Common law

About: Common law is a research topic. Over the lifetime, 30135 publications have been published within this topic receiving 280701 citations. The topic is also known as: judicial precedent & judge-made law.

Divorce Law in the United States: A Focus on Child Custody.

Abstract: The purpose of this article is to review issues of child custody decision making within the context of current divorce law in the United States. The review is divided into seven sections. In the introduction, the locus of custody standards within state law is noted, with a brief review of national and international influences. In section two, frequently used terms are defined to give clearer meaning to the discussion than follows. In sections three through seven, we reexamine four central issues in custody law identified by Mnookin (1975) and update each issue with recent literature. The rights and responsibilities of noncustodial parents, grandparents, and stepparents are briefly described within this discussion of central legal custody issues. We conclude by suggesting the need for intermediate decision rules to improve the use of the best interests of the child (BIOC) standard in child custody decision making. Before beginning, it is important to recognize what is not covered in this review. Laws addressing grounds and financial aspects of divorce (i.e., spousal support, property divisions, child support) are not covered in this article because they are reviewed in a recent article by Buehler (1995). Mediation is not addressed in any detail because the topic is covered by Emery in this special issue. Finally, other areas of custody law, such as juvenile court child-neglect law, are not addressed because the focus of at this article is on divorce law. STATES: THE LOCUS OF DIVORCE CUSTODY LAW Historically, most divorce law has been established through state statutes, and reviewed and tested through the appellate courts at the state level (Buehler, 1995; Fine & Fine, 1994). As a result, there is a fair amount of variability in laws from state to state. However, it is possible to examine national trends by using a wide lens and focusing on general patterns rather than unique state variations. During the process of identifying and elaborating these general patterns, we began to recognize a subtle shift in the locus of divorce custody decision making. Although the U.S. Congress has increased federal involvement in regulating the financial aspects of divorce decision making (e.g., the child support regulations entailed in the 1988 Family Support Act; Buehler, 1995; Elrod, 1994), national activity related to child custody regulation has been minimal. Instead, discussions of divorce-related child custody issues have focused on deregulation. Most states have stressed that parents should be encouraged to arrive at a custody decisions privately (as long as children are not in harm's way) and that, when disputes occur, they should be resolved on a case-by-case basis using the BIOC standard (see Appendix; Atkinson, 1984). This standard will be discussed in detail in the next section of the article, but it is important to note that the use of this standard allows for individualized decision making by the courts and considerable discretion by judges (Mnookin, Maccoby, Albiston, & Depner, 1990). Additional evidence of the trend toward n privatizing custody decision making is the increased interest in moving the process from the courtroom to the mediation office (Emery & Wyer, 1987). Mediation is being considered by many as a viable alternative forum for custody decision making (Emery, 1994), and may replace some of the states' active involvement in the future. Before considering legal trends in state divorce custody decision making, several federal and international actions need mention. First, federal courts typically do not claim jurisdiction over matters of divorce, alimony, or child custody (Elrod, 1994; Federal Procedure, 1:286, 1981). Implications of this limitation are that custody decisions are not appealed to the U.S. Supreme Court, and general national trends are discernible primarily at the state level of appeal through an examination of case law. Second, in 1970, the National Conference of Commissioners on Uniform State Laws adopted the Uniform Marriage and Divorce Act (UMDA; Editors of The Family Law Reporter, 1974). …

The Oxford handbook of international trade law

Abstract: INTRODUCTION PART I: THE ECONOMIC AND INSTITUTIONAL CONTEXT OF THE WORLD TRADING SYSTEM PART II: SUBSTANTIVE LAW PART III: SETTLEMENT OF DISPUTES PART IV: TRADE AND EL THE NEW AGENDA AND LINKAGE ISSUES PART V: THE WIDER FRAMEWORK CONCLUSION

