Common Law Rules Research Articles

Alien Land Restrictions in the American Common Law: Exploring the Relative Autonomy Paradigm

This paper explores the judicial origins of alien land restrictions in the United States. Alien land restrictions originated in judge-made law, and until the later part of the nineteenth century continued to be dominated by the common Legislators and framers of Constitutions in the early American republic left to judges the task of enumeration of rights to accompany the status of citizen. The gap in our understanding of this process is widened by the failure thus far to explore the importance of judicial decisions that restricted fee simple ownership of land to citizens. As a source of law, state and federal courts in the United States adopted an English common-law rule, seemingly oblivious to the incongruity of applying a rule by which a monarch governed subjects to the political context of the newly formed United States. Among other restrictions, the common law rule required that real property held by an alien automatically escheated to the state upon his death, even if his or her heirs were American citizens. Courts frequently enforced escheat of land following an alien's death, sometimes decades later, and often to the detriment of citizens who claimed title to the property. Judges continued to protect the common-law doctrine in the face of attempts to construct alternative landholding mechanisms, becoming stalwart protectors of their presumed ideal that all landholders should be citizens. This study of judicial enforcement of the common law of alien land rights leads to both general and specific observations about the nature and effect of judicial method in the nineteenth century. Among the general observations, I argue that these cases provide important evidence of the controversial paradigm of the relative autonomy of law. Judges in this period were largely unconcerned that forfeitures could result in a chaotic market economy for land, especially in periods in which large percentages of the inhabitants were foreign-born. I suggest that the tenacity of a taught legal tradition helps to explain the staying power of legal doctrine in the face of social forces we might expect to lead to change; namely, that the underlying doctrine withstood social forces that tended toward rationalization of property law in other contexts.

Privacy, Publication, and the First Amendment: The Dangers of First Amendment Exceptionalism

The coordination of common law and constitutional norms are of pressing importance on matters offreedom of speech. In the Supreme Court and elsewhere, it is possible to discern two sharply inconsistent attitudes toward this question. One view holds that the First Amendment simply prevents any legislative backsliding from the common law rules that protect freedom of speech and of the press, much as they protect freedom of contract and freedom of action generally. On this view, the standard rule governing damages and injunctive relief apply to speech much as they do anywhere else. On the alternative view of what is termed First Amendment exceptionalism, the First Amendment protection is read more broadly to afford speech greater protection than the common law rules that insulate the publication of stolen information from judicial sanction by either damages or injunction. The article then argues that the common law approach affords a better balance between privacy and disclosure with respect to a wide range of confidential information, including the protection of trade secrets. In so doing, it criticizes the results reached in a number of important recent cases including Desnick v. American Broadcasting Co., Food Lion v. Capital Cities/ABC, and Ford Motor Co. v. Lane.

On the Assessment of Children in Suspected Child Sexual Abuse in Light of Daubert and Frye: Limitations of Profiles and Interviews as Scientifically Grounded Evidence

Practice with children and families entails the higher probability of encountering forensic issues of child sexual abuse (CSA) assessments for which relatively few psychologists, allied mental health and legal practitioners are sufficiently well equipped. The current paper reviews some of the key psycholegal issues bearing on the assessment of suspected CSA in the contexts of: (a) recent psycholegal precedence and common law rules of reliability and admissibility of CSA profile evidence; (b) the empirical problems with CSA syndromes; and (c) the problems with children's interviews as evidence, and suggestions for valid interviewing guidelines supporting free recall. These psycholegal issues are presented in terms of the Frye standard for expert testimony and the Federal Rules of Evidence, with recent American and Canadian case illustrations, such as Daubert v. Merrell Dow Pharmaceuticals, Hadden v. State of Florida (1997), Bighead v. The United States of America (1997), Diocese of Winona v. Interstate Fire & Cas. Co. (1994), and R. v. Simpson (1996).

