - the superior moral law "Iustitia, rigor iuris" and "aequitas" judicial decisions and the authority of reason conscience in the common law mischief and inconvenience.

Ascription of Legal Responsibility to Groups in Complex Patterns of Economic Integration

Abstract: When am I responsible for the acts of another? As a general rule, never: I arn not responsible for the deeds of others and deeds that are not my own. Even though these others may be intimates rather than strangers members of my family, club, union, or community -the common law will not ascribe responsibility for their actions to me. The law constructs an atomistic conception of social relations, delimiting our legal responsibilities to our own acts and omissions, absolving us from blame for our brother's wrongs. This principle of personal responsibility sometimes appears to admit exceptions. Ownership or control of land may expand my responsibilities to include actions of others on my land, even trespassers and God.' Sometimes the common law imposes a duty to control others, such as a teacher's duty to keep a toddler out of the road or a prison authority's duty to keep the prisoners incarcerated, and failure to perform this duty with care renders teacher and warder liable for the damage caused.2 And then again, I can be responsible for the actions of my chattels: my cows eating the neighbour's corn. Yet these do not count as proper exceptions to the principle of personal responsibility in the homocentric eyes of lawyers. My responsibility remains personal; my liability arises from an omission to act in breach of a personal duty, from a failure to control trespassers, to restrain the child, to douse the fire staxted by a celestial thunderbolt; only the measure of my liability depends upon the acts of others. And as for my cows, why, not even Puss counts as a person in (modern) law, so the issue of responsibility for the acts of others does not arise. But this simple picture described by the principle of personal responsibility must be coloured by one significant exception, which we may call the principle of group responsibility. Here we enter the realm of the firm: the organisation of productive relations. A group of individuals work together to produce commodities and services for sale in the market. Under the division of labour, each person's actions contribute towards a common goal. The team acts as one, though like any team, there are captains exercising authority and squabbles about the distribution of rewards. But in these circumstances of collaboration and economic integration, to hold each person responsible for only his own actions, as the principle of personal responsibility requires, makes little sense. The defective product is the product of the team, and though the defect may spring from one individual7s carelessness, either in design or execution, it should be the responsibility of the group to establish an organisation which prevents such defects. Accordingly, in the context of economic relations involving a division of labour and vertical integration of production, the common law frames legal responsibility in terms of the group. If e workers are business partners, en e law holds each partner responsible for the acts and omissions of the others. Similarly, one person, the owner of the means of production, often in a corporate form, will be identified as an employer and held responsible under the principles of vicarious liability for the actions of other workers, the employees, which cause harm to others. Instead of purely personal responsibility, the legal principle in the context of productive relations becomes one of the responsibility of the group, the capital unit, the business, or the firrn.

Roman Canon Law in Reformation England

Abstract: Preface List of abbreviations Table of statutes Table of cases 1. The medieval inheritance 2. The fortunes of ecclesiastical jurisdiction 3. Developments in law and legal practice 4. The literature of civilian practice 5. The civilians and English common law Appendices Index.

Natural Law and Legal Reasoning

Abstract: Legal reasoning is, broadly speaking, practical reasoning. Practical reasoning moves from reasons for action to choices guided by those reasons. A natural law theory is nothing other than a theory of good reasons for choice. The law seeks to provide sources of reasoning—statutes and statute-based rules, common law rules, and customs—capable of ranking alternative resolutions as or wrong, and thus better and worse. Lawyers' tools of trade—their ability to find and use the authoritative sources—are means in the service of a purpose sufficiently definite to constitute a technique, a mode of technical reasoning. Legal reasoning, indeed, is technical reasoning, at least in large part—not moral reasoning. Like all technical reasoning, it is concerned to achieve a particular purpose, a definite state of affairs which can be achieved by efficient disposition of means to end.

Law, science, and humanity: The normative foundation of social science in law.

