COMMON LAW - defs

Common law - four possible meanings

1° Historical meaning: the law that came after the Norman conquests of England, which was imposed by William the conqueror and Henri II

2° As a source of law: case law, i.e. judicial precedents, as opposed to statutory law.

3° As a body of rights and remedies, as opposed to equity.

4° As a family: the legal systems originating in England, including those of the United States and other Commonwealth nations, which share some characteristics.

plea-bargaining

A negotiation process in which a defendant waives his right to contest the charges at a trial and admits his guilt to a criminal charge with the reasonable expectation of receiving some concession from the government (prosecutor).

Rationale of plea-bargaining

1° Ethical considerations: immediate and certain conviction better than uncertainty + victims and witnesses are spared the experience of having to testify in court.

2° Economic consideration: a response to crowded court dockets, which spares the time and resources spent on a trial and hence allows more efficiency.
3° Evidentiary reasons: there are fewer genuine disputes of fact to be resolved by trial – modern techniques of evidence make it difficult to plead not guilty.

unconscionability

In case of a fault or unfairness in the bargaining process (procedural unc.) or outcome (substantive unc.), the court may refuse to enforce the contract or clause or limit its application to avoid an unconscionable result.

conflict of laws

The branch of international law that regulates lawsuits involving a “foreign” law element between natural or legal persons.

Trust

A fiduciary relationship under which one person (the trustee) holds title to property and deals with it for the benefit of another (the beneficiary or cestui que trust)

Three consequences of the adversarial nature of the common law

1° Judges do not initiate lines and query (questions) and do not decide the verdict in criminal cases (right to a jury trial)

2° Each side calls its witnesses for a first examination on behalf of the party who called (examination in chief). Then, the other party can question the same witnesses (cross examination)

3° Rules of evidence are more numerous than in civil law countries.

instrumentalist approach to law

Idea that the law is to be forged to achieve certain political objectives. Using law and adjudication as an instrument to attain political aims.

Total justice

In the US, citizens tend to require judicial approval for each and every dispute.

Precedent

A court decision that is considered an authority for deciding subsequent cases involving identical or similar facts, or similar legal issues.

Two meanings of “judicial precedent”

1° The process whereby judges follow previously decided cases

2° The previously decided case itself.

Ratio decidendi

In a judicial decision, the principle(s) of law on which the decision is based.

Obiter dictum

Literally ‘something said by the way’ – practically speaking, speculation by the judge about what his decision would or might have been had the facts been different

Binding v. persuasive precedents

Binding precedent: a precedent that is binding upon the court. It must be followed.

Persuasive precedent: a precedent that is not binding, but can be used as a guide by judges in deciding similar cases.

Cases where the UK Court of Appeal is not bound by its precedents

1° the Court of Appeal has made conflicting decisions. The Court of Appeal decides which of its previous conflicting decisions it will follow

2° the Supreme Court has decided a case which conflicts with a previous decision of the Court of Appeal, even when it is not expressly overruled

3° the previous decision was per incuriam, i.e. it has ignored a previous case or a statute which was binding on it.

Declaratory theory of precedent

Legal doctrine according to which judges do not make new law; they merely declare what the law has always been.

Practice Statement 1966

Statement made in the House of Lords by Lord Gardiner (a judge at the Appellate Division of the House of Lords) by which an end was put at the declaratory theory of precedent insofar as it recognized that the HL sometimes changes the law, rather than just declare what it always was. The HL declared it could depart from its previous decisions when it appears right to do so, although its decisions remain normally binding.

remedies

Means by which a court of law, usually in the exercise of civil law jurisdiction, enforces a right, imposes a penalty, or makes some other court order to impose its will.

Tort of negligence

Actions (or omissions) that create an unreasonable risk of harm. Three essential elements: a duty of care, a breach of duty, and a causation link between the breach of duty and the damage or loss suffered.

Tort of private nuisance

The unreasonable use by a man of his land to the detriment of his neighbour.

Common law remedy

A remedy consisting in a monetary compensation, and available as of right.

Equitable remedy

A remedy of non-monetary nature which is discretionary, i.e. granted or withheld on the exercise of judicial discretion.

Three principal grounds of overrulings (in US law!)

1° Change in circumstances (obsolete precedent).

2° Moral and social enlightenment (precedent no longer acceptable).

