Development Of Common Law Research Articles

Catalyst for Common Law Evolution: Experiment with ChatGPT and a Hypothetical Common Law Jurisdiction

Abstract This paper aims to carry out empirical analysis of the viability of large language models (LLMs), specifically ChatGPT, in simulating the common law system and facilitating its evolutionary processes. Drawing on the Theory of Rules Evolution, it is understood that common law generates efficient rules by natural selection through constant litigation. Nonetheless, this evolutionary mechanism faces several hindrances. The process of change is typically slow and incremental. Courts often have to wait for a case that’s deemed ‘appropriate’ before they can change the law, leading to extended delays. Additionally, courts frequently struggle to make efficient decisions due to limited information. Other factors that decelerate the creation of efficient rules include judicial bias, unequal distribution of resources among litigating parties, and the diminishing presence of a competitive legal order. This study first assesses ChatGPT’s capability to embrace the essence of the common law system, namely the doctrine of stare decisis. We then assess its potential to overcome the hindrances in common law development and promote efficient rules. Through a series of meticulously designed hypothetical cases set in a virtual jurisdiction called the “Matrix Kingdom,” we observed that ChatGPT mimic the functions of a common law court by citing, following, and distinguishing its own precedents, but it accomplishes this with significantly fewer resources and in less time. This implies that humans can introduce hypothetical legal situations, enabling LLMs to replicate the natural selection process observed in the common law system but with a significantly accelerated pace. Given that LLMs are trained with diverse information sources, not just the factual contexts of cases, they could potentially lower the informational constraints in decision-making. As such, LLMs might significantly contribute to the evolutionary processes of common law development. However, it is important to remain cautious of certain limitations, such as the potential for AI Hallucination and inherent biases in LLMs, which require careful consideration and management.

Mapping the Common Law Development of Physician- Administered Euthanasia and Physician-Assisted Suicide against the Background of the Application of the Bill of Rights

The Pretoria High Court is considering whether to recognise a right to physician-assisted death. This is a right to request a physician to administer a lethal prescription which a terminally ill patient can use to end their lives or to be allowed to obtain a lethal prescription which they will self-administer. In deciding the matter, the court will have to determine whether it should remove the common law prohibition on both ways of bringing about a quick and painless death. The question that will have to be answered is whether the common law prohibition is consistent with the Constitution. If it is not, the court will either develop the common law or leave it to Parliament to remove the inconsistency. However, before the court can begin this work it would have to decide on the correct approach to the application of the Bill of Rights to the common law principles of murder and culpable homicide. In effect it would have to decide how sections 8(1), 8(3) and or section 39(2) of the Constitution apply to the dispute. This research explores how these operational provisions should apply when assessing the constitutionality of the right to physician-assisted death. In effect it argues that during this process the court must always have regard to section 39(2), irrespective of whether there is a direct application or an indirect application of the Bill of Rights to the common law. Its application arises under section 8(1), where the court is asked to declare the common law invalid on the basis of being in direct violation of a constitutional right. It also applies in situations where the court is asked to develop the common law under section 8(3). Lastly, it is applicable where the common law is challenged for being in indirect conflict with the spirit, purport and object of the Constitution. Having established the role of section 39(2) in both the direct and indirect application of the Bill of Rights, the paper concludes by critically analysing the remedies that attend each of the operational provisions in relation to the common law prohibition on physician-assisted death.

No Need for Parental Involvement in the Vaccination Choice of Adolescents.

Parental decision making is necessary for contracting medical interventions that require personal risk-benefit evaluation, and for overseeing matters of education. In the nineteenth century, exemptions from obligatory vaccination were granted for religious and conscientious reasons. Then and today, religion and moral values play marginal roles in vaccine hesitancy and denialism. Rather, the key values invoked by vaccine hesitants and denialists are liberty and pluralism. Neither is compatible with limiting adolescents' choice. Because vaccination does not require assessment of personal medical risks, because it does not need to occur within the sphere of the doctor-patient relationship, and because the risk involved is within the range of their daily activities, adolescents have the right to free access to vaccination without legal requirement of parental involvement. Drawing on the development of Common Law, and on the development of respect for personal conscience in the history of ideas, this paper does not promote an argument that grants public health an overriding moral power. Rather, this paper rejects the presumption that vaccination of adolescents might involve a conflict between parental authority and public health. Free access to vaccination is compatible with the law and ethics of adolescents' evolving autonomy in relation to healthcare.

