Showing papers on "Common law published in 1991"

Some Economics of Trade Secret Law

Abstract: Despite the practical importance of trade secrets to the business community, the law of trade secrets is a neglected orphan in economic analysis. This paper sketches an approach to the economics of trade secret law that connects it more closely both to other areas of intellectual property and to broader issues in the positive economic theory of the common law.

Law and the shaping of the American labor movement

Abstract: Preface Acknowledgments Introduction 1. Broad Contexts Recasting American "Exceptionalism" The State of Courts and Parties 2. Judicial Review in Labor's Political Culture Samuel Gompers and in Jacobs Hours Laws in Illinois Hours Laws in Colorado Pressed toward a Minimalist Politics 3. Government by Injunction The Origins and Dimensions of Government by Injunction The Origins of Governmentby Injunction in Railway Strikes The Rise and Repression of City-Wide Boycotts 4. Semi-Outlawry The Usurpation of Local Polities Courts and the Uses of Police, Guards and Troops Labor's Resort to Injunctions 5. The Language of the Law and the Remaking of Labor's Rights Consciousness "Labor's Whole Gospel Is Liberty of Contract" Labor's Constitution A Great Popular Defiance Anti-Injunction Laws before Norris-LaGuardia The Norris-LaGuardia Act Conclusion Appendix A: Labor Legislation in the Courts, 1885-1930 Appendix B: Approximating the Numbers of Labor Injunctions and Their Relation to Other Strike Statistics, 1880-1930 Appendix C: Judicial Treatment of Statutes Seeking to Protect Union Organizing and Action by Revising Equity and Common Law Doctrine Index

International Environmental Law

Abstract: The third edition of this major legal guide has been thoroughly revised and updated to cover recent events and important emerging issues. Additional material includes analysis of and commentary on the World Summit on Sustainable Development, ecosystem management, compliance and dispute settlement, armed conflict, and developments in the relationship of trade and the environment. Highlights include: - Concept and Scope of the "Environment" and "Environmental Law" -The Necessity of International Law - Foundations of International Environmental Law - Origin and Evolution of International Environmental Law - Sources of International Environmental Law - Institutions and Civil Society - International Common Law and Principles - Implementing International Environmental Law - Compliance and Dispute Settlement - Protection of Living Organisms - Fresh Waters -The Marine Environment -Atmosphere, Stratosphere and Climate -Regulating Threats to the Environment Published under the Transnational Publishers imprint.

Transnational Public Law Litigation

Abstract: Several years ago, I called attention to the burgeoning of \"transnational public law litigation\": suits brought in United States courts by individual and governmental litigants challenging violations of international law.' As recent examples of this phenomenon, I included international human rights suits brought by aliens against foreign and United States governments and officials under the Alien Tort Statute,2 as well as actions by foreign governments against individual, American government, and corporate defendants. 3

Scales of Justice: Defense Counsel and the English Criminal Trial in the Eighteenth and Nineteenth Centuries

Abstract: My subject is the story of the entry of lawyers into the English criminal courts and their impact on trial procedure. Until the eighteenth century lawyers played little part in the trial of felonies in England—in the trial, that is, of those accused of the most serious offenses, including murder, rape, arson, robbery, and virtually all forms of theft. Indeed, the defendants in such cases were prohibited at common law from engaging lawyers to act for them in court. In the case of less-serious crimes—misdemeanors—defendants were allowed counsel; and those accused of high treason, the most serious offense of all, were granted the right to make their defense by counsel in 1696. But not in felony. Accused felons might seek a lawyer's advice on points of law, but if they wanted to question the prosecution evidence or to put forward a defense, they had to do that on their own behalf. The victim of a felony (who most often acted as the prosecutor in a system that depended fundamentally on private prosecution) was free to hire a lawyer to manage the presentation of his or her case. But in fact few did so. The judges were generally the only participants in felony trials with professional training. They dominated the courtroom and orchestrated the brief confrontation between the victim and the accused that was at the heart of the trial.

