The Law of Negligence as Reported in The Times, 1785–1820

2018 ◽  
Vol 36 (2) ◽  
pp. 383-419
Author(s):  
James Oldham
Keyword(s):  
Common Law ◽  
Historical Record ◽  
Early Nineteenth Century ◽  
Trial Judge ◽  
Jury Trials ◽  
The Common ◽  
Law Courts ◽  
The Times ◽  
Post Trial ◽  
Century Development

Historically, the clear recognition by the courts that all adults in public intercourse owe a duty of reasonable care to avoid injuring others has been seen as an early nineteenth century development. Occasionally it is recognized that what is known about the emergence of the tort of negligence in English law comes almost entirely from the printed reports of civil (plea side) cases tried in the three common law courts (King's Bench, Common Pleas, and Exchequer). It was not until the 1790s that regular printed reports of jury trials (or nisi prius cases, as they were called) began, and even then, enlightenment from the nisi prius reports was limited. Most of those reports were sketchy, and very few included instructions given to the jury by the trial judge. More importantly, the reports covered only a small fraction of the jury trials that were conducted by the common law courts. The overwhelming majority of civil jury trials ended with the jury verdict (or an occasional nonsuit), with no post-trial proceedings, and what happened in many thousands of these plea-side jury trials in the late eighteenth and early nineteenth centuries has been something of a black hole in the historical record.

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.

Remedies for equitable wrongs

2019 ◽  
Author(s):  
Andrew Burrows
Keyword(s):  
Supreme Court ◽  
Common Law ◽  
Breach Of Contract ◽  
Turn On ◽  
The Supreme Court ◽  
The Common ◽  
Law Courts ◽  
Substantive Law ◽  
Court Of Chancery

Torts and breach of contract are termed common law wrongs because they were historically developed in the common law courts. Equitable wrongs are civil wrongs that historically were developed in the Court of Chancery. Despite the fusion of the common law courts and the Court of Chancery by the Supreme Court of Judicature Acts 1873–1875, much of the substantive law has not been fused. One example is the continued distinction between common law and equitable wrongs. In a rational fused system, nothing should turn on whether a civil wrong is common law or equitable. But that is not the present law.

Dispute Resolution in the Islamic Finance Industry

2020 ◽  
pp. 804-833
Author(s):  
Camille Paldi
Keyword(s):  
Dispute Resolution ◽  
Common Law ◽  
Legal Framework ◽  
Islamic Finance ◽  
Finance Industry ◽  
The Common ◽  
Law Courts

A unique and independent legal framework is important to effectively adjudicate Islamic finance disputes, Sukuk bankruptcies, and Takaful disputes. Currently, these disputes are being adjudicated in common law courts or ineffective arbitration centres where often the Islamic finance transaction is inadvertently converted into a conventional transaction due to the common law nature of the dispute adjudication. In this chapter, a framework is proposed for Islamic finance dispute resolution in the form of the Dubai World Islamic Finance Arbitration Centre (DWIFAC), DWIFAC Jurisprudence Office, the Sukuk Bankruptcy Tribunal (SBT) and the Takaful Tribunal (TT).

Surrender to the inevitable?

1999 ◽  
Vol 58 (1) ◽  
pp. 1-48
Author(s):  
Louise Tee
Keyword(s):  
Common Law ◽  
Pragmatic Approach ◽  
Trust Mechanism ◽  
Land Registration ◽  
Land Transfer ◽  
Adverse Possession ◽  
The Common ◽  
The Times ◽  
The One ◽  
Substantive Law

ADVERSE possession and registered land are unlikely bedfellows–the one originating in the common law idea that a freehold estate results from possession and the other premised upon registration validating title. Indeed, when registration of title was introduced into England and Wales in the nineteenth century, acquisition of title to registered land by adverse possession was prohibited–see section 21 of the Land Transfer Act 1875. However, a more pragmatic approach then ensued, and the Land Registration Act 1925, s. 75, expansively provided that the Limitation Acts should apply to registered land in the same manner and to the same extent as those Acts applied to unregistered land. But technically, of course, this was impossible, and the section detailed a special trust mechanism for registered land alone. Section 75 thus clearly illustrates the inherent difficulties in trying to retain the substantive law of unregistered land within a registered context. Tensions are inevitable, because of the very different conceptual bases of the two systems. In Central London Commercial Estates Ltd. v. Kato Kagaku Ltd., The Times, 27 July 1998, Sedley J. was directly faced with such tension, as he strove to determine the effect of section 75.

scholarly journals Calm Like a Bomb: An Assessment of the Partial Defence of Provocation

2010 ◽  
pp. 729
Author(s):  
Wayne N. Renke
Keyword(s):  
Common Law ◽  
Ordinary People ◽  
Murder Victims ◽  
The Common ◽  
Law Courts ◽  
Male Heterosexual

The partial defence of provocation has been used by the common law courts for some 400 years. Recently, it has been attacked for promoting male heterosexual violence and for its presupposition that ordinary people fly into homicidal rages. The author examines the provocation doctrine and argues that while some changes can be made to the drafting and deployment of the defence, provocation serves a legitimate purpose in accounting for the complexity of being human. The author supports this position by reviewing the application of the doctrine, addressing common criticisms of the defence, and suggesting improvements to the application of provocation that will prevent it from being used to devalue and degrade murder victims.

20. Equity: doctrines and remedies

2019 ◽  
pp. 477-506
Author(s):  
Gary Watt
Keyword(s):  
Supreme Court ◽  
Common Law ◽  
Legal Knowledge ◽  
Very Old ◽  
England And Wales ◽  
Key Points ◽  
The Common ◽  
Law Courts ◽  
Court Of Chancery ◽  
The Way

Without assuming prior legal knowledge, books in the Directions series introduce and guide readers through key points of law and legal debate. Questions, diagrams and exercises help readers to engage fully with each subject and check their understanding as they progress. In general, the leading cases on equitable doctrines and remedies are very old. Originally developed by the old Court of Chancery in constructive competition with the common law courts, equity is now applied by the unified Supreme Court of England and Wales. This chapter looks at particular doctrines and remedies that have been developed over many centuries to help predict the way in which equity will operate in various types of case. It first discusses the distinction between different doctrines of equity before turning to the requirements for the various equitable remedies, the likelihood of success when applying for an equitable remedy and the on-going significance of equity to modern commercial life. The chapter also examines the doctrines of conversion, reconversion, satisfaction, performance and election, along with the discretionary nature of equitable remedies, injunctions, rescission, rectification, account and subrogation.

The Fact of Values

2008 ◽  
Vol 14 (1) ◽  
Author(s):  
John Peterson
Keyword(s):  
Common Law ◽  
The Common ◽  
Law Courts

AbstractBuilding upon Luhmann’s observations on the problems raised for law by indispensable norms and especially by conflicts between two or more of them, this paper considers some of legal theory’s attempted solutions before considering some recent thinking on these issues from the common law courts. Insofar as neither theory nor practice appears able to overcome the difficulties Luhmann highlights, conclusions are drawn which suggest that, far from being a matter for regret, Luhmann's analysis clarifies the practical limitations on what may be expected in respect of values and identifies the point at which those concerned with their protection should focus their attention.

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