Are we there yet? A look at the remaining questions on physician-assisted suicide and physician-administered euthanasia

The research examines the common law to determine whether physician-assisted suicide and physician-administered euthanasia are lawful. In doing so, it establishes that these practices meet the definition of murder. The research then determines the underlying rationale for the common law and concludes that the prohibition against deliberate killing is the cornerstone of our law and social relationships. In order to determine whether the current position follows the logic of the common law, there is a discussion of how the prohibition against intentional killing has evolved over time. It is shown that the law has been at pains to protect life and that assisting another person to kill themselves for whatever reason has never been lawful under the various sources of our common law. Finally, it considers whether the current position is in line with the spirit of the Constitution. In doing so, regard is had to the values of ubuntu, human dignity and the advancement of human rights and freedoms. Although the research argues that the prohibition is consistent with the spirit of the Constitution, it recognises that these practices involve compelling policy considerations pointing in opposite directions. It may well be that current public policy considerations do not chart the path of common law development with sufficient clarity for the courts to intervene. The reason for this is there are few matters more sensitive and challenging than those which concern deliberate decisions to end life, either by providing persons with the means to commit suicide or by actively taking steps that end life on request. Therefore, the legislature may be the proper engine for legal development.

Common Law in Matrix: Facilitating the Common Law Development with ChatGPT

Common Law in Matrix: Facilitating the Common Law Development with ChatGPT

Upending the medical duty to advise: Legislating the standard of care in Singapore

The standard of care to which doctors are held in medical practice is based on the peer professional standard in most common law jurisdictions. However, when it comes to the duty to inform the patient of risks in proposed treatment, courts across the common law world have adopted a prudent patient standard to strike a better balance between beneficence and autonomy. Instead of allowing doctors to control the information provided, courts assess what risks are material to a reasonable patient. Singapore is the most recent jurisdiction to follow suit, but the common law development may be short-lived following legislative intervention. This article critically analyses the law on the standard of care in medical negligence, arguing that the legislative reform was based on a misconception of the law. It highlights some of the potential difficulties in implementing the legislative framework.

Zero-hours contracts and english employment law: Developments and possibilities

The UK has seen a dramatic growth in precarious work over recent decades, including the amorphous category of ‘zero-hours contracts’ which are often regarded as a paradigm example of an exploitative and insecure form of work. Although somewhat overshadowed by litigation and debates surrounding the gig-economy, the regulation of zero hours work continues to be a pressing issue in the UK, and important questions as to the rights that are, and should be, available to individuals with these contracts remain unanswered. This article sets out the detrimental effects that zero hours working arrangements have in the absence of adequate regulatory safeguards and argues that the orthodox treatment of zero hours contracts under English law, and the standard tools of employment law, fail to protect against these economic and social harms. The article then assesses the extent to which recent legislative and common law developments improve the position of zero hours workers, and whether existing legislation might be creatively applied to better protect these individuals. While current statutory frameworks, including reforms and legislation aimed at regulating atypical work, fall short of adequately protecting zero hours workers, the ‘purposive approach’ to employment status developed by the Supreme Court in Uber makes it considerably easier for zero hours contracts to be brought within the protective scope of employment law. It is argued that under this approach many individuals with supposedly ‘zero hours’ working arrangements should in fact now be regarded as employees with overarching contracts of employment. Despite the significance of this, however, it is ultimately concluded that further statutory intervention is necessary to effectively regulate zero hours work in the UK.

