Inferior Courts Research Articles

The Renvoi Theory, Its Development, Application to Contractual Choice of Law and the Way Forward

It is understood that while every state includes one internal body of law that is applicable to domestic situations, it also includes another body that is applicable to scenarios involving a foreign element. This latter body of rules is commonly referred to as the conflict of law rules. These rules often require a particular forum to apply the law of a foreign state which may be the place of situs of some property, place of domicile for a litigating party, or the place where a contract is signed. Where reference is made to the law of the foreign state, does that reference pertain to the local law of the foreign state or the conflict of law rules of that state will determine whether the court making the reference accepts the doctrine of Renvoi. If reference is made to the conflict of law rules of the foreign state, then the forum making the reference accepts the doctrine.The conflict of law rules for the foreign country may refer the matter back to be dealt with the law of the forum or to the law of a third nation, and such transfers are referred to as remission and transmission respectively. The first ever mention of the term was made in a note in the 1898 issue of Law Quarterly review.It states that at the time, judges of courts in France, Italy and Germany as well as academicians of the time were deeply concerned about the question of Renvoi or Die Riickund-Weiterverweisung as it was called in German. This term, however, was still unheard of in England. The note understands the phenomenon of Renvoi in terms of a 'remission' by a superior court to an inferior court to be further dealt with. The note leaves the question of the validity of Renvoi and its adoption by the English system unanswered. The note is important in that it is the first ever mention of the term Renvoi in English legal writing. The Renvoi question first surfaced in a French Court in 1841 but did not gain importance until later in 1878. Even then, it failed to capture the attention of English Courts. It is believed that each state has the vested right to deal with the legal consequences that arise of facts occurring in that state and in the same vein courts cannot enforce no legal obligations that are created elsewhere. When the court of the forum ‘refers’ to the law of a foreign state, it means that the court will enforce the same right as the foreign court would have enforced faced with a similar factual situation.

AT&T v. Concepcion: With Only Four Votes for the Deciding Rational, Is it Precedent?

The Supreme Court’s 2011 decision in ATT but the principles of law involved not having been agreed upon by a majority of the court sitting prevents the case from becoming an authority for the determination of other cases, either in this or in inferior courts. Under any rational reading of the opinions, there can be no doubt that “the principles of law involved [have not] been agreed upon by a majority of the court sitting” and this should “prevent[] the case from becoming authority for the determination of other cases, either in [the Supreme Court] or in inferior courts.” Although Hertz dealt with a situation where the votes were literally split, its point that it takes a majority to create a governing rule is inescapable. In looking at the substance of the Scalia and Thomas opinions, there simply are not five votes for any aspect of the controlling rationale articulated by Justice Scalia in his putative majority opinion. Because of this, Concepcion should viewed as having created no rule of law outside its specific facts and should, like two other Supreme Court cases that are similar to it, Branzburg v. Hayes and United States v. Verdugo-Urquidez, be treated as not having a majority opinion for precedential purposes.

Law of Reference and Revision Ch: XXXII (Ss. 432-444) Code of Criminal Procedure, 1898

Part VII of the Code of Criminal Procedure, 1898 contains two chapters. One chapter (ch.31) deals with the appeals and the other chapter (ch.32) deals with Reference and Revision. Six sections of Ch. 32 (i.e. Sections 432 and 433 were on Reference; section 434 was on Power to reserve questions; section 437 was on commitment, section 438 was on report to High Court and section 441 was on statements of Presidency Magistrates) stand omitted. And one section 439-A added by Law Reforms Ordinance, 1972. Now sections 435, 436, 439, 439-A, 440, 441 and 442 are in force which deal with the following matters respectively:• Power to call for records of inferior Court.• High Court’s powers of revision.• Session Judge’s powers of revision.• Optional with Court to hear parties.• High Court’s order to be certified to the lower Court or Magistrate. The article will discuss all these matters in the light of the judicial precedent on the subject.

Analogical Legal Reasoning: Theory and Evidence

The paper offers a formal model of analogical legal reasoning and takes the model to data. Under the model, the outcome of a new case is a weighted average of the outcomes of prior cases. The weights capture precedential influence and depend on fact similarity (distance in fact space) and precedential authority (position in the judicial hierarchy). The empirical analysis suggests that the model is a plausible model for the time series of U.S. maritime salvage cases. Moreover, the results evince that prior cases decided by inferior courts have less influence than prior cases decided by superior courts.

