Development Of Common Law Research Articles

Historical Perspectives on Child Sexual Abuse, Part 1

AbstractThis article reviews histories of child sexual abuse in Australia. While it is national in its focus, the historical problems, methods, and approaches explored here resonate globally, especially in the Anglosphere. Given the transnational dimensions of sex and gender politics, child welfare and protection, and the development of common law, any local historiographic survey is best located within the international context. This article argues that defining and interpreting sex with children is a significant problem in the historical literature. The cleavage between constructions of innocence and paradigms of abuse remains prominent in contemporary scholarship although assimilating these schools of thought is neither feasible nor fruitful. The first part of this article explores the feminist rediscovery of child sexual abuse in the late twentieth century, considering the extent to which the problem had been earlier erased from the public domain. Paying particular attention to law and socio‐legal histories, it investigates definitional problems around children and crime, and examines how the criminal justice system and media have been used to recover histories of abuse.

A comparative review of workplace relations law in Australia, UK and Malaysia

This paper provides a comparative review of workplace relations law in Australia, UK and Malaysia. The review starts by looking at the history and institution of employment law, followed by the employees’ status, the role of implied terms within the contract of employment, and an evaluation of the development of the common law in the contract of employment. From the review, it was concluded that the common law’s impact in implying implied terms into the contract of employment has become a useful vehicle of rights and duties between employers, employees and third parties. Nonetheless, the development is some countries are still less desirable and should strive to follow the example of countries where the developments of these duties are rather desirable.

Laws, Lawyers and Texts: Studies in Medieval Legal History in Honour of Paul Brand by Susanne Jenks, Jonathon Rose, and Christopher Whittick (review)

Reviewed by: Laws, Lawyers and Texts: Studies in Medieval Legal History in Honour of Paul Brand by Susanne Jenks, Jonathon Rose, and Christopher Whittick Jason Taliadoros Jenks, Susanne, Jonathon Rose, and Christopher Whittick , eds, Laws, Lawyers and Texts: Studies in Medieval Legal History in Honour of Paul Brand (Medieval Law and its Practice, 13), Leiden, Brill, 2002; hardback; pp. xxii, 416; 1 colour plate, 3 b/w illustrations; R.R.P. €164.00; ISBN 9789004212480. This volume is both a worthy tribute to the person it honours, Professor Paul Brand, formerly of All Souls, Oxford, and recently visiting Professor in the University of Michigan Law School, and a significant contribution in its own right to the areas of research made possible by Brand's scholarship. As the Encomium by Barbara Harvey indicates, Brand's area of interest was the 'long' thirteenth century from the limit of legal memory in 1189 to the death of Edward I in 1307. In particular, Brand is perhaps best known for his 'authoritative account of the development of the legal profession' (p. xii) in England and the origins of the common law in the era of Henry II. His scholarship is characterised by its use of unpublished and manuscript material, evidenced in his role as editor of four volumes of the Law Reports for the Selden Society. A series of chapters add nuance and complexity to Brand's account of the early legal profession. Sandra Raban's study reveals more information about the individuals and institutions that retained lawyers during the reign of Edward I (1272-1307), shifting the traditional focus (adopted by Brand) away 'from the vantage point of the lawyers themselves' (p. 201). Charles Donahue, Jr applies Brand's definition of what constitutes a 'profession' to the fourteenth century and concludes that the plural term 'professions' is more apposite to describe each of the variegated groups that constituted the common lawyers and canon lawyers who plied their business in that time. David Crook's chapter focuses on a senior justice of the bench from the mid-thirteenth-century, Robert of Lexington: his lack of legal training and longevity at the bench suggest a counterpoint to Brand's depiction of a professionally trained profession. Several papers add detail to the 'Angevin legal revolution' that gave rise to the common law in the twelfth and thirteenth centuries (p. 51), a phenomenon for which Brand has proffered compelling evidence starting with his 1990 article 'Multis Vigiliis Excogitatem et Inventam' in the Haskins Society Journal. John Hudson's study suggests that the infamous clause 3 of the Constitutions of Clarendon (1164), dealing with criminous clerks, not only formed a platform for dispute between the King and his famous archbishop, Thomas Becket, but was also a central part of Henry II's legal reforms that sought to channel legal business into the King's court, via the chief justiciar. This subtlety is missing from Brand's account. In a different vein, Sarah Tullis takes the Glanvill treatise, 'the first detailed exposition of the English common law' (p. 327), and traces its afterlife in early modern [End Page 202] England and colonial America as a vehicle for political polemics. In typically iconoclastic yet rigorous manner, Paul Hyams tackles the reasons for the 'technical discourse' (p. 21) that characterised the common law in its origins (and remains today), tracing linguistic depictions of land tenure (the 'fief ') from its origins in 1066 as personal bonds to 1230 when it came to represent what we now understand as 'ownership'. Running through several chapters in this collection is a theme that the 'learned law' (Roman and canon law) played a part in the development of the early common law - a contribution hinted at in Brand's work. Bruce O'Brien points to the continuing use of 'conquest-era' legal texts in the second half of the twelfth century and beyond, as exemplified in the Holkham lawbook, a legal encyclopaedia containing material from both Roman law and Saxon codes. David Ibbetson and Richard Helmholz also emphasise the possible influence of Roman and canon law on particular English common law writs, in their studies of the historical development of annuities and rights of re-entry...

