Common Law

Die im Sommersemester 2019 angebotenen Kurse entnehmen Sie bitte dem VK online.

Beachten Sie, dass als Vertiefungskurse im Bereich Common Law auch die Vorlesungen Current Issues in American Law (Anmeldung über den LS Casper erforderlich!) sowie Modern Common Law Litigation aus dem Angebot der Fakultät angerechnet werden können. Zu den Prüfungen melden Sie sich über WiLMa II bzw. QISPOS an.

This course seeks to introduce students to aspects of the common law by focusing on the legal systems in England and the United States. After having been given an overview of the legal profession and court system, students are shown various aspects of court procedure and then spend several weeks learning about how the law works, with an emphasis on learning about how one uses case law and the role statutes play in the legal system.

The course introduces fundamentals of common law tort law, with an emphasis on tort law in the United States. The course provides an overview of negligence, intentional torts and strict liability, including required elements, policy considerations, relevant tests, defenses and damages. Students are asked to analyze cases and related fact patterns, in order to apply the relevant tort law and understand its practical implications.

This course introduces the fundamentals of common law contract law, with an emphasis on contract law in the United States. The course introduces the fundamentals of contract law, including: policy considerations, contract formation, required formalities, interpretation, performance, breach, defenses, and remedies. Students are asked to analyze cases and related fact patterns, in order to apply the relevant contract law and understand its practical implications.

This module is conducted in the English language and is drawn from the book Cannon, Lessons from the Australian Constitution: An Introduction to the Australian Legal System, Lit Verlag, Berlin and Muenster (2008). A broad outline of the topics to be covered follows. In the time available the coverage will be general and the breadth and depth of the course will be adapted to suit the background understanding of the students and their grasp of the English language.

Australian Political History

Colonisation and naval and military government
Emerging constitutional government
Steps to Federation
Political history since 1901
Women in politics
Immigration
Aboriginal history

The Influences on Australian Constitutionalism and the Common Law Method
Early constitutional arrangements in Australia
English and American influences on the Australian Constitution
Common law case law method and citations

Key Elements in the Australian Federal Constitution
Protection of the smaller States
Resolution of disputes between the Senate and the House of Representatives
Representative democracy
Key conventions of responsible government
Requests for dissolution of Parliament
Dismissal or forced dissolution
Money Bills
Separation of Powers
Legislative powers may be exercised by the executive
The separation of Judicial Power
Free Trade between the States- Section 92

Restraints on Abuse of Power
Freedom of Religion
Acquisition of property on just terms (s.51(xxxi))
An implied Bill of Rights
An implied freedom of political communication
Restraints on Executive Power

The Balance of Power Between the States and the Commonwealth
Constitutional Amendment
The changing policy of the High Court
The Engineers case
The Financial Agreement
The shift of power in WWII
Territories and the balance protecting the States

Interpretation of the Constitution
Literalism v Realism
Inconsistency between State and Commonwealth Laws
Tests of Inconsistency
Characterisation
Collateral Purposes

Specific Powers
The Corporations Power
External Affairs Power
Defence Power
Aborigines
Stolen Children
Mabo (No. 2)
Immigration and power over aliens
The Industrial Relations power

The Courts
Independence of the Judiciary
The Lionel Murphy Case
Abolition of Courts
The Definition of Judicial Power
Functions incompatible with judicial office
Court administrative arrangements
Comparisons of Court Systems
Cost shifting policies
Whether it is desirable to have cost shifting
The effect of activity based scales
Two types of Adversary System

The United States has developed unique procedures for dealing with multiple parties possessing the same or similar claims against the same defendant, which claims often involve multiple jurisdictions.

This course provides an overview of class action litigation in the United States, with a focus on the Federal Rule 23.  The course introduces fundamentals of class actions, including: development of class based lawsuits; class certification requirements (implicit requirements, numerosity, commonality, typicality, adequacy); the Rule 23(b) categories and requirements; problems and strategic considerations in litigating class actions (from the plaintiffs' and defendants’ perspectives); constitutional issues, class action discovery; dispositive motions; trial structure; class notice; communications with class members; jurisdictional issues; settlement; attorneys’ fees; and appellate review of class action orders.  The course also introduces the requirements of the 2005 Class Action Fairness Act.  Students are asked to consider the challenges and policy considerations in such multi-party litigations, and to analyze recent cases and related fact patterns.

This module will introduce you into English company law. The module deals with private limited companies (Ltd.) and public limited companies (Plc). The module will first address the foundations of the corporate structure (e.g. different types of business organisation, the registration process, the corporate personality, piercing the corporate veil, criminal and tortious liability of companies). It will then focus on the constitution of the company (i.e. the articles of association), the division of power in companies, corporate theory and the background to the corporate governance debate in English company law. Corporate governance has been met with huge interest in recent years, particularly in light of the global economic and financial crisis. Following the introduction into the debate about corporate governance in English law, the module will look at company directors: Their appointment and the termination of their office as well as the various directors’ duties which are now codified in the Companies Act 2006. The focus will then shift from the directors to the members of the company, i.e. the shareholders. The lectures will discuss membership, shares, corporate meetings and shareholders’ remedies. Finally, the module will address corporate takeovers and reconstruction. The module will conclude by addressing the topical issue of Corporate Social Responsibility (CSR).

