Knowing Habeas Corpus When You See It

2018 ◽  
pp. 9-11
Author(s):  
Eric M. Freedman
Keyword(s):  
Supreme Court ◽  
Common Law ◽  
Habeas Corpus ◽  
The Supreme Court ◽  
The Common ◽  
The Government ◽  
Enemy Combatant

Viewing habeas corpus through a legal lens frequently misleads. The common law “rule” against controverting the return to writs of habeas corpus was commonly evaded through devices permitting judicial examination of the underlying facts and law. In many cases concluding “writ denied,” the prisoner in fact obtained “habeas corpus without the writ.” Failure to understand this explains why the Fourth Circuit performed so badly in rejecting the challenge of Yaser Hamdi to his detention as an enemy combatant. The Supreme Court very properly reversed that decision in Hamdi v. Rumsfeld (2004), resulting in the prisoner’s speedy release when the government was confronted with having to actually prove in court the claims it had made on paper.

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.

11. Illegality

2020 ◽  
pp. 405-434
Author(s):  
Jack Beatson ◽  
Andrew Burrows ◽  
John Cartwright
Keyword(s):  
Public Policy ◽  
Supreme Court ◽  
Final Section ◽  
Common Law ◽  
The Supreme Court ◽  
The Common ◽  
Restraint Of Trade

This chapter considers what counts as illegality and the effect of illegality on a contract (and consequent restitution). The approach of the Courts to illegality has been transformed for the better, and simplified, by the Supreme Court in Patel v Mirza in 2016. Illegal conduct, tainting a contract, can vary widely from serious crimes (eg murder) to relatively minor crimes (eg breach of licensing requirements) through to civil wrongs and to conduct that does not comprise a wrong but is contrary to public policy. As regards the effect of illegality, where a statute does not deal with this, the common law approach is now to apply a range of factors. A final section of the chapter examines contracts in restraint of trade.

A Curious Decision by Zambia’s Highest Court: Six Years Imprisonment for Civil Contempt?

2019 ◽  
Vol 12 (2) ◽  
pp. 115-138
Author(s):  
Christopher Phiri
Keyword(s):  
Supreme Court ◽  
Common Law ◽  
Judicial Power ◽  
Judicial Decisions ◽  
The Supreme Court ◽  
The Common ◽  
The Law

Abstract On 23 November 2018, the Supreme Court of Zambia delivered a judgement which suggests that Zambian judges have virtually unbridled power to move on their own motion to punish for contempt of court anyone who criticises their judicial decisions. This article considers that judgement. It argues that whilst justice might well have been done in the case in question, it was certainly not seen to be done. Two main reasons are given for this argument. First, the judges appeared to have acted both as prosecutors and adjudicators in their own cause when it was neither urgent nor imperative to act immediately on their own motion. Second, the classification by the Court of the contempt in question as civil contempt rather than criminal contempt is alien to the common law world. The article culminates in a clarion call for the Zambian legislature to intervene and clarify the law of contempt of court to avert capricious and unbridled invocation of the judicial power to punish for contempt.

Common Law Confrontations

2019 ◽  
Vol 37 (03) ◽  
pp. 763-786
Author(s):  
Bernadette Meyler
Keyword(s):  
Eighteenth Century ◽  
New Jersey ◽  
Supreme Court ◽  
Common Law ◽  
Criminal Courts ◽  
Original Meaning ◽  
Late Eighteenth Century ◽  
The Supreme Court ◽  
Late Eighteenth ◽  
The Common

This symposium essay contends that the image of the common law drawn by the Supreme Court in the Confrontation Clause context is both distorted and incomplete. In particular, the Court and scholars defending originalist positions rely almost entirely on English sources in their reconstruction of the common law basis for the Confrontation Clause, thereby neglecting the diversity of American common laws from the time of the Founding, a diversity that has already been unearthed by a number of legal historians. By drawing on hitherto untapped sources to furnish a bottom-up reconstruction of how testimony was treated in local criminal courts within mid- to late-eighteenth-century New Jersey, this essay demonstrates that, in at least some jurisdictions, the originalist vision of common law did not apply. The common law cannot, therefore, furnish a univocal answer to questions about the original meaning of the Confrontation Clause.

