Appellate Level Research Articles

Turning Points in the Law of Torts in the Last 30 Years

This is the text of a paper presented at the National Conference of the Australian Insurance Law Association (AILA) in Adelaide on 14 August 2003. It traces the path of the law of negligence in the High Court of Australia and, to some extent, the New Zealand Court of Appeal from 1973 to 2003. It also refers to legislation in both these jurisdictions that has impinged on the law of compensation for personal injury. It shows that the courts have abrogated several common law immunities and special standards of care and moved towards one general principle of reasonable care in all the circumstances. However, the application of the criterion of reasonable care in recent years in Australia has become much more stringent, with a marked decrease in plaintiff-friendly decisions at the highest appellate level.

Provocation and `Homosexual' Advance: Masculinized Subjects as Threat, Masculinized Subjects Under Threat

By applying queer and critical gender theories to the notion of the masculinized subject, this article theorizes the complexities of the `homosexual' threat within the Canadian legal domain of the provocation defence. The article remarks that most `homosexual' advance defences at the appellate level are rejected while only some are successfully believed. It argues that the extent to which appellate decisions have recognized this defence is predicated upon a logic of (hetero)normativity in which the threat of the `homosexual' advance is not homosexuality per se, but rather, symbolic feminization. This notion of symbolic feminization is theorized and tested through its application to appellate cases. The `homosexual' advance defence is most often rejected because it has the potential to destabilize the fiction of a (hetero)normative masculine subject as impenetrable. Nevertheless, in some appellate cases, the threat of symbolic feminization was ruled to be imminent and its deadly defence worthy of the court's consideration. In a unique case, R. v Valley (1986), the court located `homosexual' threat by recasting the violence of emasculation through the figure of the `S-M homosexual'. Fleshed out as predatory, sexually aggressive and hyper-masculinized, the `homosexual' could now pose an imaginable threat to normative masculinity.

The Influence of the Common Law and the Decline of the Ecclesiastical Courts of the Church of England

The Ecclesiastical Jurisdiction Measure 1963 established the present judicial hierarchy for the provinces of Canterbury and York of the Church of England. This hierarchy comprises Church courts at diocesan and provincial levels, with further appeals heard by the Court for Ecclesiastical Causes Reserved and, in some instances only, the Judicial Committee of the Privy Council. Final appeal from the Court for Ecclesiastical Causes Reserved, and from ad hoc Commissions of Convocation, are heard by Commissions of Review, appointed by the Queen in Council. The changes made to the judicial structure of the Church of England in 1963 were widespread, and were especially significant at the appellate level. One of the most notable of the changes was the reduction in the role of the Judicial Committee of the Privy Council. This was largely motivated by long-standing opposition from certain elements within the Church to the perceived subordination of the ecclesiastical courts to secular tribunals. This opposition was fuelled by the nineteenth century controversy over ritual and ceremonial and the legality of ornaments, most of which disputes had doctrinal implications, yet were being decided in secular courts. But this preoccupation with a perceived subordination to the secular authorities distracted, it will be argued, attention from a more subtle weakness in the judicial apparatus of the Church. Although the Church had largely freed itself from subordination to secular tribunals, it was not free from the continuing influence of the parallel secular legal system. This is due to two major factors that had influenced, and continue to influence, the ecclesiastical courts. The first is that, because the Church of England is established by the general law of the country, the Church courts are the Queen's courts. The second and arguably much more important factor is the influence of the common law and its practitioners upon the jurisprudence of the Church courts. Both of these influences will be examined in the course of this paper, though the emphasis will be upon the second.

The Admissibility of "Acquittal Evidence" in Criminal Trials: Toward Reform

Recent case law at appellate level in a number of common law jurisdictions has considered the admissibility of "acquittal evidence" – meaning, in the context of this article, either evidence of a defendant's earlier acquittals or evidence on which the acquittals were based. The author argues that the various rulings have resulted in uncertainty and inconsistency and illustrate the difficulty of establishing a single admissibility rule. After analysing the New Zealand case law, the author examines the relevant sections in the proposed Evidence Code, published by the New Zealand Law Commission in 1999, and she concludes by exploring some alternative legislative and judicial resolution of the issues.

