Legal Ethics for Crown Attorneys on Appeal

The article substantiates the need for research and formation of a complete and comprehensive concept of case-law practice, which should take into account the tendency of convergence and functional similarity of legal phenomena in modern legal systems. The formation of such a concept implies the needs to define the notions related to case-law practice as well as to designate a correlation with them. Attention is drawn to the importance of defining such related notions, the use of which can lead to terminological confusion and differences in their understanding. Therefore, the correlation with such related notions as judicial practice, case law, judicial precedent is identified. In the broad meaning of the term «judicial practice», which denotes the notion of activity or results of activity of all judicial bodies, it will correlate with the term «case-law practice» as a species notion that is included into the generic notion of judicial practice. In addition, the author takes into account the meaning of the term «judicial practice», used in the Civil law doctrine («jurisprudence constante», «ständige Rechtsprechung», «prajudice», «judicature» etc.), according to which judicial practice is not a set of any decisions in specific cases, but repetitive and stable, as well as not of any judicial bodies, but only of the supreme courts in the leading cases, and which become de facto binding on the lower courts. In this meaning, case-law practice will be the broader notion that includes judicial practice. Case law is also a notion related with case-law practice. Case law covers legal norms formed in the decisions of the supreme courts, and is used primarily in Common law as opposed to statutory law. Case law does not include all decisions and not of all judicial bodies, but only such decisions of the supreme courts that contain legal norms, i.e. binding judicial precedents. Case law does not cover convincing persuasive precedents of the lower courts, which have a recommendatory nature. Therefore, case law is the part of case-law practice, which in addition to case law also includes judicial precedents of the lower courts. It is substantiated that case-law practice is a collective notion that covers a set of judicial precedents, just similarly as the notion of legislation is a collective concept of laws. The distinction between these notions, despite the fact that in most cases the ambiguity of such terms that denote them, is removed by the context of their usage, allows us to clarify the features and nature of case-law practice. Key words: judicial precedent, judicial practice, unity of judicial practice, judiciary, supreme courts, court decision, comparative jurisprudence

The article is devoted to revealing the peculiarities of the legal and international legal nature of the judicial precedent, along with other related categories, as well as highlighting the importance and role for the national and international legal order. In view of the modernization of social relations, which are the objects of regulation of national, supranational and international law, it is natural to study the system of sources of law, especially judicial precedents, along with other dynamic components of modern legal systems, existing legal orders. It is these sources that ensure the unity of judicial practice, the resolution of legislative and international legal gaps and contradictions, and contribute to the protection and restoration of violated human rights and freedoms. By guaranteeing the stability, integrity and predictability of legal systems, the trust of citizens in judicial bodies of various levels and jurisdictions increases. At the same time, the experience of Ukraine, EU member states, the Council of Europe and other international organizations, within which the role of judicial bodies and judicial precedents is significant, case law is developing, demonstrates consideration of national traditions of law-making and law enforcement, interaction and mutual influence of legal systems of various dimensions, balance of stability and dynamics, continuity and development, etc. At the same time, the multifaceted nature of such a phenomenon as a judicial precedent, especially in the conditions of the activation of the European integration processes of Ukraine, the existence of significant problems with the implementation of the decisions of the ECtHR, etc., justify the need to conceptualize and correlate the categories "judicial precedent", "judicial practice", "case law", "judicial law-making", "judicial activism", etc., determination of their role in strengthening and modernization of national, supranational and international legal orders. That is, it is natural to specify and novelize the conceptual and categorical apparatus, study the experience of individual states, international organizations and judicial bodies in the context of their creation and provision of implementation mechanisms, including by improvement. Argumentation of the integration, regulatory, information and other functions of the studied court precedents, taking into account the challenges and risks at the current stage, is considered important. Key words: judicial precedent, international legal order, national legal order, supranational legal order, court decision, sources of law