Doublethink and District Judges: High Court precedent in the county court

This paper considers an often ignored topic in the English system of precedent, the role of High Court precedent in the county court. In doing so it reveals the many weaknesses of the existing approach to lower court precedent. It is argued that the High Court, (generally) a first instance tribunal, which does not bind itself and can come to contradictory decisions in different cases, the later not overruling the earlier, should not bind any court below it. A model of how multi-tiered first instance tribunals, such as the High Court and county court, should interact is demonstrated by the approach taken between the Court of Session, Outer House, and inferior courts in Scotland.

The Force of a Law: Derrida, Montaigne, and the Edict of Villers-Cotterêts (1539)

The Force of a Law:Derrida, Montaigne, and the Edict of Villers-Cotterêts (1539) Katie Chenoweth When the year 1539 appears on timelines of French language history, it marks the moment when king François Ier made French the official language of France by signing an edict. This law has come to be known by the name of the place where it was signed: the Edict of Villers-Cotterêts. Officially issued as the Ordonnance générale sur le fait de la justice, this edict contains 192 articles designed to enact large-scale judicial and administrative reform. Its aim was to centralize and secularize political authority in the French kingdom in an unprecedented fashion. Just two articles, numbered 110 and 111, address the question of language use for which the law has become famous: 110. And so that there should be no cause to doubt whether the aforementioned legal decisions have been understood, we wish and order that they should be made and written so clearly that there neither is nor could be any room for ambiguity or uncertainty, nor cause to ask for interpretation [interpretation: interpretation or translation]. 111. And because such things have often occurred regarding the understanding of Latin words contained in legal decisions, we wish that, henceforth, all decision and other procedures, pertaining to our sovereign courts or other lower or inferior courts, whether they be registers, inquiries, contracts, commissions, sentences, wills, or any other acts and writs of justice . . . should be pronounced, recorded, and delivered to parties in the French mother tongue [en langage maternel françois], and not otherwise. ("Ordonnance")1 The singular rhetoric of these two articles has proved forceful enough to afford them a monumental historical status. It has also served to wrest them from the integral body of the edict and its 190 other articles. 1539 and Villers-Cotterêts now signify above all a turning point in the history of the French language, namely, the institution of French as the uniquely recognized language of justice, law, and state administration in France. In this way, 1539 and Villers-Cotterêts are not just any kind of historical markers. They are signs of that which would seem to have happened in an instant—the instant of a decision, the affirmation of a signature, [End Page 67] an irreversible cut—when the French language becomes law by excluding some other language ("and not otherwise") and instituting itself. It would seem to do all this, moreover, in the very language it seeks to legislate. In what seems like an instant, the French vernacular would seem to turn toward itself, gather itself up, and gives itself its own law. No matter which "other" the law excludes (a topic of much debate, as we shall see), Villers-Cotterêts imposes itself through its rhetoric as an inaugural text of French-language sovereignty.2 Widely recognized as the first state language policy in Europe, Villers-Cotterêts and 1539 also stand for a wider-reaching, modern formation of sovereignty in language—and of sovereignty as language. At the same time, nearly a century before the founding of the Académie Française, French takes on an exceptional and exemplary status amongst modern vernaculars; it is in French above all that linguistic sovereignty will be epitomized, and thus also either demonstrated or dismantled. With an eye to the textual and philosophical legacy of the Edict of Villers-Cotterêts, this article will investigate how this (self-) founding text figures in the work of Jacques Derrida and Michel de Montaigne. Both philosophers make reference to the edict in their published work: Derrida mentions it by name on several occasions, going so far as to quote the text of Articles 110 and 111 and to analyze the law's historical context at length; Montaigne makes reference to it only once and somewhat obliquely, assuming readers' familiarity with a law that was, in the 1580s, only decades old and still an active topic of juridical and political commentary. By reading these references to Villers-Cotterêts closely, I wish to demonstrate the significance of the 1539 edict for Montaigne and Derrida and to render palpable its pervasive haunting...

