Common Law Cases Research Articles

Interpreting Statutes in a Manner Consistent with Seychelles’ International Obligations: Analysing the Court of Appeal’s Decision in The Anti-Corruption Commission of Seychelles v Laura Valabhji (2023)

Abstract The Constitution of Seychelles requires courts, when interpreting the Charter of Human Rights, to take judicial notice of human rights treaties. However, a similar obligation is not imposed on courts when interpreting legislation. Before the case of The Anti-Corruption Commission of Seychelles v Laura Valabhji (18 December 2023), the Court of Appeal had never held that courts are obliged to interpret statutes to conform to Seychelles’ international obligations. The Court rejected a literal approach to statutory interpretation and favoured a purposive approach to justify its reliance on an international treaty when interpreting the Anti-Corruption Act. In this article, the author argues that the Court’s decision in Anti-Corruption Commission of Seychelles v Laura Valabhji has three challenges: it did not explain the meaning of international obligations; its reliance on Indian and Sri-Lankan cases as a source of common law for Seychelles ignores, not only the Interpretation and General Provisions Act, but also the distinction between foreign cases as a source of common law and foreign cases from common law countries as persuasive authorities; and finally, its failure to define ‘control’ has the effect of expanding the powers of the Anti-Corruption Commission beyond what was envisaged by the legislature.

Work Related Rest-An Employer’s Favour or Employee’s Right? A Perspective of Ghana’s Legal Regime

Work related rest is highly ignored by employers especially in Ghana’s private corporate sector. In a highly competitive job market and scarce job opportunities, employers tend to perceive jobs as favour being made to employees. This perception tends to influence employers to deprive employees of their necessary work-related rest breaks rightfully due them. Such actions by these employers in most cases seem uncontested by employees since they are not privy to their rights to work related rest or tend to apprehend fear that they might lose their jobs in a bid to agitate for their legal rights to rest breaks. Alternatively, an employer may not restrict an employee’s right to rest breaks but rather, employees may tend to ignore their rights to rest especially in the form of annual leave for want of excessive financial gain. This paper highlights provisions on work related rest from Ghana’s Labour Act,2003 (ACT 651) which is a domestic law drawn from the International Labour Organization. The manuscript advances practicality of the sections on rest breaks highlighted by the Labour Act of Ghana by introducing both Ghanaian and Common law cases on rights and obligations of employers and employees in relation to rest breaks in Ghana.

‘Much Ado About … The Law of the Arbitration Agreement: Who Wants to Know and for What Legitimate Purpose?’

Common law cases and commentators have debated whether the law of an autonomous arbitration agreement should be the same as the law designated in a general choice of law clause or should instead, be that of the law of the Seat. The English Law Commission is currently considering this question. This article argues that when common law courts deal with this issue within mere preliminary applications, such as for a stay of litigation, they apply an inappropriate methodology, regardless of the conclusions they come to. They are wrongly trying to impose certainty when simply faced with unclear drafting, an impossible task. In addition, most of the cases that have opined as to the law of the arbitration agreement need not have done so. The cases should have been resolved more simply under different reasoning. The article then argues that, even if the law of the arbitration agreement is important, the proper question for mere preliminary courts should often simply be, could a reasonable tribunal find validity and sufficient scope under a law it may select under the choice of law and evidentiary discretions it has? If so, the right of a putative tribunal to consider the question fully should be supported. This would then leave it to annulment or enforcement courts to review those findings if asked to do so. Even courts empowered to make pre-emptive rulings on validity and scope cannot properly do so under the methodology outlined in the leading cases. At least where contested facts could be material, such courts should not decide on these questions without an adequate hearing and without deciding either way on a case by case basis as to the particular parties’ intent. Arbitration agreement, applicable law, preliminary courts, validity and scope challenges

Developments in Singapore Company Law in 2021

Singapore’s common law-origin corporate law regime ranks highly on corporate law and governance indices and is administered in part by superior courts served by judges with significant commercial expertise. As part of the Singapore Academy of Law’s Annual Review of Cases, this Paper reviews decisions of the Singapore superior courts (comprising the High Court and the Court of Appeal) decided in 2020. The cases reviewed feature a wide range of issues with domestic and international significance, including private enforcement of directors’ duties, corporate attribution, corporate veil piercing and shareholder disputes. This Annual Review will be useful for academics and lawyers who wish to stay up to date on legal developments in a leading Asian, common law jurisdiction, and on the reception of landmark common law cases in a leading Anglo-Commonwealth jurisdiction.