Human Trafficking is a growing crime worldwide, 71% of which is dominated by the crime of sex trafficking. With recent Canadian legal cases such as Canada (Attorney General) v Bedford, there is growing debate about sex trafficking and sex work. This paper will discuss legal and societal prejudice against sex trafficking and sex work in Canada using prior research and will discuss current statistics surrounding sex trafficking, human trafficking prosecutions, and police responses to sex trafficking and sex work. Using a sociolegal lens, this article will discuss how society’s wide-ranging perceptions of sex work have influenced the law in recent decades, and how the law has come to shape society’s current legal and moral prejudice against sex trafficking and sex work. Further, this paper will discuss how these perceptions have helped or hindered the work of law enforcement, crown attorneys and judges and will discuss how the law is not evolving at the same pace as the crime of human trafficking.

Dichotomous explanations of “Civil Law = Statutory Law” and “Common Law = Case Law” are widely used. Still, it is difficult for lawyers and citizens in Civil Law countries to understand case law accurately. How can a case, a resolution for a particular party to a dispute, be a law generally applied to everyone? Although there exists some legal part in the court decision, how can such judgment be called a “law”? When the court interprets statutory law, is it correct to call the court ruling “the law itself,” not the “authoritative interpretation” of the law? While there is a historical background behind the formation of case law, how do judges maintain the tradition of making laws? Is it right to describe the distinctive characteristic of Anglo-American law as “judge-made law” in the present day when the legislative body enacts numerous statutory laws? The article examines judges’ high authority and mighty power in the Common Law tradition to answer these questions. In the birth and development of Anglo-American law, judges exercised strong powers that were difficult to justify with legal theories. The author’s view is that one cannot accurately understand the Common Law system and case law without understanding this unique history and cultural traditions. From this perspective, the article first looks at how Common Law judges historically have acquired and maintained more substantial power than continental law judges. British and American judges can issue a writ of mandamus to direct officials in the executive branch to specific tasks, often order litigants to prohibit certain acts, and severely punish civil contempt with broad discretion. Lawyers in the Anglo-American legal tradition continue to believe that the law does not exist in abstract legislation but concrete court rulings. Therefore, even in modern times, when the legislature actively enacts statutes, Anglo-American lawyers never abandon the belief in “judge-made law.” Whether to recognize case law as a primary source of law, allowing judges to have mighty power, and maintaining the principle of separation of power thoroughly is not a matter of right or wrong, or better or worse. All legal systems should aim to protect the liberties and rights of the sovereign people and promote their happiness, so they should be evaluated as helpful in achieving this goal. It seems that many British and American lawyers and citizens believe that granting strong power to judges helps protect civil liberties and rights better.

Poverty and the Politics of Colonialism: “Poor Spaniards,” Their Petitions, and the Erosion of Privilege in Late Colonial Quito

The effect of Civil law doctrines of precedent on the process of formation and evolution of case law is examined. Unlike the Common law systems, Civil law jurisdictions do not adopt a stare decisis principle in adjudication. In deciding any given legal issue, precedents serve a persuasive role. Civil law courts are expected to take past decisions into account when there is a sufficient level of consistency in case law. Generally speaking, no single decision binds a court and no relevance is given to split jurisprudence. Once uniform case law develops, courts treat precedents as a source of soft law, taking them into account when reaching a decision. The higher the level of uniformity in past precedents, the greater the persuasive force of case law. Although Civil law jurisdictions do not allow dissenting judges to attach a dissent to a majority opinion, cases that do not conform to the dominant trend serve as a signal of dissent among the judiciary. These cases influence future decisions in varying ways in different legal traditions. Judges may also be influenced by recent jurisprudential trends and fads in case law. The evolution of case law under these doctrines of precedents is modeled, considering the possibility for consolidation, corrosion and stability of legal rules. The effect of different doctrines of precedent on the patterns of evolution of the legal system is studied.

