Common Law Research Articles

Individual representation in approval-based committee voting

AbstractWhen selecting multiple candidates based on approval preferences of voters, the proportional representation of voters’ opinions is an important and well-studied desideratum. Existing criteria for evaluating the representativeness of outcomes focus on groups of voters and demand that sufficiently large and cohesive groups are “represented” in the sense that candidates approved by some group members are selected. Crucially, these criteria say nothing about the representation of individual voters, even if these voters are members of groups that deserve representation. In this paper, we formalize the concept of individual representation (IR) and explore to which extent, and under which circumstances, it can be achieved. We show that checking whether an IR outcome exists is computationally intractable, and we verify that all common approval-based voting rules may fail to provide IR even in cases where this is possible. We then focus on domain restrictions and establish an interesting contrast between “voter interval” and “candidate interval” preferences. This contrast can also be observed in our experimental results, where we analyze the attainability of IR for realistic preference profiles.

Impact of country-specific business integrity and firm-specific ESG on earnings quality: evidence from EU civil law jurisdictions

Purpose This paper aims to examine whether variations in country-specific business integrity (BI) and firm-specific environmental, social and governance (ESG) dimensions can explain variations in earnings quality (EQ) in Northern and Southern EU civil law countries. Design/methodology/approach Regarding EQ, the analysis builds on the “small gain, small loss” (SGSL) model of Burgstahler and Dichev (1997) and Burgstahler and Chuk (2015). The authors explain SGSL with the BI. Southern Europe or “Club Med” is typically associated with a less rigorous institutional regime than Northern Europe. Findings Results evidenced higher EQ in the Northern EU compared with the Southern EU. Furthermore, EQ is explained successfully with the Business Integrity Index (BII) and ESG. The results suggest that BII and ESG represent different dimensions, and, therefore, both should be included in the models explaining EQ. Practical implications The results show that the Northern EU civil law countries have higher EQ compared with the Southern EU civil law countries. The difference is explained by the BII variable. For the Southern EU, legislators and other public policy decision-makers should build up and apply tools to limit and fight corruption in those jurisdictions. The impactful elimination of corruption would, in turn, establish a firmer basis to foster ethical behavior and financial market sophistication developments. Originality/value The study offers additional insights on the determinants of EQ in the EU civil law countries. The prior literature has argued that, categorically, in common law countries firms engage in higher-quality reporting than those in civil law countries. The results evidence that EQ varies within the EU civil law countries; that is, a country’s BI and firm-specific ESG contribute to the explanation for EQ. A more specific explanation for the reasons in the EQ “within” civil law jurisdictions could be related to legislators and other public policy decision-makers in charge of establishing regimes and public policies supporting high-quality accounting.

O CÓDIGO DE PROCESSO CIVIL NA FORMAÇÃO DOS PRECEDENTES NO BRASIL

True precedent, the result of a scientific method of judgment, is adopted in countries with the Common Law legal system, which is based on customs. In line with global concepts that seek to converge the two main legal systems in the world – Common Law and Civil Law –, the Brazilian legislator included the use of precedents in article 926 of the 2015 Code of Civil Procedure. The objective is to promote legal certainty, standardize judicial decisions, reduce litigation and increase the credibility and efficiency of the Brazilian justice system. However, due to other provisions included in the Code of Civil Procedure and the divergent interpretation of the Judiciary in relation to the adopted system, Brazilian precedents have not yet fully achieved this purpose, requiring further study and possible adjustments by legal practitioners and the Legislature, whose intention is to discourage litigation.

An Exploratory Study of Capacity Assessment in Medical Practice in Ireland.

The current legal test for capacity under the common law is a functional test. It determines whether a person can make a particular decision at a particular time; it focuses on retained abilities rather than on presumed deficits - in order to promote patient autonomy in decision-making. International evidence suggests however that the test is not well understood and consequently not being correctly applied in practice by a range of medical professionals. Donnelly has argued that gaining a better understanding of how capacity assessments are actually employed is essential to improving the quality of assessments. To date, there is little data on how doctors in particular make their assessments in practice. Using a socio-legal methodology, this quantitative study aims to assess understanding of capacity among a group of general practitioners/family medicine doctors in Ireland, and to determine how they assess capacity in clinical practice. Our study found that notwithstanding a lack of confidence in their ability to assess decision-making capacity, that respondents in fact demonstrated a high level of understanding and of ability to correctly apply the functional test in practice.

Equity in Tax—All Change after 1873?