Copinger and Skone James on Copyright

Abstract: This new edition incorporates the Copyright, Designs and Patents Act 1988 as well as a plethora of Orders in Council that come in its wake. New chapters have been added on moral rights, performers' and recording rights and design rights and the book also includes case law generated since the last edition. While the law of copyright becomes increasingly complex, the emphasis of the work remains one of penetrative clarity. To this end the text is paragraphed and cross referenced. The work confronts the practical problems that will face the copyright lawyer in the 1990s, but also retains its scholarly approach, commencing with a narrative review of copyright law. The work deals with international copyright, EEC community law, related forms of protection including breach of confidence, passing off and malicious falsehood, income tax and associated subjects and American copyright law. The appendices include relevant parts of the 1988 Act, as well as the 1911 and 1956 Copyright Acts with comparative tables, UK orders, US legislation and materials and relevant parts of the Treaty of Rome.

The Limitations of Legal Institutions for Addressing Environmental Risks

Abstract: Deterring environmental degradation and compensating victims of environmental harms are among the most important and difficult problems facing modern industrial societies. The choice of regulatory institutions to control environmental risks—whether courts, administrative agencies, markets or some combination—significantly determines the achievement of these objectives. For a variety of historical and political reasons, the United States relies heavily upon courts, through traditional decentralized adjudication, to assign responsibility for environmental harms. The common law tort system remains, with the exception of job-related injuries, a principal means of compensating victims of environmental pollution. In addition, the federal Superfund legislation uses the court system to assign liability for the clean-up of dangerous hazardous waste sites. When viewed through the micro lens and simplifying assumptions of traditional law and economics, court adjudication appears to address both the incentives—efficient deterrence of environmental degradation—and compensation objectives. By identifying the cause of environmental harms, assessing the behavior of the actors responsible for such harms, and quantifying the harm to plaintiffs, individual assignment of liability through courts, in theory, provides compensation to victims while internalizing the social costs of harmproducing activities (Calabresi, 1970; Landes and Posner, 1987; Shavell, 1987). When viewed from a macro perspective with a richer appreciation of the limitations of legal institutions (relative to other regulatory institutions), however, the desirability of relying upon case-by-case adjudication as a principal

Information and the Scope of Liability for Breach of Contract: The Rule of Hadley V. Baxendale

Abstract: According to the contract law principle established in the famous nineteenth century English case of Hadley v. Baxendale, and followed ever since in the common law world, liability for a breach of contract is limited to losses "arising ... according to the usual course of things," or that may be reasonably supposed "to have been in the contemplation of both parties, at the time they made the contract, ..." Using a formal model, we attempt in this paper to analyze systematically the effects and the efficiency of this limitation on contract damages. We study two alternative rules: the limited liability rule of Hadley, and an unlimited liability rule. Our analysis focuses on the effects of the alternative rules on two types of decisions: buyers' decisions about communicating their valuations of performance to sellers; and sellers' decisions about their level of precautions to reduce the likelihood of nonperformance. We identify the efficient behavior of buyers and sellers. We then compare this efficient behavior with the decisions that buyers and sellers in fact make under the limited and unlimited liability rules. This analysis enables us to provide a full characterization of the conditions under which each of the rules induces, or fails to induce, efficient behavior, as well as the conditions under which each of the rules is superior to the other.

The Patient Self-Determination Act: On Balance, More Help Than Hindrance

Abstract: The Patient Self-Determination Act (hereafter, the Act), which takes effect on December 1,1991, creates no new rights for patients or for citizens generally. The law requires Medicare/Medicaid-receiving health care providers to inform patients of their existing rights under state law to refuse treatment and prepare advance directives. By doing so, it merely affirms principles that have their roots in both common law and constitutional law dating back to the late 19th century. ("[N]o right is held more sacred, or is more carefully guarded, by the common law, than the right of every individual to the possession and control of his person, free from all restraint or interference of others, unless by clear and unquestionable authority of law." 1 ) Legal and ethical principles that govern decision making about medical treatment, familiar to most clinicians as the doctrine of informed consent, have played a significant role in clinical decision making for decades