This study provides a survey of the case law and legal literature analyzing jurisdiction for claims arising out of Internet activity in the United States. A companion study, released simultaneously, explores similar issues as they are treated in the German legal system. The goal of the report is to identify trends in legal literature and case law and to serve as a comprehensive, objective resource to assist scholars and policy-makers looking to learn about the issues of jurisdiction on the Internet. The U.S. study shows that most academic scholarship discusses all three aspects of jurisdiction law — personal jurisdiction, choice of law and jurisdiction to enforce — within the individual articles. In addition, the literature treats a noticeably wide variety of legal areas — including, for example, analyses of specific cases, particular issues related to e-commerce, and the regulation of online speech — but overall, does not appear to have a consensus on an approach or solution that cuts across the varied areas of law addressed by the scholarship. Thus, in effect, a review of academic scholarship shows that Internet jurisdiction is as varied as the legal issues and fields of law it permeates.With respect to U.S. case law, Fordham CLIP's research indicates that issues surrounding Internet jurisdiction gravitate toward the Ninth Circuit and the Second Circuit more so than other federal circuits. Moreover, contrary to the body of academic literature, the research demonstrates that U.S. courts predominantly adjudicate matters of personal jurisdiction in Internet cases rather than other subsets of jurisdiction, and that Internet jurisdiction issues trend toward intellectual property and defamation cases. Lastly, the case law shows that, although the Zippo and Calder decisions remain the clear, predominant legal standards and tests for Internet jurisdiction matters, when and how these rules are applied by U.S. courts lacks uniformity.

Why should law schoolsbe obsessed with case law when there is nothing that corresponds to this phenomenon in the curriculum of business schools? What, more specifically, are the skills that are developed through the consideration of precedents in case law that are missing in the attempt to teach decision making through cases in business schools? This perspective essay is an attempt to differentiate between the approaches to the case method in use in law schools and business schools in the United States. Insofar as the use of the case method within professional schools in the American Ivy League has become a role model for pedagogy elsewhere, it is important to understand that there is a whole typology of approaches to the case method. While it is not possible to exhaust the different approaches in this essay, we must at least differentiate between the law school and business school approaches to teaching with the case method. This is all the more important since the introduction of the case method at Harvard Business School in 1908 was influenced by the pioneering experiments conducted at the Harvard Law School in the 1870s by Dean Christopher Columbus Langdell. The main theoretical and practical difference between theseapproaches was the importance accorded to stare decisis (or the role of precedents in case law) as a constraint in the process of decision making in the law school. Furthermore, cases used in the law schoolsystem are written by judges belonging to the appellate judiciary and not by faculty themselves. This gives a different orientation to the case method altogether since a case written by a faculty won't haveany legal authority, but cases written by judges will. It is therefore important to expose students in business schools (who have to study business law, company law, and theories of regulation) to the role of precedents in judicial approaches to decision making. This essay attempts to make a pedagogical case to do precisely that.

Legal practice can gain much from advances in machine learning and A.I. technology. Common law countries such as the United States, the United Kingdom, Canada, and Australia, rely on judicial precedent to decide what law governs new cases and how that law is applied. Judicial precedent is the body of case law that observes how past courts have decided similar cases. Case law is composed of individual case decisions by courts that resolve a particular dispute. When resolving new cases, courts look back on judicial precedent to structure how to decide said new cases. Thus, an extensive knowledge base of how prior cases have been decided under what law is needed in each field of legal practice. Legal research is the practice of identifying relevant case law for a particular set of facts and is essential for any practitioner seeking to make the most persuasive argument for clients. Reviewing case law and identifying relevant cases can be time consuming and imperfect; there is always risk that practitioners overlook relevant and/or new case law that has changed the legal landscape of their practice. Thus practitioners are not only required to retain an extensive knowledge base of relevant case law, but also to keep abreast of changes in case law.