Facts, Law, and Policy: An Allocation-of-Powers Approach to Patent System Reform

The growing prominence of the patent system has revealed an institutional structure in need of repair. Legal scholars and commentators have identified and discussed some of the difficulties of the individual institutions within the patent system. But they have not incorporated into their analyses a recognition of all of the relevant institutions and their highly interdependent roles. Because of this interdependence, patent reform requires multi-institutional analysis. This Article argues that the ostensibly discrete problems of our patent institutions stem from an initial mistake in institutional design. This mistake was made in 1982, when Congress implemented patent reform by attempting to concentrate expertise at the appellate level. Congress focused on the appellate courts even though the patent questions that require narrowly focused expertise are largely questions of fact, not law or policy. Multi-institutional reform must therefore focus on remedying the system's substantial deficiencies in the areas of both fact-finding and policymaking. Under a traditional administrative law model, primary responsibility for questions of fact would rest with the PTO. The role of the courts - whether the trial court or the appellate court - would be secondary. With respect to fact-finding, adopting certain aspects of the traditional administrative model is clearly necessary. Thus Congress should advance the PTO beyond its nineteenth century moorings and endow the agency with the expertise and neutrality necessary for it properly to wield significant fact-finding responsibility. At the same time, however, giving plenary responsibility on factual questions to the PTO would not be cost-effective. Accordingly, the trial courts should also be endowed with fact-finding expertise. Solving the allocation puzzle for questions of policy is more challenging. Each of the available institutional options - the legislature, the PTO, and the courts - has substantial associated liabilities. From the standpoint of political economy and institutional flexibility, the most disadvantaged institutional actor is probably Congress. The institutional choice thus comes down to one between the PTO and the appellate courts. On first examination, given the Federal Circuit's apparent aversion to policy analysis, its possible tendency towards pro-patent bias, and the well-known difficulties courts face in undertaking policymaking, the PTO might appear the better option. In order for the PTO to be a reasonably good policymaker, however, Congress would have to change the PTO into an altogether different agency: merely implementing reform that improved the agency's fact-finding capabilities would not be sufficient. In contrast, the level of change required in the court system would be less substantial. What we would need is greater generalist input in the appellate process. To some extent, the Supreme Court's increased interest in reviewing patent cases has already taken us down that path.

The Americans with Disabilities Act in Federal Court: Litigating against public entities

This study represents the first systematic inquiry into the outcome of litigation against state and local public entities under Title II of the Americans with Disabilities Act (ADA) of 1990. Because Congress instituted a system of judicial review that established the courts as the final authority of rights and responsibilities under the Act, Title II litigation has a potentially significant impact on the disability policymaking of state and local governments in the United States. The analysis is based on all reported federal court rulings through June 2000 in which the court adjudicated a Title II claim against a public entity. The results show that plaintiffs are moderately successful in their suits against public entities, especially when compared to their record in litigating against private employers. However, the courts, particularly at the appellate level, still exercise restraint about interfering in the disability policies of subnational governments when implementing the ADA.

Summer Camps in the United States: Legal Realities Versus Risk Perceptions

Lawsuits are common in the United States. As a result, many people in the United States are concerned with risk management (increasing safety, as well as anticipating and preventing legal action) and exposure to lawsuits. Little is known about the risk management and legal perspectives of camp professionals, yet these individuals are expected (like other organizational leaders) to make daily decisions that have legal ramifications. In this study, the published legal decisions involving summer camps were classified according to areas of law. Also, a survey of U.S. summer camp professionals explored their concerns about litigation to determine whether or not these leaders were worried about the kinds of law that are litigated to the higher appellate levels of the court system. The analysis revealed reports of concern that reflect the current legal climate, but also identified areas of mismatch between professionals' perceptions and actual legal decisions. In addition, the survey results show that higher “worry” scores did predict the likelihood to seek education about the issue, but perceptions of “probability” and “severity” did not. The results identify several opportunities for discussion and suggest new areas for research.