Abstract: Opposition by the American Psychological Association and the American Psychology-Law Society to the nomination of Robert Bork to the Supreme Court would have been justified on normative grounds by the inconsistency of Bork's views with the values underlying the social science in law (SSL) movement. SSL and the Chicago school of law and economics share realist beliefs about the social and political foundations of judicial behavior and the desirability of systematic empirical study as a means of facilitating the administration of justice, but the normative assumptions of the two schools of thought differ. Whereas the Chicago school, with which Bork is identified, reveres wealth maximization. SSL is intended to promote the values fundamental to the Constitution (e.g., respect for human dignity) and reverence for the law as an institution that reifies our sense of community.

Academic Freedom and the First Amendment in the Supreme Court of the United States: An Unhurried Historical Review

Abstract: This article seeks to trace the history of the AAUP's 1940 statement on academic freedom. Although the statement and the First Amendment have very different roots and practical applications, the two share a body of case law that often overlaps.

Continental Law and Common Law: Historical Strangers or Companions?

Abstract: Nineteen hundred and ninety-two is almost upon us. Students who follow the world of international finance will quickly recognize the significance, symbolic as well as real, of that date. It will bring further integration of European markets, including England's, and it will encourage the development of the means to make that integration effective and efficient. All sorts of projects that once would have seemed utopian or infernal are being proposed, and most of them seem likely to occur. Plans and work proceed. There will be a tunnel between Calais and Dover, and perhaps even a common unit of monetary exchange to facilitate trade. Before we know it, proposals that once would have startled will be realities. The world of law will be touched by these great events.' Already European courts have struck daggers aimed at venerable principles of English parliamentary sovereignty.2 The English Lord Chancellor has endorsed opening law practice in England to lawyers trained in the traditions of the civil law.3 Soon the temples of the common law may be

The Irish Remonstrance of 1317: An International Perspective 1

Abstract: The document commonly known as the ‘Remonstrance of the Irish princes’, which was sent to Pope John XXII in or about 1317, has inspired a great deal of written comment since the text first became generally available during the nineteenth century. It has been seen as an early statement and vindication of Irish national identity and political independence; it throws light on the application of the English common law in early fourteenth-century Ireland; it illustrates the relations between English and Irish monks and secular clergy within the Irish church; it demonstrates that in the early fourteenth century Pope Adrian IV’s bull Laudabiliter, in which he had urged Henry II of England to conquer Ireland, was regarded even by enemies of the English as a key element in the English monarchy’s claims to the lordship of Ireland; and its account of the English settlers in Ireland has been used to demonstrate a growing distinction between them and their cousins in England. In recent years the remonstrance has also been quarried for evidence on the application of the canon law of the just war, and for information on racial attitudes on the frontiers of medieval Europe.

Themes in International Research on the Nonprofit Sector

Abstract: This article outlines major characteristics of the nonprofit sector in civil law, common law, socialist countries, and developing countries. Largely based on an international directory of nonprofit sector research, the article introduces common and country-specific research themes on the nonprofit sector in a comparative perspective. The article concludes by delineating several implications for research in the areas of taxonomy, measurement, intersectoral relations, and comparative institutional history.

The Negative Constitution: A Critique

Abstract: In the conventional wisdom, the Constitution is a charter of negative liberties Governmental inaction is not actionable The due process clause grants no affirmative rights These phrases are meant to signal the end of discussion Yet when conclusory incantations permit harm to flourish unchecked, they ought to be scrutinized with care This article undertakes that scrutiny Part I describes the current approach, which demands adherence to the notion of a negative constitution Part II critiques the assumptions underlying the current approach and demonstrates its undesirable consequences in decisional law Part III explores the tenacious barriers to recognition of affirmative governmental duties: the constitutional, philosophical, and common law roots of the notion of a negative constitution, as well as the belief that recognizing affirmative duties would be an invitation to chaos Finally, Part IV proposes discarding the rhetoric of negative rights and suggests an approach for constructing a theory better designed to effectuate constitutional goals