The Judicial Discretion to Exclude Relevant Evidence: Perspectives from an Indian Evidence Act Jurisdiction

Stephen's ground-breaking Indian Evidence Act contained ideas that appear unfamiliar in the context of modern rules of evidence. Singapore is an Indian Evidence Act jurisdiction which has retained those ideas, such as the non-distinction between relevance and admissibility, the framing of exclusionary rules in inclusionary terms, and the prohibition against relying on common law developments inconsistent with the Evidence Act. These peculiarities should have presented obstacles to the applicability of the common law concept of the judicial discretion to exclude relevant evidence, but this has not been the case. In this article, I first suggest why Singapore courts might have been attracted to the concept, but I then highlight fundamental uncertainties regarding the concept's scope and normative justification. I proceed to propose an alternative paradigm for Singapore, namely using relevance and reliability as the only touchstones for admissibility of all evidence in criminal proceedings. The various advantages of this paradigm are also highlighted.

Common Law Developments on Remoteness of Damages - Post Achilleas Perspective

The decision in The Achilleas case had apparently modified the time-tested rule on remoteness of damages. The paper examines various cases before and after the Achilleas judgement and tries to clarify the position of Common Law on Remoteness of damages as it stands to day. In sum, the decision in subsequent case of Slyvia Shipping helpfully clarifies the uncertainty created by the House of Lords' decision in The Achilleas. The application of The Achilleas decision is now restricted to cases where exceptional circumstances justify a requirement that the party seeking first limb damages (which are assumed to arise in the ordinary course of things) also demonstrate that the party in breach of contract assumed responsibility for the loss in question. In the vast majority of cases, claimants will not have to demonstrate that the defendant accepted liability for the loss suffered.

Lorna Hutson, The Invention of Suspicion: Law and Mimesis in Shakespeare and Renaissance DramaThe Invention of Suspicion: Law and Mimesis in Shakespeare and Renaissance Drama. Lorna Hutson. Oxford and New York: Oxford University Press, 2008. Pp. x+382.

<i>Lorna Hutson,</i> The Invention of Suspicion: Law and Mimesis in Shakespeare and Renaissance Drama<i>The Invention of Suspicion: Law and Mimesis in Shakespeare and Renaissance Drama</i>. Lorna Hutson. Oxford and New York: Oxford University Press, 2008. Pp. x+382.

Is There a Chinese Common Law? An Empirical Study of the Bilingual Common-Law System of Hong Kong

This study presents results of the first empirical study of the role of Chinese in the newly established bilingual common-law system of Hong Kong. It considers whether Chinese performs the same role as English in the influential appellate court of Hong Kong. The study examines three facets of civil appeal. First, it asks if civil appeals conducted in Chinese exhibit the same level of legal representation as civil appeals in English. Second, it examines the likelihood of being professionally published among appeal judgments in the two languages. Third, it compares the financial stakes involved in Chinese and English appeals. The results suggest that despite what is stipulated in the Hong Kong Constitution, Chinese plays a marginal role in the higher courts of Hong Kong. There is no substantive development of a Chinese common law in Hong Kong. Instead, the availability of Chinese creates easier but problematic access to the legal system by the public in the form of pro se litigants. The findings also show that the reasons leading to the continued dominance of the English language in Hong Kong are global and social. As such, English is unlikely to be replaced in many postcolonial common-law systems in the world.