The legal status of account books in colonial America

From the first English settlement in colonial America to the beginning of the Revolution, the legal status of account books evolved. During this period, there was a scarcity of hard currency which made commercial transactions largely dependent upon a credit based, barter based economic system. Business transactions often were represented by book debt. As merchants brought legal actions over book debt disputes, American colonial courts and legislatures began to examine the English common law rules that placed several restrictions on the introduction of account books into evidence. Responding to economic and social necessity, colonial America developed a legal system that was more flexible and pragmatic than was the English system in regard to admitting account books into evidence. Thus, American colonial courts and legislatures met the commercial needs of the new world, and in so doing, provided the impetus for examining accounting standards, fiduciary duty and financial statements in today's American legal system.

Conflicts in the Cathedral: Towards a Theory of Property Rights in Private International Law

Despite significant scholarly work addressing the law and economics of choice of law in contracts and torts, most scholars have left property conflicts to the clutches of formalism. Choice of law and jurisdiction principles, however, determine the manner in which property laws serve regulatory, definitive and exchange functions. Property law's exchange function describes the procedures by which entitlements may be traded; however, the choice and compliance with those procedures between transactors in multistate contexts has the characteristics of a coordination game, with the complication of multiple equilibria. I demonstrate how the lex situs choice of law rules can assist coordination by shadowing focal substantive law, and can allocate the risks of title imperfections to the party with the lowest search costs. The appeal of the lex situs decreases for the definitive and regulatory functions of property law where property is jurisdiction-specific (immovable). The lex situs together with the common law rule denying jurisdiction over torts and trespasses affecting immovables creates a jurisdictional monopoly. Land owners may be particularly vulnerable to the effects of rent-seeking in these cases, as is apparent in cases involving harmful externalities in the developing world. Invoking the economic literature on liability rules and property rules, I argue in favour of limited exceptions to the pro-situs rules as a means of increasing the efficiency of land use, where bargaining is impossible, and, following Johnston, and Ayres and Talley, as a means of increasing Coasean trade in property entitlements, where bargaining is possible. Nonetheless, state incentives to apply such exceptions are substantially limited.

Hong Kong SAR: In Pursuit of Domestic and International Order (review)

Reviewed by: Hong Kong SAR: In Pursuit of Domestic and International Order Charles Burton (bio) Beatrice Leung and Joseph Cheng, editors. Hong Kong SAR: In Pursuit of Domestic and International Order. Hong Kong: Chinese University Press, 1997. xi, 299 pp. Paperback HK $23.00, ISBN 962-201-785-1. This is a collection of fourteen papers derived from a September 1996 conference on the future of Hong Kong. As this sort of book tends to be, it is a mixed bag in terms of both the quality of scholarship and the diversity of topics addressed. It is hard to make a coherent and integrated work out of conference papers, but this book is stronger than most in this genre. The editors divide the contributions into two parts, "Domestic Order" and "International Order." In the first part there are seven essays: Cheung Chor-yung writes on political legitimacy, Michael Yahuda on mainland political relations, Lin Tzong-biau and Kan Chak-yuen on mainland-funded enterprises, Wong Hung on labor in Hong Kong, Beatrice Leung on the Roman Catholic Church in Hong Kong, Ren Yue on Hong Kong NGOs, and, in an excellent essay, Andrew Byrnes on Hong Kong's international obligations relating to human rights. In the second part, there are five essays: Roda Mushkat writes on the post-transition continuity of international treaty obligations, Jane C. Y. Lee and Gerald Chan on Hong Kong's international relations policy, Timothy Ka-ying Wong on Taiwan, Ting Wai on relations between Hong Kong and the United States, and Brian Bridges on relations between Hong Kong and Europe. These are followed by a general summary of issues in the 1997 transition by the distinguished political scientist, Joseph Y. S. Cheng. The essay by Wong on Taiwan is a superb introduction to contemporary Taiwan politics and international relations, but it is rather weakly connected to the Hong Kong theme of the book. Some of the contributions read like assigned topics that the authors have been hard-pressed to fill with some kind of insight. This leads to a certain amount of filler along the lines of "Hong Kong is of course important to China in a number of ways" (p. 260). Closer editing is called for, but this collection is not as rife with redundancies as other conference volumes. In the years leading up to 1997, there were a number of scholarly meetings focused on the theme of what would happen to Hong Kong after the reversion to Chinese sovereignty (I edited such a collection myself, Politics and Society in Hong Kong Toward 1997 [Toronto: York University-University of Toronto Joint Centre for Asia Pacific Studies, 1992]). While we are now well past July 1997 and have a clearer idea of Hong Kong's future political and economic direction as a Special Autonomous Region of the People's Republic, it is nevertheless interesting to compare the concerns that were expressed about Hong Kong's fate in the years leading [End Page 120] up to the reversion to Chinese sovereignty with the realities of Hong Kong under Chinese rule today. From this perspective, the book is still worth a read. While Hong Kong was still under British colonial rule, people were worried that after 1997 a repressive political regime would emerge based on rule by the Central Committee in Beijing rather than the rule of British common law. The notion that the likes of Martin Lee, Szeto Wah, and Emily Lau could become "prisoners of conscience" did not seem entirely out of the question only a few years ago. Like one of the authors who contributed to this collection, many of us were worried that after 1997 "negative changes in Hong Kong like rampant corruption, [a] deteriorating business environment in which favouritism prevails over competition, and freedom of information becoming questionable, may lead to the withdrawal of American multinational companies from Hong Kong" (p. 243). Such fears led to a large-scale emigration of the Hong Kong middle class to the advanced Western nations, mostly to Canada. While one suspects that as the years go by Beijing will exert increasing influence on all areas of Hong Kong's social, political, and economic development, none of...

