American Common Law Research Articles

‘I didn't know it was you’: The impersonal grounds of relational normativity

AbstractA notable feature of our moral and legal practices is the recognition of privileges, powers, and entitlements belonging to a select group of individuals in virtue of their status as victims of wrongful conduct. A philosophical literature on relational normativity purports to account for this status in terms of such notions as interests, rights, and attitudes of disregard. This paper argues that such individualistic notions cannot account for prevailing and intuitive ways of demarcating the class of victims. The paper is focused on the wrongful infliction of harm, and centers on the mediating role played by impersonal “danger‐making properties” in the determination of the class of victims. The paper begins with an analysis of one of the most well‐ known discussions of negligently‐inflicted harm — from the most famous case of the American common law tradition, Palsgraf v. Long Island Railroad Co. — and the analysis is then extended to the morality of harm‐doing more broadly, negligent and intentional alike. The paper's chief targets are interest theories of rights — including contractualist theories of moral claim‐rights of the kind defended by R. Jay Wallace — and neo‐Strawsonian Quality of Will theories of “moral injury”.

From Causal Inferences to Predictive Analytics: Using AI to Settle on Damages

From the perspective of both plaintiffs and defendants, the measurement of damages quantum is of the utmost importance. It is surprising to see this process left entirely to the court’s discretion, as quantum is traditionally considered a question of fact. Quantifying damages presents significant challenges due to the subjective nature of court discretion, leading to uncertainty for both plaintiffs and defendants. This research addresses this issue by examining difficult-to-quantify contract damages through empirical and comparative methodologies. Based on prior studies on French civil law and American common law, this empirical study involved quantitative analysis of various contract cases. Methodological advancements, including Machine Learning (ML), and Natural Language Processing (NLP) techniques, facilitated automated extraction and analysis of key variables. With a focus on overcoming sample size limitations and enhancing accuracy, this study achieved a classification accuracy of over 85% for identified essential variables. The more recent integration of generative AI and Large Language Modeling marked significant progress in quantifying damages. I conclude with recommendations for sustainable management practices in this field.

Building a Western-Style Law Library in Shenzhen China: Peking University School of Transnational Law

As the library of the sole law school in the world that offers a dual degree in American common law (Juris Doctor) and a Chinese law degree (Juris Master), the Peking University School of Transnational Law Library shoulders the burden of knowledge transfer between East and West. This article provides a detailed and comprehensive introduction to the STL Law Library located on the Shenzhen campus of Peking University.

Human Rights as Transnational Law

In 1916, at the first meeting of the then newly created American Institute of International Law, jurists from different countries adopted a declaration stipulating that “[i]nternational law is at one and the same time both national and international.”1 A century later, Latin American international human rights law clearly reflects that idea. Since the adoption of the American Declaration of the Rights and Duties of Man in 1948, and especially since the 1950s, with the creation of the Inter-American Commission on Human Rights, and later with the adoption of the American Convention on Human Rights in 1969, human rights in Latin America have been, are, and will continue to be an essentially regional phenomenon of international law. By examining the Inter-American Court of Human Rights’ case law, this essay analyzes the way in which Latin America has articulated transnational human rights law, from the establishment of the inter-American system, to the distinctive forms of interaction and influence between international law and constitutional law. Drawing from recent jurisprudence on social rights, this essay shows that the idea of a Latin American common law of human rights—an idea that has become highly influential in the past decade—is an example of the outer limits of the potential integration. As such, the idea presents challenges that must be addressed in order for regional human rights to realize their full potential as transnational norms.

Ang lo - American Common Law and the Implementation in Vietnam

Due to characteristics of the socialist legal system, in the process of development and integration, Vietnam needs to absorb the advantages of other legal systems. The paper analyzes the features and advantages of sources of the Anglo-American legal system and lessons for Vietnam.

Соціолінгвістична варіативність англомовних юридичних термінів, що позначають порушення громадського порядку

