Court Of Record Research Articles

A superfluous concept? The inherent jurisdiction of the South African superior courts as upper guardians of children

This article examines the relationship between the role of the superior courts as upper guardians of minors and the constitutionally enshrined right of South African children to have their best interests considered paramount in any matter concerning them. The powerful procedural role of the superior courts in this regard is not subject to review or appeal, enabling the courts to intervene of their own accord on behalf of and to protect all children in their jurisdiction. The article examines whether this upper guardianship role has become superfluous and outdated in light of the constitutional requirement that courts consider the paramountcy of the child’s best interests as an independent right. The High Court’s upper guardianship role provides a more flexible legal basis for judicial intervention, as the case law reviewed in this article indicates. It is also supported by s 173 of the Constitution, which refers to the inherent powers of courts to protect and regulate their own process and to develop the common law, and by s 45(4) of the Children’s Act. Furthermore, the superior courts, as courts of record, enable the development of a system of precedent-based child law, providing judicial reasons for all decisions and justifying the retention of the common-law inherent jurisdiction of the High Court as the upper guardian of children. We conclude that there is a residual role for the continued existence of the powers of the superior courts to act as upper guardians of the children within their jurisdiction, the constitutional best-interests standard notwithstanding.

The Lost Precedents of Arbitration

Concerns have been expressed that commercial common law is not developing as it should due to disputes being resolved by confidential international commercial arbitration where the majority of awards are not published, and the resultant lack of precedents. This has contributed to questions of the legitimacy of international commercial arbitration and whether the rule of law is being undermined by the non-publication of awards or by the diversion of disputes to arbitration rather than litigation. This article examines the meaning of precedents in this context and the approximate number being ‘lost’ to international commercial arbitration compared to those made in authoritative common law superior courts of record. It suggests that the number of awards of precedential value (APV) is small compared to the volume of commercial judgments of those courts, and that the perceived loss of precedents does not support either publication of awards nor determination of disputes by courts rather than by tribunals. Precedent might instead be enhanced by a wider right of appeal from awards and by publication of the appeal decisions. precedent, precedential value, award publication, arbitration appeals, law development, settlement pressures, litigation vs arbitration, court reporting, Lindley principles, rule of law

Constitutional Impediments to the Effective Review of Tax Cases in Nigeria by a Specialized Tax Court: Lessons from the United States and Canada

AbstractThe use of experts in the review of tax cases is recognized globally. Nigeria appears to appreciate the importance of this practice. However, several previous attempts to establish tax courts or tribunals have been frustrated due to a lack of constitutional support. In the search for a better model for Nigeria, this article examines the US and Canadian experiences of using specialized tax courts or tribunals to see what lessons Nigeria could learn. The two north American experiments justify the use of tax courts as better alternatives to what Nigeria currently has. In particular, the Canadian experience appears to be more suited to the Nigerian context. Therefore, it is argued that Nigeria's 1999 Constitution should be amended to establish a Tax Court of Nigeria, which should be recognized as a superior court of record.

Article 129 - Supreme Court to Be a Court of Record

The Supreme Court of India shall be court of record and shall have all the powers of such court including the power to punish for contempt of itself. Court of Record is defined as a court whereof the acts and judicial proceedings are enrolled for perpetual memorial and testimony, and which has power to fine and imprison for contempt of its authority. Contempt of court signifies not only willful disregard or disobedience of its orders, but such conduct as tends to bring the authority of the court and the administration of the law into disrespect or to defeat, impair, or prejudice the rights of witnesses or parties to pending litigation. It is clear from the above definitions in India the Supreme Court and High Courts act as Court of Records by virtue of Article 129 and Article 215 of Indian Constitution respectively.

Wikipedia in the Courts: An examination of the citation of Wikipedia in judicial opinions in Uganda

Wikipedia has been cited at least fourteen times by courts of record in Uganda. Courts have a constitutional mandate to interpret the laws of the land. The idea that they are basing their interpretations on information from an encyclopaedia that anyone can edit is rightfully alarming. The ease with which Wikipedia can be edited raises questions about the accuracy, impartiality and permanence of the information contained on the website. This article examines the citation of Wikipedia by courts of record in Uganda highlighting the limitations and potential pitfalls of this practice.

