Dear Chaim and colleagues;
One example comes to mind at the moment- in the area of Intellectual Property, my impression is that the US courts have been willing to recognise a "right of personality" which protects the use of the image of a famous figure (I think there was a case involving the Three Stooges a few years ago in California), whereas the commonwealth courts continue to resist this development. In our courts a famous figure whose image is used in a deceptive or misleading way (eg to imply or assert sponsorship or support when this is untrue) may have a remedy (either statutory or for "passing off"), but there is no general remedy simply for "misappropriation" of the image of someone.
Regards
Neil F
Neil Foster
Senior Lecturer, LLB Program Convenor
Newcastle Law School
Faculty of Business & Law
MC158, McMullin Building
University of Newcastle
Callaghan NSW 2308
AUSTRALIA
ph 02 4921 7430
fax 02 4921 6931
>>> Chaim Saiman <Saiman@law.villanova.edu> 12/12/08 9:23 >>>
Dear Obligationists
Since the law and theology discussion ended in a big thud, I'll return to issues more traditionally associated with this forum. :)
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