The article focuses on the use of English legal terms denoting disturbance of the peace. The lexico-semantic group of these terms includes 228 elements. Nine of them are used on the whole territory of the United States (breach of the peace, disturbance of the peace, unlawful assembly, rout, riot, hooliganism, police riot, prison riot, student riot) and are defined as general terms. The rest of the terms (219) are used only on the territory of one state or on the territory of several states at the same time. These terms make up the majority of English legal terms denoting disturbance of the peace, and are referred to as regional terms. They appeared due to the ability of different states to create their own laws and due to the American common law system, which relies on court precedents as a source of law. One more reason for their appearance was the difference in the historical development of legal systems on the territories of different states. Regional terms denoting disturbance of the peace are divided into criminally specific and verbally specific. The group of criminally specific regional terms includes those that have no counterparts with the same meaning among general or other regional terms. These criminally specific regional terms are subdivided into those used only on the territory of one state and those used on the territory of several states. There are 142 criminally specific terms used only on the territory of one state and 5 criminally specific terms used on the territory of several states. The second group of regional terms includes verbally specific terms which have the same meaning as other general or regional terms denoting disturbance of the peace. Verbally specific terms are subdivided into those that have counterparts among terms used on the whole territory of the USA and those that have counterparts among other regional terms. There are 14 verbally specific terms that have counterparts among those used on the whole territory of the USA and 58 ones that have counterparts among other regional terms. Criminally specific terms used on the territory of only one state make up the majority of the terms in the lexico-semantic group of English legal terms denoting disturbance of the peace due to extra linguistic factors, which include the specific nature of the US law and the change in the knowledge about different kinds of disturbance of the peace in different US states.

The Right to Come and Go

Other participants in this forum will have addressed the way American common law shaped the meaning of public rights in postbellum Louisiana. Here I expand on Rebecca Scott's intuition about the transnational character of Louisiana's 1868 Constitution. I do so by suggesting a resonance between French legal writing and the Louisianan understanding of public rights. The innovative spirit of Edward Tinchant becomes all the more striking when his ideas are put into conversation with the language of rights in postrevolutionary France.

All of Life an Experiment

US Supreme Court Justice Oliver Wendell Holmes, Jr. reshaped American free speech law through his Supreme Court opinions during World War I and after. This paper explores the oft-debated questions of whether and how Holmes’s free speech views changed between his legal education (during which he was taught that the common law’s bad tendency test allowed governments to punish any speech after it was uttered) and World War I (during which he created and developed the more expansive clear and present danger test). This paper argues that Holmes developed the underlying principles of his later free speech ideas in his writings on American common law, but that he only expressed those ideas in Supreme Court opinions after several other legal thinkers prodded him to do so.

The American common law and the will of the judiciary as a source of its binding force

The doctrine of precedent being recognized as an inherent part of the American legal system provokes a permanent discussion about the sources and nature of its binding force. The scholars continually examine the correlation between common and written law, especially, the U.S. Constitution as its paramount form. Some authors given the absence of stare decisis doctrine in the plain language of the Constitution tend to believe that common law is not included in the supreme law of the land and therefore, judges should follow it as a matter of their discretion. Others suppose that the doctrine of precedent was implied by the Founders in the structure and understandings of key terms that makes it binding on the judiciary. This Article attempts to suggest another approach to such problem. Considering the nature of binding force and the methods of its attribution to a legal doctrine (basing on the recent case-law) we conclude that the obligatory status of the stare decisis doctrine derives from the will of the judiciary rather than people or the legislature. It is the judicial community who decided to treat a precedent as binding on each of them. This fact makes third parties believe that such a precedent would be applied in case of potential proceedings and therefore, act in accordance with it. The declared conclusion is supported by the examination of such legal mechanisms as appellate review and judicial discipline process which enforce the doctrine regardless of one’s subjective attitude – that is essential for a rule to be binding. These findings suggest that further examination of written law as a source of common law seems to be impractical and it would be more reasonable to focus on the role of the judiciary and their willingness to enforce the stare decisis doctrine in future.