The Sovereignty of Law: Freedom, Constitution and Common Law

Abstract: Introduction 1: Constitution and Constitutionalism 2: Constitutional Convention: Practice and Principle 3: The Rule of Law: Freedom, Law and Justice 4: Parliamentary Sovereignty: Authority and Autonomy 5: Legislative Supremacy and the Rule of Law 6: Constitutional Foundations of Judicial Review 7: Judicial Review and Judicial Restraint 8: Democracy, Fundamental Rights and Common Law Appendix: Public Law and Political Theory

Law, Finance, and Politics: The Case of India

Abstract: The process of liberalization of India's economy since 1991 has brought with it considerable development both of its financial markets and the legal institutions which support these. An influential body of recent economic work asserts that a country's 'legal origin' - as a civilian or common law jurisdiction - plays an important part in determining the development of its investor protection regulations, and consequently its financial development. An alternative theory claims that the determinants of investor protection are political, rather than legal. We use the case of India to test these theories. We find little support for the idea that India's legal heritage as a common law country has been influential in speeding the path of regulatory reforms and financial development. There is a complementarity between (i) India's relative success in services and software, (ii) the relative strength of its financial markets for outside equity, as opposed to outside debt, and (iii) the relative success of stock market regulation, as opposed to reforms of creditor rights. We conclude that political explanations have more traction in explaining the case of India than do theories based on 'legal origins'.

Outside director liability across countries

Abstract: Settlements reached in 2005 in securities litigation involving Enron and WorldCom highlighted the financial risks faced by outside directors of public companies We argue elsewhere that Enron and WorldCom, as instances where directors made damages payments out of their own pockets, are and likely will remain exceptional in the United States1 In this paper, we show that the risk of out-of-pocket payment is likewise very low on a cross-border basis, in both common law and civil law countries The largest source of risk is efforts by government agencies to make an example of particular directors, even when the cost of doing so likely exceeds the financial recovery We study Britain and Germany in depth and offer summaries of the position in Australia, Canada, France, and Japan We find that while specific laws quite often differ, there is substantial functional convergence In each country we analyze, due to a combination of substantive law, procedural rules, and market forces, the out-of-pocket liability risk faced by outside directors of public companies is similar-present but very small We draw upon our cross-border analysis to assess the legal risks outside directors can expect to face going forward, both in the United States and elsewhere We also briefly consider whether the current approach reflects sensible public policy I Introduction Around the world, vigilant outside directors are a key component of most prescriptions for good corporate governance But what makes outside directors work hard and pay attention? One potential source of incentives is legal liability This possibility is highly topical "The press went into overdrive"2 as it covered a trial in which the Delaware Chancery Court held in a 2005 ruling that the directors of Walt Disney Company had not breached their fiduciary duties to the company when hiring and dismissing a senior executive3 Similarly, in 2005, when highly publicized out-of-court settlements were announced under which former outside directors of WorldCom and Enron agreed to pay a total of nearly $40 million out of their own pockets to settle class action securities lawsuits, the media heralded these settlements as signaling an era of both greater director risk and increased boardroom vigilance4 Theoretically, legal liability can help to motivate those serving in the boardroom to be attentive since they will fear adverse financial consequences if they fail to perform up to legal standards In fact, across countries, laws governing outside directors of public companies often lack financial "bite" Outside the United States, most would assume that America is an exception to this pattern A standard refrain is that directors in the United States operate in a hostile legal climate and that directors of foreign companies whose shares trade on US stock markets face grave liability risks5 This received wisdom is erroneous Outside directors of US public companies indeed face a much higher risk of being sued than their counterparts in other countries These suits, however, pose little risk of an out-of-pocket payment, particularly if a company buys directors and officers' liability (D&O) insurance sufficient to cover legal expenses and a decent damages payment As we document in a paper analyzing outside director liability in the US, the payments in Enron and WorldCom were a major departure from the norm6 But what about elsewhere? What legal risks do outside directors of non-US public companies face? Do they have less to fear than their US counterparts? Or more? This Article addresses these questions and related issues In so doing, we also offer a unique perspective on outside director liability in the US by using non-US experience to identify circumstances under which American directors might in the future face a significant risk of making personal payments Our cross-border study covers six countries We examine outside director liability in the United Kingdom (U …