CRITICAL NOTICE TOO MUCH INVESTED TO QUIT

2004 ◽  
Vol 20 (1) ◽  
pp. 185-208 ◽  
Author(s):  
Arthur Ripstein
Keyword(s):  
Common Law ◽  
Law Students ◽  
First Year ◽  
Economic Analysis Of Law ◽  
Remarkable Change ◽  
Liability Rules ◽  
The Past ◽  
The Common ◽  
The Law ◽  
Economic Analyses

The economic analysis of law has gone through a remarkable change in the past decade and a half. The founding articles of the discipline – such classic pieces as Ronald Coase's “The problem of social cost” (1960), Richard Posner's “A theory of negligence” (1972) and Guido Calabresi and Douglas Malamed's “Property rules, liability rules, and inalienability: One view of the cathedral” (1972) – offered economic analyses of familiar aspects of the common law, seeking to explain, in particular, fundamental features of the law of tort in terms of such economic ideas as transaction costs (Coase), Kaldor-Hicks efficiency (Posner), or minimizing the sum of the accident costs and avoidance costs (Calabresi and Malamed). In each case, they argued that the law of torts should be understood as a set of liability rules selected for their incentive effects, rather than as a set of substantive rights and remedies for their violation. These authors claimed to be able to explain most of the features of tort law and, where features were found that did not fit with their preferred explanations, recommended modification. Although they disagreed on important questions, each of the pieces seems to work a manageable structure into what strikes first-year law students as an otherwise random morass of common-law judgments. Generations of legal academics were introduced to these works, and drawn into their way of looking at things. As a student studying first-year torts with Calabresi at Yale, I had the sense that I was in the presence of greatness.

scholarly journals The First and Fiftieth Years of Independent Burma's Law Reports

2004 ◽  
Vol 35 (2) ◽  
pp. 385 ◽  
Author(s):  
Myint Zan
Keyword(s):  
Common Law ◽  
Case Law ◽  
First Year ◽  
The Past ◽  
The World ◽  
The Law ◽  
Law Reports

This article compares the annual Law Reports of the first year of Burmese independence in 1948 with those published in the fiftieth year of Burmese independence (1998). In making the comparison, the author highlights the fundamental changes that occurred in the structure and composition of the highest courts in Burma, along with relevant background and factors effecting these changes. There was a movement away from the predominant use of English in 1948 towards judgments exclusively in Burmese in the 1998 Law Reports. Burma's neighbours, who shared a common law legal heritage, did not follow this trend after their independence. This shift, combined with Burma's isolation from the rest of the world, makes analysis of Burmese case law from the past three and a half decades very difficult for anyone not proficient in the Burmese language. This article tries to fill the lacunae as far as the Law Report from the fiftieth year of Burma's independence is concerned.

Duress and the Criminal Law: Another About Turn by the House of Lords

1988 ◽  
Vol 47 (1) ◽  
pp. 61-76 ◽  
Author(s):  
H. P. Milgate
Keyword(s):  
Northern Ireland ◽  
Criminal Law ◽  
Common Law ◽  
General Rule ◽  
The Past ◽  
House Of Lords ◽  
The Common ◽  
The Law ◽  
The Relationship ◽  
Second Degree

In the field of criminal law we should be used to the House of Lords changing its mind. In the course of the past three years the House has fundamentally altered its view on the meaning of intention, on the relationship between statutory and common law conspiracy and on the law of impossible attempts. Now we have another about turn. In R. v. Howe and Bannister the House of Lords has unanimously decided that duress can never be a defence to murder. Yet elsewhere in the criminal law (with the exception of some forms of treason) duress operates as a complete defence, leading to acquittal if raised successfully. In making murder an exception to this general rule the House, using its power under the Practice Statement of 1966, has departed from its previous decision in D.P.P. for Northern Ireland v. Lynch which allowed the defence of duress to be raised by principals in the second degree to murder. The Lynch decision, which had stood as part of the common law for some twelve years, is now consigned to the legal scrapheap.