Proving sexual assault

The framework provided by therapeutic jurisprudence is used to examine the rules of evidence that govern sexual assault trials. The concern is with the impact of the trial process on the accusing witness. In the first part a personal narrative is used to put the legal rules in context. Psychological sources are used in discussing the reasons for presenting such a narrative. In the second part, the effect of statutory changes to the common law rules as effected in NSW in 1981 is analyzed. Drawing upon the Heroines of Justice report the paper suggests that the intention of reducing the trauma of the victim has not yet been achieved. It is suggested that this failure is not unique. A change in attitude on the part of those involved in the trial process is necessary, and the hope is that this paper might contribute to such a change. Copyright © 2000 John Wiley & Sons, Ltd.

Proving sexual assault.

The framework provided by therapeutic jurisprudence is used to examine the rules of evidence that govern sexual assault trials. The concern is with the impact of the trial process on the accusing witness. In the first part a personal narrative is used to put the legal rules in context. Psychological sources are used in discussing the reasons for presenting such a narrative. In the second part, the effect of statutory changes to the common law rules as effected in NSW in 1981 is analyzed. Drawing upon the Heroines of Justice report the paper suggests that the intention of reducing the trauma of the victim has not yet been achieved. It is suggested that this failure is not unique. A change in attitude on the part of those involved in the trial process is necessary, and the hope is that this paper might contribute to such a change.

Identifying the proceeds of electronic money fraud

eCash by DigiCash is one of a range of software‐based systems devised for payments to be made over the Internet by the use of electronic tokens or “coins” (known colloquially as “electronic money”). As in the case of other new electronic systems, the functioning of the system gives rise to novel and difficult legal issues, some of which have yet to be resolved. This article will consider the extent to which a user of the system whose value is stolen may use the common law and equitable tracing rules as a means of taking action against the perpetrator of the fraud.

The Emperor's Old Clauses: Unincorporated Clauses, Misleading Terms and the Unfair terms in Consumer Contracts Regulations

Consumers frequently do not know of their rights and are unwilling to litigate. The powers of the Director General of Fiar Trading under the Unfair Terms in Consumer Contracts Regulations 1994 will often provide more effective protection for the consumer than common law rules. The powers are pre-emptive and enable unfair terms to be removed from standard form contracts, so that consumers simply cease to encounter such terms. Some protection may be provided for consumers by common law rules which allow a finding that clauses are not incorporated or that they do not have the legal effect which they may appear to the consumer to have. However, without knowledge or a willingness to litigate, consumers may be misled by such clauses and terms as to the legal rights generated aand they will not then be able to enjoy their rights to the full. This article examines the extent to which the powers of the Director General can be used to protect consumers from such misleading clauses and terms. It considers the interaction of the Regulations and the common law, the scope of the Regulations, and the application of the Regulation's test of fairness.