Kirk v Industrial Court (NSW): State Privative Clauses and Jurisdictional Error in Inferior Courts

Kirk v Industrial Court (NSW) (2010) 239 CLR 531 is a very important decision for the Constitutional Law of the Australian States, and for Administrative Law insofar as it is applied to courts of limited jurisdiction in Australia. An indication of its influence may be that, since the High Court’s judgment was handed down in February 2010, it has been cited by Australian courts in no fewer than 200 judgments.The decision in Kirk seems generally to have been welcomed by most commentators. In one sense, that is not surprising. The assimilation of the constitutional position of the Australian States to that of the Commonwealth would be regarded by most as an instinctively satisfying development. And the thought that State courts, and particularly inferior State courts, might make errors of law incapable of correction by higher courts, and ultimately the High Court, is, at first blush, a generally unattractive proposition.In this paper I offer a critique of some aspects of the reasoning in Kirk, and consider some of the possible implications of the decision.

Judicial Review and the Indian Courts

Literally the notion of judicial review means the revision of the decree or sentence of an inferior court by a superior court. Judicial review has a more technical significance in pubic law, particularly in countries having a written constitution which are founded on the concept of limited government. Judicial review in this case means that Courts of law have the power of testing the validity of legislative as well as other governmental action with reference to the provisions of the doctrine of judicial review has been originated and developed by the American Supreme Court, although there is no express in the American Constitution for the judicial review. In Marbury v. Madison, the Supreme Court made it clear that it had the power of judicial review. Chief Justice George Marshall said,“ Certainly all those who have framed the written Constitution contemplate them as forming the fundamental and paramount law of the nations, and consequently, the theory of every such Government must be that an act of the legislature, repugnant to the Constitution is void”. There is supremacy of Constitution in U.S.A. and, therefore, in case of conflict between the Constitution and the Acts passed by the legislature, the Courts follow the Constitution and declare the acts to be unconstitutional and, therefore, void. Courts declare void the acts of the legislature and the executive, if they are found in violation of the provisions of the Constitution.The constitution of India, in this respect, is more a kin to the U.S. Constitution than the British. In Britain, the doctrine of parliamentary supremacy still holds goods. No court of law there can declare a parliamentary enactment invalid. On the contrary every court is constrained to enforce every provision of the law of parliament. Under the constitution of India parliament is not Supreme. Its powers are limited in the two ways. First, there is the division of powers between the union and the states. Parliament is competent to pass laws only with respect to those subjects which are guaranteed to the citizens against every form of legislative encroachment. Being the guardian of Fundamental Rights and the arbiter of constitutional conflicts between the union and the states with respect to the division of powers between them, the Supreme Court stands in a unique position where from it is competent to exercise the power of reviewing legislative enactments both of parliament and the state legislatures. This is what makes the court a powerful instrument of judicial review under the As Dr. M.P. Jain has rightly observed: The doctrine of judicial review is thus firmly rooted in India, and has the explicit sanction of the constitution.