A European litigation strategy : the case of the Equal Opportunities Commission

Abstract: [From the Introduction] The use of the European Court as a weapon in a litigation armoury has received relatively little attention both from litigators and commentators. This contrasts markedly with the United States where the courts, particularly the Supreme Court, have long been an important forum for interest groups. It may be that the European Court of Justice is only gradually developing something of the policy making function possessed by the United States Supreme Court but that, as presently constituted, it is not a particularly friendly environment for interest group representation (Harlow and Rawlings, 1992 279). However, it can be said that the EOC has pioneered the use of a European litigation strategy, taking advantage of the supremacy and direct effect of Community law. This strategy has involved references to the European Court of Justice, raising points of EC law in the national courts and, to a limited extent, lobbying the other institutions of the European Union. This chapter therefore considers the EOC's objects as a litigator and its litigation strategy in order to assess whether its courage, investment and persistence have been rewarded.

A History of the Anglo-American Common Law of Contract:

Abstract: Introduction Early Actions (1200-1400) Innovation for Informality (1400-1602) Consolidation of Change (1602-1689) Mercantile and Equitable Ideas Absorbed (1689-1789) American Colonies to Young Republic (1600s-1800) Elaboration Accommodates Entrepreneur (1800-1875) Modern Doctrinal Reformulation (1875 onward, I) Corporate State and the Underdog (1875 onward, II) Index

Academic Freedom and the First Amendment in the Supreme Court of the United States: An Unhurried Historical Review

Abstract: This article seeks to trace the history of the AAUP's 1940 statement on academic freedom. Although the statement and the First Amendment have very different roots and practical applications, the two share a body of case law that often overlaps.

The English Law of Sanctuary

Abstract: Although the protection of churches and holy places was embodied froman early date in Canon law, the law of sanctuary as it applied in England was necessarily part of the secular common law. The Church never had the physical power to resist the secular authorities in the administration of justice, and although those who violated sanctuary were liable to excommunication the Church could not in cases of conflict prevent the removal from sanctuary of someone to whom the privilege was not allowed by the law of the land. The control of the common law judges was, indeed, tighter than in the case of benefit of clergy. The question whether an accused person was or was not a clerk in Holy Orders was ultimately a question for the ordinary, however much pressure might be put upon him by the judges; but the question of sanctuary or no sanctuary was always a question for the royal courts to decide, upon the application of a person who claimed to have been wrongly arrested in a privileged place. The present summary is confined to the position under English law.

Lex Mercatoria: An Arbitrator's View

Abstract: in going through the surprisingly large literature on the topic of lex mercatoria and international arbitration, I was struck most by a comment by Mr. Justice Rogers of the Supreme Court of New South Wales. In discussing the debates surrounding the adoption of the UNCITRAL Model Arbitration Law,1 the judge refers to the ‘clash in philosophy … between the civil law countries and the United States, on the one hand, and the common law countries on the other …’2 I have for some time thought that in their attitude to litigation, the United States and France have more in common than the United States and England, or say, France and Germany;3 I had not thought that England's devotion to law and the former colonies' and dominions' devotion to the mother country's law were so passionate as to read the United States out of the common law world. In fact, the issue that Mr. Justice Rogers described as dividing the delegates to the UNCITRAL Conference was not precisely the issue on which we focus here, but it is closely related. The English view – notwithstanding its rather grudging, market-driven relaxation of review of arbitration in international cases4 — on the whole is founded on the belief in judicial supervision of the work of arbitrators, whereas the American and majority continental view, at least among the arbitration community, is that if parties to a contract have agreed to submit their disputes to arbitration, the decision of the arbitrators ought to be final, subject to challenge only for misconduct of the arbitrators or (possibly) excess of jurisdiction by the arbitral tribunal.5 The continental European and American view, if one can speak of it as such with the understanding that there is in fact a range of views,6 …

