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The British Army during Victoria's reign has been portrayed as an institution standing awkwardly next to British society. Legal authorities and academics have used military law as an example, noting the military's "capricious" legal processes in contrast to the predictable civilian experience. Rather than understanding military legal processes though, academics tend to focus on discipline or penalties foreign to today's mind. This article draws evidence from centuries of legal development and late-nineteenth-century sources to demonstrate a far greater commonality between civilian and military legal experiences. The military's legal tradition describes, in part, the military's position as a rare example of a truly "British" institution. [ABSTRACT FROM AUTHOR]

This paper examines the typographic form of Plowden's Commentaries within its legal, printing, and technological histories, demonstrating that its typographic appearance embeds complex tensions over the study and dissemination of the common law into its material form. There are legally relevant meanings in the shape of letters, beyond mere legibility, that are connected with the heritage of type design and print technologies. Within the context of debates over the propriety of early common law printing, this paper provides an examination of Plowden's typographic style as roman and humanist. Tracing the genealogy of roman and humanist letters that led to the ones used in Plowden's opening judgment, the typography of the Commentaries is connected to debates over the resistance of the common law (as an unwritten law) to humanism and Roman-style codification. Plowden's typographic register is thereby seen to encode the Latinate traditions to which the structure and custom of the English common law is opposed. [ABSTRACT FROM AUTHOR]

Analysing legal cases involving libel, rioting, sedition, and breaches of the press acts in colonial and postcolonial India, this article emphasises the continued relevance of eighteenth-century common law precedents to the conceptualisation of ‘freedom of expression’. Lawyer Thomas Erskine’s advocacy of liberty of speech in a series of seditious libel trials and Lord Mansfield’s notable commentary in the Shipley (Dean of St. Asaph) case provided a resilient framework for adjudicating the issue until the 1950s. Changes in the Indian political climate, however, prompted varying reassessments of these findings. Prior to 1910, judges and defendants in the trials of Reverend James Long, Kahanji Dharamsingh, and B. G. Tilak mined Erskine’s speeches as a resource that could help them clarify authorial intent, gauge the ‘tendency’ of texts, and specify the constitutional role of the jury. After this period, debates over freedom of expression increasingly centred upon Mansfield’s ruling — popularised by scholar A. V. Dicey — that solely associated liberty of speech with the absence of licenses for publication. Thereafter, critics of the Indian press acts weaponized Mansfield’s ruling to challenge the colonial state’s burgeoning autocracy. By the 1950s, a third shift had occurred as justices and parliamentarians offered contrary interpretations of Dicey’s own analysis in debating the Indian government’s continued reliance on censorship laws. [ABSTRACT FROM AUTHOR]

Public dedication is one method by which cities, towns, and municipalities acquire new roads and highways. The common law doctrine of dedication has developed to balance the property rights of landowners and the public. When property is dedicated to the public, the landowner generally retains title to the land while the public acquires an easement. Dedications can be made expressly through official grants or by inclusion in a plat. They can also be implied through a landowner's overt words or actions, use by the public, or maintenance at the public's expense. The key factor in determining whether a dedication has occurred is the intention of the landowner--the animus dedicandi. However, for implied dedications, "intent" may be determined not only by the subjective intent of the landowner, but by whether it was reasonable for the public to believe that the landowner had intended to dedicate the road to public use. In the 2022 case McNaughton v. Chartier, the Supreme Court of Iowa examined a publicly constructed access road built partially atop a landowner's driveway at the behest of the landowner. Despite the expenditure of public funds on and public use of the road, the McNaughton majority held that no dedication had occurred. This Note argues that McNaughton reinterpreted Iowa's dedication caselaw in such a way that it no longer aligns with the purpose and logic of the doctrine. This Note also suggests that the Iowa state legislature follow the lead of other states and enact statutory dedication rules. Two statutory provisions could mitigate the effects of McNaughton and provide increased predictability when courts consider cases involving dedication: setting a standard for whether public maintenance results in dedication and establishing guidelines on how landowners can avoid inadvertently dedicating their property. [ABSTRACT FROM AUTHOR]

The article explores the framing of section 898 of the New York General Business Law within public nuisance doctrine to curb gun violence. Topics discussed include history of public nuisance doctrine from its origin in medieval English common law, elements of common law public nuisance doctrine compared to elements of section 898, and federal law challenges such as gun industry immunity or Protection of Lawful Commerce in Arms Act, firearms regulation, preemption and dormant commerce clause.

The idea that international law is received into the common law to some greater or lesser extent persists in contemporary accounts of the English constitution. In The Law Debenture Trust Corporation plc v Ukraine, however, a majority of the Supreme Court held – in circumstances ripe for its reception – that international law had no place in the English common law of duress and contractual defences. This note explains why, after Law Debenture, international law's reception into English law seems practically impossible. It then sketches an alternative account of how international law can be invoked in English proceedings – never truly received into English law, but instead applied as the lex causae under a choice of law rule for inter‐state issues – which proves more theoretically satisfying and practically meaningful, and which also provides a better path to the outcome reached in Law Debenture. [ABSTRACT FROM AUTHOR]