Bhasin v Hrynew - The New Duty of Good Faith in Contract

1969 ◽  
Author(s):  
Brittany Scott
Keyword(s):  
Common Law ◽  
Good Faith ◽  
Supreme Court Of Canada ◽  
The Past ◽  
Legal Traditions ◽  
The United Kingdom ◽  
The Supreme Court ◽  
The Common ◽  
The Law ◽  
Contractual Obligations

Over the past number of years, the law surrounding the requirement to operate in good faith in conducting contractual obligations has been a developing principle in common law countries from Australia, to the United Kingdom to Canada. In Canada, this principle has developed separately within the civil and common law legal traditions respectively. While the Quebec Civil Code has historically provided for an expectation of parties to a contract to operate in good faith, the common law in Canada has not been as clear.  Prior to 2014, the Canadian common law duty to negotiate in good faith was an unsettled body of law, recognized in certain areas, but not across the discipline as a whole. It has only been since the Supreme Court of Canada decision in Bhasin v. Hrynew that this duty to negotiate in good faith has been outlined as a coherent set of guiding principles. Parties to a contract are now both bound by a general organizing principle of good faith in contracts and are expected to act honestly in the performance of their contractual obligations. While new to the Canadian common law, numerous cases have been quick to test the court’s interpretation of this change in scope to the law of good faith. As Canadian common law jurisprudence moves forward, this principle will continue to expand and develop.

Richard Roose and the use of Parliamentary Attainder in the Reign of Henry VIII

1986 ◽  
Vol 29 (1) ◽  
pp. 1-15 ◽  
Author(s):  
William R. Stacy
Keyword(s):  
Common Law ◽  
Henry Viii ◽  
The Past ◽  
The Reformation ◽  
Judicial Proceedings ◽  
The Common ◽  
The Law ◽  
Elizabeth Barton

In the past decade scholars such as Stanford Lehmberg. G. R. Elton, and J. G. Bellamy have increased our understanding of the use of parliamentary attainder in the reign of Henry VIII. Traditionally attainder had been used to punish fugitives in flight, a form of parliamentary outlawry, or to affirm and supplement prior convictions achieved through the common law or the law of arms in order to extend the crown's rights to forfeited estates. At common law a traitor's forfeiture was limited to lands in fee simple, and by the law of arms his lands were totally immune to forfeiture. Passage of an act of attainder, however, enabled the king to seize any or all of a traitor's land, whether held in fee simple, fee tail, or to the use of the traitor. In the crucial decade of the 1530s attainder assumed a new role, condemning and ordering the execution of offenders solely by authority of parliament, without any prior judicial proceedings and despite an absence of obstacles which might have made a trial impossible. Lehmberg emphasizes the significance of this transformation in his detailed study of attainder in the reign of Henry VIII and suggests that the ‘pivotal act’ was the attainder of Elizabeth Barton and her followers in 1534. Certainly Barton's attainder was the first of many utilized by Henry's government to enforce the Reformation, and it did so without recourse to the common law. Lehmberg is mistaken, however, in his belief that this was the first attainder of the reign to attaint an individual without prior common law proceedings, for that distinction belongs to the attainder of Richard Roose in 1531.

scholarly journals What's Wrong with Restitution

1969 ◽  
Vol 37 (1) ◽  
pp. 221 ◽  
Author(s):  
David Stevens ◽  
Jason W. Neyers
Keyword(s):  
Common Law ◽  
Private Law ◽  
Simple Formulation ◽  
Unjust Enrichment ◽  
The Past ◽  
The Subject ◽  
The Common ◽  
The Law ◽  
The Right ◽  
The Way

The law of restitution has developed out of the law of quasi-contract and the law of constructive trust. Inadequate attention to the logic and coherence of doctrines in the law of restitution, however, renders this new law as opaque and confused as its predecessor. This is largely due to the remedial mentality of the common law. The remedy to the remedial mentality is to concentrate future efforts in stating doctrine on defining rights, not remedies. The precedent for this type of change in method is the transformation that occurred in contract and tort over the past 100 years, inspired, in part, by civilian theories of private law. The right that generates the remedy restitution is the cause of action in unjust enrichment. It arises where there has been a non-consensual receipt and retention of value, that is, a receipt and retention of value that occurs without "juristic reason." "Nonconsensual" means by mistake, by theft or by finding. There are a number of problems in the method of the common law tradition which stand in the way of recognizing this simple formulation: (a) The inherent expansiveness of "restitution " and "unjust enrichment" if these terms are not rigorously defined; (b) The lack of serious competition for the expansive versions of the subject, on a number of fronts; (c) The lack of a clear direction in the efforts to reform the law of quasi-contract and constructive trust; (d) The deeply embedded nature of the quasi-contract thinking; (e) Poor analysis in some areas of the law of contract and (f) Tort; and (g) The lack of an explicit agency of reform in the tradition.

Outrageous Behaviour

1996 ◽  
Vol 4 (19) ◽  
pp. 584-587 ◽  
Author(s):  
Paul Barber
Keyword(s):  
Public Service ◽  
Gay Rights ◽  
Common Law ◽  
Public Order ◽  
The Past ◽  
General Law ◽  
The Common ◽  
The Law

The past year or so has seen a number of incidents where a public service has been disrupted by a group of people seeking to make a point through the attendant publicity. An example occurred in February 1995 when the gay rights group ‘Outrage’ disrupted the enthronement of the Bishop of Guildford. Such an incident inevitably gives rise to questions of law, and this article intends to survey very briefly the law which is particularly applicable in cases where there are disturbances in places of worship. Of course, both the general law concerning public order and the common law relating to breach of the peace also apply as much within churches as without. However, much is written about them elsewhere.

