Common law environmental protection: the future of private nuisance, Part I

2014 ◽  
Vol 6 (1/2) ◽  
pp. 21-42 ◽  
Author(s):  
Robert Charles Palmer
Keyword(s):  
Environmental Protection ◽  
Common Law ◽  
Primary Sources ◽  
Content Type ◽  
Secondary Sources ◽  
The Supreme Court ◽  
The Common ◽  
Nuisance Law ◽  
Regulatory Controls

Purpose – This article aims to assess the role of private nuisance as a common law tool for environmental protection, independent of the wider regulatory controls. It evaluates specific areas of the tort that are theoretically unresolved in order to ascertain the potential future role it may play before highlighting the capacity for injunctions to coerce restorative environmental justice. Design/methodology/approach – The paper is predominately a classic doctrinal article as it is principally library-based analysing both primary sources (that both pre- and post-date the modern law reporting system) and secondary sources whilst engaging in leading academic commentary. Findings – Nuisance developed to a point in the nineteenth century where a “theory of nuisance” emerged, which did not tolerate injury to health or the property of another. Recent judicial activity has visibly adulterated that theory: this article casts doubts on juridical restrictions regarding health and property suggesting they may not withstand the scrutiny of the Supreme Court if, and when, they are tested. Originality/value – This paper recognises that nuisance law has a positive future in environmental protection provided that the courts are willing to embrace the historical paradigm which has served the common law in this field broadly well for hundreds of years.

Common law environmental protection: the future of private nuisance, Part II

2014 ◽  
Vol 6 (1/2) ◽  
pp. 106-128
Author(s):  
Robert Charles Palmer
Keyword(s):  
Supreme Court ◽  
Environmental Protection ◽  
Common Law ◽  
Strict Liability ◽  
Regulatory Regime ◽  
Research Approach ◽  
Content Type ◽  
The Supreme Court ◽  
Nuisance Law

Purpose – This article continues to assess the role of private nuisance as a common law tool for environmental protection, independent of the wider regulatory controls. It evaluates the decision in Cambridge Water and asks the question whether it would stand as good law before the Supreme Court. It concludes with illustrating the enduring role of the injunction in environmental protection and its capacity to coerce restorative environmental justice. The paper aims to discuss these issues. Design/methodology/approach – The paper is predominately a classic doctrinal article as it is principally library-based analysing both primary sources (that both pre- and post-date the modern law reporting system) and secondary sources whilst engaging in leading academic commentary. Findings – Nuisance developed to a point in the nineteenth-century where a simple form of the tort was visible. At that juncture, it had an “unchanged” essence that emanated from a strict liability reciprocal identity. Recent judicial activity has visibly adulterated that identity: this article casts doubts on juridical restrictions that assess the conduct of defendants to assess liability. It is suggested that it may not withstand the scrutiny of the Supreme Court if, and when, they are tested. In light of that analysis and considering the potency of injunctions, it is argued that nuisance law potentially has a positive future in environmental protection. Research limitations/implications – Owing to the elected research approach, the scope of the article has been necessarily concentrated on succinct areas of a broader subject and viewed in a manner that works alongside the regulatory regime. Originality/value – This paper recognises that nuisance law has a positive future in environmental protection especially if the courts are willing to embrace the historical paradigm which has served the common law in this field broadly well for hundreds of years.

The King Reports and the common law in South Africa

2020 ◽  
Vol 11 (2) ◽  
pp. 167-172
Author(s):  
J. Michael Judin
Keyword(s):  
South Africa ◽  
Design Methodology ◽  
Common Law ◽  
Bill Of Rights ◽  
Content Type ◽  
The Supreme Court ◽  
Task Team ◽  
The Common ◽  
Court Of Appeal

Purpose This paper aims to discuss the King Reports and Codes and the development of South Africa’s common law. The role of developing the common law is explicitly recognised in the Constitution, as is the obligation to give effect to the spirit, purport and objects of the Bill of Rights. With decisions of the Supreme Court of Appeal being based on the King Code, the King Code is now an integral part of South Africa’s common law. Design/methodology/approach When the task team drafting King IV commenced their work, one of the important issues raised with Mervyn King, as Chairman, was the challenge to ensure that King IV was aligned to the now firmly entrenched common law principles taken from King I, King II and King III. It is believed that this has been achieved and it is hoped that King IV (and the subsequent King Reports that will inevitably follow because the corporate milieu keeps changing) continues to enrich South Africa’s common law. Findings The King Reports and Codes have been made part of South Africa’s common law. Originality/value This paper fulfils an identified need to study the King Report and Code, as it relates to South Africa’s common law.