The Federal Common Law of Vicarious Fiduciary Liability under ERISA

The Employee Retirement Income Security Act of 1974 ("ERISA"), the federal law that regulates employer-sponsored benefit plans, has a rich history of judiciallycreated federal common law. This Article explores the theoretical, policy, statutory, and stare decisis grounds for the development of another area offederal common law under ERISA-the incorporation of respondeat superior liability principles to impose ERISA fiduciary liability ("vicarious fiduciary liability") upon a corporation for the fiduciary activities of its employees or agents. The Article proposes that the federal courts should adopt a federal common law rule of vicarious fiduciary liability under ERISA based on the traditional scope of employment approach. Under such a rule, a corporate principal whose own internal employees or agents perform fiduciary functions during the course and within the scope of their employment or agency relationship would be strictly liable under ERISA for any breach of fiduciary duty by the employee or agent. Vicarious fiduciary liability should be limited, however, so that a nonfiduciary corporate principal would not be subject to damages claims under ERISA for the rogue fiduciary activities of its employees or agents, but would be subject to restitution as necessary to prevent unjust enrichment of the principal. A federal common law rule of vicarious fiduciary liability under ERISA is necessary for two reasons. First, a rule of vicarious fiduciary liability is essential to maintaining and enforcing ERISA's comprehensive system of fiduciary regulation. Second, vicarious fiduciary liability is needed to prevent employer overreaching under the judicially-created settlor function defense to breach of fiduciary duty claims. Absent a federal common law rule of vicarious fiduciary liability, a corporate employer in its nonfiduciary capacity as the settlor of its ERISA plan, may design the documents that govern the employer's plan as a shield against fiduciary responsibility for the actions of the employer's own internal fiduciary employees. This misuse of nonfiduciary settlor powers, which is contrary to both the letter and the spirit of ERISA, would be prevented by a federal common law rule of vicarious fiduciary liability.

International Law and the U.S. Common Law of Foreign Official Immunity

In Samantar v. Yousuf, 130 S. Ct. 2278 (2010), the U.S. Supreme Court unanimously held that the Foreign Sovereign Immunities Act does not apply to lawsuits brought against foreign government officials for alleged human rights abuses. The Court did not necessarily clear the way for future human rights litigation against such officials, however, cautioning that such suits may still be barred by foreign sovereign immunity under the common law. At the same time, the Court provided only minimal guidance as to the content and scope of common law immunity. Especially striking was the Court’s omission of any mention of the immunity of foreign officials under customary international law (CIL). In this Article, we explain why, notwithstanding the Supreme Court’s inattention in Samantar to the international law backdrop of the case, CIL immunity principles are likely to be relevant to the development of the post-Samantar common law of immunity. In considering the relationship between CIL and common law immunity, the Article makes three contributions. First, it sets forth a case for CIL’s relevance that is not dependent on a single theoretical perspective regarding the domestic status of CIL. Second, it presents a balanced assessment of the rapidly evolving CIL landscape, noting in particular the erosion of immunity protections for human rights violations in criminal proceedings and the lack of a similar erosion - at least so far - in civil suits for damages. Third, by emphasizing institutional considerations rather than arguing for a particular outcome, it isolates and analyzes particular variables - such as the views of the Executive Branch and the policies embodied in domestic statutes - that will shape how CIL affects the common law of immunity after Samantar.

The Meaning and Legacy of the Magna Carta

The six essays of this symposium address different aspects of the meaning and legacy of the Magna Carta—“the Great Charter” in Latin. Although social scientists and legal scholars routinely describe the Magna Carta as foundational for concepts of justice and liberty, the charter itself is rarely assigned in political science classes or scrutinized by political theorists. The aim of the symposium is twofold: first, to affirm the document's historical rootedness and intellectual richness, and, second, to explore the ways in which the Magna Carta's text and reputation have informed the development of common law and modern politics. The Magna Carta was the product of times very different from our own, yet it continues to be cited by jurists and human rights activists around the globe. This symposium makes the case for why political scientists should take an interest in the Magna Carta, not just as a cultural icon, but as a durable political text.

TWO THEORIES OF ENVIRONMENTAL REGULATION

The over-exploitation of commonly-held resources is typically analyzed as an instance of market failure that calls for legislation to internalize the social costs that private activities impose on the environment. In this article, I argue that to the extent that this analysis ignores the regulatory effect of the common law, it is unsound. In The Tragedy of the Commons, Garret Hardin points out that there are two solutions to the tragedy: privatize the resource or restrict access to it. Environmental legislation is a means restricting access to the commons. The evolutionary development of common law is a means of privatizing the commons. These represent alternative methods of environmental regulation. Proper public policy analysis requires a comparative assessment of the efficacy of these methods for resolving any particular environmental problem. In many, if not most cases, such an assessment will show common law regulation to be superior to environmental legislation.

Between economic and legal analysis of incorporeal 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.

Three Sorries and You’re In? Does the Prime Minister’s Statement in the Australian Federal Parliament Presage Federal Constitutional Recognition and Reparations?