3° Precedent was substantively erroneous or badly conceived at the start.

Three reasons why overrulings are more numerous in the US

1° Systemic or organic nature of law: there is a need for more flexibility in societies such as the USA.

2° Volume of case-law: different bodies of precedents as each of the 50 states + federal have their own body of law. Less reliance on formality than on substantive reasoning.

3° High dissent rates weaken the precedential value of a decision. Dissents play a role in the evolution of law.

Prospective overrulings

A device whereby a court upholds the existing precedent in the instant case but declares it overruled for the future (e.g. Miranda v. Arizona)

Textual interpretation

Theory that posits that judicial interpreters can, and should be, tightly constrained by the objectively determinable meaning of a statute at the time that statute was enacted.

Reasons for the literal/ordinary/plain-meaning rule of construction

1° Basic formalism

2° Respect for democratic governance, i.e. to curtail judicial lawmaking (< separation of powers)

3° Judicial minimalism: cases are to be decided as “narrowly and shallowly” as reasonably possible (avoidance of foundational issues).

Golden rule of interpretation

Where the literal rule leads to an “absurd, repugnant or inconsistent” outcome, which Parliament could not have intended, the judge can substitute a reasonable meaning in the light of the statute as a whole.

Mischief/social purpose/common sense rule

Construction of a statute aiming to accomplish the social purpose it was designed to accomplish, even if that reading would contradict its literal reading

Exclusionary rule of statutory construction

The prohibition of references to ‘extrinsic material’ (including parliamentary material) as an aid to statutory interpretation in English law.

3 conditions to relax the the exclusionary rule

1° The legislation is ambiguous, obscure or its literal meaning leads to an absurdity

2° The material relied upon is a statement made by one of the promoters of the Bill

3° The statements relied upon are clear

faithful agent theory of judging

A legal theory according to which the judges’ aim is to use all available evidence to reconstruct the way Congress would have resolved the precise issue before the court.

Two step process to make international rules enter into effect in the UK

1° Ratification of the international legal instrument

2° Incorporation of the int’l legal rule through an act adopted by parliament.

Section 3 of the HRA 1998

Provides a rule of construction according to which “So far as it is possible to do so, primary legislation and subordinate legislation must be read and given effect in a way which is compatible with the Convention rights”

Three crucial changes caused by the HRA 1998 in UK law

1° For every piece of legislation adopted by the UK parliament, the promoter of the bill must make a statement of compatibility of the provisions of the bill with the ECHR.

2° Rule of construction: so far as it is possible to do so, primary legislation (i.e. acts adopted by parliament) and subordinate legislation must be read and given effect in a way that is compatible with the Convention rights

3° English courts may issue declarations of incompatibility if they consider a provision of primary legislation incompatible with the ECtHR. Nevertheless, this declaration has no legal effect and is hence not binding on the parties.

Insider trading

The buying or selling of a security by someone who has access to material non-public information about the security.

Insider trading can be illegal or legal depending on when the insider makes the trade.

It is illegal when the material information is still non-public

Contempt of court

A judge who feels someone is improperly challenging the court’s authority has the power to declare the defiant person (called the “contemnor”) in contempt of court – which can lead to imprisonment.

Two types of contempt

1°  criminal contempt or direct contempt, i.e. the contemnor actually interferes with the ability of the court to function properly.

2° civil contempt or indirect contempt, i.e. the contemnor willfully disobeys a court order. A way a court enforces alimony or child support.

Star Chamber

An English jurisdiction that existed from the 15th to 17th centuries, whose name is now used to designate arbitrary and secretive proceedings.

Leave to appeal

In the UK, any judgement or order from the Court of Appeal can be appealed to the Supreme Court, provided leave is obtained from either court. An application for permission must first be made to the Court of Appeal. Petition for permission may then be made to the SC if the CoA refuses permission.

Prisoner disenfranchisement

In UK law, the blanket ban on convicted prisoners voting in general.

(Federal) agencies

Administrative bodies to whom Congress has delegated substantive authority.

Major questions doctrine

A legal doctrine according to which, if an act concerns a major question and Congress did not specifically (i.e. clearly and explicitly) entrust the agency with the ability to settle the question, the agency should not have that discretion and courts shouldn’t authorize the agency to have it.

Reasons behind the lackluster standing of textbooks in English law

1° Marginal legal education in England until the 19th century.