The Formation of the Anglo-American Law and the Power of Judges

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.

Informed consent, duty of disclosure and chiropractic: where are we?

BackgroundThe COVID-19 pandemic has seen the emergence of unsubstantiated claims by vertebral subluxation-based chiropractors that spinal manipulative therapy has a role to play in prevention by enhancing the body’s immune function. We contend that these claims are unprofessional and demonstrate a disturbing lack of insight into the doctrine of informed consent. As such it is timely to review how informed consent has evolved and continues to do so and also to discuss the attendant implications for contemporary health practitioner practice.We review the origins of informed consent and trace the duty of disclosure and materiality through landmark medical consent cases in four common law (case law) jurisdictions. The duty of disclosure has evolved from a patriarchal exercise to one in which patient autonomy in clinical decision making is paramount. Passing time has seen the duty of disclosure evolve to include non-medical aspects that may influence the delivery of care. We argue that a patient cannot provide valid informed consent for the removal of vertebral subluxation. Further, vertebral subluxation care cannot meet code of conduct standards because it lacks an evidence base and is practitioner-centered.The uptake of the expanded duty of disclosure has been slow and incomplete by practitioners and regulators. The expanded duty of disclosure has implications, both educative and punitive for regulators, chiropractic educators and professional associations. We discuss how practitioners and regulators can be informed by other sources such as consumer law. For regulators, reviewing and updating informed consent requirements is required. For practitioners it may necessitate disclosure of health status, conflict of interest when recommending “inhouse” products, recency of training after attending continuing professional development, practice patterns, personal interests and disciplinary findings.ConclusionUltimately such matters are informed by the deliberations of the courts. It is our opinion that the duty of a mature profession to critically self-evaluate and respond in the best interests of the patient before these matters arrive in court.

How Bioethics and Case Law Diverge in Assessments of Mental Capacity: An Argument for a Narrative Coherence Standard

Clinical assessments of mental capacity have long been guided by four basic cognitive criteria (understanding, appreciation, ability to reason, communication of decision), distilled directly from widespread legal precedent in common law cases of informed consent and refusal. This article will challenge the sufficiency of these legal criteria at the bedside on the assertion that clinicians and bioethicists who evaluate decisional capacity face questions far deeper than the mere presence or absence of a patient’s informed consent. It will then present an additional standard beyond the existing cognitive criteria – to be called the Narrative Coherence Standard – that may begin to bridge the gap between the existing legal standards and higher-order bioethical priorities. This standard will be treated with a philosophical argument for its use, as well as a detailed exploration of its technical components and conceptual underpinnings.

Admission by Party-Opponent, Fed.R.Evid. 801(d)(2); Government Agent or Employee, Experts, Confrontation Clause

Admission by Party-Opponent, Fed.R.Evid. 801(d)(2); Government Agent or Employee, Experts, Confrontation Clause

Common Law and Indian Cases on Medical Negligence

This paper lays down the position of law on medical negligence. The law on medical negligence is also more international than other laws. It derives from developments in the Common law as well as legal precedents from non-common law jurisdictions. The paper looks at the position of common law and Indian law on this subject through important cases. The paper highlights some emerging legal guidelines with respect to medical negligence from these cases. The paper attempts to distill what care the doctors, patients and the hospitals need to take to reduce the instances of legal medical negligence.

Consent for post-operative visual loss in prone spinal surgery: aligning clinical practice with legal standards

In March 2015, the Supreme Court’s landmark ruling on the common law case of Montgomery vs Lanarkshire Health Board established the doctrine of informed patient consent, setting the legal standards that doctors should abide by. In this review, our primary aim has been to establish whether, despite the well-publicised implications of the ruling in the legal community, the medical profession has altered its practice. To do this, we reviewed the consenting methods applied by surgeons within our field of neurosurgery. We chose the rare, but disabling, material risk of prone spinal surgery: post-operative visual loss (POVL), as our tool for assessment. Departmental and national surveys both identified a common theme – the vast majority of doctors consenting patients for prone spinal surgery either do not consider POVL to be a serious material risk, or alternatively are not aware that current legal standards require them to ensure that patients are made aware of ‘any’ material risk involved in their treatment. In light of this finding, we discuss the legal implications of the Montgomery ruling, the current regulatory guidance available to support doctors, suggest some strategies to align clinical practice with the legal standards advocated by the ruling, and highlight some of the challenges surrounding the consent process given the legal framework in which we now practice.