The common law and English jurisprudence, 1760-1850

Abstract: In this book, Michael Lobban argues that a proper understanding of English law and jurisprudence in the period is needed to clarify the nature of common-law practice and the way in which it was envisaged by its practitioners. He questions some commonly-accepted views of the nature of the common law itself and argues that attempts - notably those by Blackstone and Bentham - to expound or to criticize common law in essentially theoretical terms were mistaken. His approach is not a philosophically-based one, but he is concerned with the evolution and spread of judicial ideas which were grounded upon the work of moral and political philosophers, and makes a valuable corrective contribution to our historical understanding of a critically important period in legal history

Information and the Scope of Liability for Breach of Contract: The Rule of Hadley v. Baxendale

Abstract: According to the contract law principle established in the famous nineteenth century English case of Hadley v. Baxendale, and followed ever since in the common law world, liability for a breach of contract is limited to losses "arising ... according to the usual course of things," or that may be reasonably supposed "to have been in the contemplation of both parties, at the time they made the contract, ..." Using a formal model, we attempt in this paper to analyze systematically the effects and the efficiency of this limitation on contract damages. We study two alternative rules: the limited liability rule of Hadley, and an unlimited liability rule. Our analysis focuses on the effects of the alternative rules on two types of decisions: buyers' decisions about communicating their valuations of performance to sellers; and sellers' decisions about their level of precautions to reduce the likelihood of nonperformance. We identify the efficient behavior of buyers and sellers. We then compare this efficient behavior with the decisions that buyers and sellers in fact make under the limited and unlimited liability rules. This analysis enables us to provide a full characterization of the conditions under which each of the rules induces, or fails to induce, efficient behavior, as well as the conditions under which each of the rules is superior to the other.

A Law of the Future or A Law of the Past? Modern Tribunals and the International Law of Expropriation

Abstract: One precedent creates another. They soon accumulate and constitute law. What yesterday was fact, today is doctrine. Junius† Less than twenty years ago, a large majority of the United Nations General Assembly declared the customary international law of expropriation dead. Eighty-six governments supported a resolution holding that a state expropriating foreign property “is entitled to determine the amount of possible compensation and the mode of payment, and … any disputes which might arise should be settled in accordance with the national legislation of [that] State.” Scholars cited this and other General Assembly resolutions as evidence that international law no longer required full compensation for the expropriation of foreign property. This view had sufficient support to precipitate an acrimonious dispute in the preparation of the Restatement (Third) of the Foreign Relations Law of the United States, which reaffirmed only in its later drafts the traditional “Hull formula.”

Inventing Market Property: The Land Courts of Papua New Guinea

Abstract: This article reports field research on Papua New Guinea's land courts, which decide property disputes in customary law. Customary law did not contemplate exchange of real property outside the kin group. Changing conditions have created an irresistible pressure for markets in land, which require extending law to encompass exchange with outsiders. The freehold solution is to give absolute, unitary ownership over land to individuals and end the kin group's role in resource allocation. Alternatively, the kin group can be reconstituted as a cooperative with ownership rights. If imposed by legislative fiat, either of these solutions will disrupt the customary economy by displacing its incentive system. A better solution allows custom to evolve and modernize itself through the common law process.