Until the late 19th century, equity and common law courts were separate. Tax courts emerged from equity, and today equitable principles and maxims govern the tax legislation, as well as His Majesty’s Revenue & Customs guidance and the tribunals. Even though the equity and common law courts “fused” in 1873, there has only ever been one law: common law tempered by equity. Only the courts, remedies and procedures were different prior to 1873 (though a unified Court of Exchequer with equity and common law jurisdiction existed before 1841). The law was already a single entity by the late 19th century. There was no fusion of actual laws in 1873, only of courts and procedure. Equity already moderated tax law, with beneficial ownership being all that mattered for tax purposes then and today. Keywords: equity; common law; fusion; tax; beneficial ownership; Supreme Court of Judicature Act 1873.

What Have Introductory Books on Legal Reasoning Ever Done for Us?

The purpose of this article is to investigate, and to review, a number of recent introductions to law with the emphasis being on those introducing students to legal reasoning. The investigation will have as its focus not just reasoning methodology but equally the ontological and epistemological foundations upon which the reasoning is based. The investigation will be comparative in its orientation; it will examine, in particular, works from common lawyers and French jurists, with references also to books produced by Roman law specialists (Romanists). It will show that many introductions are based on an ontological foundation that emphasizes rules—the rule model—and that, with regard to some of the introductory books, this emphasis has engendered what is arguably a simplistic view of legal knowledge and method. Are such books, it might be asked, epistemologically reliable? To help answer this question, another comparative orientation to be undertaken is to examine some introductory works in the social sciences in order to see not only how these works may differ in their approach to knowledge and methodology but also how methodological discussions in the social sciences could be valuable for lawyers. Keywords: analogy; epistemology; introductions; logic; ontology; perception; rule model; syllogism.

Examining the Impact of Common Law on Job Security in Zimbabwe's Private Sector Legal Insights and Employee Perspectives

Examining the Impact of Common Law on Job Security in Zimbabwe's Private Sector Legal Insights and Employee Perspectives

Confirmation Notes in the English Common Law

Confirmation Notes in the English Common Law

A dynamic simulation-based methodology for systematic assessment of workability on floating wind turbines

Abstract Floating offshore wind technology experiences significant motion responses when exposed to environmental wave and wind loads, possibly interfering with technicians conducting maintenance work. Industrial interest is rising in the assessment of workability, as impairments will decrease the availability of the asset and possibly affect the business case for the wind farm project. Quantification of impairments are formed from three workability indicators: Nordforsk Seakeeping Criteria, ISO 2631-1, and ISO 6897. The present work shows a likely workability decrease, quantified to 2.4% for the Nordforsk Seakeeping Criteria, for the UMaine VolturnUS-S reference platform and the IEA 15MW reference wind turbine. Peak wave period and wave heading direction are found to affect the results and indicate the importance of conducting the study in site-representative conditions. In addition, varying results for different indicators and methodological approaches indicate the need for common rules and standards in the floating wind industry to enable transparency during project development.

The Necessary Opportunism of the Common Law First Amendment

The Necessary Opportunism of the Common Law First Amendment

Real Estate Market Transformations Amidst Post-Pandemic Sino-U.S. Economic Trends

In the post-pandemic era, the global economic landscape has undergone profound changes. As the world’s largest economies, the economic policies and market performances of the United States and China have exerted far-reaching impacts on the global real estate market. This paper delves into the current state and future trajectory of the real estate market under Sino-U.S. economic trends, focusing on commercial real estate, residential investment, property taxes, financing, and laws and regulations. It also incorporates keywords such as easements, deed transfers, premium discount rates, home mortgages, police powers, liens, common law, fixtures, joint leases, marital property, private property, and trespassing to provide a comprehensive analysis.

Intermediate Appellate Courts and the Doctrine of Precedent: Lendlease Corporation Ltd v Pallas

The High Court of Australia appeal in Lendlease Corporation Ltd v Pallas raises a novel question of precedent: what approach should an intermediate appellate court (‘IAC’) take when faced with competing IAC authorities? The cases reveal that different approaches have been adopted: deferring to the home jurisdiction, favouring the most recent decision, and approaching the issue afresh. The principled answer to this question must be informed by the modern concept of a single Australian common law and the corollary rule that an IAC should not depart from a decision of another IAC on an issue of national operation unless convinced that the earlier decision is ‘plainly wrong’. It is argued that if Court B has found a decision of Court A to be plainly wrong, should the issue come before Court A again for determination, it is not open for Court A to defer to its previous decision or consider the matter afresh. In an integrated judicial system of equals working together to achieve a common goal, consistency demands that Court A give heightened deference to the decision of Court B.

