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.

The Economic Basis of Damages for Breach of Contract

Abstract: IN many respects, the common law of contract failed to survive the industrial revolution. It is now applied only in the interstices among specialized statutory and judge-made rules dealing with specific contract types.' And business now often prefers informal understandings to formal contracts.2 Perhaps the decline is the result of increases in the variousness of commercial transactions or in the costs and delays of judicial procedure. Nonetheless one is tempted first to examine the body of law itself. If that law has become ambiguous or economically irrational it must accept some of the blame for its own demise.

A common law of international adjudication

Abstract: Table of Cases Table of International Instruments List of Abbreviations Introduction 1. The Emergence of a Common Law of International Adjudication against a Background of Proliferation and Fragmentation 2. Methods used by International Courts and Tribunals to Engage in Cross-Fertilization 3. Aspects of Evidence in International Adjudication 4. Power of International Courts to Grant Provisional Measures 5. Power of International Courts to Interpret and Revise Judgments and Awards 6. Remedies in International Adjudication 7. A Common Law of International Adjudication: Reasons and Limitations Conclusion Bibliography Index

Determinants of Child Custody Arrangements at Divorce.

Abstract: Among the most difficult decisions made at divorce are those concerning child custody. Emotional attachments, fairness, and the economic consequences for children and parents are among the issues involved in arriving at a custody disposition. Given the difficulty of these issues, as well as the significant transformations in divorce law related to custody that took place in the 1970s and 1980s, it is not surprising that substantial and often-heated policy debates concerning legal and de facto custody arrangements at divorce are common (cf. Chambers, 1979; Fineman & Opie, 1987). Yet knowledge remains quite limited regarding the conditions that are associated with mothers and fathers receiving custody of children at divorce (Maccoby & Mnookin, 1992, pp. 11-12). Indeed, with a few notable exceptions (Seltzer, 1990; Teachman & Polonko, 1990), we lack well-controlled studies of representative samples of divorces that analyze the determinants of custodial outcomes. Development of comprehensive models of custodial outcomes has lagged despite their importance for law, social science, and public policy. From a legal perspective, it is notable that during the 1970s and 1980s state statutory and case law regulating the disposition of child custody at divorce became increasingly gender neutral. The prior maternal preference standard for children of tender years" was replaced with a gender-neutral "child's best interests" standard. This change fostered debate over whether the apparently gender-neutral written law had actually resulted in a gender-neutral "living" law. Some feminist scholars argued that gender neutrality in the law had created a bargaining advantage for fathers because it removed the presumption of a maternal preference for young children (Fineman & Opie, 1987; Weitzman, 1985). Others, notably fathers' rights advocates, argued that, in spite of changes in the written law, the living law exercised by judges and lawyers still operated with a powerful maternal bias (Roman & Haddad, 1978). It is interesting that, in spite of these contradictory claims concerning the impact of law on custodial outcomes, mothers continue to be the sole physical custodians of most children after divorce even though some increases have been registered in the formation of father-custody households subsequent to divorce (Furstenberg & Cherlin, 1991). Given the persistence of traditional custodial patterns in the face of significant legal change, it is imperative that we develop models to better understand the conditions under which custody is awarded. From a social scientific perspective, custodial dispositions are important because the arrangements that parents settle on, or have settled upon them, reflect to a great extent their relative preferences, resources, and power. Custodial outcomes reveal much about how parents and the law assess the well-being of children and about the state of gender relations among parents (Seltzer, 1990, p. 251). By developing analyses of the conditions that influence custody awards to mothers versus fathers, we should gain insights into gender processes as they operate through divorce. From a public policy perspective, it is important to recognize that legislators and the courts are deeply concerned about the consequences of the legal divorce arrangements made for children. With whom the child lives is important because it is this person who provides the daily intimate interaction critical for the child's development. It is also largely through the primary dare provider(s) that the child has access to economic resources. Yet, if we do not understand the processes by which custody arrangements are made, the task of assessing the impact of custodial arrangements on children becomes an uncertain endeavor. With these considerations in mind, we present the results of a comprehensive model of child custody arrangements in final judgments of a census of divorce cases from a large and diverse Michigan county. …

A logical analysis of burdens of proof

Abstract: The legal concept of burden of proof is notoriously complex and ambiguous Various kinds of burdens of proof have been distinguished, such as the burden of persuasion, burden of production and tactical burden of proof, and these notions have been described by different scholars in different ways They have also been linked in various ways with notions like presumptions, standards of proof, and shifts and distributions of burdens of proof What adds to the complexity is that different legal systems describe and treat the burden of proof in different ways For instance, in common law jurisdictions the just-mentioned distinction between three kinds of burden of proof is explicitly made while in civil law systems it usually remains implicit

Who Believes in Human Rights?: Reflections on the European Convention

Abstract: Many people believe passionately in human rights. Others - Bentham, Marx, cultural relativists and some feminists amongst them - dismiss the concept of human rights as practically and conceptually inadequate. This book reviews these classical critiques and shows how their insights are reflected in the case law of the European Court of Human Rights. At one level an original, accessible and insightful legal commentary on the European Convention, this book is also a groundbreaking work of theory which challenges human rights orthodoxy. Its novel identification of four human rights schools proposes that we alternatively conceive of these rights as given (natural school), agreed upon (deliberative school), fought for (protest school) and talked about (discourse school). Which of these concepts we adopt is determined by particular ways in which we believe, or do not believe, in human rights.