THE IMPACT OF THE PRINCIPLE OF SEPARATION OF POWERS ON THE DEVELOPMENT OF COMMON LAW AND THE PROTECTION OF THE RAPE VICTIMS’ RIGHTS

The importance of protecting and promoting human rights has, over the years, received enormous support in our legal system. Everyone, including our courts, is tasked, in one way or another, with the responsibility to protect and advance human rights, including those of the rape victim. Normally, the courts protect rape victims’ rights by determining whether their rights have been violated, and if so, will order the guilty party to, among other things, compensate the rape victim. The courts also protect the rape victims’ rightsby developing common law where it does not comply with the spirit, purport and object of the Constitution of the Republic of South Africa, 1996 (hereinafter “the Constitution”). When developing common law to protect rape victims’ rights, the courts are required to respect and protect the principle of separation of powers which entails the division of state power between the legislature, theexecutive and the judiciary. The legislature is responsible for drafting the laws, the executive is tasked with implementing the law and the judiciary is tasked with interpreting the law. The court must guard against interfering with the powers of the legislature or the executive when developing the common law. The courts have developed the common law in order to protect human rights on many occasions. This note discusses two cases in which common law was developed to protect the rape victims’ rights and it also analyses the impact of the principle of separation of powers upon the protection of their rights. Those cases are: K v Minister of Safety andSecurity (2005 9 BCLR 835 (CC)) and Masiya v Director of Public Prosecution (2007 8 BCLR 827 (CC)). The first part of this note analysesthese cases with particular reference to the development of common law to protect rape victims’ rights. The second part discusses the development of common law and the protection of rape victims’ rights in these cases. The third part analyses the impact of the principle of separation of powers in these cases, on the development of common law in order to protect rape victims’ rights. The fourth and the last part discusses the standard test that will assist the courts to develop the common law in order to protect the rapevictims’ rights, without interfering with the powers of the legislature.

Conversations with the Common Law: Exposure, Privacy and Societal Change

This is an edited version of an inaugural professorial lecture delivered at the Faculty of Law, Te Herenga Waka – Victoria University of Wellington on 16 March 2021 (the promotion to professor having taken place on 1 January 2019). In the address, Professor Moreham asked what the development of new torts of privacy over the last two decades has told us about the way in which common law both shapes and responds to changing societal values. Reflecting on her own experience ''growing up with'' the privacy torts, Professor Moreham considered the role of the legal academic in common law development and showed how conversations between the common law and the society it serves enrich both parties to it.

Tales of the Living Dead: Dealing with Doubt in Medieval English Law

This paper focuses on the narrow issue of proof of death to open up a broader discussion of several interrelated themes regarding early common-law development: the fashioning of specialized writs and legal processes to deal with doubtful deaths in criminal and civil cases alike, the cross-fertilization of ideas about proof in canon law and the common law, litigants’ strategies in responding to and taking advantage of problems of proof, and the common law’s reliance on a combination of strict proceduralism and equitable flexibility to reduce the likelihood of false felony convictions or illegitimate outcomes in cases involving the right to possession of land. From the few records I have found thus far in the plea rolls, I tentatively conclude that felony homicide cases were not likely to proceed to trial and conviction where doubt existed as to whether a homicide had actually occurred. Beyond the criminal context, however, doubt about a death underlying a claim to landed property did not preclude adjudication on the merits. Drawing such insights from frequently terse legal records, this paper also highlights the problems of proof faced by medieval historians in making sense of our source materials.

Responsible Practice or Restricted Practice? an Empirical Study of the Use of Clinical Guidelines in Medical Negligence Litigation.

In medical negligence litigation, the standard for breach of duty is measured against the Bolam test which reflects accepted practice. Despite protracted debate and common law development, the Bolam standard remains the touchstone for litigation in this area. Clinical guidelines (CGs) are statements based upon best available medical evidence and are designed to facilitate clinical decision-making to optimise outcomes thereby reflecting expected practice. Nevertheless, there is little research that considers how CGs engage in litigation and their influence on judicial reasoning. Given the increasing pressures on the NHS amid rising costs of litigation, these are important issues. This study provides an original contribution to the literature on CGs in determining breach of duty in law. Using a mixed methods' approach, data from multiple sources have been gathered and analysed to assess the use of CGs by lawyers and the courts thereby adding to the discourse on the judicial shift away from deference to Bolam. It concludes by offering a conceptual basis for the use of CGs within a framework for reasonableness and promotes their principled use while avoiding constraints on expert testimony, experience, and exercise of clinical discretion. This study has relevance for academics, legal and medical practitioners, and policy makers.

