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.

When Humans Become Migrants: Study of the European Court of Human Rights with an Inter-American Counterpoint

Abstract: This book examines the opposing ways in which the European Court of Human Rights and the Inter-American Court of Human Rights treat claims lodged by migrants. It combines legal, sociological, and historical analysis to show that the two courts were the product of different backgrounds, which led to differing attitudes to migrants in their founding texts, and that these differences were reinforced in their developing case law. The book assesses the case law of both courts in detail to argue that they approach migrant cases from fundamentally different perspectives. It asserts that the European Court of Human Rights treats migrants first as aliens, and then - but only in a second step of its reasoning - as human beings. By contrast, the Inter-American Court of Human Rights approaches migrants as human beings in the first instance.

The Dangers of Denial: The Need for a Clear-Eyed Understanding of the Power and Accountability Structure Established by the Delaware General Corporation Law

Abstract: There is now a tendency among those who believe that corporations should be more socially responsible to pretend that corporate directors do not have an obligation under Delaware corporate law to make stockholder welfare the sole end of corporate governance within the limits of their legal discretion. These advocates of corporate social responsibility contend that Delaware directors may subordinate stockholder welfare to other interests, such as those of the company’s workers or society generally. That is, they do not argue simply that directors may choose to forsake a higher short-term profit if they believe that course of action will best advance the interests of stockholders in the long run, they argue that directors have no legal obligation to make – within the constraints of positive law – the promotion of stockholder welfare their end. But, the problem with that argument is that it is inconsistent with both judge-made common law of corporations in Delaware and the design of the Delaware General Corporation Law (“DGCL”).More important, pretending that the nation’s leading corporate law is fundamentally different than it is runs contrary to the goal of ensuring that for-profit corporations behave lawfully, responsibly, and ethically. Lecturing others to do the right thing without acknowledging the rules that apply to their behavior and the power dynamics to which they are subject is not a responsible path to social progress. Rather, it provides an excuse to avoid tougher policy challenges, such as advocating for stronger externality regulation and encouraging institutional investors to exercise their power as stockholders responsibly. Those challenges must be confronted if we are to ensure that for-profit corporations are vehicles for responsible, sustainable, long-term wealth creation.

Fractional Freedoms: Slavery, Legal Activism and Ecclesiastical Courts in Colonial Lima, 1593-1689

Abstract: This article examines the ways in which enslaved litigants engaged with the ecclesiastical courts in 17th century colonial Lima. The article analyzes a sample of the types of litigation instigated by Peruvian slaves to assert their conjugal rights, to effect transfers of ownership, and to enforce oral promises of manumission. It also deals with complaints of domestic violence, abandonment, destitution, and infidelity brought by enslaved women. The article uses accusations of concubinage and adultery, and “crimes against public morality” to explore the role of church courts in policing the boundaries of inter-ethnic relationships. This article should interest scholars of slavery working at the intersections of race, gender, and sexuality, particularly with regard to distinctions between the civil and common law systems of slavery. It should also interest historians of comparative family law and the canon law’s treatment of marriage, illegitimacy and concubinage. How does a comparative perspective add to our understanding of the way that sexuality, race and gender influence family law, and vice versa? How does recourse to the court either influence hegemonic norms of marriage or contest these? Finally, the article should also interest those using legal records as narratives to “write history from below” through the optics of legal anthropology and critical legal studies.

The Common Law Mind: Medieval and Early Modern Conceptions

Abstract: Scholars of comparative law and English legal history have traditionally distinguished the civil law's emphasis on legislation as the primary source of legal authority from the common law's emphasis on custom and on case law. In this text, the author finds little evidence to support this and other traditional understandings of English jurisprudence. Examining thousands of legal and judicial documents for references to the nature and authority of custom, case law, statutes, equity and reason, J.W. Tubbs depicts the tensions within and the evolution of English legal thought between the 12th and 17th centuries. Most lawyers, he concludes, never thought of all English law as customary in nature and never understood the common law to be a fundamental law, superior to statue. Instead, statute law was much more central to English jurisprudence than has usually been believed and it was always understood to be superior in authority to the common law and its role in statutory interpretation.