Steven M. Wise and the Common Law Case for Animal Rights: Full Steam Ahead

This article examines Steven M. Wise’s arguments in favour of rationally extending fundamental rights at common law to other animals, as well as the 2014 and 2017 decisions of the Appellate Division of the New York Supreme Court, which rejected the possibility of extending common law personhood to a chimpanzee on social contract grounds. The article argues that extending the common law rights to liberty and bodily integrity to animals whose cognitive characteristics indicate an interest in self-determination is both morally correct and legally feasible, since this interest is what said common law rights exist to protect. Moreover, the arguments from reciprocity and community membership adopted by the New York Court fail to provide a philosophically sound basis for denying nonhuman rights, nor does conceptualising rights and duties in terms of social contract necessarily preclude nonhuman emancipation.

Regulating by Example

Agency regulations are full of examples. Regulated parties and their advisors parse the examples to develop an understanding of the applicable law and to determine how to conduct their affairs. However, neither the legal nor theoretical literature contains any study of regulatory examples or explains how they might be interpreted. This Article fills this gap. In this Article, we explore regulatory examples and set forth a theory for how to interpret them. We examine how regulatory examples, like common law cases, serve as data points that help communicate legal content. We argue that regulatory examples are best understood through analogical, or common law, reasoning, and illustrate this through a variety of examples. Since regulatory examples are part of a broader regulatory and statutory scheme, the legal content of examples must also be reconciled with the rest of that law. We show how this reconciliation can be done through a variety of background interpretive approaches such as textualism or purposivism, and we argue for a default rule that treats the legal content in regulatory examples as co-equal with the non-example portion of the regulation. By acknowledging and exploring how regulatory examples communicate law, our theory places regulatory examples in dialogue with their broader regulatory and statutory schemes. This both empowers and constrains courts, agencies, and regulated parties in their efforts to understand the meaning of regulations

Equitable Balancing in the Age of Statutes

Equitable Balancing in the Age of Statutes examines the application of the doctrine of equitable balancing in determining whether to issue injunctions for violations of federal statutes. For the past several decades, the Supreme Court has held that the decision whether to enjoin violations of federal laws ordinarily should be determined by “balancing the equities,” in which courts weigh the hardship that the plaintiffs would face if an injunction were denied against the hardship the defendants would face if an injunction were granted. The Court has justified the doctrine by declaring that it is a longstanding equitable practice dating back centuries, perhaps since time immemorial. The Court most recently applied the doctrine in Winter v. Natural Resources Defense Council, 129 S.Ct. 365 (2008), in which environmentalists sought to enjoin the Navy from conducting antisubmarine training exercises using a type of sonar system alleged to be harmful to whales. The Court held that, even if the Navy was acting in violation of federal law, no injunction should be issued because, as the Court saw the balance of equities, national security trumps environmental protection. The Article argues that the Supreme Court’s experiment in applying equitable balancing in statutory contexts should be abandoned because it conflicts with separation-of-powers principles. The Article seeks to debunk the Court’s premise for applying equitable balancing in statutory cases - that the doctrine has been part of equitable practice for many centuries. In fact, equitable balancing is a relatively modern phenomenon, which first appeared in state common law cases during the period of rapid industrialization following the Civil War, and it only gained general acceptance in the 1930s. It was adopted for the express purpose of expanding judicial discretion to protect industries against injunctions in nuisance actions to stop air and water pollution. History is repeating itself because the Supreme Court adopted equitable balancing in federal statutory cases, beginning in 1982, to expand judicial discretion to excuse violations of federal statutes when, in the courts’ judgment, countervailing policy interests outweigh the interests served by federal statutes. Once equitable balancing is recognized as a recent phenomenon adopted to enlarge judicial policymaking authority, it becomes apparent that applying the doctrine in federal statutory cases raises substantial unresolved separation-of-powers problems. Among other things, the doctrine allows, if not requires, that courts make ad -hoc assessments of the relative importance of apparently conflicting statutory policies.

Using statutes and cases in common and civil law

ABSTRACTThis paper demonstrates that reasoning with statutes and reasoning with cases are actually one and the same intellectual activity. Further, the reasoning practice of the courts in Germany, California, and England and Wales is identical. This finding contradicts a widely held opinion that the legal reasoning of civil law lawyers differs fundamentally from the legal reasoning of common law lawyers.