Setting Precedents Without Making Norms?

Some authors argue that the rule-of-law ideal gives judges a prima facie duty to provide a determinate formulation of the precedent’s general norm in all their precedent-opinions. I question that claim. I agree that judges have a duty to decide their cases based on reasons and that they should formulate these reasons in their opinions. I also agree that formulations of general norms should be the goal of common-law development and that judges have a duty to contribute to the realization of this goal. However, I argue that judges may sometimes do so better if they do not provide a determinate formulation of a general norm in their opinion. Often, judges may not feel confident that they are able to formulate a good general norm for their precedent decision, even if they believe that their decision is both correct and justifiable through argument. In this case, various reasons speak against providing a determinate formulation of a general norm, including rule-of-law reasons.

Морской арбитраж против морского права (анализ решений по делам Arctic Sunrise, о Южно-Китайском море и спору между Хорватией и Словенией)

INTRODUCTION. International arbitration is traditionally located on the periphery of legal research. The only exception is investment arbitration. Recently, however, states have started to regularly resort to it. International arbitration, thus, became able to influence the development of common law. Many of arbitration cases involve maritime law issues; unlike the International Court of Justice, arbitration courts consider problems that don’t relate to Articles 74 and 83 of the 1982 Convention on the Law of the Sea, which regulate delimitation (mechanism of compulsory dispute resolution, regime of historical waters and maritime formations, right to hot pursuit, etc.). The emerging arbitration jurisprudence, however, is ambiguous. MATERIALS AND METHODS. The present research has been conducted on the basis of arbitral awards delivered in the three most significant and controversial cases: Arctic Sunrise case, South China Sea case and Border dispute between Slovenia and Croatia; their normative basis (the 1982 Convention, arbitration agreements and customary law); scientific comments on these awards. The methodology of the research is based upon the method of critical analysis. RESEARCH RESULTS. The author concludes that the argumentation used in these awards is unsatisfactory and inconsistent with provisions of maritime law and other branches of international law. In the Award on Arctic Sunrise case of 14 August 2015 (Netherlands and Russia), the Court indicated that the detention of a foreign vessel that violated the laws on artificial installations, is legal if the hot pursuit started when the vessel was in security zone. The pursuit of a foreign ship, however, is not a security measure, since it’s carried out after committing the violation; its goal is the implementation of responsibility. Violations of laws applicable to the artificial platforms may therefore be prosecuted throughout all the exclusive economic zone. In the Awards on South China Sea case (Philippines and China) of 29 October 2015 and 12 July 2016, the Court found that the dispute did not concern delimitation, since it does not imply the intersection of claims; its conclusions, however, are directly related to delimitation as it stated that China’s maritime areas do not extend where China suggested they would extend, but elsewhere. Also the Court did not provide convincing arguments for conclusions that the dispute does not concern “historic titles” and China does not claim sovereignty in disputed areas. Finally, it did not consider whether large-scale construction could make the island suitable for living within the meaning of Art. 121 of the 1982 Convention. In the Awards on the territorial and maritime dispute of 30 June 2016 and 29 June 2017 (Slovenia and Croatia), the Court replaced the issue of violation of the arbitration agreement by the issue of its further implementation; such an opportunity, created after the replacement of arbitrators, as well as the alleged repentance of Slovenia, however, don’t exclude the fact that Slovenia violates the provisions of the agreement, essential to the accomplishment of its object or purpose. The Court also established in favor of Slovenia an area which is not envisaged by the Convention and passes in the territorial sea of Croatia – the so-called Junction Area. DISCUSSION AND CONCLUSIONS. The considered awards contain gross legal inaccuracies that impacted the outcome of the cases. They reflect the imperfection of international arbitration, manifested in selective use of evidence, absence of guarantees against procedural abuses, complexity of the mechanism enshrined in Part XV of the Convention, etc. The awards also reflect general imperfection of the institutions of the law of the sea – such as lack of clear regulation of the jurisdiction over artificial installations, serious gaps in the regimes of historical waters and sea formations, imprecision of the exemptions from the compulsory settlement mechanism, inability of the Convention to ensure a balance of interests of states in case the territorial sea is closed.