This course will focus on cases as the method of teaching, as common law relies heavily

upon the case law developed by the Supreme Court of the United States, and other courts.  We will examine concepts of protections provided to people under the 4th, 5th and 6th Amendments, with special discussions also addressing the 14th Amendment, to the Constitution of the United States.

Reading the abbreviated “Nutshell” version of a text will help you as we follow the continuing development of standards used in applying these protections by the courts.  As they have changed over time, and are continuing to change, we will look at some old cases, and will study some of the most recent cases, and discuss the directions that the majority and minority views on the Court are appearing to urge.

Outline:

History of the Constitutional Protections

            Protections from the Federal Government

            Historical origins of protections of citizens from the State governments

            14th Amendment—history and ramifications

                        Fundamental fairness

                        Total incorporation rejected

                        Selective incorporation

                        Free-standing 14th Amendment rights

Protections during the investigative phase.

4th Amendment Rights

Warrantless searches and seizures

Does the 4th Amendment apply?

What is a search?

What is a seizure?

Arrest (person)

Search incident to arrest

Detentions

Premises

Motor vehicle

Inspections

           Consent

Warrants

Independent magistrate

Probable Cause

Fresh information

Reliable information

Place to be searched

Items sought

Execution of the warrant

Time and manner of search

“No-knock”

Scope of the search

                        Electronic surveillance

5th Amendment

Custodial statements and the Miranda rule

The Miranda rule

What is custodial

What is interrogation

What is a waiver

Voluntariness

Non-custodial statements

Voluntariness

Compelling production

Documents

DNA/bodily fluids/fingerprints/ and so forth

Protections during the trial phase

8th Amendment

Right to Bail

5th Amendment Right not to be tried unless Indicted

6th Amendment

Right to Counsel

Stages of the process

Effective assistance of counsel

Right to Speedy Trial

Statutory right vs. Constitutional Right

Right to Trial by Jury or Court

14th Amendment Equal Protection

5th & 14th Amendment Due Process

Public Trial

1st Amendment rights of the press and public vs. 6th Amendment rights

Confrontation

Compulsory Process

5th Amendment Right against self incrimination

Discovery rights

Right to discovery

Criminal Rules

Brady material

Duties under discovery rules

Criminal Rules—Discovery

Criminal Rules—Notice of Alibi

5th Amendment Rights against Double Jeopardy

Successive prosecutions

Federal versus State

Same offense

Collateral estoppel

Allied Offenses of Similar Import

Alternative prosecution

Mistrials

2nd Amendment rights

8th Amendment rights

      Discussion of historical perspectives

Conversations with a trial judge.

A limited part of the course will be designed to allow students an opportunity to discuss in English pretrial and trial issues with a sitting judge.  Students will be given an opportunity ask questions and discuss topics of their choosing.

 

This course is intended to provide an introduction to the unique legal and political position of the world’s 370 million Indigenous Peoples. Given the immensity of the variations in lifestyle, economic and social circumstances, traditional belief systems, levels of involvement in state governance and different legal positions within nation states, this course can only provide an overview of this fascinating topic. The course will begin with a review of the development of international law in the context of European expansion to the Americas and Africa in the 1500s to the mid 1900s.We will then examine in detail the specific historical and legal developments in the USA, Canada, Australia and Aotearoa/New Zealand as case studies through examining similarities, differences and the way legal and political ideas have travelled amongst the 4 countries. The course will end with a return to international law to examine how the law has been radically transformed over the past 40 years.

This Blockseminar aims to provide a comprehensive, practically oriented overview of the rapidly expanding area of law and practice of international commercial arbitration.

The course is designed for German and other law students with fluency in English who are contemplating pursuit of a career, particularly in the private law firm context, involving international commercial arbitration and other dispute resolution in or related to Germany and, for that matter, abroad.  The theoretical and practical emphasis is, in roughly equal measure, on civil law, common law and established best practice approaches. 

For those who attended the recent prior course "International Investment Arbitration", this course represents a considerably more focused and intensive discussion of international commercial arbitration, as well as the role of such disputes in the overall fabric of transnational arbitration and international commercial law.

The aim of the course is to provide a comprehensive, practically oriented overview of the rapidly expanding area of law and practice of arbitration between foreign investors and host states, principally in connection with so-called bilateral investment treaties, or BITs, and principally under the regimes or auspices of the World Bank/ICSID and the Energy Charter Treaty.  It is noteworthy that no country has acceded to more BITs than the Federal Republic of Germany.

The course is designed for German and other law students with fluency in English who are contemplating pursuit of a career, particularly in the private law firm context, involving a combination of transnational dispute resolution and public international law in or related to Germany and, for that matter, abroad.  The theoretical and practical emphasis is, in roughly equal measure, on civil law, common law and public international law approaches.

For those who attended the recent prior courses "Selected Issues in International Commercial Arbitration" or "Selected Issues in Cross-Border Litigation," this course represents a considerably more focused and intensive discussion of investor-state disputes under established and emerging principles of public international law, as well as the role of such disputes in the overall fabric of transnational arbitration and international law.