In common law, sentencing is chiefly concerned with the duration of a sentence and rarely engages in the conditions under which the sentence is served. Recently, courts in Canada and England and Wales have started to recognise the relevance of certain prison conditions when deciding sentences. These approaches, however, have lacked conceptual clarity and consistency. Building on communicative theories of punishment, this article proposes a novel framework based on 'state responsibility/blame' and dynamic censure to justify the relevance of considering the qualitative conditions of imprisonment at sentencing as well as during the administration of the sentence. This framework is coupled by a typology of unjustified harmful carceral conditions that can be considered relevant evidence. This expanded purview of sentencing will offer greater legitimacy of punishment by strengthening communicative practices of punishment that include dynamic censure, including censuring the state for additional and unjustified state‐created harms. [ABSTRACT FROM AUTHOR]

The concept of legal gap is tackled from a number of logical perspectives and semantic methods. After presenting our own goal (Section 1), a first introduction into legal logic refers to Bobbio's works and his formalization of legal statements (Sections 2 and 3). Then Woleński's contribution to the area is taken into account through his reference to the distinction between two juridical systems (viz. Common Law vs Civil Law) and the notion of conditional norms (Section 4). The notion of reason is also highlighted in the case of Raz's legal logic, thereby leading to a future connection with von Wright's logic of truth and an analogy made with an anti-realist reading of truth-values and norms (Section 5). Our personal contribution is introduced through a reflection on how logic should deal with the logical form of norms (Section 6), before entering a number of crucial definitions and distinctions for the concepts of norm, legal statement, and promulgation (Section 7). The final point is a proposed semantics for legal statements, which is both many-valued and gap-friendly (Section 8). A distinction between a number of requirements for permission and forbiddance leads to a set of non-classical juridical systems in which non-permission and forbiddance are not equivalent with each other any more; this does justice to Woleński's former distinction between Common Law and Civil Law, also leading ultimately to a non-classical square of legal oppositions in which several legal operators may collapse into other ones (Section 9). [ABSTRACT FROM AUTHOR]

Both law and science went through revolutionary changes in England in the first half of the seventeenth century, a period of pandemic, conflict, and climate change. The circle of Samuel Hartlib (c. 1600–62) sought a way to regenerate society through reform and innovation. One member of the circle was Sir Cheney Culpeper (1601–66), a barrister and landowner, whose correspondence shows an attempt to synthesize law and natural philosophy into a coherent vision of regeneration. He wrestled as much with how change could be achieved as with what changes would be beneficial. He sought a mutually beneficial relationship between humanity and nature. He urged self-restraint to avoid the abuse of power, political and technological. His most practical and influential work was in agriculture. Paradoxically, however, the efforts of Culpeper and his circle to address the crises of their times have arguably created the very crises of ours. We are, moreover, in what Culpeper describes as a 'crisis of time'. This essay poses the question as to whether, given the urgency of our situation, we might learn from Culpeper's generation that regeneration requires revolution as well as reform. [ABSTRACT FROM AUTHOR]

At the beginning of Henry VIII's reign, the prosecution of heresy was based on three statutes of the late fourteenth and early fifteenth centuries. Under this system, the Church tried the crime with the assistance of secular authority. Juries presented suspects, whose cases were then transferred to the church courts for determination. In 1532, the Supplication against the Ordinaries challenged the conduct of heresy trials. It invoked common-law principles about due process and standards of proof. Two years later, a new statute modified the system, although less drastically than had been proposed. The royal supremacy and new religious policies changed the context in which heresy was prosecuted. Up until 1539, however, the church courts still determined accusations. Thereafter, in the case of specified heresies, the Act of Six Articles made lay juries responsible for determining guilt or innocence. Commissions under this act combined elements of canon law and common law. These reforms were, however, not seen to have improved the conduct of heresy trials. It proved easier to criticize the traditional method of prosecution than to devise a better one. [ABSTRACT FROM AUTHOR]

For much of the twentieth century, the standard characterization of the relationship between the English common law metropole and the Dominion periphery has been one of the subservience and deference of the latter to the former. While the relationship was hierarchical, such characterizations undersell the innovation and ambition that the periphery, working within imperial legal constraints, could bring to the shared common law of the empire. This article considers the introduction of survival of actions legislation in two Australian jurisdictions, South Australia and Victoria, in the early 1940s. While based on the antecedent English legislation, both jurisdictions toyed with – and in South Australia's case delivered – a much wider reform than took place in England. Rather than being mechanical recipients of law crafted in the metropole, Australian jurisdictions were well able to decide whether the English model was the best reform for their common law. [ABSTRACT FROM AUTHOR]

The COVID-19 pandemic and subsequent economic restrictions have placed many contractual parties under great strain to honour their agreements as contracts have become commercially impracticable and excessively onerous. This article explores the legal position in England, France and the Middle East under the doctrine of impossibility, impracticability and unforeseen circumstances. Strongly rooted in contractual autonomy and commercial certainty, this article argues that frustration in English common law is not sufficiently broad because the consequence (automatic discharge) is too rigid and does not allow a renegotiation of obligations. French civil law is more accommodating but only formally adopted imprévision in civil law in 2016, meaning it lacks traction. However, Middle Eastern civil law countries accept the doctrine as an integral part of their law and theory of justice, allowing obligations to be rebalanced in a more flexible manner. The English legal system should consider the advantages of a similar reform. [ABSTRACT FROM AUTHOR]

