scholarly journals The Tip of the Iceberg: A Survey of the Philosophy and Practice of Canadian Provincial and Territorial Judges Concerning Judicial Disqualification

2011 ◽  
Vol 48 (3) ◽  
pp. 569 ◽  
Author(s):  
Philip Bryden ◽  
Jula Hughes
Keyword(s):  
Empirical Study ◽  
Common Law ◽  
Case Law ◽  
Divergence Of Opinion ◽  
The Common ◽  
The Law

The "reasonable apprehension of bias" test for judicial disqualification has been a fixture in the common law world for centuries; despite this settled state of the law, judges and commentators have been concerned that the application of the test might be contentious in a significant number of cases. In this article, the authors report on an empirical study surveying Canadian provincial and territorial judges on common scenarios which raise the possibility of recusal. Situated in the applicable case law, the findings demonstrate a wide divergence of opinion on substance and procedure among respondents in their attitudes toward recusal in situations that are analytically marginal, but not rare. The article concludes with some possible explanations for the divergence.

The Common Law Legal Tradition: First Things First

2021 ◽  
pp. 15-22
Author(s):  
Steven Gow Calabresi
Keyword(s):  
Judicial Review ◽  
Common Law ◽  
Civil Law ◽  
Primary Source ◽  
Case Law ◽  
The United States ◽  
Public Law ◽  
Legal Tradition ◽  
The Common ◽  
The Law

This chapter explains briefly the origins and development of the common law tradition in order to better understand the rise of judicial review in the seven common law countries discussed in this volume. The common law legal tradition is characterized historically, in public law, by limited, constitutional government and by forms of judicial review of the constitutionality of legislation. In private law, the common law tradition is characterized by judge-made case law, which is the primary source of the law, instead of a massive code being the primary source of the law. The common law tradition is also characterized by reliance on the institution of trial by jury. Judges, rather than scholars, are the key figures who are revered in the common law legal tradition, and this is one of the key things that distinguishes the common law legal tradition from the civil law legal tradition. The common law legal tradition emphasizes judicial power, which explains why it has led to judicial review in the countries studied in this volume. It is the prevailing legal tradition in the four countries with the oldest systems of judicial review of the constitutionality of legislation: the United States, Canada, Australia, and India. Thus, judicial review of the constitutionality of legislation in these four countries is very much shaped by common law attitudes about the roles of judges.

20. Unconscionability and Inequality of Bargaining Power

Contract Law ◽  
2020 ◽  
pp. 662-679
Author(s):  
Ewan McKendrick
Keyword(s):  
Bargaining Power ◽  
Common Law ◽  
Case Law ◽  
The Common ◽  
The Law

This chapter considers a group of cases in which the courts have been asked to grant relief on the basis that the contract concluded between the parties was, in some way, unfair, outlining examples drawn both from the common law (including equity) and from statutes. The rise and fall of a doctrine of inequality of bargaining power is also noted. It then considers the arguments in favour of drawing these disparate cases together into one general doctrine, and concludes by drawing on some academic reflections on the case-law and the role of fairness in the law of contract more generally.

20. Unconscionability and Inequality of Bargaining Power

Contract Law ◽  
2018 ◽  
Author(s):  
Ewan McKendrick
Keyword(s):  
Bargaining Power ◽  
Common Law ◽  
Case Law ◽  
The Common ◽  
The Law

This chapter considers a group of cases in which the courts have been asked to grant relief on the basis that the contract concluded between the parties was, in some way, unfair, outlining examples drawn both from the common law (including equity) and from statutes. The rise and fall of a doctrine of inequality of bargaining power is also noted. It then considers the arguments in favour of drawing these disparate cases together into one general doctrine, and concludes by drawing on some academic reflections on the case-law and the role of fairness in the law of contract more generally.

scholarly journals Latest Developments in Officers’ Duties of SMEs

2011 ◽  
Vol 6 (3) ◽  
Author(s):  
Michael Adams
Keyword(s):  
Common Law ◽  
Regulatory Reform ◽  
Case Law ◽  
Point Of View ◽  
Legal Obligation ◽  
Insurance Cover ◽  
Commercial World ◽  
Red Tape ◽  
The Common ◽  
The Law

This paper examines the balance between officers' and directors' duties in the context of modern regulatory reform. The onus that falls on all directors, from a legal point of view, is applied irrespective of the size and complexity of the corporation. Thus, a small (micro-business) with a single director has the same legal obligation under the common law, the equitable fiduciary duties and the statutory obligations under the Corporations Act as Australia's largest entity, BHP Billiton. The current Federal Government is attempting to reduce the burden of red tape on business to help the economy. The regulators, in particular ASIC, are pursuing cases to enforce the law and increase compliance. There has been recent case law which helps explain the key statutory provisions and the underlying complexity of the law. The major defence and protection for officers' duties, is the so called “business judgement rule,” but it does not seem to be very effective and good quality insurance cover is probably much more useful in the commercial world.

scholarly journals “Lest You Undermine Our Struggle”: Sympathetic Action and the Canadian Charter of Rights and Freedoms

2015 ◽  
pp. 139
Author(s):  
Keir J.M. Vallance
Keyword(s):  
Common Law ◽  
Case Law ◽  
Freedom Of Association ◽  
Labour Law ◽  
New Era ◽  
Canadian Charter ◽  
Labour Relations ◽  
Labour Rights ◽  
The Common ◽  
The Law

In this new era of recognized constitutional labour rights, one aspect of labour relations — sympathetic action — remains, for the most part, judicially unexamined. This article examines the case law to demonstrate that there is a constitutional argument that both the statutory prohibition on sympathetic action, and the hostility to sympathetic action in the common law of contract and tort, infringe on the freedoms in section 2 of the Charter. However, there is no necessary connection between a right to undertake sympathetic action and a right to strike, nor is freedom of association the only Charter right that can protect sympathetic action. Ultimately, an absolute ban on sympathetic action under Canadian labour law violates the Charter and must be removed; and the hostility of the law of tort and the law of contract to sympathetic action also contravenes Charter values.

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.

scholarly journals CODIFICATION, CONSOLIDATION, RESTATEMENT? HOW BEST TO SYSTEMISE THE MODERN LAW OF TORT

2021 ◽  
Vol 70 (2) ◽  
pp. 271-305
Author(s):  
Paula Giliker
Keyword(s):  
Comparative Study ◽  
Common Law ◽  
Civil Law ◽  
Tort Law ◽  
Case Law ◽  
Legal Scholarship ◽  
Legal Rules ◽  
The Law ◽  
Codal Provisions ◽  
Code Civil

AbstractThe law of tort (or extra or non-contractual liability) has been criticised for being imprecise and lacking coherence. Legal systems have sought to systemise its rules in a number of ways. While civil law systems generally place tort law in a civil code, common law systems have favoured case-law development supported by limited statutory intervention consolidating existing legal rules. In both systems, case law plays a significant role in maintaining the flexibility and adaptability of the law. This article will examine, comparatively, different means of systemising the law of tort, contrasting civil law codification (taking the example of recent French proposals to update the tort provisions of the Code civil) with common law statutory consolidation and case-law intervention (using examples taken from English and Australian law). In examining the degree to which these formal means of systemisation are capable of improving the accessibility, intelligibility, clarity and predictability of the law of tort, it will also address the role played by informal sources, be they ambitious restatements of law or other means. It will be argued that given the nature of tort law, at best, any form of systemisation (be it formal or informal) can only seek to minimise any lack of precision and coherence. However, as this comparative study shows, further steps are needed, both in updating outdated codal provisions and rethinking the type of legal scholarship that might best assist the courts.

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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