Revisiting pure economic loss: lessons to be learnt from the Supreme Court of Canada?

Legal Studies ◽  
2005 ◽  
Vol 25 (1) ◽  
pp. 49-71 ◽  
Author(s):  
Paula Giliker
Keyword(s):  
Supreme Court ◽  
Common Law ◽  
Economic Loss ◽  
Supreme Court Of Canada ◽  
Two Stage ◽  
Pure Economic Loss ◽  
The Supreme Court ◽  
Recent Developments ◽  
The Common ◽  
Difficult Area

This article examines the treatment of pure economic loss claims in England and Canada. The two jurisdictions have much in common. Starting from the same case sources, the common law of each system has struggled to deal with claims for negligently-incurred pure economic loss. Yet, the systems diverged in the 1990s when the Canadian Supreme Court refused to follow the lead of Murphy v Brentwood DC and reiterated its adherence to the Anns two-stage test. It is submitted that, in view of recent developments which suggest the gradual convergence of the two systems, English law should carefully examine the categorisation approach adopted by the Canadian courts. The current English position is far from clear, and the Canadian model is capable of bringing transparency and greater clarity to this difficult area of law.

20. The derivative claim and the rule in Foss v Harbottle

2021 ◽  
pp. 467-494
Author(s):  
Brenda Hannigan
Keyword(s):  
Supreme Court ◽  
Common Law ◽  
Current Position ◽  
Important Constraint ◽  
The Supreme Court ◽  
The Common ◽  
Breach Of Duty ◽  
Ordinary Derivative

This chapter discusses further aspects of shareholder remedies, namely the common law multiple derivative claim; derivative claims under Companies Act 2006 (CA 2006), Part 11; the reflective loss principle; personal actions at common law; and specific statutory rights under the CA 2006. At common law, a shareholder aggrieved by a breach of duty by a director could bring a derivative claim on behalf of the company, as an exception to the rule in Foss v Harbottle. That common law claim now remains as a common law multiple derivative claim whereas the ‘ordinary’ derivative claim now is a statutory claim under CA 2006, Part 11. This chapter explores both types of derivative claim and assesses their value to shareholders. An important constraint on shareholder recovery is the principle governing reflective loss which has recently been restated by the Supreme Court. This chapter considers the current position in the light of that development.

9. Habeas corpus today

2021 ◽  
pp. 92-121
Author(s):  
Amanda L. Tyler
Keyword(s):  
Great Britain ◽  
Supreme Court ◽  
Common Law ◽  
Armed Conflicts ◽  
Habeas Corpus ◽  
War On Terrorism ◽  
The Us ◽  
Us Supreme Court ◽  
The Common ◽  
Suspension Model

This chapter takes the story of habeas corpus forward to present day, giving special attention to how the writ serves as a vehicle for courts to evaluate a range of immigration matters as well as the legality of the detention of prisoners in modern armed conflicts, including most prominently the war on terrorism. As the chapter reveals, studying how habeas functions in these contexts underscores both the writ’s potential as well as its limitations. The chapter explores in depth how the US Supreme Court has both protected a role for the writ in immigration cases but more recently moved to limiting such a role. It continues by exploring the intersection of terrorism and habeas corpus in both Great Britain and the US, highlighting the continuing influence of the common law writ of habeas corpus and the ever diminishing influence of the English Habeas Corpus Act and suspension model.

18. Theft

2018 ◽  
Author(s):  
David Ormerod ◽  
Karl Laird
Keyword(s):  
Supreme Court ◽  
Common Law ◽  
Detailed Review ◽  
The Supreme Court ◽  
The Common ◽  
English Law

In English law, offences related to dishonesty are governed by the Theft Acts 1968 and 1978, the Theft (Amendment) Act 1996, and the Fraud Act 2006. These Acts are not a restatement of the common law and its numerous statutory additions but they do provide a code of the most important offences of dishonest dealing with the protection of property (with the notable exception of forgery and conspiracy to defraud). This chapter deals with the offence of theft. It offers a detailed review of the concept of dishonesty in light of the recent redefinition of that concept by the Supreme Court in Ivey v Genting Casinos.

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