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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.


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Journal ArticleDOI
TL;DR: In this article, the authors analyze the social potential of regional integration by using the example of European integration and identify two forms of integration that have different speeds, scopes, and potentials: political integration and judicial integration.
Abstract: This article analyzes the social potential of regional integration pro- cesses by using the example of European integration+ Recent case law from the European Court of Justice has led some observers to argue that judicial decisions increasingly provide European politics with a " Polanyian" drive+ We test this claim by distinguishing three dimensions to European economic and social integration: market-restricting integration, market-enforcing integration, and the creation of a European area of nondiscrimination+ We also identify two forms of integration that have different speeds, scopes, and potentials: political integration and judicial inte- gration+ The evidence shows that the EU has come closer to Hayek's vision of "inter- state federalism" than is usually warranted because market-enforcing integration and European nondiscrimination policies have asymmetrically profited from "integra- tion through law+" The opportunities for international courts to push ahead market- enforcing integration increase as the participants of regional integration processes become more diverse+ In such "Hayekian" constellations, individual rights are increas- ingly relocated to the central level, at the cost of subordinating the decentralized capacity for solidarity and interpersonal redistribution+ Above all, The Great Transformation tells of the conflict between the imper- atives of a capitalist world economy and the pursuit of social welfare within nation-states+ Polanyi's account of the 1920s and 1930s analyzes the incom- patibility of international capitalist arrangements with both democracy and the social reforms that had been won by the European working classes+

135 citations

Journal ArticleDOI
TL;DR: In this article, the authors analyse the dual roles of national courts and the impact of this duality on the comparative international law process in the context of comparative analysis of domestic court decisions.
Abstract: Academics, practitioners and international and national courts are increasingly seeking to identify and interpret international law by engaging in comparative analyses of various domestic court decisions. This emerging phenomenon, which I term ‘comparative international law’, loosely fuses international law (as a matter of substance) with comparative law (as a matter of process). However, this comparative process is seriously complicated by the ambiguous role that national court decisions play in the international law doctrine of sources, under which they provide evidence of the practice of the forum State as well as being a subsidiary means for determining international law. This article analyses these dual, and sometimes conflicting, roles of national courts and the impact of this duality on the comparative international law process.

133 citations

Book
01 Jan 1993
TL;DR: In this article, the authors discuss the need for a realist approach to the problem of contract enforcement in the Court of Federal Jurisprudence and the difficulty of realist legal reasoning.
Abstract: I. ANTECEDENTS The Common Law (1881) "The Origin and Scope of the American Doctrine of Constitutional Law" (1893) The Path of the Law (1897) Lochner v. New York (1905) (Holmes, J., dissenting) "Liberty of Contract" (1909) The Nature and Sources of the Law (1909) "Law in Books and Law in Action" (1910) "Some Fundamental Legal Conceptions as Applied in Judicial Reasoning" (1913) II. THE STRUGGLE OVER THE MEANING OF "REALISM" "A Realistic Jurisprudence-The Next Step" (1930) "The Call for Realist Jurisprudence" (1931) "Some Realism About Realism-Responding to Dean Pound" (1931) III. LAW AND THE MARKET "Offer and Acceptance, and Some of the Resulting Legal Relations" (1917) "The Standardizing of Contracts" (1917) "What Price Contract?-An Essay in Perspective" (1931) "The Reliance Interest in Contract Damages" (1936-1937) IV. THE CRITIQUE OF THE PUBLIC/PRIVATE DISTINCTION "Coercion and Distribution in a Supposedly Non-Coercive State" (1923) "Property and Sovereignty" (1927) "Law Making by Private Groups" (1937) M. Witmark & Sons v. Fred Fisher Music Co. (1942) (Frank, J., dissenting) V. LAW AND ORGANIZATIONAL SOCIETY Vegelahn V. Guntner (1896) " The Basis of Vicarious Liability" (1917) International News Service v. Associated Press (1918) "The Historic Background of Corporate Legal Personality" (1926) The Modern Corporation and Private Property (1932) The Administrative Process (1938) VI. LEGAL REASONING The Nature of the Judicial Process (1921) Pennsylvania Coal Company v. Mahon (1922) "Logical Method and Law" (1924) The Theory of Judicial Decision: Or How Judges Think" (1925) "A Return to Stare Decisis" (1928) "The Judgement Intuitive: The Function of the 'Hunch' in Judicial Decision" (1929) Law and the Modern Mind (1930) "Transcendental Nonsense and the Functional Approach" (1935) "Remarks on the Theory of Apellate Decision and the Rules or Canons About How Statutes Are to Be Construed" (1950) VII. LAW AS SOCIAL SCIENCE Brief Defendant in Error, Muller v. Oregon (1908) "Scientific Method and the Law" (1927) The Cheyenne Way (1941) "Law and Learning Theory: A Study in Legal Control" (1943) VIII. LEGAL EDUCATION AND LEGAL SCHOLARSHIP Summary of Studies in Legal Education (1929) "Institute Priests and Yale Observers-A Reply to Dean Goodrich" (1936) "Goodbye to Law Reviews" (1936) Notes Bibliography

132 citations

Journal ArticleDOI
TL;DR: The Federal Trade Commission (FTC) has become the broadest and most influential regulating force on information privacy in the United States, more so than nearly any privacy statute or any common law tort as discussed by the authors.
Abstract: One of the great ironies about information privacy law is that the primary regulation of privacy in the United States has barely been studied in a scholarly way. Since the late 1990s, the Federal Trade Commission (FTC) has been enforcing companies’ privacy policies through its authority to police unfair and deceptive trade practices. Despite over fifteen years of FTC enforcement, there is no meaningful body of judicial decisions to show for it. The cases have nearly all resulted in settlement agreements. Nevertheless, companies look to these agreements to guide their privacy practices. Thus, in practice, FTC privacy jurisprudence has become the broadest and most influential regulating force on information privacy in the United States — more so than nearly any privacy statute or any common law tort. In this Article, we contend that the FTC’s privacy jurisprudence is functionally equivalent to a body of common law, and we examine it as such. We explore how and why the FTC, and not contract law, came to dominate the enforcement of privacy policies. A common view of the FTC’s privacy jurisprudence is that it is thin, merely focusing on enforcing privacy promises. In contrast, a deeper look at the principles that emerge from FTC privacy “common law” demonstrates that the FTC’s privacy jurisprudence is quite thick. The FTC has codified certain norms and best practices and has developed some baseline privacy protections. Standards have become so specific they resemble rules. We contend that the foundations exist to develop this “common law” into a robust privacy regulatory regime, one that focuses on consumer expectations of privacy, extends far beyond privacy policies, and involves a full suite of substantive rules that exist independently from a company’s privacy representations.

131 citations


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Performance
Metrics
No. of papers in the topic in previous years
YearPapers
202358
2022195
2021460
2020774
2019920
2018981