Then newly elected Labor Prime Minister, Kevin Rudd, made a historic statement of “Sorry” for past injustices to Australian Indigenous peoples at the opening of the 2008 federal parliament. In the long-standing absence of a constitutional ‘foundational principle’ to shape positive federal initiatives in this context, there has been speculation that the emphatic Sorry Statement may presage formal constitutional recognition. The debate is long overdue in a nation that only overturned the legal fiction of terra nullius and recognised native title to lan with the High Court’s decision in Mabo in 1992. This article explores the implications of the Sorry Statement in the context of reparations for the generations removed from their families under assimilation policies (known since the Bringing Them Home Inquiry as the Stolen Generations). We draw out the utility of recent human rights statutes—such as the Human Rights Act 2004 (ACT)—as a mechanism for facilitating justice, including compensation for past wrongs. Our primary concern here is whether existing legal processes in Australia hold further capacity to provide reparation for Australian Indigenous peoples or whether their potential in that regard is already exhausted. We compare common law and statutory developments in other international jurisdictions, such as Canada, as an indication of what can be achieved by the law to facilitate better legal, economic and social outcomes for Indigenous peoples. The year 2008 also saw Canadian Prime Minister Stephen Harper express his apology to residential school victims in the Canadian Parliament, providing thematic and symbolic echoes across these two former colonies, which, despite remaining under the British monarchy, both forge their own path into the future, while confronting their own unique colonial past. We suggest that the momentum provided by the recent public apology and statement of “Sorry” by the newly elected Australian Prime Minister must not be lost. This symbolic utterance as a first act of the 2008 parliamentary year stood in stark contrast to the long-standing recalcitrance of the former Prime Minister John Howard on the matter of a formal apology. Rather than a return to a law enforcement-inspired “three strikes and you’re out” approach, Australia stands poised for an overdue constitutional and human rights-inspired “three ‘sorries’ and you’re in”.

Law as a Seamless Web? Comparison of Various Network Representations of the United States Supreme Court Corpus (1791-2005)

Citation networks are a cornerstone of network research and have been important to the general development of network theory. Citation data have the advantage of constituting a well-defined set where the nature of nodes and edges is reasonably well specified. Much interesting and important work has been done in this vein, with respect to not only academic but also judicial citation networks. For example, previous scholarship focuses upon broad citation patterns, the evolution of precedent, and time-varying change in the likelihood that communities of cases will be cited. As research of judicial citation and semantic networks transitions from a strict focus on the structural characteristics of these networks to the evolutionary dynamics behind their growth, it becomes even more important to develop theoretically coherent and empirically grounded ideas about the nature of edges and nodes. In this paper, we move in this direction on several fronts. We compare several network representations of the corpus of United States Supreme Court decisions (1791-2005). This corpus is not only of seminal importance, but also represents a highly structured and largely self-contained body of case law. As constructed herein, nodes represent whole cases or individual 'opinion units' within cases. Edges represent either citations or semantic connections. As our broader goal is to better understand American common law development, we are particularly interested in the union, intersect and compliment of these various citation networks as they offer potential insight into the long-standing question of whether 'law is a seamless web'? We believe the characterization of law’s interconnectedness is an empirical question well suited to the tools of computer science and applied graph theory. While much work still remains, the analysis provided herein is designed to advance the broader cause.

A Bill of Rights as the Basis of a Common Law in a Pluralist Nigeria

I shall argue in this paper that Nigerian common law should be a synthesis of the received English law and customary law including Islamic law with the fundamental human rights contained in chapter four of the 1999 Constitution of the Federal Republic of Nigeria providing a credible basis and framework. I will urge that since it represents a set of enforceable values, it provides a framework for the growth of a Nigerian common law. Part of this framework is the balancing of rights inherent in a human rights system and the derogation of certain human rights which make it possible that different nuances, values and aspirations prevalent in Nigeria can be accommodated. I point out that the proof of customary law including Islamic Law as a fact and their validation by means of the repugnancy and public policy tests have denigrated and humiliated these laws making them play second fiddle to the received English law thereby stifling their growth and that of the common law. Against this background, I argue that Nigerian common law based on a Bill of Rights will have nothing to do with the validation tests of repugnancy and public policy since it is a test in itself and will treat the received English law and customary law including Islamic Law on the same pedestal such that the jurisprudence of each law will be assessed on its merit. I note especially, the immutable nature of Islamic Law, the strong claim that it is not customary law; the codification of Islamic criminal law principles as State Law and urge that Constitutional supremacy and superiority mandate accommodation within its framework. All through the paper, I examine how principles of customary law and customary law can and should influence the development of the Nigerian common law; just as its principles are subject to the values enshrined in the Bill of Rights. In undertaking this analysis, I acknowledge the deficiencies of judge-made law in revolutionizing legal systems and recognize that a unified administration of justice; the study of customary and Islamic Law and appropriate legislation will complement the development of Nigerian common law.

