Common Law Cases Research Articles

Clinical guidelines and the law: advice, guidance or regulation?

Proliferation of clinical guidelines has given rise to a number of concerns about the status of clinical advisory statements. Are guidelines advisory or mandatory? What regulatory functions do guidelines serve; do they allow clinical discretion a large enough role? Relationships between legislation and guidelines, and the way courts go about determining the legal status of guidelines, are explained. The following questions in the context of the law of negligence are addressed. Do doctors who deviate from guidelines place themselves at increased risk of being found liable in negligence if patients suffer injury as a result? Could compliance with guidelines protect health care workers from liability in such circumstances? What legal responsibility do the developers and issuers of guidelines have if their guidance is found to be faulty? Common law cases featuring clinical guidelines or protocols have been identified from the database Lexis, which searches the full text of the transcripts and reports of court cases in UK, Commonwealth and United States jurisdictions. Secondary literature, identified from the bibliography of clinical guidelines maintained by the Department of Health Services Research at the University of Aberdeen (assembled from DHSS-DATA, Embase, Grateful Med, Medline and SIGLE) has also been consulted. The legal status of a guideline turns on whether its development and application have statutory backing, and whether the guideline embodies clinical practices accepted as proper by a responsible body of doctors. The mandatory effects of guidelines can be gauged, to some extent, by the sanctions that apply in the event of non-compliance. US courts have ruled that guideline developers can be held liable for faulty guidelines, and that doctors cannot pass off their liability by claiming that adherence to guidelines has corrupted clinical judgement. Protocols and guidelines provide the courts with examples of clinical standards across a wide range of medical practice. As guidelines proliferate, so they will increasingly be used in court. However, adherence to guidelines has not automatically been equated with reasonable practice, and the courts seem unlikely to follow the standards enunciated in clinical guidelines without critically evaluating their authority, flexibility and scope of application.

The Politics in the Canadian Judicial Decision Making Process: Economic Analysis of Tax Litigation

The application of economic theories, rightly or wrongly, has a major impact on our lives. Economic reform inevitably leads to political reform. However, it remains unanswered whether economic reform leads to reform in the judicial decision making process. Although there are a number of studies on the economic analysis of taxation, that is, the study of economics and tax policies, there is virtually no literature on the economic analysis of tax cases. The time is ripe for a study of the connection between economic analysis and case law in taxation as Canada approaches the twenty-first century. This article investigates whether the federal courts in Canada have taken economic reality into consideration in making their decisions on tax matters. This is the first attempt to address the issue; although somewhat exploratory and speculative, it provides a starting point. This article first discusses tax scholarship in Canada. Then, the relevance of law and economics is discussed with special emphasis on the use of economic tools to analyse common law cases. From these discussions, the theories of economics are linked to tax cases. Finally, the author analyses trend of applying economic analysis in federal tax cases. This article should serve as a starting point for a future analysis of the cases determined by the Supreme Court of Canada.

Usages judiciaires à Aire-sur-la-Lys sous l'Ancien Régime.

Judicial Customs in Aire-sur-la-Lys in the Ancien Régime. The City of Aire-sur-la-Lys, situated in the north of the Artois, has been, as early as the XIIIth century, a borough administered by a "maieur" and a "collège d'échevins". The major privilege enjoyed by the city is that of the administration of justice. The texts of the customs, edited in 1509 and reformed in 1739, are exemplary of its style. The "échevinage" or Aire Magistrate is an "attribution" jurisdiction that deals with real, personal or criminal "matter", and rules over everybody and every property in the town and borough. In real matter, the procedure is characterized by the solemnity and the number of the adjournments, the multiplicity of the delays before the trial. Accusatory, contradictory, oral, the hearings can be completed by a written procedure. The personal cases (debts) are dealt with through a faster procedure in which one can identify our current procedure of the decisory oath. The criminal procedure only considers banishment and the procedure by default. In all cases, appeal is allowed. In common law cases, it is taken to the Aire bailiwick and beyond to the Artois Council ; in criminal cases, it is directly brought to the Artois Council. During the XVIIIth century, the Aire-sur-la-Lys "échevinage" models its style on the French reference : the common law order of 1667 and the criminal order of 1670.