The Indian Evidence Act 1872 was a significant component of the legal codification project of colonial India. It aimed to consolidate scattered common law rules of evidence into an organized and workable code. Sir James Fitzjames Stephen, its principal draftsman, attempted to design a statute that would not only reorganize evidence law into cogent provisions but also improve its most confusing aspects, such as the fact-evidence distinction, hearsay, and relevance. Stephen did this by introducing conceptual categories and amending existing rules. In this paper, I show how the design of the Act aimed to achieve substantive reform of evidence law. I argue that judicial interpretation and academic scholarship have misconstrued the Act's principles and structure, undermining its intended improvements on common law rules. Consequently, the legal confusions it had sought to resolve have continued to persist in evidence law. [ABSTRACT FROM AUTHOR]

When the need to effectuate a non-judicial trust modification of a New York trust arises, the law in its current form provides corporate trustees with a tremendous amount of power and flexibility to amend, revoke, and establish new trusts with more favorable provisions. Depending upon the facts and circumstances of a particular situation (i.e., whether the settlor is alive, whether minor beneficiaries hold an interest in the trust, and whether there is dissension and discord among the beneficiaries, etc.) there are various statutes that will help a corporate trustee implement a sound strategy to modify a trust to attain favorable results for all interested parties. This article seeks to provide corporate trustees, trust officers, and other Trusts and Estates practitioners with an overview of several statutory mechanisms that can be implemented by a trustee to help mitigate the risk of litigation or judicial intervention. These statutes include EPTL § 7-1.13, which is commonly referred to as the "trustsplitting" statute, EPTL § 7-1.9, which allows for non-judicial trust modifications under circumstances where the settlor is still alive and where consent to reform the trust can be obtained from all interested parties under the instrument, and EPTL § 10-6.6, the so-called trust "decanting" statute, which permits the trustee of a trust to exercise a "special power of appointment" to invade the corpus of an existing trust and appoint the assets into new trusts with modified terms and provisions. This article will also provide a brief overview of general protections afforded to New York trustees under common law. [ABSTRACT FROM AUTHOR]

This paper aims to determine the legal position of laws that use the omnibus method in the system of laws and regulations in Indonesia. The focus of the research focused on the legal position of laws using the omnibus method in terms of the provisions of Article 97A of the Law on the Establishment of Laws and Regulations. Using the normative juridical method through literature study, this paper concludes that with the characteristics of laws that use the omnibus method based on the regulations in Article 97A of the Law on the Establishment of Laws and Regulations, these provisions result in inconsistencies in norms with the provisions of the hierarchy of laws and regulations regulated by Article 7 paragraph (1) and paragraph (2), provision number 223 Annex II Law on the Establishment of Laws and Regulations, as well as deviating the principle of legal preverence, namely the principle of lex posterior derogate legi priori. The vagueness and inconsistency in the formulation of Article 97A norms results in legal uncertainty, thus contradicting the guarantee of legal certainty as mandated by Article 28D paragraph (1) of the NRI Constitution of 1945. [ABSTRACT FROM AUTHOR]

Section 75 of the Criminal Justice Act (CJA) of 2003 overturned the principle in English law that a person cannot be retried for an offense of which he has been acquitted, recognizing advances in forensic science that uses modern analysis of DNA in adducing in evidence. The special plea of autrefois acquit can be overturned based on finding of compelling evidence after a previous acquittal of a suspect who can now be tried again for the same offense. The double jeopardy arises only after a lawful acquittal or autrefois convict of the accused for the first offense and these principles have allowed exceptions to the rule against double jeopardy developed by the courts. There is an analogous rule in common law courts based on the unreasonable splitting of the case when there is a severing of indictments which overrides the bar on the accused being retried for the same offense. This paper examines the difficulty of trying a defendant fairly in the English courts when the defense has pleaded an abuse of process and there is no clear overall argument for trial. This question needs an appraisal of legal ethics in criminal courts because a retrial of the accused on the same charge breaches the autrefois acquit doctrine, and severing of an indictment can cause the fair trial process to be undermined. [ABSTRACT FROM AUTHOR]

Climate change can be litigated through tort, common law, statute/policy, public trust doctrine or human rights among others. While climate change litigation appears to have developed in states of the Global North, its use is still relatively recent in states of the Global South. Nor has it been seriously considered from the perspective of international tribunals from the Global South. Therefore, this study examines a human rights approach to climate change litigation in the Economic Community of West African States Court of Justice (ECOWAS Court). This study finds that there are some developments in certain jurisdictions which make a human rights approach promising in terms of locus standi, justiciability, causation and separation of powers and that they can be related to the jurisprudence of the ECOWAS Court. It also finds that the doctrine of exhaustion of local remedies does not apply to the ECOWAS Court. Based on these findings, it is argued that a human rights approach can be successfully deployed to litigate climate change before the ECOWAS Court and that it can wake up West African States from their lethargy in terms of policy on, and treatment of, climate issues. The study concludes that individuals and NGOs may adopt a human rights approach before the ECOWAS Court to influence policy change and/or state behaviour in West African States. [ABSTRACT FROM AUTHOR]

