Common Law Judges Research Articles

Applying Laws Across Time: Disentangling the ‘Always Speaking’ Principles

Abstract Common-law judges frequently claim to apply the ‘always speaking’ principle. But they recognise that they are not clear on what it means, with Lord Leggatt recently calling the metaphor ‘enigmatic’. In this article, I seek to clarify this by showing that the ‘always speaking’ metaphor is associated with at least four different types of principle, each of which responds to a distinct issue (although there is a common theme: change over time). I explore the origins of the ‘always speaking’ metaphor, distinguish the four issues and explain how they relate. I argue that it is important to disentangle the four types of ‘always speaking’ principle, with a focus on distinguishing principles of dynamic (versus originalist) interpretation from principles that empower judges to strain or ‘recast’ legislation to deal with new developments sensibly. In doing so, I analyse and critique the judgments in the recent UK Supreme Court case of News Corp.

Book Review: The Art and Craft of Judgment-Writing: A Primer for Common Law Judges. Max Barrett

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Justifying and Categorizing Tort Doctrines: What is the Optimal Level of Generality?

Abstract This essay explores the issue of generality and tort law from two directions. First, when common law judges offer justifications of tort doctrine, what is the appropriate level of generality or specificity of those justifying principles and policies? Second, when judges identify and refine tort doctrines, what is the appropriate level of generality or specificity of the doctrines themselves? With respect to the first issue, Stephen A. Smith has argued that judges ordinarily do, and should, invoke only “intermediate” justifications for their decisions (such as dignity, fairness, or reasonableness), rather than “foundational” ones (such as utilitarianism or corrective justice). Smith’s argument has some purchase: intermediate principles indeed do and should play a prominent role in common law decision-making. However, foundational principles can legitimately play a more significant role than Smith suggests, especially if they are pluralistic. And intermediate principles are sometimes too vacuous to operate as genuine justifications. With respect to the second issue, Stephen D. Sugarman and Caitlin Boucher have proposed that numerous torts that might be characterized as “dignitary” torts should be merged into a single “unifying” tort, the tort of wrongfully harming another’s dignity in a highly offensive way. The authors plausibly argue that courts have not paid sufficient attention to gaps and arbitrary distinctions between these torts. However, their more radical claim that one uber-tort should replace all “dignitary” torts is not persuasive. Torts as distinct as battery, false imprisonment, intrusion into a private place, and malicious prosecution reflect distinct wrongs and should not be supplanted by a single tort prohibiting wrongful and highly offensive conduct. The analysis offered in this essay is informed by many examples from the Restatement Third, Torts: Intentional Torts to Persons, for which I have served as co-Reporter or Reporter.

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.

Legal Reasoning Across Commercial Disputes

Legal reasoning lies at the heart of the interpretation of the facts, it determines the application of law to the facts or the award of compensation as a result of a finding of liability, and it is of the utmost importance. Laws, court statutes, and arbitration rules require that judgments and awards be reasoned, so that the losing party, as well as every other reader, may be able to follow the reasoning of the adjudicator and understand the decision reached. Yet, legal reasoning is highly individualistic and different judges and arbitrators can decide similar or the same issues in variegated manners. The nagging questions then emerge: how do judges and arbitrators reason and why do they do so? In particular, do arbitrators reason differently than judges and should preference be given to arbitration over a court system, or vice-versa? Do domestic judges and arbitrators decide differently than international judges and arbitrators? Do common law judges and arbitrators reason differently than civil law judges and arbitrators and, to the extent that parties can make appointments, who should they choose? These are important questions that can impact the desirability of one type of dispute settlement over another, the selection and appointment of an arbitrator in a dispute, or the way legal counsel formulate arguments. In order to make sense of the process by which a judge or arbitrator reasons and ultimately decides, and why he or she reasons the way they do, some legal scholars have taken the challenging path of pushing beyond the boundaries of pure legal analysis to engage in interdisciplinary research and study the empirical data that helps explain the process of legal reasoning. Professor SI Strong’s book Legal Reasoning Across Commercial Disputes is unique in this respect, for its innovativeness, robust methodology, the quantitative data it presents, and its qualitative analysis and outcomes.