Equality at the Cemetery Gates: Study of an African American Burial Ground

In Charlottesville, Virginia, the University Cemetery serves as the final resting place of many of the most prominent community members of the University of Virginia. In 2011, the University planned an expansion. During archaeological research to this end, sixty-seven previously unidentified interments, in both adult and child-sized grave shafts, were discovered on the proposed site of expansion, to the northeast of the University Cemetery. Further archival research revealed that “at least two late nineteenth century references note that enslaved African Americans were buried north of but outside the enclosed University, in an adjacent wooded area.” In one, Col. Charles Christian Wertenbaker recalls: “in old times, the University servants were buried on the north side of the cemetery, just outside of the wall.” Current research suggests that at least as late as 1898 the area of land was recognized as historically utilized by the University of Virginia for “servant” burials. Since these discoveries, a commemoration ceremony has been held. Some beautification measures have been undertaken: a specially designed fence has been installed; some trees have been planted; and at both entrances an informational sign is posted explaining the significance of the plot. Still, this newly rediscovered sacred space stands in stark contrast to the marble tombs and gilded cenotaphs of the University Cemetery and adjacent Confederate monument. Typically, descendants of the dead reserve rights in a cemetery in the form of some kind of property interest. Mourners and the children of mourners may return from time to time to pay their respects and tend to the graves of their dearly departed. In general, this is a well-established right (though further investigation will reveal that it somewhat less clear than one might expect). However, slavery in America has frustrated many rights, and its long shadow continues to disrupt others. Because of the nature of this property interest, today in Charlottesville, the cemetery rights of the descendants of those slaves interred to the northeast of the University Cemetery are arguably extinguished, or at best unclear. The owner of the cemetery, the University of Virginia, has made no attempt to exclude or to sell the land, nor likely would they, but it is unclear that they could not should they so desire. There are likely other slave cemeteries, on public and private land, that find themselves in a similar situation: specifically, slave cemeteries and African American burial grounds that, because of systemic oppression and discrimination, are rendered unprotected and abandoned—descendants’ rights vanished into nothing. In exploration of this problem, this paper lays out the historical legal landscape of cemeteries, the special issues that arise in slave cemeteries generally, and the application of these doctrines to the African American burial ground in Charlottesville. Additionally, it presents a suggested legal treatment of this special type of property interest: namely, that there should be legislative reform that, in the case of abandoned slave cemeteries, creates both a public easement allowing access and broad statutory standing so that communities can work together to maintain these sacred sites and police against desecration. Further, the development of the rights of sepulture in American common law and the accompanying legal solicitude would allow judges to read this regime into existence, even in absence of formal legislative measures.

The Idea of Property in Intellectual Property

With recent developments in technology, the nature of intellectual “property” law is constantly evolving. Yet, there remains a distinct recognition among legal scholars that the origin of intellectual “property” rights (“IPRs”) is rooted in traditional concepts of property law. Such a qualification presents significant challenges in the legal sphere as it paints a false picture of the scope of these rights, and the entitlements of rightsholders. Specifically, as right holders resort to traditional property law concepts, they erroneously presume complete ownership or mastery over the object of their IPRs. This presents a major threat to both the freedom of expression and freedom to information. This article considers the interface of IPRs with the concept of property under North American common law. Following the introduction to IPRs in Part I, in Part II, I argue IPRs have undergone a proprietary drift away from their initial rationales. In Part III, I revisit the role of property law in recognizing various assignable rights. Finally, in Part IV, I argue that in order to reconcile IPRs with these traditional concepts of property law, IPRs can be recognized as choses in action, giving IPRs the underlying principles of tort and the assignability of property rights. This article aims to change the discourse of IPRs away from analogies using traditional property law concepts towards recognition of the evolving rights they protect.

Damages Caused by AI Errors and Omissions: Management Complicity, Malware, and Misuse of Data (Part I of a Special Report)

“Artificial Intelligence” (AI) applications have grown dramatically in number and scope. Governments, large and small businesses, nonprofit organizations, and consumers both use AI applications and have AI applications used upon them. Indeed, so ubiquitous are these applications that it is practically impossible to avoid being drawn into their scope of action. However, the economic and legal doctrines related to AI methods and data have lagged appreciably behind their use. Categories of Errors and Causes of Damages. In the following special report, we demonstrate several different ways in which such applications and related data can be misused, and in some cases abused. We note that many of these errors and omissions involve the complicity of an organization’s management. We identify five main categories of such damages: 1.Misuse of data, 2.Management failures, 3.Product deficiencies, 4.Malware, and 5.Abuse by governments. We note that three of these categories—malware, data breaches, and abuse by government—are well publicized. However, two other categories—management failures and product deficiencies—are woefully under-recognized. Laws in the US and Europe. We note that some of these damages arise from scenarios that lack clear legal proscriptions and established protocols for estimating damages in the US. At the same time, we note that longstanding English and American common law, together with warranty, uniform commercial code, and specific data breach laws, already establish both broad and narrow legal bases for damages arising from errors and omissions involving AI data and applications. We compare this situation with that in the EU, where the GDPR explicitly addresses all of these categories of damages. Although the GDPR has multiple areas of vagueness, and relies on national authorities and as-yet-unstated procedures for enforcement, it provides a strong basis for proscribing some uses of AI applications and data, as well as for imposing fines and establishing damages. Risks to Businesses. Given the five different categories of damages caused by errors involving AI applications and data, we assess the risks to organizations of employing these applications. For this, we estimate damages for illustrative cases involving private businesses in four of the five categories. From these illustrative damages estimates, we observe that management ignorance regarding misuse of data and algorithms can be cause damages much larger than most malware incidents. AI Algorithm and Data Audits. We conclude part 1 of this special report by recommending the development of a forensic analysis methodology for AI applications and data. We note that numerous entities (including the EU through the adoption of the GDPR) have called for standards for the proper use of AI algorithms and data. However, as of this time, we discovered no clear, published methodology for conducting an audit of AI algorithms and data to determine whether they were in compliance with the GDPR or other standards. To address this omission, we propose specific elements of an “AI algorithm and data audit” to accomplish this objective.