In development intervention, professionals aim to enhance working practices and interaction

Abstract Background The social services and healthcare professions are experiencing a global labor shortage. Enhancing the appeal and retention requires the development of work and processes through community-level interventions that reduce workload and bolster resources. Further research into such interventions is necessary. This study focuses on a systematic community-based practice development model (Breakthrough Collaboratives) to evaluate the change in alignment with the development intervention’s objectives and the prerequisites for change. The evaluation will utilize the process evaluation model for well-being at work projects and health promotion interventions. Methods This qualitative process evaluation employs a multi-case study approach to depict the changes occurring during the development intervention. It assesses the development processes of fifteen workplaces across Finland. The research material includes recorded group discussions from the initial workshop, where professionals establish goals and development targets for their work. The qualitative data are analyzed using content analysis. The analysis is guided by questions such as: What goals and development objectives do participants set for their work? What workplace-specific characteristics inform these objectives? Results Preliminary findings indicate that the work units’ development objectives concentrate on updating the unit’s common rules, enhancing the induction process for new employees, improving work behavior, and refining meeting practices. Workplace-specific characteristics differ based on the work unit’s sector, the level of trust among professionals, and their willingness to critically evaluate management. Additionally, competence and professionalism emerge as prominent themes in group discussions. Conclusions In a workplace development intervention, professionals aim to enhance common working practices and interaction, with the goal of improving well-being at work. Key messages • Enhancing operational practices and promoting positive interpersonal conduct among colleagues constitutes a pivotal goal in advancing social and health care work units. • The Community based intervention provides workplaces with concrete models to support co-creation and permanent changes in working practices.

Navigating the evolving seas of cross‐border insolvency: The shift towards COMI and the Model Law approach in Hong Kong; Re Global Brands Group Holding Ltd (In Liquidation) [2022] 3 HKLRD 316 (Coram Harris J) [case comment

AbstractIn cross‐border insolvency cases involving foreign liquidators, Hong Kong courts traditionally adhered to two criteria for recognition and assistance: the collective nature of insolvency proceedings and the commencement of such proceedings in the company's place of incorporation. This approach has evolved following Re Global Brands, marking a shift towards considering the company's COMI as a more practical criterion, and highlighting the impracticalities of using the place of incorporation as the primary criterion. Despite the benefits, the COMI Criterion introduces complexities, such as potential non‐recognition and conflicting rulings between jurisdictions. There are also questions surrounding the differences between the principle of modified universalism under common law and the UNCITRAL Model Law. This article analyses the impacts brought about by the transition to the COMI Criterion, and encourages consideration of the adoption of the Model Law by Hong Kong in the future.

Reorganising the law to understand and protect all forms of cultural heritage

ABSTRACT Professor Irene Watson explains that decolonisation requires us to dissolve and think beyond the white colonial ‘right way of knowing’ intrinsic in Western law, and its methodologies and philosophies (1998, 28, 30). This ‘right way’ operates within a hierarchy of being that divides body from mind and spirit, and divides humans from non-human beings and from the physical and spiritual environment (Graham, 1999, 113–115). This ethos of separation is infused in Australian law and common law thinking, including those laws directed to the protection of cultural heritage. Using the cultural heritage protections laws as a prism, this paper interrogates the contemporary injustices caused by law. Contrasting the quality of protections afforded to Aboriginal cultural heritage to that afforded to ‘white’ forms of cultural heritage, we argue that cultural heritage laws operate as a racialised system of violence that is causing irreparable harm to the lands and waterways. It is urgent that we reorganise laws’ relationship to land by reinstating Indigenous sovereignty and holistic and relational management of country, the waterways, non-human beings and other entities.

Screening of BindingDB database ligands against EGFR, HER2, Estrogen, Progesterone and NF-[formula omitted]B receptors based on machine learning and molecular docking

Breast cancer, the second most prevalent cancer among women worldwide, necessitates the exploration of novel therapeutic approaches. To target the four subgroups of breast cancer “hormone receptor-positive and HER2-negative, hormone receptor-positive and HER2-positive, hormone receptor-negative and HER2-positive, and hormone receptor-negative and HER2-negative” it is crucial to inhibit specific targets such as EGFR, HER2, ER, NF-κB, and PR.In this study, we evaluated various methods for binary and multiclass classification. Among them, the GA-SVM-SVM:GA-SVM-SVM model was selected with an accuracy of 0.74, an F1-score of 0.73, and an AUC of 0.92 for virtual screening of ligands from the BindingDB database. This model successfully identified 4454, 803, 438, and 378 ligands with over 90% precision in both active/inactive and target prediction for the classes of EGFR+HER2, ER, NF-κB, and PR, respectively, from the BindingDB database. Based on to the selected ligands, we created a dendrogram that categorizes different ligands based on their targets. This dendrogram aims to facilitate the exploration of chemical space for various therapeutic targets.Ligands that surpassed a 90% threshold in the product of activity probability and correct target selection probability were chosen for further investigation using molecular docking. The binding energy range for these ligands against their respective targets was calculated to be between −15 and −5 kcal/mol. Finally, based on general and common rules in medicinal chemistry, we selected 2, 3, 3, and 8 new ligands with high priority for further studies in the EGFR+HER2, ER, NF-κB, and PR classes, respectively.