Uncommon Law: Judging in the Anthropocene

The origin story of environmental law begins with judges working valiantly to protect the environment, but ultimately, out of an apparent necessity, passing responsibility to legislators and regulators. There is truth to the story, but it ignores important aspects of the demonstrated expertise, creativity, and dynamism of common law judges. Given the trajectory of the environmental law narrative, judges today too anxiously defer to legislative and regulatory policy, and we have come to expect, sometimes champion, this shirking of environmental responsibility. But this logic of deference is unpersuasive in an age where legislators and regulators also struggle, and most often fail, to address environmental issues like climate change. This chapter urges that, instead of minimizing the role of judges, there is immense need to rediscover the possibilities of common law environmental protection. There is need to write a new origin story in which courts, legislators, and regulators carry shared responsibility. The threat of climate change demands a turn to courts for a variety of services, not least, adjudication that uncovers individual suffering and declaration of norms of right and responsibility. The judge’s role in candidly attending to these meaningful decisions can be the catalyst for much needed political action.

Conscience and the King's Household Clergy in the Early Tudor Court of Requests

The early Tudor Court of Requests was closely attached to the king's person and his duty to provide ‘indifferent’ justice. In practice, however, it was staffed by members of the attendant royal household and council. Utilizing the little-studied but extensive records of the court, this article traces the rising dominance of the dean of the Chapel Royal and the royal almoner as administrators and judges there from the 1490s to the 1520s. It examines the relationship between supposedly ‘secular’ and ‘spiritual’ activities within the central administration and between the formal and informal structures and ideologies of the church, the law and the royal household. It explores the politics of proximity and the ad hoc nature of early Tudor governance which made the conscience-based jurisdiction in Requests especially convenient to the king and desperate litigants alike. Overall the article argues that although the influence of clergymen in the court waned towards the end of the sixteenth century in favour of common-law judges, its enduring association with ‘poor men's causes’ and ‘conscience’ grew directly from these early clerical underpinnings.

Simplifying the Complexities of Negligence Law - A Joint Academic/Judicial Proposal

Over a century, Common Law judges, academics, and practitioners have struggled with the complexities of negligence law. All agree that negligence liability is imposed on a defendant whose unreasonable conduct caused foreseeable harm to the plaintiff, and who owed a duty of care to the plaintiff. But views differ considerably as to the meaning and role of each element (conduct, harm causation, duty), the test, and the relevant considerations that should be applied to each, the interrelation between these elements, and the meaning and role of the foreseeability requirement in each element. Against this background, the author has argued for years that the above complexities can be easily solved by a simplified model of negligence. Recently the author’s model has been embraced by Israeli Justices and judges. The article presents the proposed model, explains how it solves the described complexities, and fends off criticism. It then demonstrates the model’s operation by applying it to the 2018 CSS’s decision in the Rankin case. A glimpse at the Third Restatement on Torts shows that it steers in the same direction, as evidenced by an analysis of the Palsgraf case and the unforeseeable plaintiff question. Following a short overview of leading British cases from Donoghue to the 2018 decision in Robinson, it is argued that a shift to the proposed model would be a natural evolution that can be easily achieved. In contrast, it is argued that Canadian law has moved in another direction, for incorrect reasons. The model is then compared with another reform recently suggested in the literature. Finally, fault-based liability in continental Europe is viewed from the perspective of the proposed model.