The Restatement of Children and the Law, protects a child's relationship with a "de facto parent"--a person who has "established a bonded and dependent relationship with the child that is parental in nature." De facto parent doctrines are part of a broader category of functional parent doctrines that extend parental rights to an individual who has developed a parent-child relationship and acted as a parent to the child. Application of the de facto parent doctrine depends on a conclusion that the person formed a parental relationship, and yet debate remains over whether the person is a parent or merely a third-party nonparent. This Essay examines the Restatement's full-throated embrace of a de facto parent doctrine--an immensely important development--in the context of family law's evolving treatment of functional parents. In the past, family law generally cast functional parents as nonparents. For example, a 1995 state court decision, on which the Restatement relies, treated a de facto parent as a third party entitled merely to visitation with the child she had raised. More recently, family law has grown to see functional parents as parents. Common law doctrines have regarded de facto parents as entitled to the rights and responsibilities of parenthood, and a growing number of states have adopted statutory provisions that treat functional parents as legal parents. The Restatement's approach to de facto parents reflects these developments. Even as the Restatement begins by locating de facto parents in a framework designed around conflicts between legal parents and third parties, it distinguishes de facto parents in ways that render them, both conceptually and legally, like parents. Indeed, the Restatement pushes well beyond the American Law Institute's earlier endorsement of a de facto parent doctrine--the 2002 Principles of the Law of Family Dissolution, which recognized de facto parents but consigned them to an inferior legal status. After situating the Restatement's approach to de facto parents within broader family law developments, this Essay explores how the evolving status of functional parents--from nonparent to parent--matters to constitutional understandings of the parent-child relationship. To account for the fundamental right of parents to direct their children's upbringing, including by excluding third parties, the Restatement requires a de facto parent to show that "a parent consented to and fostered the formation of the parent-child relationship between the individual and the child." This consent-based approach to de facto parenthood proceeds from an assumption that a functional parent is a third party who, based not only on their conduct but also on the conduct of an existing legal parent, can transcend that third-party status. Yet, seeing de facto parents as parents prompts skepticism of this constitutionally grounded consent requirement. Such skepticism is reflected in law, as courts have resisted a restrictive application of the requirement, and newly enacted statutory doctrines have explicitly softened the requirement. Further, the fact that other functional parent doctrines, including those that yield legal parentage, do not expressly require parental consent suggests that consent is not a constitutional requirement. More broadly, the focus on consent obscures the constitutional interests of the functional parent, who, like other parents, may have a constitutional claim to parental recognition. [ABSTRACT FROM AUTHOR]

The extraterritorial application of statutes has received a great deal of scholarly attention in recent years, but very little attention has been paid to the non-extraterritoriality of statutes, by which I mean their effect on cases beyond their specified territorial reach. The question matters when a choice-of-law rule or a contractual choice-of-law clause directs application of a state’s law and the state has a statute that, because of a provision limiting its external reach, does not reach the case. On one view, the state has no law for cases beyond the reach of the statute. The territorial limitation is a choice-of-law rule; it instructs courts to adjudicate the case under the law of another state. Because one state’s choice-of-law rules are not binding on the courts of other states, the provision may be disregarded by such courts, which may apply the statute’s substantive provisions to cases beyond the statute’s specified scope. On another view, cases beyond the reach of the statute are subject to another law of that state, such as its more general common law rules. A third view agrees with the first view that the enacting state has no law for excluded cases but insists that the provision limiting the law’s scope is not a choice-of-law rule. The provision is written as a limit on the law’s reach, and this substantive limitation must be respected by all courts. The statute may not be applied to cases beyond its specified scope. Each of the competing understandings of non-extraterritoriality has prominent judicial and scholarly defenders, and each finds support in successive iterations of the Restatement of Conflict of Laws. This Article considers the judicial and scholarly support for each of the three positions and defends the view that external scope limitations are choice-of-law rules. Limitations on external scope ordinarily reflect the lawmaker’s deference to the legislative authority of other states. They do not reflect a legislative preference that a statute’s substantive provisions not be applied to cases beyond its specified scope. If the legislature did intend to establish a different rule for cases involving out-of-state persons or events, the provision limiting the statute’s scope would in most cases be unconstitutional. In function and intended effect, a statutory provision limiting a statute’s external scope is a choice-of-law rule and, as such, may be disregarded by the courts of other states. But this position poses a conundrum: If a state has no law for cases beyond a statute’s territorial scope, do courts violate their duty to decide cases according to law when they apply the statute to a set of facts that the statute does not purport to reach? Resolving this puzzle yields valuable insights into the nature of choice-of-law rules and the choice-of-law enterprise. [ABSTRACT FROM AUTHOR]

A new definition of 'treasure' under the Treasure Act 1996 has been introduced by the UK Government providing for a significant change to our understanding of what legally constitutes 'treasure' in England, Wales and Northern Ireland. The Treasure Act 1996, which the new law amends, supports the preservation and protection of important archaeological finds for the benefit of the public, and this new reform represents the most substantial change to the legal framework governing 'treasure' in over a quarter of a century. This article explores this important and long‐awaited reform. It examines the new definition by examining its substance and scope and by reflecting on whether this long‐overdue change should be regarded as a watershed reform or a missed opportunity. In so doing, it is argued that, while the new law is welcome, it does not go far enough in meeting the criticisms and deficiencies of the old law under the Treasure Act 1996, which continue to echo today, nor does it satisfy the needs of the law of treasure for the 21st century. [ABSTRACT FROM AUTHOR]