An 'Amicus Curiae Brief' on Amicus Curiae Briefs at the WTO

This article first analyses the nature of the institution of amicus curiae. Next, the article outlines different options for tackling the amicus question by the WTO dispute settlement bodies and highlights the complexities thereby entailed, drawing a distinction between policy arguments and legal arguments. If it is not through a package deal at a ministerial conference, it is less likely that actions by the political bodies of the WTO will succeed. Finally, the author concludes that amicus curiae briefs, for systemic reasons, should in the future only be allowed at the panel level, and not at the appellate level. The article further suggests that, ideally, the initial submissions of the parties should be made public ab initio in order to allow the best possible exchange with non‐governmental experts and views.

Is breach of confidence a fiduciary wrong? Preserving the reach of judge-made law

Breach of confidence is in danger of being enveloped by fiduciary doctrine. Law's ability to discipline confidence-breaking by computer hackers and persons unknown to their victims may be lost if this wrong's separateness is not maintained. Distinct moral imperatives and policies arise when confidentiality is protected. However, A-G v Blake casts doubt on the independence of breach of confidence and breach of fiduciary duty. Conflation of the wrongs may have occurred at Britain's highest appellate level. Similar developments can seen in Australia, Canada, Malaysia and New Zealand.

The Victim Advocacy and Research Group: Serving a Growing Need to Provide Rape Victims with Personal Legal Representation to Protect Privacy Rights and to Fight Gender Bias in the Criminal Justice System

The Constitutional guarantee of procedural “due process,” arguably the most essential principle of the American justice system, provides that no person should be deprived of their rights without, at a minimum, notice and an opportunity for a meaningful hearing. Yet the personal rights of crime victims and other third parties are often violated in criminal proceedings in the absence of even minimal respect for due process. The problem persists, in part, because the system does not provide victims with personal legal advocacy and prosecutors are neither obligated nor empowered to serve as the victim’s lawyer. This lack of systematic zealous advocacy for victimsproduces harmful common law principles that depend on andperpetuate false and prejudicial notions about the credibility of rape victims, and women as a class. This article calls for the creation of public and privately supported lawyers for victims at both the trial and appellate levels of the criminaljustice system in an effort to ensure respect for fundamental constitutional principles, and to identify and eradicate gender bias in the criminal common law.

The Constitutional Failure of the "Strickland" Standard in Capital Cases under the Eighth Amendment