The Best and Worst of Contracts Decisions: An Anthology

The common law of contract is an intellectual and political triumph. In its mature form, it enables judges whose ideological goals may differ to apply doctrines that provide the right to make enforceable promises; with legislation, the common law also provides proper limits on that right. Lately, scholars have produced a flood of contract law theory that enriches our thinking about and grounding for contract law norms. But the real work of common law development has always occurred in the trenches — in judicial decisions. In those trenches and on the framework built there, some decisions matter far more than others, and jurists, scholars, and teachers draw on these key decisions to do their work. In the following collection of essays, scholars deeply familiar with judicial opinion in the common law of contract — twenty authors who have a collective 497 years writing, teaching, and thinking about contract law — identify the best and worst of contracts cases. Many of the cases are staple examples for practical and theoretical contracts scholarship. Many are taught to thousands of students each year. Many are routinely cited by courts. The essays explain, rebuke, extol, entertain, and inspire. They are brief but substantive. They set a basis for future commentary and establish a collective standard against which contracts decisions may be judged. They are vital study for contract law adjudication, scholarship, and teaching.

Review of a Monograf by V.N. Safonov «Constitutional Law-Making in the US Suprime Court Activity. Historical-Legal Reaserch». Moscow: Prospect Publ., 2018

The monograph observes the problems of the US Supreme Court law-making activity in sphere of interpreting the federal Constitution. Tendencies of the American constitutional, common and precedent law development are shown in historical and theoretical context. The author studies legal determinations of the US Supreme Court Judges and judicial doctrines basing on them. He also reveals the correlation between the judicial conservatism and activism within the general line of the US legal policy and ideology.

Review of a Monograf by V.N. Safonov «Constitutional Law-Making in the US Suprime Court Activity. Historical-Legal Reaserch». Moscow: Prospect Publ., 2018

The monograph observes the problems of the US Supreme Court law-making activity in sphere of interpreting the federal Constitution. Tendencies of the American constitutional, common and precedent law development are shown in historical and theoretical context. The author studies legal determinations of the US Supreme Court Judges and judicial doctrines basing on them. He also reveals the correlation between the judicial conservatism and activism within the general line of the US legal policy and ideology.

Consumer Welfare Theory as an Ethical Consideration:: An Essay on Hipsters, Invisible Feet, and the “Science” of Economics

This article outlines the principle of efficiency as taken from physics and misapplied into the realm of economics. The result of the misapplication has been a narrow view of antitrust policy, culminating in an extremely conservative application of the consumer welfare standard. The result of such policy has been increasing concentration in many industries, abdication of any examination of monopoly power in the context of Section 2 of the Sherman Act, and dogmatic defense of “consumer welfare” as the only scientific approach to antitrust law. Part II reviews of the original goals of antitrust, as viewed without the lens of present-day economic efficiency. These are policy goals as described in legislative history and judicial development of common law. As such, they are ethical considerations distinct from consumer welfare. In part III, the article discusses the central tenets of economics in antitrust policy. These central notions are policy considerations that are misapplications of physics. Part IV discusses the physics definition of efficiency, with some insights as to the issues arising from adopting such a standard in terms of antitrust markets. Part V addresses the failures of antitrust using the lens of physics, explaining that consumer welfare is an ethical argument, not a scientific one. Part VI addresses other potential ethical standards for antitrust enforcement, as well as empirical evidence that support such norms. Part VII offers concluding thoughts where the article argues that there are superior ethical norms that would boost antitrust enforcement and that are consistent with the goals of antitrust.