Gendering the Victorian Irish child reader as buyer

2014 ◽  
Vol 6 (1) ◽  
pp. 8-28 ◽  
Author(s):  
Lauren Clark
Keyword(s):  
Consumer Culture ◽  
Primary Sources ◽  
Content Type ◽  
Secondary Sources ◽  
Historical Significance ◽  
Irish Child ◽  
Female Authors ◽  
Reading Materials ◽  
Child Reader

Purpose – The aim of this paper is to examine the role of children in an emergent Irish consumer culture and advertising from 1848-1921. In particular, the significance of children's gender and reading materials in the process of consumption will be evaluated. Design/methodology/approach – An analysis of primary sources, literature and secondary sources substantiates this research. Findings – By evaluating advertisements, magazines, school textbooks and children's literature from the 1848-1921 period, this article argues that Irish children were encouraged to engage with an emergent consumer culture through reading. This article also evaluates the importance of gender in considering children as consumers and it focuses upon a number of critically neglected Victorian, Irish, female authors who discussed the interface between advertising, consumption and the Irish child. Originality/value – This article is an original contribution to new areas of research about Irish consumerism and advertising history. Substantial archival research has been carried out which appraises the historical significance of advertisements, ephemera and critically neglected children's fiction.

scholarly journals Living Together as Neighbours: Rethinking the Reasonableness Standard in Nuisance Law Under the Constitution

2021 ◽  
Vol 24 ◽  
pp. 1-32
Author(s):  
Tina Kotzé ◽  
Zsa-Zsa Boggenpoel
Keyword(s):  
Common Law ◽  
Constitutional Rights ◽  
Narrow Sense ◽  
Underlying Principle ◽  
Living Together ◽  
The Common ◽  
Nuisance Law ◽  
The Republic ◽  
The Relationship

The Covid-19 pandemic, with its concomitant "stay at home" catchphrase, has certainly made living together as neighbours in a constitutional dispensation more tangible. Conflicts between neighbours will inevitably increase, especially in a time when citizens from different social, cultural, customary or religious backgrounds and with different rights and interests are restricted to the boundaries of their properties as a result of the Covid-19 pandemic. The pandemic has provided us with the impetus to reflect upon the notion of "reasonableness" in neighbour law, particularly nuisance law in the narrow sense. In this context the role of neighbour law is ordinarily to regulate the relationship between neighbours. Therefore, neighbour law is crucial in that it resolves conflicts that arise between neighbours due to their everyday use of their properties. Whether the nuisance is objectively reasonable or goes beyond that which can be reasonably tolerable under the circumstances requires weighing up various factors dependant on the prevailing circumstances, rights, interests, values and obligations of the neighbours and the community. In the constitutional dispensation, based on the values of human dignity, equality, and freedom, this may inadvertently require courts to balance out and reconcile often opposing constitutional rights. To this end the underlying principle of nuisance law encapsulated in the phrases "give and take" and "live and let live" arguably already encapsulates the notion of balancing respective rights (constitutional or otherwise) and interests given the context of each case. However, courts do not always correctly apply the reasonableness test in a principled and coherent fashion, as illustrated in Ellaurie v Madrasah Taleemuddeen Islamic Institute 2021 2 SA 163 (KZD). This may lead to the conclusion that constitutional rights are ignored when the reasonableness test for nuisance law is applied. It is necessary to reconceptualise the reasonableness test in order to ensure that the common law is infused with constitutional values. There are numerous ways in which the ideals and values of the Constitution of the Republic of South Africa, 1996 (and even specific constitutional rights other than property rights) could be advanced if courts were more willing (not being held back by conservatism) and able (equipped with the necessary vocabulary) to apply the common law in line with the Constitution. It is pivotal that courts apply the reasonableness test correctly, considering all the relevant circumstances of the case, including the broader constitutional values and ideals such as ubuntu. It is arguable that if this were done, nuisance law would have a greater potential to incorporate a wider range of rights, interests and values so that the outcomes would be fairer and more equitable, which is, after all, the goal of the reasonableness standard in neighbour law.

scholarly journals The Contractual Principle of Good Faith and the Duty of Honesty in Bhasin v. Hrynew

2015 ◽  
Author(s):  
Shannon O'Byrne ◽  
Ronnie Cohen
Keyword(s):  
Supreme Court ◽  
Common Law ◽  
Good Faith ◽  
Contracting Out ◽  
Commercial Code ◽  
The Supreme Court ◽  
American Law ◽  
The Common

This article explores the Supreme Court of Canada’s 2014 decision in Bhasin v. Hrynew. This includes an assessment of the new duty of honesty in contractual performance and the newly identified organizing principle of good faith. The authors also discuss contracting out of the duty of honesty — which Bhasin itself raises as a possibility — by assessing both Canadian and American law on point, including the Uniform Commercial Code. The article concludes that Bhasin’s largest and most lasting contribution is likely in how it expressly legitimates and defends the role of good faith in the common law of contract.