2° Political turmoil of the 17th century (it added to the lack of education)

3° English pragmatism: cultural distrust for theory and abstraction.

Reasons behind the endearing status of textbooks in US law

1° Many universities teaching law in the US, even before independence

2° Burgeoning social sciences in the 19th century

3° Openness of the judiciary to extrajudicial sources (e.g. Brandeis briefs)

Lochnerism

An period of history during which economic state regulations were basically forbidden by the SCOTUS. Related to the emergence of economic substantive due process. Disappeared in 1937 with the West Coast Hotel v. Parrish case.

Legal realism

A school of jurisprudence based on the principles that

1° law in judicial opinions is not discovered and declared but is made

2° The content of law is affected by all manner of social, political, economic, historic and other trends in thinking that operate consciously or unconsciously through the judge making it.

Hence, this current challenges legal formalism and argues that law should be scientific, i.e. based upon social sciences.

Law and economics movement

A school of legal thought whose main idea is that the development of the Common law can be understood as a continuing accommodation to changing social and economic circumstances by judges who interpret legal rules so as to produce economically efficient outcomes.

Applications of economic analysis of law

1° Jones v. Star Credit Corp.

2° Efficient breach of contract

3° Deterrent effect of capital punishment

Critical Legal Studies

A movement in contemporary legal thought focusing on how the law serves as an ideology that unjustifiably legitimizes disparities of wealth and power. Members of the CLS movement argue that law is political and favors those who are already powerful.

Restatements of Law

Compilations or summaries of the common law i.e. of case law in designated areas of the law such as torts, contracts, property, conflicts of laws. They have no legal authority, and are certainly not hard law

Model Codes

Statutory formulations developed by the American law institutes with the aim to serve as models that are to be adopted by states so as to unify to concepts of a certain legal branch.

Uniform State Laws

Proposed laws drafted by the Uniform Law Commission, which the states are encouraged to adopt. They aim at bridging the gap between the states’ independent legal authority over certain matters, and the need for a protective, nationwide shield. E.g. the Uniform Commercial Code.

Factors impacting the authority of uniform state laws

The authority of uniform state laws depends on

1° Their drafting, i.e. the person who drafted the Code (for the UCC: Karl Llewellyn played a major role)

2° and on their adoption/ratification throughout the USA (for the UCC: enacted in 49 states)

Four examples providing evidence for the importance the UCC

1° It abolishes the need for fresh consideration for modifications in contracts

2° It rejects the common law “mirror image” rule (in contract, it required an acceptance to an offer to be an exact match of the offer's terms)

3° The problem of extortionate modifications is dealt with by the UCC’s requirements on good faith and unconscionability (rule caveat emptor no longer applicable)

4° The UCC’s “statute of frauds” requires that all contracts for sales of goods above $500 be in writing ‘'(some exception between merchants).

Consideration

A value or something that is bargained for between the parties to a contract. It must be present for the contract to be valid (a benefit/detriment suffices). In the common law, fresh consideration is usually needed to modify a contract. The UCC has abolished that rule

United States Code

A compilation in which the texts of all laws passed by Congress and signed by the President are publicated.

Three initial Royal Courts of Justice in England

1° The Court of Exchequer (essentially taxation)

2° The Court of Common Pleas (civil actions)

3° The Court of King’s Bench (criminal law + civ matters of public importance)

Writ

A royal command in writing addressed to a royal official in a locality (sheriff) requesting him to bring a certain person before the king’s court to answer a claim against him. It is like a pass: prerequisite to litigation.

Three related consequences to the writs system

1° Chancery exercised a tight countrol over the cases brought before the royal courts

2° Tendency for the formulae to become fixed (after 1258, unprecedented writs were forbidden. One could be remediless, i.e. he could not find an adapted writ in the register)

3° In England, procedural institutions preceded substantive law

Three types of writs

1° Original writ: a writ which originates or begins a suit-at-law

2° Judicial writ: a writ issued by the court to secure the presence of the defendant

3° Prerogative writ: a writ related to surveillance (i.e. judicial review) of  inferior judicial or quasi-judicial authorities. E.g.: writ of prohibition, mandamus, habeas corpus.