The Hollowed Out Common Law

The electronic marketplace poses novel issues for contract law. Contracts created through browsewrap, clickwrap, and shrinkwrap (contracts whose embedded terms are only available after purchase) poorly fit doctrines that emerged from face-to-face offer and acceptance, the mutual execution of a common set of documents, or the rituals of mass market transactions involving physical fine print. Not surprisingly, these contracts of the new electronic marketplace require doctrinal elaboration. Our Article asks not about the specific resolution of new doctrinal challenges, but about how the common law of contracts will be elaborated. Specifically, the Article begins with empirical observations about the domain of all electronic and shrinkwrap contract cases and makes four critical findings. First, we document two shifts: One arises from a steady decline in the number of cases adjudicated in state court relative to federal courts, which by 2015 adjudicate the vast majority of cases. The other stems from a rise in class actions, which is intimately tied to the migration of cases to federal court. The result is that today the vast majority of cases are class actions brought in federal court. The increase in class actions is not surprising given the relatively small stakes of most transactions and the little incentive that creates for individual consumer litigation. The increased dominance of the federal forum is in part likely a reflection of the federalization of class action law under the Class Action Fairness Act (CAFA). Second, the consequence of the dominance of the federal forum is that the common law is being elaborated in federal court in suits arising under diversity jurisdiction. In turn, those federal courts are largely bereft of any state law moorings as they develop the common law of the electronic marketplace. Erie Railroad v. Tompkins notwithstanding, the common law is driven by federal court decisions, building incrementally on each other rather than state law. Third, the development of common law in federal court means that there is no apex court that can define conclusively the law of any jurisdiction. Diversity jurisdiction allows federal courts to predict how they believe state common law would develop, but binds no state courts in the affected jurisdiction, and does not even bind federal courts in the same Circuit putatively applying the law of another state. Rather than the law resolving hierarchically, we identify a “tournament effect” in which the law settles on one or a few influential decisions, regardless of the state law that the case may have arisen under. Finally, we conjecture that the use of contractual clauses compelling arbitration and forbidding claim aggregation may have affected the number of cases being adjudicated in court and, consequently, depressed the development of publicly-available law in this area.

Between Economic and Legal Analysis of Incorporated Things: a Critical "NO" to Aedilitian Remedies

This article analyses the dictum of the Phame v Paizes 1973 3 397 (A) within economic and legal principles to determine whether incorporeal things could possess characteristics of value or quality characteristics as in the case of corporeal things. The author uses practical economic examples to argue for the development of common law. The author identifies relevant Roman law principles which justify the legal nature of incorporeal things. It is demonstrated that the value of incorporeal things depends greatly on future circumstances. It is argued in this article that the courts’ willingness to extend the Aedilitian remedies and the wide interpretation of a dictum et promissum create an open door for any unsatisfied buyer with no entrepreneurial skills to claim a reduced price if the business is unable to achieve similar financial results to those prior to the conclusion of the contract. Currently the seller of a business has no clear or enforceable defense under these circumstances. The author subsequently suggests that relevant Roman law principles should be revisited in the aim to develop an appropriate defense for the seller.

ACKNOWLEDGING LAND RIGHTS OF THE ORANG ASLI: A HISTORICAL PERSPECTIVE OF LAWS IN PENINSULAR MALAYSIA

The perspective that the Orang Asli communities do not have legal rights to their customary land remains despite common law recognition by the courts in a series of cases since two decades ago. To the contrary, this article argues that such a perspective has no basis under the law. By using a historical research approach, it is shown that it has never been the case under the law, policy and practices that the customary land of the Orang Asli was denied their entitlement. In practice, the law and official policy and their development in history observe and acknowledge the existing rights to land and resources, which arose from custom of the local inhabitants including the Orang Asli. The law inherently recognises the Orang Asli as having their own distinct political and social identities. The article provides a historical perspective of law and official practices in the Malay Peninsula in relation to land rights of the Orang Asli and trace their origin to British conduct in North America and the Indian Empire which directly influenced their actions in the Malay states. The reality is that, rather than the denial of the land rights of the Orang Asli under the law, there were other factors that led to the continued loss of their land. Conflicting economic interests and cultural attitudes compounded by a change towards legal positivism that came to prevail both, in international law and national legal systems, hampered the recognition of law relating to the land rights of the Orang Asli, who are a minority group that lacks political power. Following this argument, the development of Malaysian common law, beginning from the case of Adong bin Kuwau v Kerajaan Negeri Johor in 1997 that addressed the concerns of the Orang Asli, as well as the natives in East Malaysia, is not novel; it is merely the application of a long standing legal principle in the jurisdiction.