Common Law Precedents Research Articles

Intentional Noise Exposure as a Battery? A Case Study of Canada’s Freedom Convoy

This article assesses a hypothetical battery claim for noise exposure in Australia using Canada’s Freedom Convoy as a case study. I first advance a normative account for why battery ought to respond to noise- related interferences using Kit Barker’s taxonomy of ‘vindication events’. I argue that battery, relative to negligence and private nuisance: (1) more accurately ‘marks’ and ‘declares’ the plaintiff’s right to bodily integrity and ‘denounces’ the defendant’s intentional interference; and (2) improves access to ‘appropriate compensation’ post-infringement. I also explain how the ‘prevention of rights infringements’ fits within my normative account. I then answer the key doctrinal questions of whether and when noise exposure constitutes an actionable battery. I draw from existing common law precedents to show that physical contact by sound waves is ‘direct’ and capable of being ‘offensive’. I conclude by addressing the concern that my doctrinal conclusions would unduly burden protesters’ implied freedom of political communication.

The Disavowal of Decisionism: Politically Motivated Exits from the U.S. Courts of Appeals

Abstract The impartiality and apolitical nature of the American judiciary are key to its legitimacy and the liberal constitutional legal system it supports. Though less than 1 % of U.S. Federal judges admit to political motivations for retirement or resignation, our research suggests these influences are more widespread. Examining data from 1802 to 2019, we found 11 % of retirements and 23 % of resignations from the U.S. Courts of Appeals may be linked to political cycles. Judges are less likely to retire before a Presidential election when the President is from a different party than their appointing party, and more likely to resign after the election if the President is from their appointing party. These politically motivated exits have grown, accounting for 14 % of retirements since 1975, which points to a more politically charged and polarized judiciary. Previous studies relying on self-reports or annual analyses have missed these political dynamics in judges’ departure timing. Our quarter-to-election level analysis reveals that significant decisions by Federal judges may often be influenced by unconscious bias or conscious partisan loyalty, both of which challenge the idea of judicial neutrality and the common law precedents judges must uphold. Our findings support growing concerns about undemocratic political power being exercised through the courts, giving rise to juristocracy – the practice of engaging in politics under the guise of legal proceedings.

Libels, Licenses, Liberties: Conceptualising Freedom of Speech in Colonial and Postcolonial India

ABSTRACT Analysing legal cases involving libel, rioting, sedition, and breaches of the press acts in colonial and postcolonial India, this article emphasises the continued relevance of eighteenth-century common law precedents to the conceptualisation of ‘freedom of expression’. Lawyer Thomas Erskine’s advocacy of liberty of speech in a series of seditious libel trials and Lord Mansfield’s notable commentary in the Shipley (Dean of St. Asaph) case provided a resilient framework for adjudicating the issue until the 1950s. Changes in the Indian political climate, however, prompted varying reassessments of these findings. Prior to 1910, judges and defendants in the trials of Reverend James Long, Kahanji Dharamsingh, and B. G. Tilak mined Erskine’s speeches as a resource that could help them clarify authorial intent, gauge the ‘tendency’ of texts, and specify the constitutional role of the jury. After this period, debates over freedom of expression increasingly centred upon Mansfield’s ruling — popularised by scholar A. V. Dicey — that solely associated liberty of speech with the absence of licenses for publication. Thereafter, critics of the Indian press acts weaponized Mansfield’s ruling to challenge the colonial state’s burgeoning autocracy. By the 1950s, a third shift had occurred as justices and parliamentarians offered contrary interpretations of Dicey’s own analysis in debating the Indian government’s continued reliance on censorship laws.

Judicial Law-Making in Russia and the USA: Some Theoretical and Practical Problems

A comparative legal study of problematic issues related to judicial practice and judicial law-making in Russia and the USA was carried out. It has been established that judicial law-making is recognized as a source of law. However, the most problematic and controversial is the question of its place in the system of sources of law. The study revealed that in practice, within the Anglo-Saxon legal system, it is often difficult to clearly define the boundary between common law precedents and statutory interpretation. Based on the results of the study, it is concluded that the judicial precedent in the United States, as well as in Russia, from the point of view of integrative legal understanding, still refers to “non-law”.