Carbon Units as Property: Guidance from Analogous Common Law Cases

Carbon Units as Property: Guidance from Analogous Common Law Cases

Kivalina at the Supreme Court: A Lost Opportunity for Federal Common Law

This article discusses the status of federal common law in the wake of the Supreme Court's May, 2013 denial of petitioners' writ of certiorari in Native Village of Kivalina v. Exxonmobil. A close reading of Supreme Court and recent appellate decisions on federal common law as applied to transboundary pollution reveals three views on the availability and function of federal common law where a federal statute addresses a category of environmental harms: presumptive displacement of federal common law when a federal statute creates a regulatory approach, presumptive coexistence of federal statutory and common law where a federal statute does not provide relief for injuries alleged under common law, and case-by-case balancing of the interfering effect of federal common law against the injuries left unaddressed by federal statutory law. The Court’s current approach resides somewhere between presumptive displacement and case-by-case balancing, and although the Court offers various rationales for this approach in its latest federal common law opinion, the most convincing of these is that cases involving transboundary pollution, particularly those alleging global warming-induced injury, are cumbersome for federal courts to handle as common law matters. Allocation of judicial resources is within the Supreme Court's discretion to consider in rejecting a case, but it is a far more pragmatic than principled rationale, and thus less than satisfying as a court’s primary reason for denying relief. A more principled approach, advocated by Justices Stevens and Blackmun in dissents to two key federal common law cases, is that the displacement analysis should begin with the premise that the judicial system aims, first and foremost, to compensate the injured, and that a federal common law claim should be displaced only where the legislative-regulatory regime covering the subject of a common law claim directly addresses the injury alleged under common law.

Lochnerian Values, Mandatory Compensatory Damage Caps, and Lessons from the Sixth Amendment Jury Trial Clause

The Court’s recent punitive damage award jurisprudence finds its origin in Lochner v. New York’s guarantee of substantive due process protection for economic rights. This jurisprudence (1) establishes a reasonable review for punitive damage awards and (2) sets the disparity between punitive awards and compensatory awards for economic and noneconomic damage as the one of the starting points for determining whether the punitive award is reasonable. In so doing, the Court explicitly presumes the plaintiff has received full compensation for actual and concrete losses. This presumption is false as it applies to States that have imposed caps against compensatory damage awards in personal injury cases. Most caps were initially intended to reign in “excessive” civil jury verdicts, which had allegedly caused “skyrocketing” medical malpractice insurance premiums and litigation costs. But no cap is triggered by a preliminary finding of excessiveness. Moreover, trial judges are stripped of authority to determine whether application of the cap is just or fair to the (often) severely injury plaintiff. Unlike most works on this subject, this Article investigates the impact of compensatory damage caps on the Court’s reasonable review of punitive damage awards. This Article discusses state laws that mandate fixed or capped damage awards in medical malpractice and other tort cases. This Article also discusses the State Supreme Court split on whether compensatory damages caps encroach upon state civil jury trial rights, which like their federal counterpart find their interpretative basis in the English common law. All States recognize the historic origin of the civil jury trial right. Yet even among States with identical civil jury trial clauses an analysis of State Supreme Court jurisprudence leads to a stalemate about the nature and scope of the right to a civil jury. State Supreme Courts also conflict on whether legislative authority exists to alter a jury’s determination of the value of an injury in common law cases. This Article offers a novel approach to compensatory damage caps by turning to the Sixth Amendment Criminal Jury Trial Clause, which has recently questioned whether legislative authority exists to remove the jury from the sentencing process. This jurisprudence offers three lessons about jury trial rights: first, modern procedures cannot significantly alter certain common law characteristics of the jury trial right; second, mandatory removal of the jury as the primary fact-finder was not authorized in common law cases; and third, a common law jury’s factual determinations were fully enforceable unless exceptional circumstances were presented. This Article concludes by applying these lessons to compensatory damage caps. This Article urges adoption of cap alternatives that encourage individual review upon necessity. Such alternatives should also advance the States’ dual interests to protect both civilly liable defendants from unreasonably high awards and severely injured plaintiffs from unreasonably low awards.