Two defects of the writs system

1° “Remediless petitioners” did not have any possibility to overcome the absence of legal solution

2° The normal remedy given by Common law courts was limited to damages, i.e. pecuniary remedies. Not satisfactory with all types of cases

Court of Chancery

An English court that emerge at the 14th century which was wholly professional and offered remedies other than monetary damages. It is related to the emergence of equity.

Utilatiarianism (in jurisprudence)

Philosophical doctrine which argues that the end of the law should be the greatest good of the greatest number, the optimum balance between pain and pleasure. It was developed by Jeremy Bentham.

Four main defects of the English legal system pointed out by J. Bentham

1° Separate courts and ensuing conflicts between CL and equity courts.

2° Hardening of equity (it was loosing its elasiticity)

3° Cumbersome and obsolete modes of procedure

4° Persistent influence of ecclesiastical courts

Three main evolutions of English law in the 19th century

1° Law and equity are merged

2° Ecclesiastical courts lose their jurisdiction

3° Courts are re-organized (and placed on their present-day footing). Judicature Acts 1873 and 1875.

Three consequences of the Constitutional Reform Act 2005

1° Ministry of Justice is established, taking over the responsibilities of the DCA (Dep. of Const. Affairs) and some functions of the Home Office (criminal justice, sentencing policy) and with modification of the office of Lord Chancellor (no longer a judge or lawyer + can no longer sit as judge).

2° Disappearance of the Appellate Committee of the House of Lords and creation of the Supreme Court of the UK.

3° Judicial independence is increased through the creation of the Judicial Appointments Commission + provisions regarding judicial discipline

Solicitor and barrister

1° A solicitor is a lawyer qualified to deal with conveyancing, the drawing up of wills or contracts, and other legal matters.

2° Barristers: who are specialized in courtroom advocacy

Leapfrog appeal

A form of appeal in which a case is appealed directly from a high court to the Supreme Court of the UK, thereby ‘leapfrogging’ the Court of appeal.

Four conditions to be met for a leapfrog appeal

1° Must involve a point of law of general public importance.

2° The trial judge must certify that the case is suitable for a direct appeal to the SC (either immediately at the end of the trial or within the next 14 days)

3° All parties must consent

4° The Supreme Court must grant permission to bring the appeal direct on an application made by any of the parties within one month of the date of the judge’s certificate

Master of the Rolls

The president of the Civil Division of the Court of Appeal. It is the second most senior judge in England and Wales after the Lord/Lady Chief Justice

Lord/Lady Chief Justice

The president of the Criminal Division of the Court of Appeal. It is the head of the judiciary of England and Wales since the CRA 2005.

Exceptions to the requirement of permission to appeal to the Court of Appeal

1° If the appeal concerns a committal order, i.e. -       an order by which a magistrates court (which deals with “summary offences” // délits) commits a case to the Crown Court because there is an “indictable offence” (// crimes)

2° If the appeal is against an order refusing the grant of habeas corpus

Equity

The branch of the law which, before the Judicature Acts 1873-1875 came into force, was developed and administered by the Court of Chancery.

Two dimensions/meanings of Equity

1° Subjective meaning: a power of the judge to alleviate the consequences of a rule of law which might be too harsh. In this sense, Equity is not law but rather related to justice/conscience.

2° Objective meaning: a separate development/branch of the law. In this sense, equity is law.

Three ways to frustrate common law actions

1° Tiny errors in the writ caused the writ to have no value.

2° Essoins, i.e. defenses which greatly delayed the claimant’s claim

3° Wager of law/compurgation: medieval mode of trial, based on “oath helpers” who would swear that the oath taken by the defendant was clean (abolished in 1833). The system became corrupt.

Common injunctions

Where the common law gave a litigant a right which, in the circumstances, it would have been unjust to exercise, the Court of Chancery was able to issue an injunction (named common injunction) that prevented the exercise of the common law right.

Two types of equitable remedies

1° Positive injunctions, i.e. order to the defendant to perform a positive act

2° Prohibitory injuctions, i.e. order of the court to restrain the doing, continuance, or repetition of a wrongful act.

4 maxims of Equity

“He who comes to Equity must come with clean hands”

“Equity looks to the intent and not to the form”

“Equity will not suffer a wrong to be without a remedy”

“Equity follows the law – but not slavishly or always”

Condition for new equitable interests and remedies to be created (2)

1° There must be an apparent precedent

2° and the created remedy must be analogous or incremental to this precedent.