A Comparative Analysis of Contract Law in Common Law and Civil Law Jurisdictions

Contract law's key tasks include the creation, interpretation, and enforcement of agreements between parties. As a result, contract law is seen as an essential component of all types of legal systems. However, due to the distinct historical, cultural, and judicial contexts of common law and civil law states, the development of contract law has taken a different path in each of these jurisdictions. A comparison is made between the core ideas, central concepts, and different approaches that are characteristic of contract law in common law and civil law regimes. the beginnings and development of contract law within the context of both the common law and the civil law legal systems. the development of contractual ideas, shedding light on the various foundations that continue to have an impact on contemporary legal philosophy, and making reference to the legacy left behind by the Roman law tradition and the English common law history. a comparison and contrast of the impact of reasoning based on precedent in common law and codified statutes in civil law is used to illustrate the various techniques that are used to govern the interpretation and adjudication of contracts.

CONSTRUCTIVE BREAKING − A CONSTRUCTIVE PART OF THE HOUSEBREAKING CRIME?

Section 9 of the Theft Act of 1968 heralded a new formulation of the crime of burglary in English law, in that the unlawful conduct associated with the crime was changed from the previous elements of breaking and entering, to the requirement of a trespassory entry. Thus the element of breaking was dispensed with. Prior to the passing of the Theft Act, the English crime of burglary, along with other offences involving breaking and entering, was governed by sections 25-27 of the Larceny Act of 1916, which in turn fell to be interpreted and applied in terms of the abundance of common-law precedent. The common-law conception of the term “breaking” included both actual breaking and constructive breaking. The former notion involved the displacement of some obstacle in order to facilitate the unlawful entry into the premises: drawing a bolt, turning a key, lifting a latch, raising a cellar flap or window sash (Turner Kenny’s Outlines of Criminal Law 18ed (1962) 246). Constructive breaking may be defined as “obtaining an entrance into the [premises] by any threat or artifice used for that purpose, or by collusion with any person in the [premises]” (Stephen and Stephen Stephen’s Digest of the Criminal Law 5ed (1894) 283; see also Turner Russell on Crime 11ed (1958) Vol 2 919ff; Palmer and Palmer Harris’s Criminal Law 20ed (1960) 332; and Cross and Jones An Introduction to Criminal Law 5ed (1964) 256).Whilst it is generally accepted that the crime of housebreaking with intent to commit a crime (hereinafter “the housebreaking crime”) in South African law has its roots in the English common law rather than the Roman-Dutch law (Snyman Criminal Law 4ed (2002) 540; and R v Fourie; R v Louw 1907 ORC 58 59), it has been doubted whether the common-law notion of constructive breaking has been received into South African law (Milton South African Criminal Law and Procedure Vol II: Common-law Crimes 3ed (1996) 800). Moreover, Gardiner and Lansdown have stated that the “doctrine of constructive breaking … would probably not be approved by South African courts if the matter came into question” (Lansdown, Hoal and Lansdown Gardiner and Lansdown’s South African Criminal Law and Procedure Vol II: Specific Offences 6ed (1957) 1720). It is proposed to examine whether constructive breaking has indeed been introduced into South African law, by examining the three aspects of constructive breaking set out in the above definition: entry by threat or duress, entry by artifice or fraud, and entry by collusion with another within the premises.

Adoption, Abortion, and Nonpersons

As of late summer 2022, adopted adults in only ten of the fifty US states hold the right to obtain a copy of their original birth certificate, an example of what Daniel Heller-Roazen historicizes as forms of nonpersonhood. In its cynically transactional embrace of adoption, the Dobbs decision smugly ignores the vexed history of adoption and personhood rights. In its warm embrace of common law precedent to criminalize abortion, Dobbs cavalierly offers adoption as a pat solution, oblivious to the irony that adoption did not exist in common law. Dobbs adoptees will too often face lives shadowed historically by forms of legal, social, and civil diminishment.

Gallo Africa Ltd v Sting Music (Pty) Ltd 2010 (6) SA 329 (SCA) — Revisiting the justiciability of cross-border copyright infringement in South African courts

This contribution examines the basis for and implications of the strictly territorial approach of South African courts in cross-border copyright infringement cases, requiring litigants to bring separate infringement suits in every country where infringement is alleged. This position by the courts loosely hinges on principles of effectiveness, locality and comity, as well as the classification of all intellectual property — copyright in this case — as immovable incorporeal property. In this belated case note, the Roman-Dutch law origins from which this classification is inferred to be derived from the English common law precedent with which it is paralleled and private international law principles applicable are briefly interrogated in light of prevailing constitutional prescripts. This complete bar on the authority of local courts on what is a ubiquitous concern for rights holders is a matter with far-reaching consequences.

