Dear Obligationists

 

Since the law and theology discussion ended in a big thud, I’ll return to issues more traditionally associated with this forum.  J

 

In essence am looking for a rough catalogue of major differences in US vs. Commonwealth substantive law private.  My basic sense is that (for the period 1930- 1980), American law was significantly more expansionary (liberal) than the law of Commonwealth jurisdictions.  Moreover, even in places where Commonwealth law expanded: (i) the US was likely to do so earlier and, (ii) US law was more likely to change via judicial development whereas CW countries may have relied more heavily on the legitimization of legislation (EG. the third party beneficiaries legislation in UK vs. American common law development in this area). In short, US courts were far quicker to give up on the technicalities of the common law (e.g. privity) that traditionally constrained the expansion of liability.

 

Here are a few examples that come to mind.

 

1. The Allen v. Flood / Tuttle v. Buck debate regarding prima facie torts recently discussed in OBG v. Allan.
2. Debate over whether promissory estopple/Restatement Contracts § 90 can be used as a cause of action, and related, whether there is any difference between the various forms of estopple.
3. Theories of “enterprise” or “market share” liability in tort that elide difficult questions of causation in the mass tort context. These had their heyday here in the 60’s and 70’s, and my sense is that they were never accepted in much of the Commonwealth.
4. Doctrine of equitable subordination in bankruptcy which allows a court to move creditors up and down the priority chain. This doctrine was developed by US courts without statutory authorization---but is now codified in the Bankruptcy Code. I’ve heard that this is far more controversial in CW.
5. The doctrine of oppression in corporate law and whether majority shareholders owe any fiduciary duties towards the minority. My sense is that US courts (rather than legislation) are more willing to find rights that protect minority shareholders from than in the CW. This seems limited to the close corporation context.

 

[While In reality, of course, the differences are far more likely to be relative than absolute, but I don’t think that changes the basic premise underlying this email. ]

 

 

Basically, I am looking for any other examples, counterexamples, scholarship that addresses the question comparatively or explores these questions within the national/ intra-commonwealth perspective.  Real property examples similarly welcomed, and most importantly, feel free to plug your own work!!

 

 

Thanks much,

 

Chaim

 

 

Chaim Saiman

Assistant Professor

Villanova Law School

610.519.3296

saiman@law.villanova.edu

view my research at http://ssrn.com/author=549545