L'Oreal, eBay and tyranny of the unknown

When I realised that I would be writing an editorial in the week in which the Court of Justice of the European Union (ECJ) was delivering its judgment in a vigorously contested trade mark infringement suit brought by the world’s largest cosmetics and beauty products company against the world’s largest internet auction and sales host, I at first assumed that I would be writing a commentary on the substantive law, explaining how it would affect that relative positions of trade mark owners, sellers of genuine and infringing goods bearing their trade marks, internet service providers and consumers. As it turns out, there is no real need to do so. The judgment reiterated both the existence of a privileged immunity from liability of internet service suppliers and the conditions which they must fulfil in order to enjoy that immunity; it confirmed the jurisprudence relating to trade mark infringement which it has articulated in a series of decisions stretching back to its Google France rulings in March 2010 (16 months is a long time in internet law; this ruling now seems to belong to the distant past); it also left a set of answers shorter and easier to understand than the raft of questions on which it was asked to give its preliminary ruling. The really interesting thing about this case is not the ruling but the circumstances in which businesses trade. Non-European readers of this journal may need a short explanation of the role of the ECJ in the field of intellectual property. European Union law on trade marks, copyright, database rights, designs and plant varieties is largely harmonized between the 27 formerly autonomous countries of the Union. To ensure consistency as between those countries in the application of harmonized IP rules, national courts may refer questions regarding ambiguities and uncertainties inherent in those rules to the ECJ for a preliminary ruling. Once that ruling is given, the national court which referred the questions now has its answers and can get on with judging the dispute before it. Additionally, in the case of pan-European rights such as the Community trade mark and registered Community designs, the ECJ serves as a top-tier court of appeal: this function is exercised in respect of both procedural and substantive law. As a system, the referral of questions for a response works well in theory. ECJ rulings are binding on all national courts, inferior Community courts and tribunals. They ensure that, as far as possible, the same rules are interpreted and therefore applied consistently across a vast, multilingual and multicultural single market. But does the theory work in practice? The reference of questions for preliminary rulings is not a novel notion, dating back to the ECJ’s foundation in 1952. In that year, postwar Europe was still striving to rebuild shattered local and national economies. The creation of a single market consisting of even the original six countries—only three of which were of any real size—was an almost unimaginably ambitious goal, a far cry from the global markets for goods and services we take for granted today. Never mind computers: most households didn’t even have a telephone or a refrigerator. It was a slow-moving world by modern standards. It was a world in which the interruption of litigation for around two years (the average time now taken for a preliminary ruling to be delivered) was, if not welcomed, certainly tolerated. Fast-forward to 2011 and globalisation—though still far from uniform—has become the accepted means of implementing business strategies, not least through the internet. When enterprises like L’Oreal and eBay trade, their daily turnover is vast (at the outbreak of their dispute, L’Oreal’s annual sales were a little short of US$ 20 billion; those of eBay were ‘only’ US$ 7.7 billion). What is more, this litigation was viewed by many as a test case since L’Oreal was by no means the only company that considered eBay was not taking adequate care to avoid infringing sales, and eBay is certainly not the only company hosting online sales, as the emergence and rapid growth of Alibaba has shown. When all the other questions are answered, one remains. Should the ECJ’s procedures be amended to provide a truly rapid response when legal issues arise, or is it better to let the parties adjust their commercial activities to lessen the risk of disaster in a market in which, two years down the line, they may be either the substantial winners or the losers in the wake of a ruling which they can seek to influence but cannot control? Journal of Intellectual Property Law & Practice, 2011, Vol. 6, No. 10 EDITORIAL 671

Transtemporal Separation of Powers in the Law of Precedent

The rule of stare decisis creates a presumption that a court’s ruling on a legal question remains binding in later decisions by the same court or hierarchically inferior courts. This presumption promotes stability in the law and protects reliance interests. Decisions that narrowly construe or overrule prior opinions can therefore seem like unprincipled threats to the rule of law. This article seeks to highlight some countervailing themes in the case law, showing that stability and the protection of reliance interests are not the exclusive concerns underlying the law of precedent. The relevant doctrine attempts to balance these objectives with competing goals, such as restraining judicial overreaching and ensuring that precedent-setting courts observe time-honored decision making practices. As developed by the Supreme Court, the law of precedent allows later judges to narrowly construe or accord diminished weight to a prior opinion if it resolves issues not before the precedent-setting court, addresses legal questions without adequate briefing or argument, or fails to justify the court’s legal conclusions. Since judicial authority consists of the power to say what the law is (Marbury v. Madison), these cross-currents in the law of precedent serve separation of powers functions. The ability of a court to establish precedent acts as a check on the power of judges who come later in time. On the other hand, the ability of later judges to ignore dicta and to limit the precedential effect of opinions decided without adequate care provides a counterbalancing check on the power of the earlier court. The law of precedent thus distributes the law speaking power over time, reserving the greatest precedential impact for opinions that address only the issues before the court, based on plenary briefing and argument, and with adequate explanation of the rationale. After tracing these themes in the law of precedent, the article considers their application to three issues likely to come before the Supreme Court in future cases. Specifically, the analysis addresses how these limitations on the rule of stare decisis might affect the precedential value of Baker v. Nelson, dealing with the constitutional status of same-sex marriage; Iqbal v. Ashcroft, discussing the liability of supervisory personnel based on constitutional violations committed by their subordinates; and the viability rule of Roe v. Wade and Planned Parenthood v. Casey, forbidding state regulation of abortion prior to fetal viability.

Stare Decisis and the Inferior Courts of the United States

While circuit courts are bound to follow circuit precedent under “law of the circuit”, the practice among federal district courts is more varied and uncertain, and routinely involves little or no deference to their own precedent. I argue that the different hierarchical levels and institutional characteristics do not account for the differences in practices between circuit and district courts. Rather, district courts can and should adopt a “law of the district” similar to that of circuit courts. Through this narrow proposal, I explore the historical practices and policies of stare decisis in federal courts that are not Supreme.