This article proposes a way to reframe the English foreign act of State doctrine. The doctrine is an established rule of English common law but its contours and application remain ill‐defined, despite the Supreme Court's restatement in Belhaj v Straw. The doctrine in its current form emerges from the accretion of precedents over some 350 years, but still lacks a unifying framework bringing its different strands together. This article argues that English courts should reframe the doctrine by reference to the distinction between elements of a rule that are embedded in its definition, called 'limitations', and elements of a rule that exist separately from it, called 'exceptions'. This distinction has been developed in legal philosophy to classify the elements of wrongs as definitional elements, constitutive of liability, and defences, defeating liability. Reframed according to this distinction, the English foreign act of State doctrine can be streamlined into one, single rule, instead of the three rules set out in Belhaj v Straw. This reframing has implications for the doctrine's characterisation as one of justiciability, abstention or restraint, and its compatibility with the duty to do justice, including under the European Convention on Human Rights. [ABSTRACT FROM AUTHOR]

Common law has historically deemed marriage and sex outside the right to contract. Yet, couples increasingly use contracts to provide legal rights to the unmarried in a variety of contexts ranging from same-sex relationships to surrogacy. Islamic law, on the other hand, has always conceived of marriage and sexual relationships as exclusively under the realm of contract law governed by private actors. This Article brings Islamic law into the larger conversation on the use of contracts for sexual and relationship agreements. It further proposes that Islamic law has something to offer Muslims and non-Muslims alike by empowering individuals to use contracts to develop romantic, sexual relationships. Islamic law requires formalized consent to sexual relationships by way of contracts that include duties, rights, and termination provisions. This Article examines the contract options under Islamic law that allow for licit sex between parties, such as urfi (customary), misyar (pleasure), and mut‘a (temporary) contracts. This Article then explores the options couples have in customizing contracts, such as adding specific termination provisions, to best meet their relationship needs. Islamic law allows for the private termination of a marriage without a governmental actor. Rather than requiring a governmental actor to terminate the relationship or presuming marriage to be a nearly or completely irrevocable commitment, spouses can contract to allow both parties to unilaterally end the relationship. Finally, this Article discusses the ways contemporary reform proposals could reshape the way couples use contracts. Specifically, couples may want to structure their contracts as a partnership agreement, and in doing so, they may more easily capture the type of relationship they want to create rather than modifying default provisions to traditional contracts. In short, options exist in Islamic law for individuals to create legally binding contracts that reflect the relationships they intend to co-create in accordance with their moral and legal commitments. [ABSTRACT FROM AUTHOR]

Like the federal government, states can apply their laws to people beyond their borders. Statutes can reach out-of-state conduct, such as fraud, that has effects within the state, and in some circumstances, states can prosecute their own citizens for out-of-state conduct. Many applications of extraterritorial jurisdiction are well established and uncontroversial; state common law and the Model Penal Code provide for such authority. The practice draws little attention when states ' criminal laws are broadly similar and treat the same activities as crimes. In the wake of the Supreme Court's decision in Dobbs v. Jackson Women's Health Organization, however, state laws now sharply conflict over conduct related to abortion services. In addition to prohibiting in-state activities that facilitate access to abortions, some state legislatures and local prosecutors seek to extend criminal liability to persons acting in states in which their conduct is legal. Louisiana, for example, made it a crime for anyone outside of Louisiana to ship "abortion- inducing drugs " to a Louisiana resident. This article analyzes the principles of state extraterritorial criminal jurisdiction and the longstanding state laws that authorize criminal jurisdiction over actors in other states. It then turns to the existing and proposed state criminal laws that target abortion services beyond a state's own borders. In some cases, such laws are well grounded; for others, the validity of extraterritorial application is unclear. But even for statutes with valid extraterritorial reach, barriers to enforcement remain. In many circumstances, cross-border enforcement depends on state cooperation, especially in extraditing defendants and obtaining out-of-state evidence and witness testimony. Federal law requires states to fulfill other states ' extradition requests only for "fugitives," which creates a gap between the law of extradition and of extraterritorial jurisdiction. Those who violate one state's criminal law while in another state are not fugitives, which means pro-choice states can refuse to extradite their residents for other states ' abortion-related prosecutions. A few states have already changed their laws to permit this kind of resistance--another sign of diminished comity between states. Finally, the article briefly surveys constitutional doctrines that might constrain extraterritorial prosecutions. Few of those doctrines provide clear limits, suggesting that, if the post-Dobbs world leads to extraterritorial prosecutions, the constitutional parameters for that practice will be one of the new battlegrounds. [ABSTRACT FROM AUTHOR]

The Prague Rules has been presented as civil law's rules on the taking of evidence in international arbitration. It has been defended that the Prague Rules are a disruptive alternative regarding the IBA Rules. The aim of this paper is check if the Prague Rules are part of civil law. To do this, we will compare the Prague Rules with the Spanish Civil Procedure Act, the Spanish Arbitration Act, the Code of Best Practices in Arbitration of the Spanish and Ibero-American Arbitration Club, and the IBA Rules. The answer of this paper will reveal that the Prague Rules are part of civil law, but they are not a really innovation about evidence procedure in international arbitration. [ABSTRACT FROM AUTHOR]