Rule and Reason in the Common Law of Foreign Judgments

Two tenets are central to the Common Law rules for enforcement and recognition of foreign judgments. The first is that, subject to public policy, the enforcing court does not review the substance of the decision; in other words, mistake is no defence. The second is that, apart from ensuring that the judgment was not obtained by fraud or through a breach of the requirements of natural justice, the prime consideration for enforcement is whether the foreign court was competent to issue the judgment; in other words, whether it had jurisdiction.These two tenets are eminently reasonable. A foreign judgment is after all both a judgment—like a local judgment, and foreign—like a right acquired under a foreign law. The validity of local judgments and of foreign unadjudicated rights depends on jurisdiction: local judgments depend on adjudicatory jurisdiction (often defined in the rules of service); foreign rights—on legislative or prescriptive jurisdiction (the jurisdiction of a system to regulate the situation substantively, as defined in choice-of-law rules). It thus seems appropriate to require jurisdiction of foreign judgments too. Local judgments, once final, are never subject to review, and can be attacked on the grounds that they were obtained by fraud only exceptionally. Rights acquired under a foreign law cannot be refused enforcement because of their substance and are subject only to the public policy exception. It thus seems appropriate to immunise foreign judgments from substantive review too. Foreign judgments—adjudicated rights—are of course different from foreign unadjudicated rights in that they are the product of a process. So, as in the case of local judgments, it should nonetheless be possible, in limited circumstances, to examine whether the process was tainted by fraud. So too, they differ from local judgments in that the process from which they emerge is not a local one; it cannot be relied upon in the same way as locally controlled and institutionalised procedures. It thus seems reasonable that, while prevented from reviewing the substance of a foreign decision, the court should be permitted to require of it a minimal level of procedural justice.

Alien Land Restrictions in the American Common Law: Exploring the Relative Autonomy Paradigm

This paper explores the judicial origins of alien land restrictions in the United States. Alien land restrictions originated in judge-made law, and until the later part of the nineteenth century continued to be dominated by the common Legislators and framers of Constitutions in the early American republic left to judges the task of enumeration of rights to accompany the status of citizen. The gap in our understanding of this process is widened by the failure thus far to explore the importance of judicial decisions that restricted fee simple ownership of land to citizens. As a source of law, state and federal courts in the United States adopted an English common-law rule, seemingly oblivious to the incongruity of applying a rule by which a monarch governed subjects to the political context of the newly formed United States. Among other restrictions, the common law rule required that real property held by an alien automatically escheated to the state upon his death, even if his or her heirs were American citizens. Courts frequently enforced escheat of land following an alien's death, sometimes decades later, and often to the detriment of citizens who claimed title to the property. Judges continued to protect the common-law doctrine in the face of attempts to construct alternative landholding mechanisms, becoming stalwart protectors of their presumed ideal that all landholders should be citizens. This study of judicial enforcement of the common law of alien land rights leads to both general and specific observations about the nature and effect of judicial method in the nineteenth century. Among the general observations, I argue that these cases provide important evidence of the controversial paradigm of the relative autonomy of law. Judges in this period were largely unconcerned that forfeitures could result in a chaotic market economy for land, especially in periods in which large percentages of the inhabitants were foreign-born. I suggest that the tenacity of a taught legal tradition helps to explain the staying power of legal doctrine in the face of social forces we might expect to lead to change; namely, that the underlying doctrine withstood social forces that tended toward rationalization of property law in other contexts.