Anti-dumping and other trade protection laws of the EEC

Abstract: Here in a fully updated fourth edition is the definitive treatment of EC trade protection laws. Always comprehensive in its coverage, in its new edition the book provides incisive analysis and critical commentary on the numerous cases decided under the Anti-Dumping, Countervailing, Safeguard and Trade Barriers Regulations. It also discusses the implications of the new draft Regulation on unfair pricing practices in airline services. The emphasis throughout is on practical application of the rules. Van Bael & Bellis - recognized as first in Europe in the area of trade laws - leaves no stone unturned in its consideration of such issues and elements of the subject as the roles of the various Community Institutions, the EC legislative history, the European courts' case law and the WTO framework. An extensive array of tables and annexes at the back of the book leads the practitioner to all the essential primary source materials in the field. Lawyers and academics involved with trade matters will discover that Anti-Dumping and Other Trade Protection Laws of the EC is still without peer as a guide to EC trade protection laws.

The Negative Constitution: A Critique

Abstract: In the conventional wisdom, the Constitution is a charter of negative liberties. Governmental inaction is not actionable. The due process clause grants no affirmative rights. These phrases are meant to signal the end of discussion. Yet when conclusory incantations permit harm to flourish unchecked, they ought to be scrutinized with care. This article undertakes that scrutiny. Part I describes the current approach, which demands adherence to the notion of a negative constitution. Part II critiques the assumptions underlying the current approach and demonstrates its undesirable consequences in decisional law. Part III explores the tenacious barriers to recognition of affirmative governmental duties: the constitutional, philosophical, and common law roots of the notion of a negative constitution, as well as the belief that recognizing affirmative duties would be an invitation to chaos. Finally, Part IV proposes discarding the rhetoric of negative rights and suggests an approach for constructing a theory better designed to effectuate constitutional goals.

Consent and the Legal Regulation of Policing

Abstract: The Police and Criminal Evidence Act 1984 (PACE) provides a notable example of a trend in common law jurisdictions towards changing and controlling policing by using techniques of legal regulation. This involves extending (or formalizing), clarifying, and specifying police powers and suspects' rights by means of rules, including statutes, codes of practice, governmental circulars, and internal force orders. Their implementation is backed by record-keeping requirements, managerial supervision, and disciplinary sanctions. This article draws on research into the impact of PACE (and its codes of practice) on a police force in the north of England.' The relevant sections of PACE (which became operative in 1986) codified a wide range of police powers and suspects' rights. It is becoming clear from assessments of the initial effects of PACE that legal regulation has had a substantial, albeit variable, effect on policing in England and Wales.2 Legal regulation is a mode of accountability. It both facilitates and supplements judicial control, which in the past has generally been loose, as a result both of the discretionary breadth of much police law and of policy considerations.3 More specific rules and a political mandate to apply them has encouraged some judicial activity in this area.4 In England and Wales, legal regulation has been developed as part of an alternative to what is officially regarded as an outdated system of control by the local state. It takes its place in a new loose framework of accountability, constituted of various measures whose political origins and connections are diverse: there is, for example, the combination of budgetary/managerial reform and community liaison/crime prevention strategies. The specific origins of the move towards legal regulation

Random breath testing the Australian way: a model for the United States?

Abstract: Strategies that affect a young person's ability to hold a driver's license are among the most effective in preventing youths from drinking and driving. Several such strategies are examined.