AMY R. MURPHY [*] I INTRODUCTION Not until the twentieth century did the United States Supreme Court rule that all criminal defendants, whether in state or federal court, had a right to be represented by counsel under the Sixth Amendment. [1] Until nearly the end of that century, however, the Court went no further than stating that defendants had a right to counsel, without specifying whether that meant competent counsel. In 1984, there were two landmark cases in Sixth Amendment jurisprudence. The first is the source of the requirement that counsel provide effective assistance, although the Court did not clarify what such assistance would entail. [2] Out of this requirement have arisen countless appeals based on ineffective assistance of counsel (IAC). Until the Court heard the second landmark case, Strickland v. Washington, [3] that same year, courts ruled on these claims without any guidance. The Court defined effective assistance of counsel according to what it was not: a deficient performance that so prejudiced the defense as to depri ve the defendant of a fair trial. [4] The Court gave little guidance about what constitutes a constitutionally deficient performance, and even less to how prejudicial the effect of the deficient performance has to be in order to be found unconstitutional. As a result, the Court did little more than to sanction the broad discretion already employed by courts in considering IAC claims. This discretion leads to arbitrary determinations in capital cases, which, although they may satisfy the low bar set for Sixth Amendment analysis, violate the Eighth Amendment. In the 1995 Law and Contemporary Problems symposium entitled Toward a More Effective Right to Assistance of Counsel, Professor Uelmen gave a guided tour of the Sixth Amendment from which he gleaned several lessons. [5] First, criminal defense will never have a high funding priority in this nation. [6] Second, the difference between no counsel and incompetent counsel is a judicial fiction that enables courts to make distinctions under the Sixth Amendment that do not exist in reality. [7] Finally, Professor Uelmen noted the shortcomings in the current standards for legal counsel: [I]f courts regarded the competence of defense counsel as just as essential to the achievement of justice as the competence of the judge, we would certainly see a different standard of competence applied. [8] It is these lessons, combined with the utter lack of any meaningful guidance from the Supreme Court as to what constitutes a prejudicial effect, that makes the Strickland standard a violation of the Eighth Amendment. Just a s legislation that gave juries complete and unguided discretion over the sentencing of capital defendants was deemed unconstitutional because it resulted in arbitrary punishment, [9] so the Strickland standard is unconstitutional because it recreates those same problems at the appellate level. Criminal defendants are guaranteed the right to effective assistance of counsel under the Sixth Amendment, but the Supreme Court's decision in Strickland has given appellate courts overly broad discretion to determine exactly what constitutes ineffective assistance of counsel. As a result, there is little consistency within judicial districts or across districts. [10] Legal assistance that might be constitutionally deficient and prejudicial before one judge may not even be considered unreasonable before another. Although most courts and legal scholars have examined the constitutionality of the assistance of counsel on an individual basis under Sixth Amendment jurisprudence, the appellate review of TAC claims in capital cases itself violates the Eighth Amendment prohibition of cruel and unusual punishment, especially as it is analyzed in Furman v. Georgia, because it results in impermissible arbitrariness in the sentencing of capital defendants. Part II of this note begins with a review of the right to couns el, which leads to a discussion of the importance of this right in capital cases. …

Law & psychiatry: least restrictive alternative revisited: Olmstead's uncertain mandate for community-based care.

More than three decades have passed since the courts first suggested that involuntarily hospitalized psychiatric patients had a right to be treated in the least restrictive alternative setting that met their needs (1). The doctrine has had its ups and downs since that time; it has been embraced by many lower courts but rejected at the highest appellate level. Now the U.S. Supreme Court has reinvigorated the concept, but has also balanced it with competing concerns, in its important decision in Olmstead v. L.C. (2). In its heyday in the 1970s, the doctrine of the least restrictive alternative was viewed as a major tool for moving committed patients out of state mental hospitals and into community settings (3). As supported by a number of decisions in lower federal courts, the doctrine rested on the argument that the state could not deprive persons of liberty to an extent unwarranted to meet its legitimate goals. Thus although the state may have had the power to commit persons with mental illness to inpatient treatment against their will to protect those persons or others, it could not do so when means less restrictive of liberty were available to accomplish the same ends. In short, if patients could be safely treated in the community, there was no warrant for their confinement in inpatient settings. The application of this reasoning about the least restrictive alternative appeared straightforward, so long as community-based facilities existed to which patients could be transferred. What happened, however, if a state had failed to create enough such placements? Could the courts compel states to redirect funds away from state hospitals and into community care? Although the enthusiastic lower-court judges who undertook to reform state mental health systems in the activist 1970s believed the answer was yes, and ordered states to act accordingly, the U.S. Supreme Court took a somewhat different view. Two decisions of the high court underscored the justices’ reluctance to have courts involved in mandating the creation of community treatment facilities, thereby altering states’ spending priorities, a quintessential legislative function (4). The court first refused to read apparently clear statutory language in the 1975 federal Developmentally Disabled Assistance and Bill of Rights Act as creating a right to treatment in the community, holding that the language was merely “hortatory” (5). Then, in its 1982 decision in Youngberg v. Romeo (6), the court pulled the rug out from under a constitutional right to treatment in the least restrictive alternative altogether. Although the concept had already made its way into a number of state commitment statutes, the federal courts seemed to be out of the business of compelling states to create alternative treatment venues in the community.