The role of tech startups in the fight against COVID-19

2020 ◽  
Vol ahead-of-print (ahead-of-print) ◽  
Author(s):  
Fernando Almeida
Keyword(s):  
Health Professionals ◽  
Field Research ◽  
Local Economy ◽  
Primary Sources ◽  
Content Type ◽  
Secondary Sources ◽  
Movement Data ◽  
Hospital Equipment

PurposeThis study explores the contribution that tech startups can provide in the fight against COVID-19. The Tech4Covid movement is presented to that effect, which has joined several Portuguese tech startups. This initiative gathers more than 5,000 volunteers and 28 ongoing projects in several interdisciplinary areas, including science, technology, health and education.Design/methodology/approachTwo qualitative methods are adopted: the case study and the field research technique. This joint approach allows exploring in-depth the relevance and impact of the different areas included in Tech4Covid movement. Data were collected both from primary sources, namely by the authors' participation in the movement and by the use of secondary sources from each project.FindingsThe findings reveal three main areas in which the 28 ongoing projects can be categorized, respectively: support to health professionals and hospital equipment, health and education services and business and leisure. These projects offer direct and indirect contributions to the fight against COVID-19. From a perspective, they were initially designed to support health professionals in gathering protective equipment and supporting screening for suspicious cases. From another perspective, they also offer indirect benefits to citizens and the local economy.Originality/valueThis paper addresses a recent phenomenon with a dramatic impact on public health, social and economic dimensions. The study provides essentially practical contributions by revealing how Portuguese technological startups were organized and worked together to respond to the COVID-19 pandemic. It is expected this study will serve as a reference for other countries and communities that intend to replicate this model.

The Education of Law Librarians in the U.K.

1976 ◽  
Vol 4 (1) ◽  
pp. 3-18 ◽  
Author(s):  
Gillian Bull
Keyword(s):  
Data Base ◽  
Common Law ◽  
The Body ◽  
Primary Sources ◽  
Primary Data ◽  
Legal Information ◽  
Law System ◽  
Secondary Sources ◽  
Legal Subjects

Law librarianship in the U.K., like all other types of librarianship elsewhere, is a service profession which reflects the activities of the body of users served. Lawyers in the common law system depend upon the written law, and must refer to the primary sources –statutes and cases– for authoritative statements in support of their arguments and actions. The absence of a formal legal code has long been one of the main characteristics of the U.K. legal system, and marks it off from many other systems, both of civil and common law, although the increasing predominance of statute law in the U.K. has resulted in more and more effectual codification of more and more specific areas of our law during this century. However, in the absence of a “master” code, or even an agreed set of principles underlying our law, U.K. lawyers, perhaps even more than others, are tied to the primary, written legal data base. Their education is concerned mainly with the handling of this data base - locating materials on specific subjects within it, and making classifications of legal subjects according to current trends. Superimposed upon the primary data base are many secondary sources (indexing, abstracting and summarizing services), with which the lawyer becomes acquainted, sometimes as a student, but more often as a practitioner. These are sweeping generalizations, but I hope that my main point will be adequately illustrated by them: that the role of legal information officer or law librarian (apart from purely custodial activities) closely reflects an important part of the role of a qualified lawyer; indeed one upon which his education lays great emphasis.

MINGLING THE WATERS

2002 ◽  
Vol 61 (3) ◽  
pp. 575-611 ◽  
Author(s):  
Patrick Polden
Keyword(s):  
Supreme Court ◽  
Common Law ◽  
Detailed Examination ◽  
Full Understanding ◽  
The Supreme Court ◽  
The Common ◽  
Court Of Appeal ◽  
Formative Years

Views about the nature and extent of the “fusion” effected by the Judicature Acts frequently focus narrowly on those cases which determined the doctrinal position, with insufficient regard for the accompanying changes to practice, procedure and structures.This article examines the means by which the promoters of the legislation and other interested parties sought to promote or restrain its formidable fusionist potential. It explores the use of cross-jurisdictional appointments to infuse equity into the common law divisions; the successive changes to the membership and working arrangements of the court of appeal; and the short-lived experiment of sending Chancery and appellate judges on circuit. It suggests that a more detailed examination of the effect of these structures and the role of individual judges of the Supreme Court of Judicature in its formative years is needed for a full understanding of the limited fusion that emerged.

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