The Law of Contract

2018 ◽  
Author(s):  
Eva Steiner
Keyword(s):  
Common Law ◽  
World Market ◽  
Contract Law ◽  
The State ◽  
Legal Certainty ◽  
Philosophical Foundations ◽  
The Common ◽  
The Law

This chapter examines the law of contract in France and discusses the milestone reform of French contract law. While this new legislation introduces a fresh equilibrium between the contracting parties and enhances accessibility and legal certainty in contract, it does not radically change the state of the law in this area. In addition, it does not strongly impact the traditional philosophical foundations of the law of contract. The reform, in short, looks more like a tidying up operation rather than a far-reaching transformation of the law. Therefore, the chapter argues that it is questionable whether the new law, which was also intended to increase France's attractiveness against the background of a world market dominated by the Common Law, will keep its promise.

The New Private Law and Intellectual Property

2020 ◽  
pp. 408-426
Author(s):  
Molly Shaffer Van Houweling
Keyword(s):  
Intellectual Property ◽  
Common Law ◽  
Private Law ◽  
Concepts And Categories ◽  
The Common ◽  
The Law ◽  
Law Courts ◽  
Legal Concepts

This chapter studies intellectual property (IP). A hallmark of the New Private Law (NPL) is attentiveness to and appreciation of legal concepts and categories, including the traditional categories of the common law. These categories can sometimes usefully be deployed outside of the traditional common law, to characterize, conceptualize, and critique other bodies of law. For scholars interested in IP, for example, common law categories can be used to describe patent, copyright, trademark, and other fields of IP as more or less “property-like” or “tort-like.” Thischapter investigates both the property- and tort-like features of IP to understand the circumstances under which one set of features tends to dominate and why. It surveys several doctrines within the law of copyright that demonstrate how courts move along the property/tort continuum depending on the nature of the copyrighted work at issue—including, in particular, how well the work’s protected contours are defined. This conceptual navigation is familiar, echoing how common law courts have moved along the property/tort continuum to address disputes over distinctive types of tangible resources.

Admissibility of confession evidence: Principles of hearsay and the rule of voluntariness

2021 ◽  
pp. 136571272110022
Author(s):  
Jennifer Porter
Keyword(s):  
Western Australia ◽  
Common Law ◽  
South Australia ◽  
Judicial Discretion ◽  
Trial Judge ◽  
Important Policy ◽  
Oral Testimony ◽  
The Common ◽  
The Law ◽  
Confession Evidence

The common law test of voluntariness has come to be associated with important policy rationales including the privilege against self-incrimination. However, when the test originated more than a century ago, it was a test concerned specifically with the truthfulness of confession evidence; which evidence was at that time adduced in the form of indirect oral testimony, that is, as hearsay. Given that, a century later, confession evidence is now mostly adduced in the form of an audiovisual recording that can be observed directly by the trial judge, rather than as indirect oral testimony, there may be capacity for a different emphasis regarding the question of admissibility. This article considers the law currently operating in Western Australia, Queensland and South Australia to see whether or not, in the form of an audiovisual recording, the exercise of judicial discretion as to the question of the admissibility of confession evidence might be supported if the common law test of voluntariness was not a strict test of exclusion.

The Coalition's Plan to Regulate Industrial Relations

1993 ◽  
Vol 4 (1) ◽  
pp. 1-26 ◽  
Author(s):  
Braham Dabscheck
Keyword(s):  
Common Law ◽  
Industrial Relations ◽  
Good Faith ◽  
The Common ◽  
Industrial Conflict ◽  
The Law

In October 1992 the federal coalition released Jobsback, a statement of its industrial relations policies. The article situates Jobsback in the context of the evolution of the coalition's industrial relations policies since the Fraser years, outlines its major features, and provides a critique. Jobsback erects a new regulatory schema under a banner of deregulation. Three key elements are contained in Jobsback. They are tribunal avoidance and the use of the common law, legislatively imposed employment rules to ‘aid’ the transition from an award to a non-award system, and enterprise confinement. The article draws attention to the coalition's views concerning industrial conflict, constitutional issues, transitional problems associated with establishing legislatively imposed workplace rules, minima in workplace agreements, the Office of the Employee Advocate, equality before the law and good faith bargaining.

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