Contribution and Proportionate Liability under the Federal Securities Laws in Multidefendant Securities Litigation after the Private Securities Litigation Reform Act of 1995

Multidefendant securities litigation in conjunction with the complexities created by partial settlements and the joint and several liability framework present challenging issues under the federal securities laws. Partial settlements arise in multidefendant securities actions when at least one plaintiff (or plaintiff-class) brings suit against both allegedly primary actors (such as issuers or underwriters and certain personnel thereof) and other violators (such as accountants, attorneys, and their respective entities) under the liability provisions of the federal securities laws. The nature and status of partial settlement issues under the federal securities laws, and in particular under the 1934 Act, changed in December 1995, when the U.S. Congress overrode President Clinton's veto and enacted the Private Securities Litigation Reform Act of 1995. Title II of the PSLRA, the focus of this Article, was drafted primarily to address the issues presented by the joint and several liability framework and the dispersed common law precedent concerning partial settlements.

Presuit Lawyer Information Duties Relevant to Civil Litigation

Presuit Lawyer Information Duties Relevant to Civil Litigation Emeritus Professor Jeffrey A. Parness Northern Illinois University College of Law 105 Marquette University Law Review ___ (forthcoming 2022) In both federal and state courts in the United States, there are significant civil procedure, professional responsibility, and substantive laws addressing presuit lawyer duties on creating, preserving, producing, and protecting information relevant to later civil litigation. These laws speak to lawyer conduct both in personally handling information and in overseeing the information acts of others. To date, the challenges these laws pose to lawyers have not been well examined, or even largely perceived. And, to date, lawyers have been left unaccountable for their personal violations of these duties. This article is the first to survey presuit lawyer information duties. It reviews more general laws that sometimes distinguish between certain types of information (as between esi and nonesi); vary between states; differ in federal and state settings; and, appear in several sources simultaneously (including statutes, court rules, and precedents). It also reviews some very special laws that are applicable to very particular information (like x-rays) or to limited types of lawsuits (like medical malpractice). The challenges posed by these laws are magnified when later civil litigation might involve several possible forums, with multistate lawyer or lawyer-related conduct. The article utilizes the 2001 federal circuit decision in Silvestri v. GMC, a prominent ruling on the federal procedural common law duty to preserve information, to explore presuit lawyer information duties. The paper suggests possible new written laws and common law precedents to serve better the goal of just, speedy and inexpensive determination of every action and proceeding, as well as to guide civil lawyers on their obligations and civil judges on their enforcement powers. In particular, the article urges that lawyers (and their law firms), rather than or together with their clients, be held more personally accountable for presuit information duty violations, not unlike the accountability demanded of lawyers for their presuit pleading violations and for some of their presuit discovery violations. The article encourages greater employment of professional responsibility mechanisms when presuit lawyer information duties are breached, with use prompted by more disciplinary referrals by judges and lawyers that are expressly referenced in civil procedure discovery laws, as in some civil procedure pleading and motion practice laws. Finally, the article demonstrates the opportunities for substantive law claims on behalf of those harmed by presuit lawyer information failures, including claims in spoliation and/or malpractice.

Court and Environment Protection in USA

Introduction: The article discusses one of the essential problems the global community faces that demands international solutions – environmental protection. Environmental policies have become one of the important government functions in industrialized countries, and are needed to be carried out by all branches of power. The judicial branch is one of them. Theoretical Basis. Methods. The theoretical basis of the research is the works of scientists of the political and legal systems of Russia and the United States. The author used a comparative analysis of Russian and American court practices relating to environmental protection. Results. There are two separate and parallel court systems in the United States, Federal and State. US environmental law includes statutes and regulations (written laws by legislative and executive branches) and common law (precedent law through judicial decisions). The structure and practice of the American court systems is of interest and potential use to Russian scholars and professionals. Discussion and Conclusion. Legal actions in court are essential to ensure compliance with the law, environmental protection, and safeguarding of the constitutional right of citizens to live in a safe and healthy environment as an indispensable part of the quality of life.

Climate Change Adaptation in the Environment Court: Revisiting the 2010 Holt Case

Common law precedents for some resource consent approvals in Aotearoa New Zealand are out of date due to the rapid increase in the science and understanding of the effects of climate change. This article considers one 2010 Environment Court case on a resource consent for building in the coastal area. It examines how the case would be decided if it arose today, with the benefit of the relevant law, policies and guidance now available to decision-makers. It suggests that the option taken by the Court in 2010, whereby the owners assumed the relevant inundation risks, would not be so available to a court today. This case is thus no longer good law.