The Judicial Bookshelf

The Judicial Bookshelf DONALD GRIER STEPHENSON, JR. Spring and summer of 2011 brought to mind two instructive American chronological landmarks: the 235th anniversary of the signing of the Declaration of Independence and the 150th anniversary of the outbreak of the Civil War. One was as uplifting as the other was disheartening. In launching a nation, the Declaration captured the core of democratic theory in its reference to “[g]overnments... deriving their just powers from the consent of the governed.” Eighty-seven years later, as the American states were at war with each other after eleven of them refused to accept the outcome of the election of 1860, President Abraham Lincoln restated the principle of consent on the battlefield at Gettysburg as “government ofthe people, by the people, and for the people.” However phrased, this found­ ing principle had to be made operational. Oth­ erwise, the “dependence on the people” that James Madison acknowledged in 1788 in The Federalist, No. 51, as “the primary control on the government” would not be achieved. The Framers deployed the principle of consent in various ways in the plan of gov­ ernment they devised in Philadelphia in the summer of 1787. The Constitution entrusted the conduct of elections for national of­ fices to the popularly elected legislatures of the pre-existing states, subject to modifica­ tions that Congress might make. People eli­ gible to vote for “the most numerous Branch of the State Legislature” elected members of the House of Representatives, as Article I dictated. State legislatures designated mem­ bers of the Senate. Electors, in numbers ap­ portioned among the states in accord with the size of their congressional delegation and “appointed], in such Manner as the Legis­ lature [of each state]... may direct,” chose the President and Vice President, as Ar­ ticle II dictated. Except for constitutional amendments that instituted popular election for Senators and significantly broadened the franchise, these provisions still control the election of national officers. By determin­ ing peacefully those who shall govern and by bestowing legitimacy on the decisions they make, the provisions have provided workable answers to the crucial question faced by every political system: who shall govern? THE JUDICIAL BOOKSHELF 305 Yet, how did the Framers link the Supreme Court to the principle ofconsent? They delib­ erately detached that body from any meaning­ ful “dependence on the people.” The Presi­ dent, “by and with the Advice and Consent of the Senate,” was to “appoint... Judges of the supreme Court” who, along withjudges ofthe “inferior Courts” were to “hold their offices during good Behavior” and to enjoy “a Com­ pensation, which shall not be diminished dur­ ing their Continuance in Office,” as Article III outlined. Thus, in April 1788, when Alexander Hamilton in The Federalist, No. 78 imag­ ined the Supreme Court and a national judi­ cial power, he defended this “independence of thejudges” as “an essential safeguard” against popular sovereignty, “against the effects ofoc­ casional ill-humors in the society.” Ofprimary concern to Hamilton were “infractions of the constitution,” which the anticipated power of judicial review would not only block and con­ tain once they had occurred but perhaps even prevent. As Princeton’s Professor Edward S. Corwin would observe 160 years later, “judi­ cial review represents an attempt by American Democracy to cover its bet.”1 Hamilton, however, strove valiantly in the seventy-eighth Federalist to lodge consent in the Court. Judicial review, he argued, did not “suppose a superiority ofthejudicial to the leg­ islative power. It only supposes that the power of the people is superior to both.” It was this convergence of an appointed Bench with the popular will that Chief Justice John Marshall articulated in Marbury v. Madison,2 the first defense ofjudicial review in a decision by the U.S. Supreme Court. “That the people have an original right to establish, for their future gov­ ernment, such principles as, in their opinion, shall most conduce to their own happiness, is the basis on which the whole American fabric has been erected. The exercise ofthis original right is a very great exertion; nor can it, nor ought it, to be frequently repeated. The princi­ ples, therefore, so established, are deemed fun­ damental. ... Those, then...