Indirect Horizontal Application of the Right to Have Access to Health Care Services

Apart from their direct application against the state, the justiciability of socioeconomic rights also requires the transformation of those aspects of private law that regulate relationships which are crucial for their effective enjoyment. This is acknowledged by the Constitution of the Republic of South Africa, 1996, which determines that rights may sometimes bind private parties and requires courts to develop the common law in accordance with the spirit, purport and objects of the rights in the Bill of Rights. Common-law development is a viable remedial paradigmfor the horizontal enforcement of socio-economic rights. This is particularly because the value-based development of common law in the course of private-law litigation is often regarded as an uncontroversial aspect of the judicial function, even in legal cultures to which the notion of rights-based judicial review is novel or alien. To illustrate the necessity of infusing the private law realm with public law values associated with the protection of socio-economic rights, the article considers the effect of the constitutional right of access to health care services, on the body of South African private law pertaining to the regulation of the doctor-patient relationship. After making a case for the seepage of public law norms into the private-law regulation of this relationship, the article points to certain features of such regulation that appear in need of reconceptualisation in light of relevant constitutional guarantees. It then suggests certain modifications to the existing legal position and critically discusses case law in which similar developments have been contemplated.

The exclusion of women from financial services and the prospects of a human rights solution under Australian law

This paper evaluates the prospects for employing the paradigm of human rights to address the continued exclusion of women from financial services in Australia. The Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) contains two human rights of relevance: the right to credit as an aspect of women's socioeconomic life and their right to access agricultural credit in the rural context. An examination of state party reports submitted under CEDAW considers four obstacles impeding women's access to credit: lack of land ownership, their marital status, so-called sociocultural barriers and the commercial practices of financial institutions. These obstacles are replicated to varying degrees in the local context. The existence and ambit of a human right to access financial services for women in Australia can be derived from an analysis of consumer credit law, orthodox contractual principles and antidiscrimination legislation. Although the relevant jurisprudence yields important debtor entitlements and the obligations of credit providers, it also suggests several substantive and procedural obstacles hampering the common law development of that right. More explicit resort to a human rights framework, as illustrated by other jurisdictions, is warranted and justifiable.

HUMAN RIGHTS AND JUDICIAL REVIEW: A CRITIQUE OF “DUE DEFERENCE”

ENGLISH public law has gained in coherence with the gradual disappearance of rigid doctrinal barriers to judicial review. The repudiation of earlier restrictions on review of ministers’ exercise of the royal prerogative marked a particularly significant step towards a more rational system of legal control. It is true that acknowledgement of the susceptibility of prerogative decisions to judicial review, in principle, was accompanied by warnings about the constraints of justiciability in practice; but the various supposed categories of non-justiciable decision-making have been gradually breached and eroded in the course of common law development. When individual rights have required protection, neither the formal source of the power in question nor its intrinsically discretionary character have proved impenetrable barriers to judicial scrutiny.

The evolution of the common law: Legal development in Kenya and India

Recent cross-national studies of the institutional prerequisites of economic growth have identified common law systems as superior to those of civil law. The assumption is that all common law systems share a similarity of structure and law which creates an environment facilitating investment and contract enforcement. Yet, due to its evolutionary nature, common law is not everywhere the same, nor is the historical development of the common law similar in all countries. This paper makes this point by examining the political development of common law in India and Kenya, in order to compare their legal institutions and histories. Both of these countries adopted common law through its transplantation in the context of colonial domination rather than organically. The paper concludes that the two countries, though sharing the common law, had very different colonial experiences of legal development. Moreover, once Kenya and India achieved independence, political circumstances affected institutional development and the application of law in each country.

Holding Internet Service Providers Accountable

Internet service providers are today largely immune from liability for their role in the creation and propagation of worms, viruses, and other forms of malicious computer code. In this essay, we question that state of affairs. Our purpose is not to weigh in on the details-for example, whether liability should sound in negligence or strict liability, or whether liability is in this instance best implemented by statute or via gradual common law development. Rather, our aim is to challenge the recent trend in the courts and Congress away from liability and toward complete immunity for Internet service providers. In our view, such immunity is difficult to defend on policy grounds and sharply inconsistent with conventional tort law principles. Internet service providers control the gateway through which Internet pests enter and reenter the public network. Service providers should therefore bear some responsibility not only for stopping malicious code, but also for helping to identify individuals who originate it.