The Ties That Bind: Preemptive Rights and Restraints on Alienation That Commonly Burden Oil and Gas Properties

This paper will address four contractual provisions that often come into play in the acquisition and disposition of oil and gas properties: preferential rights to purchase, maintenance of uniform interest, areas of mutual interest, and consents required for assignment. These provisions each address valid commercial purposes and when consciously and deliberately implemented, can reflect a negotiated allocation of value and risk among the parties to the various agreements where they are found. However, they are all long-lived, if not perpetual, and at some point when performance of, or compliance with, them is at issue, it will be in the interest of one party or a successor in interest that the provisions either not apply or not be enforced. Thus, there is a constant testing of the boundaries in the commercial arena and frequent legal challenges in the courts. Each of these four provisions share certain elements with others, so that common legal principles and bodies of law are relevant in establishing the boundaries and evaluating the inevitable challenges. Preferential rights to purchase and areas of mutual interest contemplate future vesting which implicates the Rule Against Perpetuities. Preferential rights, the maintenance of uniform interest provision, and consents as conditions to assignment are restraints on alienation which involve the common law Rule Against Unreasonable Restraints on Alienation. All of these provisions purport to burden real property, so that the Statute of Frauds and the law regarding "covenants running with the land" are relevant. This paper will not cover all of these issues in depth, but will attempt to identify relevant Texas cases that directly bear on the current status of these provisions.

Europe's New Jury Systems: The Cases of Spain and Russia

The recent reintroduction of trial by jury in both Russia (1993) and Spain (1995) is interesting for two reasons. First, it is a surprising reversal in the longterm trend toward the elimination of the classic jury in favor of either courts composed exclusively of professional judges, or of “mixed courts” in which professional judges and lay assessors collegially decide all questions of fact, law, and sentence. Second, it raises the question whether the jury can act as a catalyst in the reform of Continental European criminal procedure, as it did during the nineteenth century in the wake of the French Revolution. The modern notions of procedural fairness in criminal procedure, which have gained general international recognition in national constitutions and international human rights conventions, have their origins in the following Anglo-American concepts, which developed in the context of an adversarial trial by jury: (l) the presumption of innocence, (2) the privilege against selfincrimination, (3) the equality of arms, (4) the right to a public and oral trial, (5) the accusatory principle, and (6) the judge’s independence from the executive or investigative agency. The classic separation of powers within the adversarial criminal process between a neutral judge, responsible for deciding questions of law and punishment, and a panel of lay persons responsible for questions of fact and guilt, also gave rise to common law rules of evidence. For instance, the separation of powers inspired the regulation of hearsay and relevance, the creation of exclusionary rules addressing excessively prejudicial and illegally gathered evidence, and the adoption of the principle of “free evaluation of the evidence” unfettered by formal rules of evidence. Important devel-

Enforcement of Third Party Rights in Queensland Pursuant to Property Law Act 1974 (Qld), s55

Twentyfive years ago the common law rule of privity of contract was largely abolished in Queensland by the enactment of Property Law Act 1974 (Qld), s55. Subsection 1 provides that: A promisor who, for a valuable consideration moving from the promisee, promises to do or refrain from doing an act or acts for the benefit of a beneficiary shall, upon by the be subject to a duty enforceable by the beneficiary to perform that promise. Any interpretation of the section, including the construction of terms such as promisor, beneficiary, promise, acceptance and available defences, is to be gleaned from a handful of reported cases (including obiter in a High Court decision) and a number of unreported Queensland decisions. In many of these decisions the section was called upon by way of alternative argument rather than being the main focus of the action.