The Character and Influence of the Roman Civil Law: Historical Essays

Abstract: Goethe is said to have likened the Roman civil law to a duck: sometimes it is visible, swimming prominently on the surface of the water, at other times it is hidden, diving amid the depths. but it is always there. This may be said to be true not only in continental Europe and Scotland, where Roman law has been a dominant influence, but also in England and the U.S.A., where Roman law has often informed and supplemented Common law. None of the great writers on Common law, with the exception perhaps of Coke, failed to take Roman law in to consideration, especially on the matters of legal theory. Indeed the differences between the two systems can easily be exaggerated. Ne one is better qualified to write on these matters than Peter Stein; this collection of his articles covers both the nature and the tradition of Roman law and ranges from classical to modern times. The Character and Influence of the Roman Civil Law includes discussions of the ethos and principles of Roman law and of their transmission and transformation in medieval and modern times. Attention is drawn to the working of Roman law in San Marinom which retains the uncodified ius commune.Civil lawyers in England whose work is examined include Vacarius, Thomas Smith and Thomas Legge. Roman law in Scotland is looked at in depth, with special consideration for the natural law tradtition there. A piece on the origin of the four stage theory of social development, which grew out of that tradition and was adopted by Adam Smith, appears for the first time. Finally Professor Stein shows the attraction of Roman law to lawyers in the U.S.A. when they were trying to establish their own legal system following Independence.

Law and women's rights in early modern england

Abstract: (1991). LAW AND WOMEN'S RIGHTS IN EARLY MODERN ENGLAND. The Seventeenth Century: Vol. 6, No. 2, pp. 169-187.

England: ancient constitution and common law

Abstract: A new history centring on law and government, pervasive respect for common law, and an increasingly confident and aggressive House of Commons – this congruence of elements nourished in Stuart England the doctrine of an ancient constitution. The authors of the new history were usually common lawyers with scholarly interests, often referred to as legal antiquaries, who interpreted the historical past from the standpoint of their own day. Assuming the antiquity of Englishmen's rights and liberties and their constant assertion through the centuries, they ransacked historical records for the requisite evidence and interpreted their findings in light of common law. Their list of rights and liberties, composing in toto the ancient constitution, proved surprisingly protean, ranging from freedom of speech in parliament to its regular meetings and, after civil war directed political thought into new channels, even legal rights concerned with parliamentary representation and the role of the House of Commons in law making – subjects little scrutinised in the pre-1642 political world. Whether the human source of these rights and liberties was the king or community became a leading question in Stuart political thought. According to the Jacobean House of Commons, reasoning from common law, the rights and liberties of the commons of England, enjoyed from time immemorial, were an inheritance from their ancestors, a statement making the community their human source. James I's rejoinder expressed impatience with ‘anti-monarchical’ words about ancient liberties unless it were added that he and his ancestors had granted them; but the king pledged, of his own will, to respect privileges enjoyed by long custom and lawful precedent.

Marriage law and practice in the Sahel.

Abstract: The legal systems of Sahelian African countries combine customary law, Islamic law, French colonial law, and civil law introduced since independence in 1960. Utilizing a framework developed by the Faculty of Law, University of Dakar, Senegal, and the Development Law and Policy Program, Center for Population and Family Health, Columbia University, the Sahel Institute undertook a comprehensive study of the legal and social status of women in Burkina Faso, Mali, Niger, and Senegal. Since 1960, Burkina Faso, Mali, and Senegal have replaced French family law with national marriage codes. Niger has not yet adopted a family code; the laws on the family inherited from the French remain in force. The postindependence marriage codes have attempted to give young women more say in choosing a husband, to regulate the practice of bride price, and to limit the practice of polygyny. They have done this by integrating customary law and government-passed civil law. Mali, Niger, and Senegal have repealed provisions in their codes prohibiting the distribution of contraception, based on a 1920 French law. Although it has taken no formal legal action, Burkina Faso has adopted family planning policies that effectively nullify the 1920 law.