Simplifying the Complexities of Negligence Law – A Joint Academic/Judicial Proposal

AbstractOver a century, common law judges, academics, and practitioners have struggled with the complexities of negligence law. All agree that negligence liability is imposed on a defendant whose unreasonable conduct caused foreseeable harm to the plaintiff, and who owed a duty of care to the plaintiff. But views differ considerably as to the meaning and role of each element (unreasonable conduct, harm causation, duty), the test and the relevant considerations that should be applied to each, the interrelation between these elements, and the meaning and role of the foreseeability requirement in each element. Against this background, the author has argued for years that the above complexities can be easily solved by a simplified model of negligence. Recently the author’s model has been embraced by Israeli justices and judges. The article presents the proposed model, explains how it solves the described complexities, and fends off criticism. It then demonstrates the model’s operation by applying it to the 2018 SCC’s decision in the Rankin case. A glimpse at the Third Restatement on Torts shows that it steers in the same direction, as evidenced by an analysis of the Palsgraf case and the unforeseeable plaintiff question. Following a short overview of leading British cases from Donoghue to the 2018 decision in Robinson, it is argued that a shift to the proposed model would be a natural evolution that can be easily achieved. In contrast, it is argued that Canadian law has moved in another direction, for incorrect reasons. The model is then compared with another reform recently suggested in the literature. Finally, fault-based liability in continental Europe is viewed from the perspective of the proposed model.

Judges and Lawmaking Authority: The New Brazilian Civil Procedure Code and the Limits of How a Civil Law Judge Could Act As a Common Law Judge

This article intends to compare two distinguished legal systems, by the perspective of the role of judges and how this officer of the court applies and interprets the law. This paper focuses on how and when judges are allowed to create the law within their judicial decisions. In this sense, we analyze how application and interpretation of the law fit within the legal concept of discretion and, in case of adopting the possibility in which the judicial authority carries out this prerogative. Also, it is taken into account how different judicial discretion comes from legislative and administrative discretion. Taking law application and interpretation as an exercise of judicial discretion is a key element to allow us to identify the way the judges create the law in civil law and common law systems. This reasoning will lead us to find elements to understand the purpose and length of a trend seen in countries in Latin America such as Brazil and its new Civil Procedure Code, which focuses on importing means from common law system to increase the efficiency of Judiciary Power, in order to attend social needs.

Judges and Lawmaking Authority: The New Brazilian Civil Procedure Code and the Limits of How a Civil Law Judge Could Act as a Common Law Judge

This article intends to compare two distinguished legal systems, by the perspective of the role of judges and how this officer of the court applies and interprets the law. This paper focuses on how and when judges are allowed to create the law within their judicial decisions. In this sense, we analyze how application and interpretation of the law fit within the legal concept of discretion and, in case of adopting the possibility in which the judicial authority carries out this prerogative. Also, it is taken into account how different judicial discretion comes from legislative and administrative discretion. Taking law application and interpretation as an exercise of judicial discretion is a key element to allow us to identify the way the judges create the law in civil law and common law systems. This reasoning will lead us to find elements to understand the purpose and length of a trend seen in countries in Latin America such as Brazil and its new Civil Procedure Code, which focuses on importing means from common law system to increase the efficiency of Judiciary Power, in order to attend social needs.

Legal entities directors’ liability for breach of good faith and/or unreasonable actions

The article applies a comparative approach to the issue of directors’ liability for breach of good faith and unreasonable actions in Russian, UK, and US legislation and case law. During the analysis of Russian case law, the inconsistency in the judicial approach to the application of the law has been established and revealed in the article. The author brings up the issue of whether and to what extent it is possible to apply the objective and subjective tests developed by English Common law judges to solve the matters of a director’s liability for breach of good faith in Russia. However, the author draws the line between the above described Common law perspective and the maxims of the law of equity and offers to restrict the latter. The other common law doctrines such as estoppel, reasonable man standard, and respondent superior are also seen in comparison with Russian law. The broader application of the principle of good faith to corporate relations has been significantly limited in the UK and the USA, the courts tend to apply fiduciary duties under a minimal scope. The directors’ liability for breach of the duty of care and duty of loyalty has been in many cases up to shareholders to decide unless the gross negligence was proven to have caused harm to the company. Generally, however, the directors are not held liable for pure economic loss and unprofitable deals. Russian courts to the contrary in many cases hold directors liable for the loss even though directors’ fault, intent or gross negligence were not proven — the mere fact that the director could not demonstrate that the best possible course of actions was taken is often regarded as a breach of good faith and unreasonable actions.