Equality Theory, Marital Rape, and the Promise of the Fourteenth Amendment

Abstract: During the 1980s a handful of state judges either held or opined in dicta what must be incontrovertible to the feminist community, as well as to most progressive legal advocates and academics: the so-called marital rape exemption, whether statutory or common law in origin, constitutes a denial of a married woman's constitutional right to equal protection under the law. Indeed, a more obvious denial of equal protection is difficult to imagine: the marital rape exemption denies married women protection against violent crime solely on the basis of gender and marital status. What possibly could be less rational than a statute that criminalizes sexual assault, and punishes it severely, unless the victim and assailant are married? What could be more obvious than the plain fact, repeatedly documented, that these state laws are derived from a sorry history of discriminatory, misogynist, and hateful denials of a married woman's legal right to equal dignity and respect? Where could one possibly find a sharper example of a state law that explicitly insulates and protects a separate political system of subordination and violence against a group of citizens, and thereby denies those citizens protection of the laws given others? So why has not the Supreme Court held as much?The endurance of marital rape exemptions, despite their apparent unconstitutionality, partly results from the dominant understanding of the meaning of equality and constitutionally guaranteed equal protection. This paper proposes not so much a novel approach to marital rape exemption or to the fourteenth amendment, but rather a new direction of progressive and feminist-informed constitutional arguments. I will urge that we should direct our arguments away from a hypothetical judicial audience and toward a congressional audience. If the dominant understandings of equal protection truly are inadequate, and if judicially developed law has determined the content of those inadequate understandings, then "equal protection" might take on a very different and more helpful meaning if developed in a congressional, rather than a judicial, context. That very different meaning might highlight, rather than obfuscate, the unconstitutionality of the marital rape exemptions. Congress might respond more aggressively than the Court to the unconstitutionality of marital rape exemptions, not only because of the different political compositions of the Court and Congress, but also because equal protection as a political principle guiding Congress might carry a broader meaning than does equal protection as a.legal principle binding the Court.Part II of this essay discusses three contrasting understandings of the meaning of equal protection: the Supreme Court's dominant rationality approach; Professor MacKinnon's proposed dissident "anti-subordination" approach; and what I label the '"pure protection" understanding, which may be closest to the original meaning of the clause. Part III of this essay will then re-examine the constitutionality of marital rape exemptions in light of these competing views of the meaning of equal protection. The essay will posit that even if we accept the traditional, "rationality" model of equal protection, marital rape exemptions are unconstitutional. Part IV of this essay demonstrates that the dominant but inadequate rationality view of equality is largely a product of the adjudicative context in which that theory arose. Part V of this essay urges feminists, over the next decade, not only to continue to press the Court to rule against these laws on the basis of their irrationality, but also to urge Congress to respond to the mandate of section five of the fourteenth amendment by undertaking consideration of a "Married Women's Privacy Act." The purpose of the Act would be to guarantee all women the full protection of the states' laws against criminal assault.

The Early Development of the Privilege against Self-Incrimination

Abstract: In the modern world the privilege against self-incrimination is seen as one of the peculiarities of the common-law systems' and one which is under attack.2 Views of the origin of the privilege may affect views of its policy justification and proper scope: is it a matter of high constitutional importance, or an accidental by-product of struggles over other issues which has limited value in comparison to the problems it causes? Was it founded on objections to a particular variety of trial procedure, or on more general concerns about compulsory self-incrimination? The early history of the privilege may also have things to tell us about the 'mentalitd' of the seventeenth-century common lawyers,3 since it has traditionally been regarded as a sharp edge of conflict between common-law and civil-law ideologies. Two broad theses have been advanced about the origins of the privilege in the common law. J. H. Wigmore's classic account, following the approach outlined by Bentham, saw the privilege as creeping in 'by indirection' into the common law in the mid-seventeenth century in the wake of the fall of Star Chamber and High Commission, ie almost by accident.4 In contrast M. H. Maguires and more recently and fully L. W. Levy6 have argued that the principle underlying the privilege has much deeper roots in the system of criminal procedure established in the English common law in the middle ages. Though Wigmore saw the application of the privilege in the common law as a result of a confusion of ideas, while Levy saw it as originating in the common-law form of criminal procedure, both arguments identified the privilege as starting from the right of the accused to remain silent in criminal trials and being subsequently extended to witnesses and to allegations of crime in civil litigation.7

Trends in legislation and case law on child abuse and neglect

Abstract: The recognition of child abuse and neglect as a significant social problem in the United States is a relatively recent development. Although most states had passed specific child maltreatment laws by the early 1920s, it was not until publication of a 1962 article describing the “battered-child syndrome” (Kempe, Silverman, Steele, Droegenmuller, & Silverman, 1962) that legislators and health care professionals paid considerable attention to the problem of child abuse and neglect. Since then, there have been several waves of legislation and judicial activity that have been nearly universal in American jurisdictions but that seldom have had unequivocally positive effects.