It is difficult to overestimate the importance of comparative law in the legal developments of the restored Republic of Estonia. The country’s legislative drafting and jurisprudence frequently refer to and study legal solutions adopted in other countries, with private-law practitioners having even cited the comparative method as the main approach to drafting legislation and the best-practice rules for legislative drafting adopted in 2011 directing that the experience of other countries be considered in both the proposal for drafting and the draft law itself. While the comparative approach is followed so often for legal articles and doctoral theses that foreign law has even been referred to as an everyday tool for Estonian lawyers, reference to solutions in other legal orders is a much rarer phenomenon in application of the law, whether in the case law of Estonia or in that of other countries. The article provides an overview, based on legal literature and Estonian case law, of the arguments related to the admissibility of the use of foreign law in court decisions and examines the role of foreign law in the application of Estonian legal provisions. Its discussion focuses not on decisions that refer to the case law of the European Court of Justice or European Court of Human Rights or that cite case law from other countries with regard to applying international conventions but on those situations in which courts have used references to other countries’ legal provisions, case law, or legal literature (i.e., comparative arguments) when applying national law.

This chapter considers an essential source of law in the English legal system: judicial precedent (or ‘case law’). The rules and principles of the doctrine of judicial precedent are explored, including how precedents are created, developed, and followed. The chapter analyses the rule that forms the precedent—the ratio decidendi, or the reason for the decision—as well as the importance of other judicial statements that do not form part of those reasons—the obiter dicta. The principle of binding precedent is captured by the expression ‘stare decisis’ (stand by what is decided) and binding precedent relies on a hierarchy of courts. The hierarchy can help to establish whether a particular ratio decidendi binds a particular court and whether an appellate court is bound by its own previous precedents. The chapter is packed with case law examples and highlights the role of non-binding precedent which may still be deemed persuasive for a particular court. The relationship between the English courts and the Court of Justice of the European Union (EU) and the European Court of Human Rights (ECtHR) is considered. Finally, the chapter considers how a court may avoid following a particular precedent by the process of overruling, distinguishing, or reversing.

This chapter considers an essential source of law in the English legal system: judicial precedent (or ‘case law’). This chapter discusses the rules and principles of the doctrine of judicial precedent, including how precedents are created, developed, and followed. The chapter considers the rule that forms the precedent—the ratio decidendi, or the reason for the decision—as well as the importance of other judicial statements that do not form part of those reasons—the obiter dicta. The principle of binding precedent is captured by the expression ‘stare decisis’ (stand by what is decided) and binding precedent relies on a hierarchy of courts. The hierarchy can help to establish whether a particular ratio decidendi binds a particular court and whether an appellate court is bound by its own previous precedents. The chapter is packed with case law examples and it also highlights the role of non-binding precedent which may still be deemed persuasive for a particular court. Again, the relationship between the English courts and the Court of Justice of the European Union (EU) and the European Court of Human Rights (ECtHR) is considered. Finally, the chapter considers how a court may avoid following a particular precedent by the process of overruling, distinguishing, or reversing.

The quotations above encapsulate the essence of this research study. The underlying purpose of this research study is born out of the understanding that: “drafting style and practices are always capable of improvement”1.However, the traditional view is that legislators and legislative drafters are the major authors of legislative drafting conventions.This research study applies a novel approach to the study of legislative drafting considering that it examines “[s]ome (…) [legislative drafting] conventions [that] have statutory or case-law origins” such as the judgments in the cases of Bulmer v. Bollinger [1974] EWCA Civ. 14 and Pepper (Inspector of Taxes) v. Hart2.This novel approach is based on “Tetley’s three themes of comparative analysis in legislative drafting namely: rules of (statutory) interpretation, stare decisis and [legislative] drafting conventions and techniques”3. These themes of analysis are relevant when undertaking a study of comparative legislative drafting4 such as in this present study which is a comparative study of case studies in the United Kingdom and Nigeria. Unlike others, the legislative drafting conventions that originate from case law have the advantage of carrying the authority of law based on the common law doctrines of precedent and stare decisis.Besides case law, this research examines some modern theories, and innovations in the field of legislative drafting that common law judges may not be familiar with. It is hoped that “[t]his guide examines some legislative drafting conventions, the knowledge of which may help judges with statutory interpretation”5.This study also examines the common law rules of judicial precedent, stare decisis, and statutory interpretation that apply in Nigeria and the United Kingdom.The purpose is that such an examination will prove instructive to legislators and legislative drafters themselves when they prepare legislation. For example, by providing an analysis of the judgement in Bulmer v. Bollinger [1974] EWCA Civ. 14, this study makes a case for the inclusion of Purpose Clauses in common law legislation and the application of a purposive style of statutory interpretation.Collectively, the case law examined demonstrates that both United Kingdom and Nigerian Courts are “capable of endogenous (homegrown) development (…) to meet new technical problems or social needs”. The role of the Courts in this regard is “inevitable because it would be humanly impossible for the drafter or the legislator to draft legislation that would cover every situation”.