Triangulating Intrusion in Privacy Law

Abstract This article concerns two interrelated, persistent problems for privacy law. The first is the failure of academic scholarship to get adequately to grips with the meaning of privacy. The second is the apparent inability of the English judiciary to resolve the common law lacuna in respect of intrusion-type privacy violations. The two problems are related in that the former is a significant contributor to the latter. Mainstream scholarship has long insisted on pursuing the One True Meaning of privacy, thereby overlooking valid alternative conceptualisations and creating a melange of theories that provides little assistance to judges. However, by adopting a novel, triangulation-based approach to understanding privacy of the sort proposed herein, it is possible to locate points of consensus between these rival theories in respect of particular privacy-violating activities. This consensus can provide the certainty common law judges require for the elaboration of further doctrine in this field.

Common Law Judging: Subjectivity, Impartiality, and the Making of Law. By Douglas E. Edlin. Ann Arbor: University of Michigan Press, 2016. 280p. $75.00 cloth.

Common Law Judging: Subjectivity, Impartiality, and the Making of Law. By Douglas E. Edlin. Ann Arbor: University of Michigan Press, 2016. 280p. $75.00 cloth.

Liberalism and Tort Law: On the Content and Economic Efficiency of a Liberal Common Law of Torts

This Article has three parts. Part I begins by delineating the protocol one should use to determine whether a society is an immoral society, an amoral society, a goal-based society of moral integrity, or a rights-based society of moral integrity (i.e., a society that engages in a bifurcated prescriptive-moral practice that strongly distinguishes moral-rights claims (about the just) from moral-ought claims (about the good), that is committed to the lexical priority of the just over the good, and that fulfills its commitments to some hard-to-specify, requisite extent). Part I then proceeds to outline the protocol one should use to determine the moral norm that any particular rights-based society is committed to using to derive moral-rights conclusions. It next provides an account of the liberal moral norm that I think our rights-based society is committed to instantiating. It argues that this norm commits us to treating all creatures that have the neurological prerequisites to lead a life of moral integrity (to take their moral obligations seriously and to take seriously as well the dialectical task of choosing a conception of the good and leading a life that is consonant with that conception) with appropriate, equal respect and to showing appropriate, equal concern for such creatures, in part for their as economists understand that concept but primarily for their having a meaningful opportunity to lead a life of moral integrity. Part I concludes by examining the implications of our society's liberal commitments for (1) the tort-related moral duties and rights of its members and participants and (2) the general tort-related duties of its governments and the more specific duties of our society's courts when adjudicating common-law tort cases. This account proceeds from a premise uncongenial to economics that, from the perspective of liberalism, not all effects are commensurable - viz., that any tendency of a choice to deprive moral-rights holders on balance of a meaningful opportunity to lead a life of moral integrity by killing them, depriving them of the neurological prerequisites for leading a life of moral integrity, subjecting them to life-dominating pain, or (perhaps) treating them in ways that substantially undercut their perception that they are the authors of their own lives cannot be offset by any tendency the choice has to increase mere utility or welfare as economists understand that term. Part I argues inter alia that (1) its claim that ours is a liberal, rights-based society and (2) its account of the implications of that fact for the obligations of our society's members, participants, and common-law judges provide a normative grounding both for something like the Hand formula for negligence and for the common law's treatment of ultrahazardous activities. More specifically, Part 1 argues that liberalism implies that (1) something like the Hand formula for negligence is the appropriate standard for determining tort liability for possibly-tortious choices made by individuals who knew or should have known that their choices should be expected to impose net equivalent-dollar on others that reflect mere-utility losses the relevant victims sustained, and (2) individuals who made possibly-tortious choices they knew or should have known should be expected to disserve the interests of some others in having a meaningful opportunity to lead a life of moral integrity are liable in tort unless their choices served the on-balance interests of the society's members and participants in having an opportunity to lead such a life. Part 2 then examines whether a common law of torts that seeks solely to secure liberal corrective-justice rights will be economically efficient. More specifically, Part 2 delineates and explores twelve reasons why the correct resolution of a liberal corrective-justice claim may not be economically efficient. Finally, Part 3 identifies and analyzes the moral status (inter alia, the moral legitimacy) and likely generic desirability (moral-rights considerations aside) of the various possible non-common-law components of the positive tort law of a liberal, rights-based State - i.e., of its relevant constitutional law, statutory law, administrative regulations, and truly-judge-made law.