Review of a Monograf by V.N. Safonov «Constitutional Law-Making in the US Suprime Court Activity. Historical-Legal Reaserch». Moscow: Prospect Publ., 2018

The monograph observes the problems of the US Supreme Court law-making activity in sphere of interpreting the federal Constitution. Tendencies of the American constitutional, common and precedent law development are shown in historical and theoretical context. The author studies legal determinations of the US Supreme Court Judges and judicial doctrines basing on them. He also reveals the correlation between the judicial conservatism and activism within the general line of the US legal policy and ideology.

The Influence of Justinian on American Common Law Property

The civil law’s impact on American law property may not at first be readily apparent. Civil law property and common law property are structured very differently. How things are classified, be they, for example, movable or immovable, corporeal or incorporeal, is of great import in the civil law; the common law focuses far less on the classification of things. The civil law has a firm, if not restrictive, concept of what constitutes a property right, whereas in the common law, property rights are much more fluid. The civil law has a finite set of rights that are included in ownership, namely the rights of usus, fructus, and abusus. The bundle of sticks that may make up an individual’s interest in property in the common law is, it seems, ever morphing. The very notion that an individual can own property is theoretically foreign to the common law, whereas ownership is a bedrock of civil law property. Civil law property and common law property are unquestionably very different, and yet, they are also very similar. Doctrinally, much of common law property stems directly from the civil law and, specifically, from the father of the civil law himself, Justinian. This essay explores how Justinian’s work influenced a number of common law property doctrines including the rule of capture, riparian rights, servitudes, and the doctrine of waste, to name a few.

HISTORICAL ASPECTS OF FORMATION AMERICAN LEGAL SYSTEM

The purpose: this article deals with the historical aspect of the formation of the American legal system, the functioning of American common law and its sources. It is proved that the legal precedent occupies a central place in the legal system of the Anglo-Saxon direction. Methods of the research: historical method, comparative-legal method. Results: it is determined that the peculiarities of American legal system lie in the source of law, its structure and application. Discussion: of the historical aspect of formation of American legal system in the system of American common law.

Stare decisis i „zdrowy rozsądek” w cywilnej i karnej jurysprudencji amerykańskiej

Based on various law sources, the American common law is connected by a particular role of prior judicial rulings as a basis of judicial practice. The principle of stare decisis , which exists within its framework, leads to considering decisions of courts of higher instances as binding (settled in a binding manner of a given case type in the convention of res iudicata ). However, it does not mean that precedents may not be amended or broken. In such a situation following factors may appear: defective rulings, triggering incoherent or unjust consequences, contraction with other precedents, and change of circumstances, which have led to a precedent decision to be taken.

You Can't Always Get What You Want: Inconsistent State Statutes Frustrate Decedent Control Over Funeral Planning

Americans have more choices than ever before with respect to the disposition of their remains after death. For some people, the choice of burial place, or the election to have their remains cremated, is the final opportunity to express and fulfill important values. American common law has long provided decedents with the broad right to direct the disposition of their own remains after death. However, an inconsistent patchwork of state statutes has complicated and frustrated this fundamental common law right. Many states require decedents to comply with strict formalities, or prohibit decedent control outright. This disconnect between common and statutory law creates problems for decedents and estate planning professionals for several reasons. First, funeral and disposition directions are often a neglected aspect of estate planning. Second, the laws that determine the enforceability of such directions are based on where the remains are located, not where the decedent resided. This Article examines these problems and provides a comprehensive appendix listing and summarizing each state’s “personal preference” and “designated agent” laws as an aid to practitioners.

On the Efficiency of Indemnification in Cases of Necessity: Is American Common Law Inefficient?