New Private Law? Intellectual Property 'Common-Law Precedents' in China

China has established a dynamic legal system by using guiding cases to improve adjudicative consistency. The guiding cases are de facto binding as “common-law precedents” and the only binding cases in China. The Supreme People’s Court (SPC) selects, compiles, and publishes guiding cases. In China’s dynamic legal system, the U.S. notably influences the intellectual property (IP) legal mechanism and the legal rationales for adjudicating IP disputes. Some amendments to the IP statutes of China are in response to actions and criticisms by developed countries, especially the U.S. The IP guiding cases reflect the voluntary development of the IP regime and the enforcement of the IP statutes in China. In the U.S., IP laws are mainly considered as private law, but they do involve some public law characteristics, as shown by the intervention of legislators and the development of statutory interpretation by the courts. These public law characteristics do not transform IP laws into public law, but they evoke the concept of New Private Law in modern IP laws. This study reviews all twenty-two IP guiding cases (i.e., patent, copyright, trademark, anti-unfair competition, anti-monopoly) in China and compares them with corresponding judicial precedents in the U.S. I argue that Chinese IP guiding cases are not conventional private or public law, but instead can be explained under the theories of New Private Law. The IP guiding cases follow public policies to be part of governance and, as a result, show their influence on policymakers and legislators. Consistent with the concerns of U.S. IP holders, these guiding cases show that Chinese courts are instructed to be conservative in awarding both damages and injunctions. The courts function as a gatekeeper and consider IP quality to prevent over-rewarding IP holders either through the judicial system itself or the market when government agencies liberally or incautiously granted the IP rights. For trademark and unfair competition cases, the courts are instructed to give public apologies for substituting economic damages to IP holders. Moreover, the IP guiding cases suggest that the SPC and Chinese judges are inclined towards a utilitarian and realistic/pragmatic judicial philosophy rather than a formalistic approach in their statutory interpretation.

Sistema de precedentes brasileiro: compreensão crítica a partir da tradição inglesa e norte-americana

O novo Código de Processo Civil adotou instrumentos e métodos de julgamento por precedentes da cultura jurídica do common law. Porém, há perigos em importar um sistema metodológico desenvolvido por séculos para uma determinada cultura. Esse trabalho produz uma crítica à adoção do sistema de precedentes da common law e procura reforçar a ideia do stare decisis, abrido o caminho para o desenvolvimento de um sistema próprio, adequado à realidade processual brasileira, à cultura de litígio e ao contingente de processos em trâmite perante o Poder Judiciário. O artigo faz uso do método dedutivo, está baseado no exame da doutrina estrangeira e analisa as principais características dos precedentes nos Estados Unidos (EUA) e na Inglaterra.

Current Regulation of Mobile Mental Health Applications.

In recent years, the availability of software that is targeted toward the general public and designed to assist in the diagnosis and treatment of mental illness or to promote general mental health has expanded greatly. Regulation of more traditional health care providers and health care-associated devices is well established by statute, regulatory guidelines, and common law precedents. Applications (apps), in contrast, pose a novel regulatory challenge. This review examines the current regulatory guidelines for psychiatric mobile mental health apps, as well as the current state of case law in the psychiatric mobile mental health realm.

John Marshall's Constitution: Distinguishing Originalism from Ipse Dixit in Constitutional Adjudication

This Article is the first comprehensive treatment of the constitutional jurisprudence of the Marshall Court (1801–1835) from the perspective of originalism. Until recently, there seemed to be no need for such a study. Early originalists, who wrote in the late 1960s and early 1970s, assumed that constitutional adjudication had been originalist until at least the Lochner Era. With the move from intentionalism to textualism in the 1980s, originalists came to understand their movement as an innovation and a reaction against the perceived excesses of the Warren and Burger Courts. Originalists no longer claimed that originalist methodology informed nineteenth-century constitutional adjudication. Recently, however, originalists have revived earlier claims that constitutional adjudication in the United States has always been originalist. This Article maintains that such claims are doubly misleading. First, the Marshall Court invoked the Framers’ intentions but never undertook any investigation into those intentions. Second, this rhetorical intentionalism by no means predominated as the Marshall Court’s governing interpretive approach. Rather, that approach was eclectic. Historical reasoning, common law precedent, and ipse dixit pronouncements predominated in the constitutional adjudication of the Marshall Court and throughout the Early Republic. Both contemporary originalism and contemporary non-originalism have much in common with the interpretive approach of the Marshall Court. All begin their inquiries with an examination of the constitutional text. However, the two core dogmas of contemporary originalism, which Larry Solum has described as 1) the fixation thesis and 2) the constraint principle, were rarely relevant to the Marshall Court’s inquiries. The constitutional text rarely provided clear constraints on the Court’s discretion because, to borrow language from New Originalists, their cases arose in the “zone of construction” where original meaning “runs out.” Justices chose among plausible arguments about the Constitution’s meaning. At key points, the Justices simply declared what the law was, not without justification, but also not based on evidence of the Framers’ intent or the original meaning of the constitutional text.