The Birth of European Law at the CrossRoads of Legal Traditions

Abstract: Legal developments in the United States and in the European Community have some common characteristics, but they also show wide divergencies. One of them is the extent to which legal integration has been helped, or thwarted, by the harmony or discord of the systems of law of the component states. When the thirteen American states made the United States of America, they had systems of law which, although developing independently, were all common law systems with a high degree of similarity. American lawyers relied on the same sources and on the same authorities: they quoted Bracton and Blackstone just as they would later quote Story and Kent-whether they were Bostonians, New Yorkers or Virginians. In the European Community, the legal systems of the Member States are not only quite dissimilar, but some of them have even given origin to legal traditions which belong to the great legal traditions of the world. That is certainly true for the English "common law" tradition, which influenced many English speaking countries, the United States included. However, comparable influence on a world-wide scale has been exercised by the French legal tradition. Two main elements distinguish it from the common law tradition. First, it is based on a rigid separation between private and criminal law on the one hand, and "public" or administrative law on the other; they form in reality two different systems of law, each of them with its own courts, its own concepts and its own commentators and learned authors.' Secondly, the French tradition favors a deductive method of reasoning: it in-

The ‘True and Fair View’ Debate: A Study in the Legal Regulation of Accounting

Abstract: The legal regulation of standards of professional competence is a matter fraught with difficulty. Few professions welcome attempts by lawyers to pass judgment on the competence of individual members of the profession in the performance of their duties. In most cases, though, there are recognisable professional standards,' and the task of the lawyers is no more than defining clearly what those standards are and then deciding whether they have been complied with in any given case. Consideration of the legal regulation of accounting presents two particular difficulties, which may help to explain why both the case law and the legal literature in this area are so scanty. The first is that relatively few lawyers have much understanding of the principles of accounting, whilst the second is that the accountants themselves have not succeeded in developing a satisfactory conceptual framework for the subject,2 so that the definition of professional standards and objectives against which to measure performance is made much more difficult. It must be recognised at the outset that this difficulty may well be very attractive to accountants and auditors, since one of its effects is to reduce their exposure to legal liability. If lawyers generally do not understand the practices of the profession, then the law can do little other than accept the expert evidence of members of the profession as to what is acceptable practice. Despite this, the task of preparing and auditing company accounts is subject to statutory regulation in the Companies Acts 1985 and 1989. This article looks at that scheme of regulation from the point of view of its central feature, the requirement of a 'true and fair view,' and considers the status of that requirement. A major reason for undertaking this examination at the present time lies in the belief that this area of the law is likely to become increasingly controversial in the future. The great 'merger boom' of the 1980s led to many contested takeovers, in which attention was often focused on the accounts of the target company.3 This in turn has caused the practices of accountants and auditors to come under closer scrutiny. The resulting dissatisfaction with the accountancy profession's attempts to regulate its own affairs culminated in the replacement of the Accounting Standards Committee by the Financial Reporting Council and its subsidiary organ the Accounting Standards Board pursuant to powers contained in the Companies Act 1989. This change, which is more fully considered below,4 may bring about a much greater legal involvement in the process of standard setting,5 though it will

Law Reform by Courts, Legislatures, and Commissions Following Empirical Research on Jury Instructions

Abstract: Empirical research demonstrates that jurors have difficulty understanding and following traditional instructions about the law. The social science literature recommends several procedural reforms, including giving important instructions at the start of the trial and providing jurors with written instructions. This article examines changes in the law following the p!ublication of this social science research, omrparing courts, legislatures and rule-making ornommisions. Analysis reveals that although all three institutions are dominated by lawyers, they have acted differently. Commisrsions have made substantial changes in the law consistent with the recommendations of social scientists, legislatures have made few changes, and courts have changed case law in the opposite direction, suggesting support for a theory of institutional context.

Propensity to Sue in England and the United States of America: Blaming and Claiming in Tort Cases