Capital Punishment Repeal in England: A Paradigm Shift towards Restorative Justice and Human Dignity

The inherent disgracefulness of death consciously inflicted upon a person by his fellows, may make the death sentence highly untenable, from a strict humanitarian prospective. It’s here where the concerned state authorities come into action and claim that if at all the death sentence is to be retained, its imposition must be with utmost human decency ensuring evolved standards. However, the movement away from brutal and cruel punishment has been a slow yet steady process. With the gradual evolving standards of human decency and dignity, the law needs to be changed with the changing dynamism of the dynamic society. Nonetheless, the American society, being one of the oldest civilizations in the world owes to itself that the agony at the exact point of execution should be kept to the minimum. This becomes more crucial when execution is the outcome of a judicial verdict. Courts play a vital role in major social reform, and that we as a society do have certain expectations from the very independent and impartial organ of the state. Moreover, history is a witness to significant social reforms bought by amendments to the prevalent law, through judicial process. Effective judicial intervention in social controversy requires a consensus on the goals and objectives of social change, at a time in history when as a society it is our failure to agree with the goals and purpose of social change that is one of the principal causes of social unrest. Judges have traditionally been very careful to emphasize that their role is not to make the law, merely to apply it. But it is apparent that judges play a significant role in the development of law through the interpretation of both common law principles and legislative provisions. The phrase “judicial responsibility” means not just the responsibility to uphold the law; it means the overarching responsibility to do justice. Courts should realize that as long as there is life, there is room for reform

Governmentality and the Common Law: Expansion of “Mind” 1835–1885

AbstractThe nineteenth century saw significant changes in how the law articulated the assessment of those who came before the courts. The judges made greater, and more refined, use of the concept of the mind as a way to refer to the internal lives of the parties. Using a Foucauldian lens, judgments from the sub-disciplines of criminal, succession and contract law will be assessed. Two specific aspects will be considered—the manner in which the law disciplined the subjects themselves and the manner in which the profession operated as a form of externalised governance. This deployment of the term “mind” used by the judges conforms with the idea that the law was taking on a new role in the governance of English society while emphasising specific tensions within each area.

Adaptive Clinical Trials in Stroke.

Designing a clinical trial to evaluate the efficacy of an intervention is often complicated by uncertainty over aspects of the study population, potential treatment effects, most relevant outcomes, dropouts, and other factors. However, once participants begin to be enrolled and partial trial data become available, this level of uncertainty is reduced. Adaptive clinical trials are designed to take advantage of the accumulating data during the conduct of a trial to make changes according to prespecified decision rules to increase the likelihood of success or statistical efficiency. Common adaptive rules address early stopping for benefit or futility, sample size reestimation, adding or dropping treatment arms or altering randomization ratios, and changing the eligibility criteria to focus on responder patient subgroups. Adaptive clinical trials are gaining popularity for clinical stroke research. We provide an overview of the methods, practical considerations, challenges and limitations, and potential future role of adaptive clinical trials in advancing knowledge and practice in stroke.

Unshackling from Shadows of the Anisminic Orthodoxy: Reconceptualising Approaches to Ouster Clauses in Hong Kong

Abstract Ouster clauses have perennially borne the mantle of a ‘litigation minefield’, where clashes between legislative and judicial powers unfold in open fora. Recent jurisprudential advancements in the United Kingdom and Singapore demonstrate how judicial approaches to ouster clauses can evolve in the face of constitutional developments. Hong Kong has, however, remained muted while these jurisprudential advancements bear fruit in other parts of the common law world, notwithstanding the fact that its constitutional framework, umpired by the Basic Law, has been in existence for over twenty-five years. This article argues for the need to reconceptualise approaches to ouster clauses in Hong Kong, grounded firmly in its post-1997 constitutional framework. Drawing on comparative jurisprudence, it presents a spectrum of approaches, animated by the dynamic interplay between various ‘macrocontextual’ and ‘microcontextual’ factors, ranging from a localised version of Anisminic, remedial interpretation, and invalidation of ouster clauses on the grounds that they impermissibly affront the constitutional right of access to courts, allocation of judicial power, and constitutional supremacy.