In this paper I attempt to examine the question of whether the court can aid an employee with a disability through judicial law-making. I do so by analysing the Supreme Court’s decision 21 Cdo 1276/2016. I will try to demonstrate, that it did not in my opinion consider and reflect the EU and international approach to the integration of employees with disabilities into the workforce with a sufficient degree of intensity. I introduce these approaches, and I try to showcase their possible relevance to Czech case law. I overall try to assess the decision in terms of the (in)admissibility of its judicial law-making. This means that I am attempting to determine whether the court has impermissibly encroached (by the way it interprets the law) upon the legislative authority of parliament. I firstly address the issue of judicial law-making itself theoretically and then through case law. In the case law section, I outline a “methodology”, describing a procedure a court should follow when wanting to engage in judicial law-making. I then analyse the case 21 Cdo 1276/2016 through the lens of the theoretical setting, “methodology”, and knowledge of the EU and international approach. I point out its legal framework, present its two legal conclusions, and I attempt to evaluate them in terms of their conformity with the approaches, and their (in)admissibility respectively. I affirmatively answer the question posed in the title in this part of the text in the context of a specific labor law case. I then outline the abstract implications derivable from such an analysis in the conclusion. There I provide a positive answer to the question posed in the title in a general way. Finally, I note the non-exhaustive, practicality, topicality, and interdisciplinary applicability of the topic of judicial law-making as a whole.

The article analyses the importance of judicial law-making for ensuring the flexibility and stability of the legal system in the absence or imperfection of a legal framework. The absence of the necessary provisions in national legislation creates legal gaps that impede effective law enforcement and make it difficult to ensure fairness in court decisions. In such cases, courts play an active law-making role, applying case law, interpretation and analogy to fill the legal gaps. Based on a comparative analysis, the authors highlight the advantages of judicial lawmaking, in particular, its ability to adapt the legal system to new social challenges, ensure the effectiveness of law enforcement and avoid legal conflicts. At the same time, the authors note that excessive use of the lawmaking function may lead to legal uncertainty and subjectivity in decisions. This is confirmed by examples from different legal systems demonstrating both successful and controversial cases of judicial overcoming of gaps in legislation. The authors emphasise that the effective functioning of the legal system requires a balance between legislative and judicial lawmaking. Such an approach allows ensuring that legal provisions meet the needs of society and strengthens the rule of law. The article emphasises that judicial law-making should be based on the principles of legal certainty and respect for the interests of society, which minimises the risks of subjective interpretation and instability in law application. The authors also draw attention to the legal problems associated with the use of judicial lawmaking in Ukraine, which has a mixed legal system, and point to the trend towards the use of case law. The authors conclude by emphasising the importance of continuing research on judicial lawmaking and improving the national legal framework, which will contribute to the sustainable development of law in Ukraine. Keywords: human rights, European Court of Human Rights, case law of the European Court of Human Rights, legal influence, aspects of influence, law enforcement, judicial activity, law enforcement.