Abstract: The debate over the litigiousness of the American population has continued unabated in the last several years. On one side of the controversy are the observers, scholars, and policymakers who cite evidence of apparently ever increasing demands on the United States of America's civil justice system.' On the other side, writers cite historical,2 comparative,3 and other4 analyses indicating that use of the litigation alternative by Americans does not necessarily differ greatly either from past patterns (when the 'past' is extended back beyond the last fifty years) or from patterns of behaviour in other developed countries. In this article, I present a comparative analysis of one aspect of propensity to sue: compensation seeking in cases of injury. In the context of the debates over litigiousness, this is a key element. First, most of the litigiousness debate is focused on responses to physical injuries (for example, the tort liability insurance 'crisis'). Second, while the incidence of actual litigation is the result of a complex set of interactions, the decision to seek compensation is an individual level act; furthermore, few claims ever mature into litigation because most claimants and respondents arrive at an accommodation before formal court action is ever initiated. Because England is often cited as a contrast to the United States with regards to litigiousness, particularly in the tort context,5 England6 and the United States serve as my comparison cases. In the discussion that follows, I first summarize the conceptual framework guiding my analysis, briefly reviewing the empirical research on claiming behaviour in common law countries. I then compare the propensity of injury victims to claim through the tort system in the United States and England; I conclude that, while differences do exist, they may not be as large as is commonly supposed. I go on to argue that those differences cannot be explained entirely by legal and quasi-legal factors, but reflect fundamental cultural perspectives.

Premiums and Pre‐Acquisition Profits: The Legal and Accountancy Professions and Business Combinations

Abstract: 'Accounts are the one subject of which lawyers are supposed to know nothing.' In both statute and case law, this view has until quite recently been evidenced by a reluctance to set detailed rules for company accounts, and a willingness to leave matters of accounting to accountants and 'men of business.' Where accountants and men of business agree, such a laissez faire attitude is attractive to accountants; any profession seeks to establish its own domain of regulation. The problems start when accountants and men of business disagree. In these circumstances, accountants seeking to enforce their views may find the regulatory power of the accountancy profession weaker than they would wish. A stronger and more effective domain must be entered, that of law. But in appealing to law in order to enforce their views, accountants risk sacrificing autonomy. This inevitably creates tension, and the relationship of accounting and law can therefore be an uneasy one.' These regulatory tensions are explored here in an historical analysis of accounting for business combinations. The problems of accounting for business combinations are representative of those arising where accounting and law interface. These problems do not arise in a vacuum; they are the consequences of the interaction of accounting and law over several decades. In the first section, we outline the alternative methods of accounting for business combinations. We then examine the historical process whereby accounting for business combinations has come to be regulated. This historical examination is in three sections, divided by the major changes in the relevant statute law in the Companies Act (CA) 1948 and CA 1981. The final section of the article draws conclusions from the historical analysis.

Legal aspects of genetic information.

Abstract: The federally funded Human Genome Initiative will lead to the development of new capabilities to learn about an individual's genetic status. Legal issues are raised concerning patients' and other parties' access to that information. This article discusses the effect of existing statutes and case law on three pivotal questions: To what sort of information are people entitled? What control should people have over their genetic information? Do people have a right to refuse genetic information? The article emphasizes that the law protects a patient's right to obtain or refuse genetic information about oneself, as well as the right to control the dissemination of that information to others.

Judicial Process: Law, Courts, and Politics in the United States

Abstract: Courts, law and politics.Part One - Legal Foundations. Law and legal systems. Federal courts. State courts.Part Two - Principal Actors. Lawyers and legal representation. Judges. Part Three - Users. Mobilising the law : litigants, interest groups, and court cases.Part Four - Trial Courts. Trial courts : preliminary stages of criminal cases. Trial courts : bargaining and sentencing in criminal courts. Trial courts and the transformation of civil disputes. Trial courts disposition of civil cases. Trial. Part Five - Appellate Review. The appellate process. The supreme court: deciding what to decide. The supreme court: the justices and their decision. Epilogue: courts, controversy, and change.

The right to strike

Abstract: Table of cases Abbreviations Introduction Strikes and the Common Law Industrial action and the payment of wages Industrial action and unfair dismissal Unemployment benefit: the trade dispute disqualification Industrial action and social welfare The social welfare tribunal in Ireland Conclusion Appendix 1. A note on litigation arising out of the ambulance workers' dispute 1989-90 Appendix 2. Poor law guardians and the General Strike Bibliography Index