Litigation in Interior Design: Examining United States Appellate Court Cases in Professional Practice

Objective To increase knowledge of litigation in interior design professional practice, this study examined the relationship among four time periods occurring between 1969–96 and five variables: (a) occurrence of appellate–level lawsuits; (b) number of designer–defendants and designer–plaintiffs; (c) legal bases of lawsuits; (d) dollar value of amounts sought by litigants; and (e) dollar value of amounts awarded to litigants. A profile of allegations in the appellate–level lawsuits also was completed. Research Design A content analysis of litigation abstracts was completed for 137 appellate–level lawsuits using Westlawr̀, a proprietary on–line database for legal research of court abstracts in the United States. An interdisciplinary team composed of interior designers and an attorney undertook the research. Analysis Analysis of variance, including the Kruskal–Wallis test of medians, and chi–square were calculated to determine levels of probability for five hypotheses. Statistical analyses of the data included rankings of allegations in the lawsuits. Key Findings Appellate–level lawsuits were significantly different among the four time periods for (a) number of lawsuits and (b) legal bases. The time periods were nearing significant difference for dollar amounts awarded to litigants. No significant differences were shown for frequencies of designer–plaintiffs and designer–defendants or for dollar amounts sought by the appellate courts. The majority of allegations focused on disputes regarding payments for merchandise and design services. Conclusion The results suggest that over the length of a professional career, a designer is more likely to be a plaintiff in a lawsuit than a defendant and that the great majority of litigated disputes will focus on contractual issues rather than allegations of tortuous acts, such as professional negligence. The dollar amounts involved in litigation are near minimums for appellate court cases.

United States: So Many States, So Many Reforms

There are fifty-one civil justice systems in the United States: There is one system con ducted by the federal government and one conducted by each of the fifty states. As a result, it is misleading to talk about a single civil system in the United States because of the different substantive laws, legal doctrines, and court procedures extant among the fifty states and the federal government. For almost all individuals in the United States, their experience with civil justice is likely to be in the state courts. The number of cases filed in the state courts far exceeds the number filed in the federal system. For example, each of the general jurisdiction trial courts in California, Florida, New Jersey, and New York resolve more tort, contract, and real property cases than the number of civil cases resolved in the entire federal trial court system. Hence, the states are where the action is. The most successful civil justice court reform during the past two decades has been the introduction of case management. State trial courts, and to a lesser degree, appellate courts, have implemented procedures that provide information on and control over the processing of cases. At the trial court level, the monitoring of cases is supported by auto mated case-tracking systems that are under the supervision of court administrators and clerks of court. For this reasons, Jeremy Bentham's notion of judge and company refers not only to the trial court judge, his or her bailiff, law clerk, and secretary but also to one or more administrators, depending on the size of the bench. At the appellate level, the major organizational development in the past twenty years has been procedural differentiation. To achieve greater efficiency, and to allow judges to spend more time on complex cases, state appellate courts have modified steps in the traditional appellate process (e.g., limited the length of briefs, placed limitations on oral argument, or decided cases with summary dispositions rather than full-written, signed opinions). Civil justice in the United States will never be perfect. Why? Despite the benefits of case management and procedural differentiation, civil cases are generally private dis putes involving conflicting economic interests. Thus, the best that courts can hope to achieve is the resolution of disputes in a manner that meets their standards of timeliness and quality.

Unconfirmed Canine Accelerant Detection: A Reliability Issue in Court

Abstract Canines trained to alert to traces of flammable liquids at a fire scene are useful to identify locations to collect samples for laboratory analysis. In some instances, no samples are collected or laboratory testing of samples collected following a canine scent alert fails to identify a residual flammable liquid and potential accelerant. In these, an attempt may be made, through testimony of the dog's handler, to introduce at trial, information regarding the canine alert to indicate the presence of an ignitable liquid at the scene. Canine handlers contend that the dog has greater sensitivity to typical accelerants than laboratory techniques but scientists counter that, while sensitive, the specificity of canine detection is unknown. Unverified canine indications have been used in a number of cases and challenges to several of these have reached the appellate level. Examination of court decisions on admissibility of canine alerts shows that they have been as varied as the arguments pro and con.