Freezing (Mareva) injunction

A court order whose object is to prevent the defendant from removing his assets out of the jurisdiction of English courts, or from otherwise dealing with them.

Three conditions to obtain a freezing injunction

1° The claimant must have a good, arguable case for claiming damages

2° The claimant must satisfy the court that the defendant has assets within the jurisdiction

3° The defendant must show that there is a real risk that the defendant’s assets will be removed from the jurisdiction or that they will otherwise not be available when the judgment is given

Reasons behind the absence of a unified federal law in the US

1° Historical/cultural: the 13 colonies who gathered up together to gain independence did not want to exchange their newly obtained freedom with a centralized state. The suspicion towards the federal government remains.

2° Geographical: it would be difficult to have one single national law for such a large territory with various legal influences.

3° States may serve as laboratories/pioneers for (legal) experimentation.

Federalist papers

A set of 85 essays written by Alexander Hamilton, James Madison and John Jay (who participated to the drafting of the US Constitution), as a public relations campaign aiming at convincing the people that the new constitution was needed.

Three compromises made in the adoption of the US Constitution

1° The great compromise: both equal and proportional representation are ensured. Representation in Congress is established according to each state’s population (HR) and equal representation (Senate = 2 senators for state)

2° Three-fifths compromise: it was decided that every 5 slaves would count as 3 persons for taxation and representation purposes

3° Commercial compromise: Congress is given the power to regulate commerce (control trade) with foreign countries and among the states

Redressability requirement (SCOTUS)

SCOTUS does not give advisory opinions and requires plaintiffs to show that the court can redress the alleged injury if it grants the requested relief. However, SCOTUS accepts to hear a suit when nominal damages are available at common law (i.e. trivial sum of money awarded as damages to someone who has suffered a legal wrong but no actual financial loss).

Writ of certiorari

An order issued by a higher court to a lower court to deliver its record in a case so that the higher court may review it. 

Rule of four

It takes a vote of four justices for certiorari to be granted, i.e. for a case to be reviewed by the SCOTUS.

Shadow dockets

Range of orders and summary decisions that defy the Court’s normal procedural regularity

Conditions for use of the shadow docket

1° 5 justices must assent

2° The requesting party must demonstrate the likelihood of an irreparable harm if the request is not immediately granted.

Small claims courts

Special courts where disputes are resolved quickly and inexpensively (simple and informal rules: no lawyers, minimal filing fees, often “judges pro tem”).

Originalism

Theory that posits that the constitutional text ought to be given the meaning that it would have had at the time it became law; looking for meaning of the act as originally envisaged by those who wrote the act.

Public defender

Lawyers employed by government who decide to defend clients who have no money. They are assigned to cases on a day-to-day basis for a number of years (usually 4) to defend indigent clients.

6 main ethical duties of lawyers

1° Honesty

2° Competence

3° Diligence and communication

4° Confidentiality

5° Avoiding conflicts of interests

6° Attorney advertising and solicitations

3 cumulative conditions of intermediate scrutiny

1° The gvt must assert a substantial interest in support of its regulation

2° The gvt must establish that the restriction directly and materially advances that interest

3° The gvt must demonstrate that the regulation is narrowly drawn.

Personal jurisdriction

A court’s authority over the person of the defendant, i.e. to determine the personal rights and obligations of the defendant.

Subject-matter jurisdiction

The authority of a court to hear a particular type of case.

Strict territorial view of personal jurisdiction

Under this doctrine, personal jurisdiction exists if:

1° The defendant or any property in dispute is physically located in the state where the lawsuit is filed

2° The defendant was properly notified of the action brought against him/her (there must be proper service of process).

Long-arm statutes

Statutes that enable state courts to subject out-of-state defendants to personal jurisdiction.

2 types of federal jurisdiction

1° Federal question jurisdiction, i.e. jurisdictions over lawsuits where the US Constitution or a US statute is involved. Because of distrust of state courts to apply federal law and to ensure uniformity. E.g. federal courts have exclusive jurisdiction over bankruptcy cases.

2° Federal diversity of citizenship jurisdiction, i.e. jurisdiction over cases where

• (1) there is a dispute between citizens of different states or between a citizen and an alien

• and (2) the amount in controversy exceeds $75k.

This type of jurisdiction permits to avoid judicial parochialism.