John Vincent’s Reading at Gray’s Inn, 1668/9, on the Merchants’ Assurances Act 1601

ABSTRACTIn Lent Term 1668/9, John Vincent, a bencher of Gray’s Inn, gave a reading on the Merchants’ Assurances Act 1601 (43 Eliz. I, c.12). The notes of the law reporter, Joseph Keble, record this observance of the centuries-old tradition of readings, which was destined to expire within the next two decades. This paper situates Vincent’s reading within the changing tradition of readings in the seventeenth century. It highlights the role readings continued to play in disseminating sophisticated legal learning, particularly in relation to newer areas of practice such as marine insurance, which were largely uninformed by statute, common law precedent or reference works, and would have been difficult to master through book-study alone. It examines a selection of issues discussed during the reading, focussing on legal outcomes grounded in the ‘customs’, usages, practices and understandings of merchants, and illustrating how these were perceived as exceptional by comparison to the ordinary rules of the common law. The nature and jurisdiction of London’s court of assurances, reconstituted and empowered by the 1601 Act, are also discussed. More generally, this paper demonstrates the value of post-Restoration readings for historians of English law in the late seventeenth century.

Electoral Cycles among US Courts of Appeals Judges

We find field evidence consistent with experimental studies that document the contexts and characteristics making individuals more susceptible to priming. Just before US presidential elections, judges on the US courts of appeals double the rate at which they dissent and vote along partisan lines. Increases are accentuated for judges with less experience and in polarized environments. During periods of national unity—wartime, for example—judges suppress dissents, especially if they have less experience or are in polarized environments. We show that the dissent rate increases gradually from 6 percent to nearly 12 percent in the quarter before an election and returns immediately to 6 percent after the election. If highly experienced professionals making common-law precedent can be politically primed, it raises questions about the perceived impartiality of the judiciary.

Citing Gender: Constituting the Muslim Woman in Malaysia

Malaysian laws governing Islam have generally been understood to derive from common law precedents, and the system of Islamic courts to be modelled on its common law counterpart. Against the backdrop of a historical discussion on the ways in which personal status laws have come to govern the limited realm of family law, this article uses landmark cases involving women and Islam in Malaysian courts to trace new networks of training, scholarship and citational practice in Malaysia since the 2000s. Beginning with cases involving the conversion of Muslim women out of Islam in the 2000s, this article indexes the changing meaning and place of gender, women and the family through an evolving global network of reference and citation, whose nodes no longer end in Calcutta and London, but stretch to Damascus, Cairo and Washington D.C., and whose appearance is mediated through the Malaysian experience. Through these citational practices, this article explores how Malaysian judges, lawyers and legal activists are re-constituting the Muslim woman, her place in the Malaysian family, and her importance in efforts to articulate an authentic Islam in Malaysia.

The Development of the High Court's Willingness to Overrule Common Law Precedent

In its first 60 years the High Court showed a complete deference to English precedent, and did not of itself initiate changes to common law doctrines. The High Court took its first steps towards autonomy in common law matters only in the 1960s when it abandoned its policy of following decisions of the House of Lords, thereby ending the practice of automatically incorporating English common law developments into Australian law. It is shown that the Court acquired a willingness to overturn ‘recent’ common law rules (those of 20th century origin) after the abolition of appeals from the High Court to the Privy Council in the 1970s. The elimination of appeals from State Supreme Courts to the Privy Council in the 1980s led to a further broadening of the range of doctrines the Court was prepared to reconsider. Notably, since the 1990s, the Court has shown its willingness, in compelling circumstances, to overrule ancient common law doctrines acquired before Federation. This paper gives a detailed account of the emergence and expansion of the High Court's willingness to overrule common law precedent. It reveals how the High Court's autonomy in common law matters was developed in distinct stages that are linked to Australia's changing legal, political and socio-economic ties with Britain, and its growing sense of an independent national identity.