It is notfar-fetched to say thal one of the most important episodes in the history of corporate bankruptcy in the United Stales is the collapse of General Motors and Chrysler in 2009. The auto industry has since recovered, thanks to billions of dollars provided by the government. But thousands of dealerships were not so lucky, as the automakers cut them of from their#anchises. These events gave rise to extensive litigation throughout the United States. And though now largely forgotten, one of the claims raised in these cases was quite creative: that the automakers brcached their contractual duty of good.faith andfair dealing. This claim was emphatically denied by the court. But why? It had previously been argued that the duty of good.faith aims to ensure fairness and the ethical behavior of contractual parties. However, the dominant position of the U.S. courts is that the duty does not prohibit self-centered behavior. As Judge Posner remarked, "filt would be quixotic as well as presumptuous for judges to fusel contract law to raise the ethical standards of the nation's business people. This Article critically reviews the story of one of those dealerships to illustrate that the debate over U.S. good faith needs a fresh perspective. Analyzing hundreds of clauses that sought to delineate the content of good faith in continental Europe, this Article demonstrates that there are clear connections between the common law jiduciary duty of loyalty and the civilicm contractual duty of good faith. D illustrates how and when these duties play a similar role in tackling various challenges governed by private law. such as the need to prevent information gaps or deter exploitation. Shedding light on the similarities between these duties provides two notable contributions. First, it clarifies the value of formulating loyalty as an independent legal term and accoi·dingly calls to reimagine civilian contractual relationships from a fiduciary law perspective. But, and importantly, this understanding provides unexplored justifications for also adopting in common law jurisdictions a more comprehensive concept of good faith, one that does plot see contracts only as an egocentric, self-regarding legal tool. Revealing these connections ther'efore has the potential to change how good faith is perceived in the United States and accordingly lead to more coherent andjust rulings. [ABSTRACT FROM AUTHOR]

The article explores the development and understandings of the probate exception and its relationship to federal questions. Topics discussed include relation of exception to language in the U.S. Constitution and the Judiciary Act of 1789, link of probate exception to the doctrine of prior exclusive jurisdiction, exception in the case Marshall v. Marshall, implications of the congressional acquiescence theory for federal questions, and probate exception as a doctrine of federal common law.

For nearly two centuries, the law has allowed servitudes that “run with” real property while with few exceptions refusing to permit servitudes attached to personal property. That is, owners of land can establish new, specific requirements for the property that bind all future owners — but owners of chattels cannot. In recent decades, however, firms have increasingly begun relying on contract provisions that purport to bind future owners of chattels. Courts’ interpretations of copyright law enabled these developments in the context of software licensing, but these licenses have started to migrate to chattels not encumbered by software. Courts encountering these provisions have mostly missed their significance, focusing instead on questions of contract doctrine, such as whether opening shrinkwrap constitutes assent to be bound. Property concepts never enter their analysis. The result of this oversight is that courts have de facto recognized equitable servitudes on chattels — a category that the common law has long rejected except in extraordinary circumstances. Yet because courts are often unfamiliar with property law principles, and because lawyers have failed to make property-based arguments, individual contracts cases are remodeling the architecture of property rights without anyone realizing it. This Article identifies the unexpected emergence of servitudes on chattels via contract law. It explores the consequences of that development and argues that we should see it as deeply troubling. By unwittingly establishing equitable servitudes on chattels, this change in law threatens to undo longstanding precedent, disrupt settled expectations, and effectively recognize a new form of property. More generally, elevating contract over other private law doctrines disrupts the private law’s equilibrium in which a complementary suite of doctrines developed to promote economic liberty while curtailing opportunistic impulses. While the pathologies that have flourished internally in modern contract doctrine have been well studied by scholars, the way in which contract law is threatening to consume property and other areas of private law has received less attention. Using servitudes on personal property as a window into the larger problem of contract-dominated private law, this Article explores the private law’s role in shaping environmental conservation, autonomy, innovation, and the legitimacy of the law itself. Those values are all in jeopardy if contract law is allowed to encroach on property and to erode the very concept of ownership. [ABSTRACT FROM AUTHOR]

The article discusses a case in which two appellants, who were 17 years old at the time of the appeal, were convicted of drug offenses and sentenced to Youth Rehabilitation Orders. They argued that they should be able to rely on the statutory defense provided in the Modern Slavery Act 2015, which states that a person under 18 does not commit an offense if they were a victim of slavery or exploitation and a reasonable person in the same situation would have done the same act. The trial judge incorrectly instructed the jury that compulsion needed to be established for the defense to apply. The Court of Appeal allowed the appeals and quashed the convictions, stating that the defense does not require compulsion. The article highlights the importance of correctly explaining the elements of the defense to the jury and suggests that closer attention should be paid to the wording of the statute and guidance provided. [Extracted from the article]

Ever since Justice Clarence Thomas observed in a concurrence that tech platforms like Twitter were analogous to common carriers, there has been increasing interest in the possibility of regulating them under common carrier principles. Most of the conversation has centered on potential legislation, not on applying the common law's common carrier obligations to big tech. Indeed, when Ohio sued Google under the common law's common carrier principles, commentators called the lawsuit "bizarre." In this Article, we argue that far from being "bizarre," tech platforms are and should be subject to liability at common law for violating the duties of common carriers. After describing the core substantive elements of the common law of carriers--equal access rules, just and reasonable pricing, and reasonable deplatforming--we then show how it applies to operating systems, online marketplaces, search, social media, and virtual reality and the metaverse. Among other things, this analysis demonstrates that common carriage applies across multiple domains and is most clearly applicable in business-to-business contexts. With respect to social media, we conclude that while common carriage principles apply, they allow for reasonable deplatforming--which may cut against what we suspect are the motivations of some proponents of regulation. And we argue that the common law of carriers could offer an opportunity to prevent a Wild West in new and emerging platforms, like the metaverse. In light of this analysis, the real puzzle is why there are so few suits against tech platforms under the common law of carriers. [ABSTRACT FROM AUTHOR]