Inferiorizing Judicial Review: Popular Constitutionalism in Trial Courts

The ongoing debates over the legitimacy of judicial review-the power of courts to strike down unconstitutional statutes-as well as the evolving school of thought called "popular constitutionalism, " are characterized by a preoccupation with the Supreme Court as the embodiment of judicial power This is a striking shortcoming in prevailing constitutional theory, given the fact that in the United States, inferior courts engage in constitutional adjudication and in acts of judicial review on a daily basis, in ways that are importantly different from the familiar practices of the Supreme Court. The Article breaks down this monolithic concept of "the courts" by shifting the focus to the lower levels of the judicial system. Trial court adjudication is revealed to hold a unique transformative potential for constitutionalism: the possible enhancement of civic participation, public deliberation, and value pluralism in the process of creating constitutional meanings. The Article presents an argument for "inferiorizing" judicial review, i.e., relegating the power of judicial review to the federal district courts, and removing the Supreme Court from this practice. The inferiorizing model-a procedurally simple, though conceptually radical, jurisdictional shift-is shown to have a redeeming potential for judicial review as a democratically legitimate means of enforcing constitutional rights; while at the same time providing a robust institutional setting for the exercise of popular constitutionalism. Although it would be very difficult to bring about a full inferiorizing shift in constitutional adjudication, the Article exposes the possibilities for democracy-enhancing institutional innovation; these possibilities become available to constitutional actors once the institutional diversity of courts is recognized.

“Such Inferior Courts . . .”

Through its rulings, the U.S. Supreme Court makes clear what the Constitution means and how best to interpret congressional statutes. But, because Supreme Court rulings do not implement themselves, the Court is dependent on compliance by lower courts to effectuate its policies. Using the concept of jurisprudential regimes developed by Richards and Kritzer in 2002 and specifically the Establishment Clause jurisprudential regime they identified in 2003, we evaluate the extent to which the U.S. Courts of Appeals faithfully implement the Supreme Court's policy in this area of law. We find that decision making by court of appeals panels is indeed structured by the Supreme Court's Establishment Clause jurisprudential regime, even when taking into account the policy preferences of court of appeals judges. Furthermore we find that this attentiveness to legal factors is not a function of circuit court judges' fear of reversal.

Much Ado About Dictum; or, How to Evade Precedent Without Really Trying: The Distinction between Holding and Dictum

From the birth of our Republic, starting with Chief Justice Marshall in Cohens v. Virginia, judges and scholars alike have grappled with the distinction between holding and dictum. However, neither the judiciary nor the academy has been able to come up with a consistent and workable definition of these two concepts. This article attempts to shine some light on this perplexing issue. This article proceeds as follows. In Part I, I will discuss some of the simpler, yet unsatisfying definitions of dictum, and introduce some of the easy cases, where distinguishing dictum from holding is relatively straightforward. Next, I will chronicle the Supreme Court's erratic approach to dealing with dictum, and show how this uncertainty has left a gaping void in our jurisprudence. Next, I will discuss prior scholarly attempts to define dictum, and show why their approaches are inadequate, as they only focus on Supreme Court cases, and ignore how the inferior courts treat the distinction.In Part II, I will confront the task where others have not ventured, and systematically survey and analyze over four hundred court cases that distinguish between dictum and holding. After explaining my methodology and framework, I will attempt to answer three critical questions. First, what is dicta worth? Second, whose dicta must/should/can courts follow? Third, how do courts define dicta? These three questions reveal clues to understanding how courts have treated dictum, and what the distinction means in practice. In Part III, I will analyze the results from Part II. Based on the arbitrary nature with which courts define dictum, and the varying weight courts assign to dictum, even from superior courts, I conclude that the holding/dictum distinction is a standardless standard. Unlike generally accepted standards of review, labeling an opinion as holding or dictum is an entirely subjective process, which I argue enables judges to easily evade precedent without needing to justify the departure; or in the alternative create precedent where none existed before. Next, I analyze precedent, stare decisis, and dictum through the lenses two jurisprudential schools, legal formalism and realism. I conclude with a legal realist argument, that the distinction between dicta and holding is inextricably linked with a judge's views on precedent.

Pettyfoggers, Regulation, and Local Courts in Early Modern Scotland

Scotland has long had local legal societies attached to inferior and local courts. These societies mirror the Faculty of Advocates and the Society of Writers to the Signet which sought to protect the interests of members of the College of Justice in Edinburgh. Local or ‘country’ procurators, for their own protection, sought to control admission to their societies ostensibly to ensure adequate standards but also, at least in some places, to discourage or prevent unfettered competition. Ethical standards amongst members of local bars were enforceable by the inferior judges and local procurators-fiscal. Ultimately, such enforcement was a matter for the supervisory jurisdiction of the central court and a number of instances demonstrate this jurisdiction in action particularly in the eighteenth century. Further general regulation, emanating from parliament, was much slower in coming and did not emerge until the nineteenth century a uniform structure and common qualifications began to be imposed. The aim of this article is to investigate the character and concerns of some of these local societies in the early modern period and to outline the process by which they became subject to central regulation.

