Protestations to Parliament for Remeid of Law

2009 ◽  
Vol 88 (1) ◽  
pp. 57-107 ◽  
Author(s):  
J. D. FORD
Keyword(s):  
Private Law ◽  
Civil Court ◽  
House Of Lords ◽  
The Common ◽  
The Law ◽  
The Way

The Articles of Union approved by the parliaments of Scotland and England in 1707 provided for the preservation of the private law of Scotland and for the determination of disputes arising north of the border in Scottish courts. At the same time, however, the Articles not only allowed for the amendment of the law by legislation enacted at Westminster but also left open the possibility of appeals being made to the British parliament against decisions delivered in Scottish courts. The Articles did not allow explicitly for appeals, but nor did they prohibit them, and dissatisfied litigants, by exercising the privilege asserted in the Claim of Right to protest for remeid of law against decisions of the lords of council and session, enabled the upper house of the new parliament to substitute its decisions for those delivered by the supreme civil court in Scotland. This much has long been understood by historians of Scots law, as has the significant impact the opinions expressed by English judges in the House of Lords came to have on the development of the modern law. Yet what has never been properly understood is the nature of the protestations for remeid of law from which appeals to the British parliament emerged. Detailed study of these protestations in the years before and immediately following the union reveals that they were conceived of in several different ways and that their nature was never clearly defined. Nevertheless, it also tends to confirm that there is some basis for the common suspicion that appeals were not intended to be made to the House of Lords in the way that they have been.

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.

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.

Voices of Spectators and Audience Power

Pólemos ◽  
2015 ◽  
Vol 9 (2) ◽  
Author(s):  
Christian Biet
Keyword(s):  
Social Relationship ◽  
The Other ◽  
Long Period ◽  
The Social ◽  
The Common ◽  
Dramatic Action ◽  
The Law ◽  
The Voice ◽  
The Way

AbstractTheatre and law are not so different. Generally, researchers work on the art of theatre, the rhetoric of the actors, or the dramaturgy built from law cases or from the questions that the law does not completely resolve. Trials, tragedies, even comedies are close: everybody can see the interpenetration of them on stage and in the courts. We know that, and we know that the dramas are made with/from/of law, we know that the art the actors are developing is not so far from the art of the lawyers, and conversely. In this paper, I would like to have a look at the action of the audience, at the session itself and at the way the spectators are here to evaluate and judge not only the dramatic action, not only the art of the actors, not only the text of the author, but also the other spectators, and themselves too. In particular, I will focus on the “common judgment” of the audience and on its judicial, aesthetic and social relationship. The spectators have been undisciplined, noisy, unruled, during such a long period that theatre still retains some prints of this behaviour, even if nowadays, the social and aesthetic rule is to be silent. But uncertainty, inattention, distraction, contradiction, heterogeneity are the notions which characterise the session, and the judgments of the spectators still depend on them. So, what was and what is the voice of the audience? And with what sort of voice do spectators give their judgments?

DIGITAL FINANCIAL TOOLS FOR SOCIALIZING PRIVATE LAW

2021 ◽  
pp. 208-224
Author(s):  
Julia S. Kharitonova ◽  
◽  
Larisa V. Sannikova ◽  
Keyword(s):  
Public Relations ◽  
The United States ◽  
Legal Regulation ◽  
Private Law ◽  
Property Relations ◽  
The World ◽  
The Law ◽  
Private Investors ◽  
The Way