The Origins of Antitrust Policy

H ANS B. THORELLI' S The Federal Antitrust Policy will establish him as one of those untiring researchers who believe that the proper way to study a subject is to burrow through every known source and if possible to discover several new ones. Following this canon, Thorelli has thoroughly examined the materials on the history of the Sherman Antitrust Law before 1903. He has read all the English common-law cases on monopoly and restraints of trade; all the congressional debates on the Sherman Act between 1888 and 1903, and all the party declarations and presidential addresses; all the Department of Justice files on antitrust cases; and all the judicial opinions. He has read surprisingly much of the periodical literature on the trust question and of the secondary materials on related problems in political, economic, and intellectual history. He is not the first to have used these materials, or even the first, as Corwin Edwards claims in a flattering foreword, to have used the Department of Justice archives-they had been exploited earlier at least by Cummings and McFarland and by Walton Hamilton and Irene Till. Nevertheless, he is the first to have done all this so comprehensively, and, since he quotes at very great length from very many documents, his work will be an invaluable sourcebook for future scholars. But it is a compendium that must be used with extreme caution. The attempt to set down all the facts, or as many as possible, has at times led Thorelli to treat as facts what are at best broad guesses or vaguely remembered rumors. He states, on the authority of Allan Nevins, that AttorneyGeneral Olney let the E. C. Knight case go

REVIEWS

Book reviewed in this article:Jurisprudence. By Sir John Salmond. Tenth edition by Glanville L. Williams, ll.d.Making International Law Work. By George W. Keeton and Georg Schwarzenberger. Second edition. Library of World Affairs, No. 1.Leading Cases in Common Law, with Notes, explanatory and supplementary. By Cockie and Hibbert. Third edition by H. J. S. Jenkins, of the Inner Temple, Barrister‐at‐Law. Two Vols.Gore‐Browne's Handbook on the Formation, Management and Winding Up of Joint Stock Companies. Fortieth Edition by P. J. Sykes, Harold Lightman and Stanley Bowie.Trade Mark Practice at the Patent Office. By Irene G. R. Moses, Barrister‐at‐Law.Legal Fictions. By A. Laurence Polak. A series of cases from the Classics. Illustrated by Diana Pullinger.The Death Duties. Tenth edition. By Robert Dymond, Solicitor and formerly Deputy Controller of the Estate Duty Office, assisted by R. K. Johns, ll.b., of the Estate Duty Office, Somerset House.The Death Duties. Second edition by G. M. Green, ll.b. lond., Solicitor; of the Estate Duty Office; one of the editors of Tristram & Coote's Probate Practice.Legal Aid for the Poor. By Ernst J. Cohn and Robert Egerton.Quarter Sessions Handbook. By Linton Thorp, k.c., and Raymond E. Negus. Second edition by the authors.The Alien and the Asiatic in American Law. By Milton R. Konvitz. Cornell University Press.

Cockle and Hibberts' Leading Cases in Common Law: With Notes Explanatory and Supplementary

Cockle and Hibberts' Leading Cases in Common Law: With Notes Explanatory and Supplementary

Appellate Procedure in Equity Cases: A Guide for Appeals at Law

The shorter textbooks on equity have given but passing attention to the subject of appeal.1 Professor McClintock stresses chiefly the scope of review.2 He points out that in common law cases, which are reviewed by writ of error, the only question is whether the judgment should be affirmed or should be reversed because of errors committed to which exceptions were taken at the time. In equity, on the other hand, review is by appeal, and the question is, not whether the lower court committed error, but whether it rendered a decree which should have been rendered in the light of the entire case as disclosed by the record. In common law cases the appellate court could ordinarily review only rulings of law. In equity cases, on the other hand, the appellate court could review findings of fact as well as conclusions of law. This power was freely exercised so long as evidence was taken in writing. But when the evidence came to be taken orally in open court, the appellate court gave much more weight to the findings of fact by the trial judge since he had seen and heard the witnesses testify and could therefore better determine their credibility. But even then, Professor McClintock concludes, the appellate court was not bound by the findings of the court below on the issues of fact. Equity appeals are also discussed by Professor Clephane in the last nine pages of his Handbook of the Law of Equity Pleading and Practice.3 He makes note of the following features of such appeals: ordinarily they lie only from final decrees; appeals can be taken only by the parties to the writ or their representatives; time and manner of taking appeals are wholly statutory; appellant muist generally give a

Common Law Pleading and Cases on Common Law Pleading

Common Law Pleading and Cases on Common Law Pleading

Indermaur's Epitome of Common Law Cases. By Ernest A. Jelf, M.A., with illustrations by E. T. Reed. Tenth edition. London: Sweet & Maxwell, Lim. 1922. xviii and 111 pp. (8s. 6d. net.)

Indermaur's Epitome of Common Law Cases. By Ernest A. Jelf, M.A., with illustrations by E. T. Reed. Tenth edition. London: Sweet &amp; Maxwell, Lim. 1922. xviii and 111 pp. (8<i>s</i>. 6<i>d</i>. net.)

Leading Cases in Common Law

Leading Cases in Common Law