The obligation to update insecure software in the light of Consumentenbond/Samsung

Wikipedia has been cited at least fourteen times by courts of record in Uganda. Courts have a constitutional mandate to interpret the laws of the land. The idea that they are basing their interpretations on information from an encyclopaedia that anyone can edit is rightfully alarming. The ease with which Wikipedia can be edited raises questions about the accuracy, impartiality and permanence of the information contained on the website. This article examines the citation of Wikipedia by courts of record in Uganda highlighting the limitations and potential pitfalls of this practice.

Supreme Court as Court of Record

Supreme Court as Court of Record

Statutory Interpretation and Access to Justice: Text, Context and Purpose

The contemporary dialogue surrounding statutory interpretation in Australian legal education has tended to focus on the adjudicative experience. Much of the literature on the discrete subject of statutory interpretation is written by experts in public law and by judges. There is however a much wider experience of working with statutes, including the daily practice of transactional lawyers and the application of statutory provisions in contexts that are unlikely ever to see judicial interpretation. In the latter case, it is often by parliamentary design that rights, obligations, and processes for dispute resolution are provided for explicitly outside the context of courts of record. Usually the purpose of such statutes is to promote access to justice. Legislation of this type is therefore a rich context for student learning about the need for and processes of access to justice. Because clues to interpretation, to resolution of ambiguity, or to the meaning of terms cannot be found in the courts, the question for the legal educator becomes how best to teach the reading of a statute outside express judicial guidance. This paper uses the example of property law to illustrate a statutory interpretation framework within which to use statutes to reveal issues of power, and legislative responses that promote access to justice.

Prácticas de justicia conciliatoria y sus dimensiones sociales. Chile, 1830-1836

This paper analyses the conciliatory justice practices and the social profiles of its users in the villages and cities of Central Chile, after the implementation of conciliation as a formality prior to the presentation of a lawsuit before the courts of record from 1824 to 1836. The 299 conciliatory trials studied suggest that conciliatory justice was a conflict resolution mechanism used mainly by the educated upper and middle-upper classes of the local communities, who were precisely the ones who allowed it to operate by carrying out various administrative functions. The community’s active participation-or rather that of said class of the local community-was a determining factor in the validation of this “new” recourse for conflict resolution, noting society’s active role in legitimizing State institutions and legality.

The Court for Crown Cases Reserved, 1848–1908

Convicted felons at the Old Bailey and on assize in nineteenth-century England had no right of appeal. They had either to submit to their fate or, if they had the means, petition the Crown for a pardon. The legal avenues for redress were limited. A writ of error would lie to a superior court for legal errors that appeared on the face of the record but by the nineteenth century this was seldom used. More significantly, it was open for the trial judge to reserve questions of law for the informal and private consideration of all the common law judges. In their illuminating studies of this practice in the eighteenth and early nineteenth centuries, James Oldham and Randall McGowen elucidate the ways in which the judiciary used reserved cases to develop legal doctrine and to shape the operation of criminal justice. The trend toward increased formalization of procedure that they identify, culminated in 1848, when Parliament created the Court for Crown Cases Reserved (CCCR). The new court adopted the existing method of reserving cases, but was a court of record that sat and gave judgment in public. It became the highest judicial forum for the determination of questions of criminal law until 1908, when it was superseded by the Court of Criminal Appeal.

Informal Lawmaking in England by the Twelve Judges in the Late Eighteenth and Early Nineteenth Centuries

In 1848, Parliament created the Court for Crown Cases Reserved, in which all of the common law judges heard and decided questions reserved by trial judges in criminal cases. As Sir John Baker explains, this was “a court of record, which would now sit in public and give reasons for its decisions,” even though “the reservation of cases was still at the discretion of the trial judge and the court did not have the powers of the court en banc in civil cases.”