The Question of Diminution of Income for Justices and Judges of the Supreme Court and the Inferior Courts of the United States

Selected from a small committee to compose a first draft of a declaration of independence of the American colonies from Great Britain, Thomas Jefferson set pen to paper and began what would be a litany of offenses committed by the Crown against the people of the soon-to-be United States of America. Included in that world-changing document was a passage dealing with the colonial judiciary and its past subjugation to the wishes of George III:

Advocates unlimited: thenumerus claususand the college of justice in Scotland

The college of justice established in Edinburgh in 1532 provides an interesting case study of the operation of the numerus clausus rule by which a limit was placed on the number of advocates permitted to practise there. Such a rule is found in a number of European jurisdictions; however in Scotland's central court it was unusually short-lived, and lasted for less than two decades. The focus of this article is on why the rule was so briefly employed and what consequences this had for the legal profession, the court and wider Scottish society. As well as analysis of the contemporary court record, and consideration of the growth of the legal profession subsequent to the relaxation of the rule, discussion of some of the relevant considerations is informed by a debate on the same issue to be found in some inferior courts in the eighteenth century.

'Such Inferior Courts...': Compliance by Circuits with Jurisprudential Regimes

In the language of principal agency, it is important to know whether lower courts are faithful agents to their judicial principal (Benesh and Martinek 2002, 126). But it is also important to know whether that faithfulness stems from an institutional commitment to make good law, or some lucky coincidence of aligned preferences. In other words, we need not only consider whether the lower courts comply with the Supreme Court, because, in most cases, that answer is, resoundingly, yes. What scholars continue to puzzle over is why the lower courts comply. Do they do it out of self-interest; e.g., out of reversal avoidance (born either of ego or of commitment to ideological outcomes)? Or do they do it because they genuinely wish to get it right with respect to the law; e.g., in attempts to make decisions as the Supreme Court would have them do because of an acute awareness that they staff such inferior courts as the Congress may from time to time ordain and establish (U.S. Constitution, Article III, Section 1). We advance an innovative test of the degree to which the U.S. Supreme Court influences decision making in the U.S. Courts of Appeals, and how it does so, that expressly considers the role played by law in judicial decision-making. Considering the U.S. Supreme Court's Establishment Clause jurisprudence, we seek to determine whether the jurisprudential regime adopted by the Court, as denoted by the decision in Lemon v. Kurtzman (403 U.S. 602, 1971), structures decision making in the circuit courts, thereby adapting Kritzer and Richards' concept of jurisprudential regimes for use in measuring and explaining compliance (Kritzer and Richards 2003, 2005; Richards and Kritzer 2002).

The Prosecution's Right to Appeal in Trinidad and Tobago: The State v Boyce

There is no right of appeal against a verdict of a court or jury at common law. The Court of Kings Bench had the prerogative power to supervise other tribunals and the prerogative writs of certiorari, mandamus and prohibition gave that court an appellate-like function. Also, in English law there was a writ of error which was an order for the production of the records of an inferior court on the allegations that the record on its face would show the proceedings to have been erroneous and should thus be quashed, but the current appellate systems in common law jurisdictions are gifts of legislatures and not the common law. A new legislative provision in Trinidad and Tobago now provides for the prosecution appealing from the decision of a trial judge in limited cases. A recent decision of the Privy Council has clarified the full measure of that legislation. That case, The State v Boyce, adds to the jurisprudence on the constitutional law of due process in the Commonwealth Caribbean, and it clarified the prosecution's right in certain circumstances to appeal a ruling of the trial judge. In reaffirming the judgment of Thomas v Baptiste the Judicial Committee disparaged a tendency that crept into the construction of Commonwealth Caribbean Constitutions, which was to gloss the fundamental rights provisions with reference to the prior common law. In Thomas v Baptiste Lord Millett had made the point that the Constitution was 'not a synonym for common law or statute.' The State v Boyce should bring the interpretation of Commonwealth Caribbean Constitutions back to the posture advocated by Lord Wilberforce in Minister of Home Affairs and another v Fisher and another.