This paper seeks to propose a new interpretation of the rules that envisage compensation, be it damages or an indemnity, when a person takes an action in a case of necessity. The person acting out of necessity will also take into account the sum of money that he will be required to pay if the necessary action is taken and this will consequently affect his choices. Moreover, the amount of the damages or indemnity will also have an effect on the choices that the victim will make. More specifically, it will be shown that in certain situations compensation should ideally be equal to the loss actually suffered by the victim while in others optimal compensation could even be a figure equal to zero and in any case not such as to cover the entire loss suffered by the victim. This incentive-based interpretation suggests that certain compensation rules that until now have been considered efficient by scholars of law and economics are actually inefficient.t.

Redemption Songs: Suing for Freedom before Dred Scott by Lea VanderVelde

Reviewed by: Redemption Songs: Suing for Freedom before Dred Scott by Lea VanderVelde William D. Green Lea VanderVelde, Redemption Songs: Suing for Freedom before Dred Scott. New York: Oxford University Press, 2014. 305 pp. $33.95. On March 6, 1857, eleven years after the appellant filed the initial suit, the United States Supreme Court issued the decision in Dred Scott v. Sanford. It held that the constitution permitted the extension of slavery into the territories, prohibited territories and states from extending citizenship rights to African Americans, and protected the master's dominion over his and her human chattel wherever they went. Instead of putting to rest the issue of slavery, as Chief Justice Roger Taney had hoped, the decision—what some critics of the day referred to as the "self-inflicted wound"—so intensified the national debate that it made civil war inevitable. Regarding the narrow confines of the Scott petition, if ever there was an argument for judicial restraint, this was it. The court had veered away from the time-honored practice of following precedent. Six years earlier, in Strader v. Graham, the court affirmed the right of a slave state to continue to recognize freedom gained by free state residency, which, under the doctrine called freedom by residence, was the practice in Missouri courts. But in Dred Scott, six years later, five members of the Taney Court instead overreached when it included the issues of black citizenship and the extension of slavery into the territories, choosing unwittingly to sail headlong into troubled waters. Dred Scott, the appeal, had become larger than the singular focus of the petitioner's interest-freedom. Despite the precedence of Strader in the federal court, and the unlikely precedent of Winny v. Whitesides (MO. 1824) and Rachel v. Walker (MO. 1836) in the Missouri court, the outcome of Dred Scott, which seemed a foregone conclusion, was instead for the petitioner a stunning reversal of fortune. Dred and Harriet Scott, and the entirety of their family, would remain slaves. Prior to Dred Scott, Missouri's "unlikely precedent" was, in and of itself, a peculiar institution. It had evolved decades before the abolition movement had gained traction. Slavery, though prohibited in territory north of the Ohio River since 1787, was nevertheless commonplace. Missouri was situated on the farthest reaches of settled America, a settlement that was at once, a frontier outpost and the Gateway to the West. Relative to the quick succession of international and national jurisdictions, all of which recognized slavery, the courts of slaveholding Missouri became the place where slave [End Page 71] suits petitioned the law of white men to contravene the property interest and social mores of white men. In her recent book, Redemption Songs, Lea VanderVelde examines the "unlikely precedent." At the root, VanderVelde argues, such litigation began with the rather dangerous first step of filing a "freedom suit," which inflamed the situation by alleging the unsuitability of the master's character. The slave complainant worked with an attorney who the slave did not know and could not pay unless the slave was willing, as was the case in some instances, to hire out to the attorney. The slave could only watch the hearing that procedurally banned the slave (and master) from testifying; and through it all, there was always the risk of a protracted suit that devoured the slave's capacity to litigate, the greater threat of losing the case, being subject to reprisal, or both. And yet, slaves continued to sue for their freedom and win. Of the three hundred suits that VanderVelde reviewed, she selected twelve cases, or "redemption songs," to illustrate the range that the petitions took. In one case, the jury ignored the evidence that would lead to freeing the slave, only to be reversed on remand when the judge, hearing and deciding the suit, ruled in favor of the slave. In another case, a woman sued her African American common law husband who was about to sell her to a slave trader. VanderVelde writes that in each instance, "the tensile strength of the rule of law," held firm. In writing this review I considered three general questions: (1) Does VanderVelde explain what made St. Louis...

Talking to others' selves: Why a valuational paradigm of agency fails to provide an adequate theoretical framework for moral responsibility, social accountability, and legal liability.

In this commentary, I highlight the importance of a proper discussion of the pragmatic implications of John Doris's paradigm for allocation of personal responsibility proposed in his new book Talking to Our Selves. By employing some classic concepts of the American common law tradition, I discuss why Doris's valuational understanding of agency fails to provide an adequate framework for moral responsibility, social accountability, and legal liability.