ROLE OF THE COURTS

It is important to know what the courts can do and cannot do in the area of abused and neglected children. Often the Family Court is listed as an agency. It is not an agency. It is part of the court system. Its operation is circumscribed by the concept of being a real court. For a long time there was a theory that the Family Court or Juvenile Court could be a kind of social work oriented operation, not quite a real court, not truly a social work agency. This concept has been abandoned. The Family Court is a court of record and is in all aspects a court. It is dependent in the action it takes on evidence which must conform to strict rules that are laid down. It is an adversary proceeding. It is not enough to produce a child that looks as if it has been beaten. A judge in the Family Court also has before him the person who may be charged with having beaten the child. That person, be it a parent or guardian, is entitled to counsel, to help in his defense. The adversary process then takes place. Persons bring forth evidence to show that the parent did abuse the child. The parent is enabled under the court system to bring forth before the judge evidence that he or she did not do it. It is then up to the judge to give this evidence due weight and make a decision as to whether or not the allegations have been proven.

Public Utilities Commission Activities in California

The present commission was established by constitutional amendment in 1911, and additional powers including the regulation of water companies were conferred upon it by legislation that became effective the following year. A supplementary statute, the Act for Regulation of Water Companies, went into effect in 1913. Other acts have since broadened and clarified the commission's authority. The various regulatory statutes were codified, without substantive change, as part of the Public Utilities Code in 1951. The commission is both a court of record and an administrative tribunal

Courts of Record and Sir Edward Coke

Courts of Record and Sir Edward Coke

The Difficulties of the Poor Man Accused of Crime

T HE administration of criminal justice is a field so large and with so many conflicting interests involved that it is difficult to secure a perspective from which persons with varying points of view can speak of the subject as a common one. The police officer engaged in the apprehension of criminals and the collection of evidence, the attorney representing the defendant, the public prosecutor, who takes the grist as it is prepared for him by the police and who prosecutes the case, and the social worker, who is concerned with the problem of the family from which the accused person comes, each has an entirely different point of view. It is unfortunately the case that, when any particular phase of the administration of criminal justice is under discussion, each one of these various persons comes to the discussion with a bias in favor of his own interest, based upon his own experience, and, unfortunately, frequently without much inclination to consider the point of view of the others. Thus we find some honest people insisting that men accused of crime have too many advantages; while others, equally honest, insist that they are at a great disadvantage in their contact with the law. Here, as in most situations, neither contention is a complete truth, and, as applied to individuals, either may be absolutely true or absolutely untrue. Much depends upon the character of the man accused, the crime charged against him, the nature of the assistance he is able to muster, and the stage of the proceedings to which reference is made. It will aid us in clear thinking about this problem and perhaps make it possible for well intentioned people to get together on some program of improvement, if we can arrive at some common premises for our thinking. Those who speak of the accused man as one unduly favored, with a bulwark of rights and privileges built up about him which almost defy successful prosecution, usually think in terms of the formal guarantees which hedge about the defendant during his trial in the higher criminal courts, the courts of record. Here we find the well

Courts of Record

Courts of Record

Will a Notice of Motion under Section 3211 of the Code of Virginia Lie for the Recovery of Money Due by Judgment or Decree of a Domestic Court of Record?

Will a Notice of Motion under Section 3211 of the Code of Virginia Lie for the Recovery of Money Due by Judgment or Decree of a Domestic Court of Record?

Miscellaneous Reports: Cases Decided in the Inferior Courts of Record of the State of New York. Vol I

Miscellaneous Reports: Cases Decided in the Inferior Courts of Record of the State of New York. Vol I

The Principles and Forms of Practice in Civil Action in Courts of Record under the Codes of Procedure. Adapted also to Common Law and Equity Practice

The Principles and Forms of Practice in Civil Action in Courts of Record under the Codes of Procedure. Adapted also to Common Law and Equity Practice

Practice and Pleading in Actions in the Courts of Record in the State of New York, under the Code of Procedure and Other Statutes Where Applicable. With an Appendix of Forms

Practice and Pleading in Actions in the Courts of Record in the State of New York, under the Code of Procedure and Other Statutes Where Applicable. With an Appendix of Forms