This Note highlights a troubling gap in access to federal habeas relief for persons detained in American Samoa, the only United States territory that does not confer birthright citizenship on persons born there. There is no law affirmatively establishing that persons detained in American Samoa are entitled to seek federal habeas relief, regardless of citizenship status. However, there is a theoretical pathway for U.S. citizens detained in American Samoa to petition for federal habeas relief using a common law exception to the "immediate custodian rule" that requires habeas petitioners to name their local warden as respondent. This rule usually creates an insurmountable barrier to federal habeas relief because there is no federal court in American Samoa and no federal court can assert personal jurisdiction over a prison warden in American Samoa. The exception is explicitly available only to U.S. citizens detained outside the territorial jurisdiction of any federal court. The Secretary of the Interior has plenary authority over American Samoa. Therefore, as indicated by the U.S. District Court for the District of Hawaii in Barlow v. Sunia, a U.S. citizen detained in American Samoa could name the Secretary as respondent and petition for federal habeas relief in the District of D.C. Because this exception does not extend to noncitizen U.S. nationals detained in American Samoa, and the "noncitizen national" designation exists only in American Samoa, this population is uniquely precluded from accessing federal habeas relief, a privilege the Supreme Court has extended to extraterritorial noncitizen detainees in notable cases like Rasul v. Bush and Boumediene v. Bush, among others. There are myriad solutions available to correct differentiated access based solely on citizenship status. The simplest option would be for the federal courts to expand the Padilla exception to include noncitizen nationals. Alternatively, Congress could establish a federal court in American Samoa or expand an existing federal court's jurisdiction to encompass claims arising out of the Territory. Unfortunately, there are also significant barriers to enacting those solutions. This is in large part because the federal government has unrestricted power over American Samoa, and the Territory's small population and remote location make amassing sufficient political power to compel change unlikely. [ABSTRACT FROM AUTHOR]

In a recently released book, Mere Natural Law, Amherst College Professor Hadley Arkes examines the relationship between originalism and natural law. He argues that, while the two were once seen as antonyms, they are in fact linked. The founding generation was steeped in natural law and social-contract philosophy. They wrote the Constitution with those concepts in mind, and they expected their handiwork to be interpreted and applied accordingly. Originalism, in turn, requires us to take those understandings seriously. If the Constitution was originally understood to operate against a backdrop of natural law, then it must still operate against that backdrop today. That argument might once have made Arkes an outlier. But today, there is a growing consensus that the Constitution incorporates unwritten norms embedded in the Western legal tradition. Those norms include natural law and the common law, which itself drew on natural-rights and social-contract philosophy. Even strict originalist and textualist scholars have gravitated toward this view. They agree that the Constitution, as it was originally understood and as it exists today, imported some basic tenets of natural law. That conclusion has profound implications for many substantive fields of law, none more so than labor law. Among the rights most closely guarded by natural law was the right to work. That right was seen as a type of property right-in fact, it was the most fundamental property right. It was the source of all property, and thus all other rights. It was also closely linked to the common law's hostility toward monopoly power. Government-bestowed monopolies were seen as antithetical to the right to work because they excluded people from their chosen professions. They were disfavored and often declared invalid as against natural right and reason. Yet modern labor law is built around just such a monopoly. Today, section 9(a) of the National Labor Relations Act gives a union the exclusive right to represent employees within a bargaining unit. It has also been interpreted to deny individual employees the right to bargain for themselves. That interpretation effectively turns modern unions into government-backed monopolies. It allows unions to control all bargaining within a defined labor market and to exclude all competitors. And in that way, it interferes with the employees' right to pursue their chosen calling on their own terms. That result, however, is not inevitable. Courts once interpreted section 9(a) to allow individual employees to bargain for themselves. And the basis for that interpretation is still in the statutory text. Should courts revive natural-law principles, which seems increasingly likely, they could return to that approach. They could revert to the earlier meaning of the statute-a meaning that would better respect the natural right to work. The statute need not be amended, revised, or struck down. It could simply be refurbished and made more consistent with fundamental background norms. [ABSTRACT FROM AUTHOR]

The Defamation and Malicious Publication (Scotland) Act 2021 is, in its way, a major achievement. A codifying statute for a complex area of the law was produced in a relatively short time-frame, and the SLC's objective of modernising and simplifying the law was certainly realised. Yet the Act also demonstrates some of the difficulties of legislating for the law of delict, especially in the Scottish context. [ABSTRACT FROM AUTHOR]