Exemplarity and Narrativity in the Common Law Tradition

This paper argues that for the purposes of analyzing legal reasoning, exemplarity is profitably understood as a complex concept with the following dimensions: first, typicality; second, atypicality; and third, modelling for the future. These dimensions can also be usefully thought of in temporal terms: typicality is backward-looking, atypicality is present-regarding, and modelling is future-oriented. Any instance of exemplarity delicately balances these dimensions. This is equally so for any legal reasoning process, which must balance respect for the particularity of the present case, with respect for relevant past decisions and respect for the way in which the case might be used by future courts and those citizens most likely to be affected by the decision. The paper argues further that a useful device for balancing these dimensions of exemplarity is narrative. However, when we combine exemplarity and narrativity, we must be careful not to fall into the trap of thinking of narratives in a narrowly exemplary way, that is, as tales with a moral. To combine narrativity with exemplarity usefully—for the purposes of analyzing legal reasoning—narrative is best understood thinly, namely as a temporally organized matrix of happenings that resonates emotionally with the audience. So conceived, the processes of common law reasoning are full of exemplarity and narrativity. The paper is structured in two parts: the first elaborates on the concepts of exemplarity and narrativity used in the paper, situating them in the relevant literature; the second applies those concepts to a particular common law case, Williams v, Roffey (1991).

Eloquent (In)Action: Enforcement and Prosecutorial Restraint in the Transnational Trade in Human Eggs as Deep Ambivalence About the Law

While the 2010 Supreme Court of Canada Reference re Assisted Human Reproduction Act undermined significant parts of the federal statute, the criminal prohibitions were never challenged in the reference. In particular, sections 6 and 7 remain in place. These sections severely penalize payment for gametes or reproductive services with maximums of 10 year prison terms and/or $500,000 fines. The AHRA has no extra-territorial application on its own terms, and hence does not directly address those who engage in the prohibited acts in other jurisdictions. This article responds to an argument by Francoise Baylis and Jocelyn Downie that proposes extending the reach of the AHRA extra-territorially through common law cases like Libman. We argue that this is not only an alarming proposal, but also one ill-founded in the logic of criminal law and international comity. Their argument also fails on the basis of flawed statutory interpretation with respect to the interplay between sections 7 and 12, the latter (still unregulated almost 10 years after the statute was enacted) relating to reimbursement for various items associated with gamete donation and gestational services. We further argue, moving from the global context in which assisted reproduction operates inwards to Canadian policy, that the proposal to extra-territorialize the AHRA is morally and politically impoverished not only for those elites with the funds and wherewithal to skirt the law through reproductive travel, but even more so for those seeking and using reproductive services who remain within Canada – and for Canadian society writ large. The considerable evidence of hypocrisy, ambivalence and hesitation with respect to the AHRA strongly suggests that the statute does not reflect essential or fundamental Canadian morality. All parties associated with assisted reproduction would be better served by the complete rescission of the AHRA replaced by a regulatory framework foreshadowed by this article’s final recommendations.

Mainstreaming Employment Contract Law: The Common Law Case for Reasonable Notice of Termination

This Article simultaneously exposes a fundamental error in employment termination doctrine and a paradox in contract law jurisprudence. Contemporary employment law has developed under the assumption that at-will parties may terminate their relationship both without reason and without notice. This Article argues that the second half of this formulation – the idea that parties reserve the procedural right to terminate without notice – is neither historically supported nor legally correct. Employment at will, as originally expressed, was a mere duration presumption reflecting America’s rejection of the predominant British rule favoring one-year employment terms. While subsequent caselaw expanded the presumption in various ways, a reinterpretation that requires advance notice of termination remains compatible with the way in which most contemporary courts articulate the rule. In fact, an examination of general contract law reveals that in a variety of non-employment contexts courts impose on parties to an indefinite relationship the duty to provide reasonable notice while still safeguarding their right to terminate at will. Such an obligation serves not only as a gapfiller in the face of contractual silence, but as a good faith limitation on parties’ exercise of substantive discretion. Absent such a notice requirement, employment is an illusory relationship, one that lacks the modicum of consideration necessary to create a binding contract. While courts have sought to circumvent this problem by theorizing employment as a unilateral contract, that formulation is ill-suited to the reality that both sides generally aspire to an ongoing, dynamic relationship. Instead, this Article recasts employment as a bilateral contract terminable at will by either party upon reasonable notice. Establishing a reasonable notice obligation will grant terminated workers much needed transition time in which to seek new employment and develop new skills. At the same time, adopting this rule paves the way for a more unified body of contract law. The case for deviations from general contract principles is strongest where context-specific rules fulfill the reasonable expectations of the weaker party. Employment-specific contract rules, as they currently stand, do precisely the opposite. While ordinary contract law cannot adequately protect workers’ interests in all circumstances, this Article demonstrates that in at least some instances mainstream doctrine, properly understood and creatively applied, can produce results that are both good for workers and in harmony with existing law.