KILKA UWAG O SĄDOWNICTWIE ADMIRALICJI W ANGLII

Some Remarks on the Admiralty Jurisdiction in EnglandSummaryThe Court of Admiralty was a significant element of the English judicial system that operated outside common law. It offered a quick and effective procedure, more efficient and suitable to fit mercantile cases. Many of its judges were doctors of civil law and members of the elitists organization: Doctors’ Commons. Some of the court’s jurisdiction was based on the Roman law, which was one of the reasons for envy and jealousy among the common law judges headed by Sir Edward Coke. The sentences of the court were permanently blocked by common law judges, which resulted in many complaints made by Lord Admiral to the King and Parliament. The Court of Admiralty was undoubtedly the most powerful English judicial institution using the rules of Roman law in its practice. One of the examples presented in this paper is the question of the maritime loan secured on the ship called bottomry or respodentia, based on the pecunia traiecticia and foenus nauticum.

Justices as “Sacred Symbols”: Antonin Scalia and the Cultural Life of the Law

Abstract Perhaps no single judge in recent years has embodied the intricacies and difficulties of the cultural life of the law as much as American Supreme Court Justice Antonin Scalia. While common law judges have traditionally acquired status—and cultural relevance—from the significance, eloquence and forcefulness of their judicial opinions, Justice Scalia took an altogether different route. Both on and off the bench, he pushed the limits of legal and political legitimacy. He did this through a strict adherence to what we call a “judicial mandate,” flamboyant but engaging writing, biting humor and widespread marketing of his originalist and textualist interpretative theories. This article chronicles these features of Scalia’s jurisprudence and public life more generally, ultimately characterising the late justice as a “sacred symbol” in American legal and political circles, and beyond.

Douglas E. Edlin, Common Law Judging: Subjectivity, Impartiality and the Making of Law, Arbor: University of Michigan Press, 2016, 280pp, hb $75.00.

Douglas E. Edlin, Common Law Judging: Subjectivity, Impartiality and the Making of Law, Arbor: University of Michigan Press, 2016, 280pp, hb $75.00.

Justice Scalia and the Idea of Judicial Restraint

The book review of Antonin Scalia, A Matter of Interpretation (1997), suggests that Justice Scalia’s commitment to textualism and originalism may be rooted as much in a scruple against judicial discretion as in claims of democratic legitimacy. In particular, Justice Scalia structured A Matter of Interpretation around a criticism of the “common law” method, which he saw as vesting excessive discretion in judges. He went on to argue that interpretive approaches such as statutory purposivism and living constitutionalism raise concerns, in large part, because they invite judges to behave as common law judges. Connecting this theme with some of Justice Scalia’s well known opinions, the book review adds that Justice Scalia’s “anti-discretion principle” also explains some other aspects of his judicial behavior, such as his tradition-based approach to substantive due process, his general antipathy to balancing tests, and his views on stare decisis. The book review concludes by identifying some puzzles arising out of Justice Scalia’s “anti-discretion principle” and offers some preliminary thoughts about why his approach may have gained traction despite those puzzles.

Judicial Interpretation of Legislation as a Source of Rules of Legislative Procedure and Legislative Drafting: a Comparative Study of United Kingdom and Nigerian Court Cases on Legislative Drafting

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”.