Nowadays, the law is being transformed as a regulator of relations. The idea of strengthe-ning the regulatory role of technologies in the field of streamlining public relations is making much headway in the world. This trend is most pronounced in the area of regulation of private relations. The way of such access to the market as crowdfunding is becoming increasingly widespread. The issuing of the so-called secured tokens is becoming popular for both small businesses and private investors. The trust in new ways of attracting investments is condi-tioned by the applied technology - the use of blockchain as a decentralized transparent data-base management system. Under these conditions, there is such a phenomenon as the democ-ratization of property relations. Every individual receives unlimited opportunities to invest via technologies. Thus, legal scholars all over the world face the question about the role of the law and law in these relations? We believe that we are dealing with such a worldwide trend of regulating public relations as the socialization of the law. Specific examples of issuing tokens in Russia and abroad show the main global trends in the transformation of private law. The platformization of economics leads to the tokenization and democratization of property relations. In this aspect, the aim of lawyers should be to create a comfortable legal environment for the implementation of projects aimed at democratizing property relations in Russia. The socialization of private law is aimed at achieving social jus-tice and is manifested in the creation of mechanisms to protect the rights of the weak party and rules to protect private investors. Globalization requires the study of both Russian and foreign law. To confirm their hypothesis, the authors conducted a detailed analysis of the legislation of Russia, Europe and the United States to identify the norms allowing to see the process of socialization of law in the above field. The generalization of Russian and foreign experience showed that when searching for proper legal regulation, the states elect one of the policies. In some countries, direct regulation of ICOs and related emission relations are being created, in others, it is about the extension of the existing legislation to a new changing tokenization relationship. The European Union countries are seeking to develop common rules to create a regulatory environment to attract investors to the crypto industry and protect them. Asian countries are predominantly developing national legislation in isolation from one another, but most of them are following a unified course to encourage investment in crypto assets while introducing strict rules against fraud on financial markets. The emphasis on the protection of the rights of investors or shareholders, token holders by setting a framework, including private law mechanisms, can be called common to all approaches. This is the aim of private law on the way to social justice.

Defaming the Dead

2017 ◽  
Author(s):  
Don Herzog
Keyword(s):  
Common Law ◽  
Tort Law ◽  
Dead Person ◽  
The Common ◽  
The Dead ◽  
The Law ◽  
The Way

If you defame the dead, even someone who recently died, tort law does not think that’s an injury: not to the grieving survivors and not to the dead person. This book argues that defamation is an injury to the recently dead. It explores history, including the shaping of the common law, and offers an account of posthumous harm and wrong. Along the way, it offers a sustained exploration of how we and the law think about corpse desecration.

Health, Disability & Parental Interests: Adopting a Contextual Approach in the Reproductive Torts

2005 ◽  
Vol 12 (3) ◽  
pp. 213-243
Author(s):  
Nicolette Priaulx
Keyword(s):  
Memorial Hospital ◽  
Contextual Approach ◽  
Reproductive Autonomy ◽  
Disabled Children ◽  
Reproductive Outcomes ◽  
Critical View ◽  
Differential Outcomes ◽  
House Of Lords ◽  
The Law

AbstractIllustrating the limitations of the notion that caring for a disabled child is harmful and sufficiently distinctive from the (judicially viewed harmless) experience of caring for non-disabled children, this article takes issue with the differential outcomes of the reproductive torts where success pivots upon the presence or absence of disability. Since caring for any child must be seen as bringing about a significant caring responsibility, if there is a difference in the burden that results, this will be a matter of extent, not kind. Also taking a critical view of the House of Lords recent determination of Rees v Darlington Memorial Hospital, this article notes that nor can a "common approach" to all claims of wrongful conception and birth offer an equitable alternative. Ignoring context and treating all reproductive outcomes equally for the purposes of compensation is certain to result in manifest unfairness. The thrust of the argument is that it is essential that the law embrace a more contemporary and contextual approach, based on the value of reproductive autonomy.

scholarly journals Smith v Chief Constable of Sussex Police; [2008] UKHL; 50

2012 ◽  
Vol 21 (1) ◽  
pp. 141-152
Author(s):  
Carol Brennan
Keyword(s):  
Human Rights ◽  
Common Law ◽  
Law Reform ◽  
House Of Lords ◽  
Human Rights Act ◽  
Human Rights Act 1998 ◽  
The Common ◽  
The Law ◽  
The Relationship ◽  
Exclusive Focus

