Topic
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.
Papers published on a yearly basis
Papers
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TL;DR: In this article, the authors argue that the analysts should be aware of the close and positive connection between restrictive land use policies on the one hand and a willingness to condemn parcels for private development on the other, and the inability to overcome local opposition with private development forces developers to get in essence, pre-acquisition approval through public condemnation.
Abstract: The aftermath of Kelo gives rise to urgent land use issues, both theoretical and historical On the former, I argue that the analysts should be aware of the close and positive connection between restrictive land use policies on the one hand and a willingness to condemn parcels for private development on the other The inability to overcome local opposition with private development forces developers to get in essence, pre-acquisition approval through public condemnation One way, therefore, to ease the pressure on public use is to retreat from aggressive land use regulation to a scheme that more closely approximates that of the common law rules on nuisance and restrictive covenants, which will be hard to achieve since local systems of voting give little weight to the interest of potential buyers who live outside the governance area Historically, this opportunity was lost when the United States Supreme Court in Berman v Parker distanced itself from the thoughtful decision of Judge Prettyman below in Schneider v District of Columbia, which sought to cabin in the ends for which the eminent domain power could be used, even if it gave too much deference to local governments on any means/ends connections
82 citations
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TL;DR: In this article, the authors explore the competing merits of these two rival hypotheses -law versus norms as instruments of social control - by comparing the private benefits of control in various countries to other benchmarks, such as rates of criminal victimization.
Abstract: Recent empirical work has found that the private benefits of control differ significantly depending upon the underlying legal system in which the firm is incorporated. In particular, common law systems appear to outperform French civil law systems, but are trumped in turn by Scandinavian civil law systems. This evidence could be read to support the "law matters" thesis first advanced by Professors LaPorta, Lopez-de-Silanes, Shleifer and Vishny, which finds that "common law" legal systems incorporate superior legal protections for minority shareholders and therefore have deeper capital markets and more dispersed ownership. But the apparent superiority of Scandinavian legal systems complicates, and possibly subverts, this analysis, both because Scandinavian legal systems are more "like" other civil legal systems than they are "like" common law legal systems and because Scandinavian law does not encourage private enforcement of law through class actions and similar devices. Hence, an alternative hypothesis suggests itself: social norms in Scandinavia may discourage predatory behavior by those in control of the firm. This paper explores the competing merits of these two rival hypothesis - law versus norms as instruments of social control - by comparing the private benefits of control in various countries to other benchmarks, such as rates of criminal victimization. Although it finds no universal pattern, some strong congruences are discernible within particular legal systems (i.e., Scandinavian crime rates are very low, as are the private benefits of control that controlling shareholders expropriate from Scandinavian firms). A revised hypothesis is thus suggested: crime rates and the private benefits of control are the lowest in countries having the highest level of social cohesion and the lowest level of recent social and political disruption. This explanation works well for countries with crime and high private benefits of control (e.g., Russia, Mexico, and Brazil), but less well for many common law countries (such as the U.S.) in which the private benefits are low, but crime is high. One implication of this comparison is that the impact of norms may be greatest when law is the weakest. This possibility may explain best why behavior within Scandinavian firms is different from that in French civil law firms, when both share relatively weak legal rights.
82 citations
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16 Jan 2014
TL;DR: The first treatment in English to provide a thorough examination of the legal duties falling under the principle of loyalty in EU public law is given in this paper, where the authors introduce a novel classification of the very diverse roles loyalty plays in the EU.
Abstract: The book offers the first treatment in English to provide a thorough examination of the legal duties falling under the principle of loyalty in EU public law. Despite its seemingly innocuous wording, in what is now Article 4 (3) TEU, the principle of sincere cooperation has had a significant impact in deepening the reach of EU law within the Member States. The principle has been central to the development of Union law since the 1960s, and is still being relied on by the European Court of Justice to often-controversial effect. Providing a thorough discussion of the principle of loyalty in EU law, this book introduces a novel classification of the very diverse roles loyalty plays in the EU. It distinguishes between the effects loyalty prescribes for interlocking the legal orders of the Member States with Union law (cohesion), its application in preventing and resolving conflicts between the Union and the Member States (cooperation), and the loyalty principle's role in the shaping of EU law (construction). It addresses important and yet unresolved questions pertaining to loyalty, such as its relation to the principles of solidarity, effectiveness, fidelity, pre-emption, the Union interest, institutional balance, and the unity of international representation. The book explains why the principle of loyalty has been neglected in the prevailing narratives about the constitutionalization of EU law, places it in its international context, examining how it has influenced EU law and the comparisons that can be drawn with national and international principles of law.
82 citations
01 Jan 1998
TL;DR: In this paper, economic analysis has produced a wealth of insights into common law principles and especially into the common law of tort.' Two distinct traditions have emerged within the economic approach to tort law.
Abstract: Within the last generation, economic analysis has produced a wealth of insights into common law principles and especially into the common law of tort.' Two distinct traditions have emerged within the economic approach to tort law. The normative tradition attempts to evaluate the economic desirability of liability rules with a view toward reforming them.2 In contrast, the positive tradition uses economic concepts to explain common law liability rules with a view toward gaining a better understanding of the rules themselves and of their social consequences.3 The hypothesis
82 citations
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TL;DR: For the last 100 years, which is to say since the publication of Holmes's The Common Law, most tort scholars have thought that tort doctrines were, and should be, based on utilitarian (or, more recently, economic) concepts as discussed by the authors.
Abstract: FOR the last 100 years, which is to say since the publication of Holmes's The Common Law,1 most tort scholars have thought that tort doctrines were, and should be, based on utilitarian (or, more recently, economic) concepts.2 This was the view of Holmes, of Ames, and of Terry; of the draftsmen of the first and second Restatement of Torts; and of the legal realists who thought the focus of tort law should be on loss spreading rather than on assessment of fault.3 It is also the view of economic
82 citations