The Inefficiency of the No-Duty-to-Rescue Rule and a Proposed "Similar Risk" Alternative

One of the most settled and basic common-law rules that all law students learn is that there is general to rescue someone. Although there are many exceptions to this general rule,' the basic principle has been widely accepted. It is unclear, however, whether the rule is based on liberty or social-utility concerns. Perhaps common-law courts feared the undue interference with an individual's liberty that would result from imposing a seemingly limitless to rescue every person in danger. Alternatively, these courts might have felt that the costs of imposing liability for failure to rescue were generally greater than the benefits to be derived. This Comment analyzes various efficiency2 arguments that have been presented in support of the no duty rule and proposes a new rule that promotes both efficiency and personal liberty. Specifically, the Comment addresses Professor William Landes and Judge Richard Posner's argument that the no-duty rule is efficient because potential

Ascertaining the Statutory Lex Loci Delicti: Certain Difficulties Under the Private International Law (Miscellaneous Provisions) Act 1995

The Private International Law (Miscellaneous Provisions) Act 1995 introduced major reform to the common law choice of rule in delict/tort under Scots/English law respectively. To all intents and purposes, and in the face of sustained and strong criticism, the Act abandoned the common law rules based on double actionability with exceptions. The primary rule under the statute would appear to state that the applicable law is to be based on the general concept of the lex loci delicti. It is of some significance for the analysis here that the statute does not in fact utilise that Latin expression as it is indeed unclear that the expression has any technical meaning. Indeed, the provisions of the Act seek, but in the end fail, to achieve a greater degree of certainty than that rather nebulous though “right-minded” concept. Significantly, a principal objective of the reforms was to ensure that the lex fori no longer played a primary role in choice of law for delictual/tortious claims in private international law. Of course, doubts remain as to the likelihood of direct resort to the lex fori via potential escape devices provided for in the Act The two most likely stages for this arise during characterisation and later when the lex fori may be applied qua public policy.

Health care law

New Zealand’s lack, until recently, of a ‘code of patients’ rights’ does not mean that health and disability services consumers have hitherto had no rights. There is already a significant body of professional guidelines, ethical precepts, and common law rules which govern interactions between providers and consumers. Much of the Code is entirely consistent with established codes of ethics and current law. Nonetheless, it represents an important advance in the legal recognition of consumers’ rights. Access to the Commissioner and independent advocates will assuredly empower consumers. The experience of the Human Rights Commission and the Privacy Commissioner suggests that consumers will not be slow to exercise their new-found rights, and that providers will risk public censure, and costly settlements, if they choose to ignore the Code.

Law and Economics: Its Glorious Past and Cloudy Future

The title I have given to this short comment is one that does not speak to any great optimism about the future of and Economics, and it is incumbent upon me, even in a short essay, to indicate the sources of my uneasiness. When I entered legal academia in 1968, and Economics was just getting started as a separate field. The magnitude of the intellectual revolution is hard to recount today because virtually everyone who works in common law subjects is familiar with the now routine exercise of showing why it is, or has to be, the case that this or that common law rule is, or is not, efficient. But the present familiarity should not be read back into the past. In my student days at Oxford between 1964 and 1966, I engaged in an exhaustive study of the common law of contract, property, and torts. I studied legal history and jurisprudence, and learned Roman and international law to boot, all with reference to contract, property, and torts. Yet I cannot recall a single instance in which common law rules were praised for their efficient properties or criticized for their lack thereof. For our normative work, we relied on some intuitive notion of fairness or justice, which seemed to produce on average better economic results than the self-conscious instrumentalism that guides so many judges today. For our descriptive work, we relied on stare decisis and close case readings. To be sure, English academics and judges were less innovative than their American counterparts. The United States had law and economics before Law and Economics. In the 1950s, Aaron Director and Edward Levi introduced an integrated study into the area of monopoly regulation. But, in a sense, that connection was too obvious to deny: how could anyone understand the regulation of monopoly without having some idea of how monopolies were formed and how monopolists behaved. The early use of economics, moreover, was not thought in any obvious sense to be generalizable to other areas of legal endeavor, and certainly not to such areas as constitutional, family, or criminal law. Only

Judicial liability and blood transfusion--equity, opportunity?

Blood transfusion centres are regularly sentenced to compensate for damages caused to individuals contaminated following a transfusion. Some blood transfusion centre directors and certain senior civil servants of the Health Ministry were sentenced by the repressive courts. This article explains how these solutions are not innovative and only result from the application of the rules of common law to transfusion activity. The author tries to assess the opportunity and equity of this.