WHO HAS FIRST CLAIM ON “THE LOYALTY OF THE LAW”?Smith v Chief Constable of the Sussex Police (hereafter Smith) was heard by the House of Lords at the same time as Chief Constable of the Hertfordshire Police v Van Colle and another because they had two uniting factors. First, they both concerned the recurring question of the ambit of police liability in the situation described by Lord Bingham thus: “…if the police are alerted to a threat that D may kill or inflict violence on V, and the police take no action to prevent that occurrence, and D does kill or inflict violence on V, may V or his relatives obtain civil redress against the police, and if so, how and in what circumstances?”2  Secondly, considering the cases together highlighted the wider issue of the relationship between decisions under the Human Rights Act 1998 (hereafter the HRA) and the development of the common law. The Law Lords embarked on a more extensive examination of these issues in Smith and thus that case will be the exclusive focus of this note.  In addition, the study of Smith raises questions regarding proposals for law reform as well as about judicial perceptions of policy priorities. 

scholarly journals The Problem of Determining the Law Applicable to Damageable Act in the High Seas Pursuant to the Jordanian International Private Law

2019 ◽  
Vol 12 (1) ◽  
pp. 11
Author(s):  
Khaldoun Said Saleh Qtaishat
Keyword(s):  
Present Article ◽  
International Community ◽  
Civil Code ◽  
Private Law ◽  
Commercial Law ◽  
International Private Law ◽  
The Law ◽  
The Way ◽  
High Seas

In the present article, the author examines one of the most important issues related to the international private law. This issue is how to determine the law applicable to damageable act in the high seas according to the Jordanian international private law. This problem is represented in the way of how the Jordanian legislator, in general, deals with the law applicable to the damageable act in the Jordanian civil code without dealing with the problem of identifying the law applicable to the damageable act in the high seas, which leads the author to ask and answer about how to determine the law applicable to this damageable act. The jurisprudence of the international private law pays great deal of attention to the problem of the law applicable to damageable act on the high seas, where many opinions try to solve it. The international community also takes notice of this problem as well as the result of this attention the emergence of the Brussels maritime Collision Convention in 1910. It is worth mentioning that Jordanian legislator has addressed the issue of maritime collision in the Jordanian maritime commercial law which contains numerous provisions that match perfectly with the provisions of the Brussels Collision Convention in 1910.

scholarly journals Court Supervision of the Determination of the Votes at the First General Meeting of Creditors in Estonian Bankruptcy Law

2017 ◽  
Vol 26 ◽  
pp. 76
Author(s):  
Mari Schihalejev
Keyword(s):  
General Meeting ◽  
Bankruptcy Law ◽  
Reasonable Time ◽  
Common Interests ◽  
The Common ◽  
The Law ◽  
Rights And Interests ◽  
The Right ◽  
Current Procedure

 Estonia’s first Bankruptcy Act was passed in 1992 and has been continuously under amendment. Estonian bankruptcy law has provided three distinct procedures for the determination of votes at the first general meeting of creditors: 1) in 1992–2003, the votes were determined only by the trustee; 2) in 2004–2009, the votes determined by the trustee were approved by the court; and 3) under the current law, the court intervenes only if there is a dispute over the determination of the votes. All the amendments notwithstanding, the process of determining the votes under Estonian bankruptcy law remains problematic. The current procedure for the determination of the votes at the first general meeting of creditors does not protect the rights and interests of the creditors, protect the common interests of the creditors, or follow the principle of procedural economy. The law should provide a term that specifies the time by which court rulings on the determination of the votes should be made. Thereby, important decisions could be adopted at the same general meeting, and bankruptcy proceedings could continue. Furthermore, to ensure that disputes are resolved within reasonable time and that the principles of speed and efficiency are honoured, insolvency courts should be created. There is also the problem of determining which issues belong to the disputes about votes. A creditor assigned votes must file proof of claim, together with documents proving the circumstances, with the trustee in three working days. For protecting the creditors’ interests and ensuring a fair and equitable system, the trustee, in co operation with the court, has the right and obligation to verify and evaluate the documents substantiating the claim, in order to prevent unjustified claims from conferring control over the bankruptcy proceedings.

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.

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