A Review and Analysis of Prison Litigation Reform Act Court Decisions: Solution or Aggravation?

On April 26, 1996, Congress enacted landmark legislation aimed at curtailing meritless inmate litigation and restricting remedies for prison condition lawsuits. This legislation, the Prison Litigation Reform Act (PLRA), is briefly summarized in this article. Five areas of constitutional challenges to the PLRA at the appellate and district court level are reviewed. Eleven legal issues raised by the PLRA are inconsistent decisions among circuit and district courts, particularly in the areas of separation of powers and due process violations.

Type of counsel and the outcome of criminal appeals: A research note

Previous studies have focused on type of counsel and case outcome at trial court, but only a few have done so at the appellate level. The purpose of this research note is to provide some insight into the influence of type of counsel on the out-come of criminal appeals. Results indicate that in criminal appeals from two Florida trial courts to an intermediate appellate court type of counsel was non-significant in predicting the court’s decision. The implications of the findings are discussed.

Evaluation in constitutional law: An application to the first amendment

This article argues that program evaluation data may be useful to the courts when they are deciding First Amendment constitutional law disputes. Specifically, we focus on how program evaluation data, quantitative and qualitative, may be dispositive in dealing with two types of First Amendment cases—pornography and commercial speech. The different evaluative approaches that are warranted with each type of case are compared and contrasted. The different possible legal routes that program evaluation data may take to influence the outcome of constitutional law disputes determines the empirical type of approach to be utilized. Where pornography cases lend themselves more to social science data being used in trials, cases of commercial speech are more likely to use data at the appellate level. Social scientists interested in conducting legally relevant research should structure their research accordingly.

Alternative Models of Appeal Mobilization in Judicial Hierarchies

Since agenda choices of courts set the parameters of decisions on the merits, political scientists have focused more attention in recent years on the process by which judicial agenda choices are made. This paper examines the agenda process by considering the factors affecting the mobilization of appeals from the intermediate to final appellate levels in the English judicial system. Two models of agenda mobilization are evaluated in bivariate and multivariate formats. One posits that access to a court of last resort is one of the resources distributed by a legal system and that the ability to obtain an additional appeal is related to the relative capacity of litigants to compete in ajudicial system. The other focuses upon how an intermediate appellate court uses institutional rules and resources to encourage or dissuade litigants from seeking further appeal in the court of last resort. The multivariate analysis shows that agenda mobilization is primarily a function of institutional resources committed by the Court of Appeal and that the court at the intermediate level thus contributes in important ways to how appeals are mobilized in the court of last resort.

Seeking the Middle Ground of Court Control: A Reply to I. N. Duncan Wallace

THE current trend in international arbitration is to diminish – if not entirely suppress – national court control of arbitral awards. Those of us who dislike fads and excessiveness found appeal in I. N. Duncan Wallace's excellent article in the pages of this journal,1 which swims against the stream in pleading for ‘more not less’ judicial control. His views merit sympathetic and attentive reading. I cannot, however, subscribe to Duncan Wallace's views in as much as he urges that there should exist a right to a review of the merits of an award. Recourse to the courts should be available to carry out control functions. Since arbitrators are not public officials, one cannot accept that they should exercise powers which the parties did not agree to confer upon them, or disregard rules of public policy established by the legislature; any party should have the right to judicial intervention in such cases. It is also legitimate that the ordinary courts, as natural custodians of fundamental principles of legal procedure, consider the complaint of a party which considers that its right to be heard has been violated. But to conduct a review of the merits, even if it were limited to issues of law and contract interpretation, as the author suggests, would transform the controlling court into an appellate level of jurisdiction. The purpose of this article is to demonstrate that even beyond the very important practical question of the misuse of challenge mechanisms and the delay caused thereby, such a transformation would strike at the heart of the very concept of the arbitral process.2 For the purposes of his argument, Duncan Wallace uses examples essentially found in the domain of construction contracts. His thesis is, however, of general application. My response will focus on the general thesis rather than …