Domicile, or one's "true home," has ramifications about personal jurisdiction, federal court diversity jurisdiction, taxation, and family law. Typically, domicile is determined by physical presence in a location and intent to remain there indefinitely. But for military personnel and their families, general common law principles and statutory reforms create more barriers and complications to establishing and maintaining a domicile of choice than the civilian population typically faces. These barriers expose military families--especially those who relocate frequently--to increased litigation risks, such as tax enforcement suits, if they fail to take additional judicially-recognized steps to make their domiciles clear. This Note demonstrates the ways in which the common law and statutory domicile framework has proven unworkable for military personnel and advocates for reconceptualizing it to better serve those affected and to comport with the doctrine's underlying purposes. Part I describes the modern common law approach to domicile analysis and explores how legislative reforms have modified the traditional analysis for military personnel and spouses. Part II details the practical problems military personnel face in establishing a domicile of choice, focusing on the ways in which certain legal and financial considerations disincentivize military families from establishing and maintaining domicile in a manner courts can clearly analyze through the existing framework. Part III evaluates possibilities for reforming the domicile framework. It concludes that an amendment to the existing statutory scheme should give military families the option to establish a new domicile of choice via formal declaration with each new duty station, which would drastically simplify domicile analysis and reduce litigation, while still preserving the core functions of domicile. [ABSTRACT FROM AUTHOR]

The privilege against self-incrimination is one of the most fundamental constitutional rights. Protection against coerced or involuntary self-incrimination safeguards individual dignity and autonomy, preserves the nature of our adversary system of justice, helps to deter abusive police practices, and enhances the likelihood that confessions will be truthful and reliable. Rooted in the common law, the privilege against self-incrimination is guaranteed by the Fifth Amendment's Self-Incrimination and Due Process Clauses. Although the Supreme Court's self-incrimination cases have examined the privilege's historical roots in British and early American common law, the Court's jurisprudence has overlooked an important source of historical evidence: the long history of coerced and involuntary confessions extracted from enslaved persons by both governmental and private actors. The Article sheds new light upon this history by examining the privilege against self-incrimination from the perspective of enslaved persons and through the lens of the nation's Second Founding following the Civil War. Enslaved persons' understandings and experiences informed the Second Founding, which was intended to have a transformative effect upon the Constitution as a whole. This Article is the first to extensively examine firstperson slave narratives in order to draw upon enslaved persons' experiences for insights into self-incrimination doctrine. This Article first provides an overview of the theories underlying the privilege against self-incrimination, the background of the Self-Incrimination Clause, and the Supreme Court's self-incrimination jurisprudence. The Article next discusses the nation's Second Founding and the ways in which it changed our constitutional regime, both substantively and in principles of constitutional interpretation. The Article then examines enslaved persons' views and experiences regarding self-incrimination, both through antebellum judicial decisions involving enslaved persons and through enslaved persons' own first-person narratives. This evidence reveals that the Supreme Court's cramped and formalistic approach to selfincrimination is inconsistent with the post-Civil War Constitution's purposes and values. The Article concludes that our constitutional jurisprudence misses a great deal by failing to include in constitutional analysis evidence from the Second Founding and the experiences of enslaved persons and calls upon courts to take such evidence into account in interpreting the privilege against self-incrimination. [ABSTRACT FROM AUTHOR]

Common-law interpretive methodologies memostly nonbinding, but some interpretive methodologies are seen as binding preced€nt. This Aitide offers an explanation for this state of affairs. Whereas the extant scholarship on common-law interpretive methodologies offers descriptive accounts (often assuming that common-law methodologies are per se nonbinding) and normative analysis, this Article fills a gap in the literature 14 providing a realist explanation for the legal landscape of binding interp-etive methodologies. It identifies whether a methodolog, is rule-like, and whether it increases judicial legitimag and/or court power as "pull factors-that is, incentives that might attract judges to recognize interpretive methodologies as binding. It also identifies high stakes (i.e., broad methodological scope) and constitutional argumentation over methodologies as "push factors"-that is, obstacles to finding methodologies to be binding. This approach explains the current landscape of int€*etive methodologies and also enables predictions about the stability of existing binding interpretive methodologies. [ABSTRACT FROM AUTHOR]

Common law countries have long been implementing legal reforms that recognise the special needs of vulnerable witnesses. While these issues have been the subject of considerable scrutiny and debate in evidence law scholarship, this is not the case across Latin American legal systems. This article intends to contribute to such a debate. Chile recently enacted two special laws that significantly amended the general evidentiary regime in an effort to account for the challenges facing children and victims of sex crimes. This article provides an account and analysis of these recent legal reforms. We contend that while both laws address critical issues impacting specific classes of victims, the lawgivers failed to recognise that there is conflict between the rights of the victims and the rights of the accused, generating legal reforms that have unreasonably restricted the right of defendants to confront witnesses. [ABSTRACT FROM AUTHOR]

Scholars have long recognized the importance of liberty in Milton's early prose, but they tend to center their analysis on republicanism. Although he would go on to express republicanism, Milton's early tracts tie liberty to English political and legal traditions rather than classical ones. Milton, in his early tracts, utilizes the language of the ancient constitution and the common law as he centers liberty on the property and bodies of English citizens, thus framing liberty in distinctly English terms. Additionally, Milton's early prose accepts the power of the monarch, revealing Milton's initial commitment to the existing political structure. [ABSTRACT FROM AUTHOR]

Pseudolaw refers to the phenomenon whereby adherents adopt the forms and structures of legal argumentation while substituting the substantive content and underlying principles for a distinct and parallel set of beliefs. In this article, we explore and catalogue the forms of pseudolegal claims made by a particular subset of adherents – the sovereign citizen movement – in one part of the common law world: courts in Australia and Aotearoa New Zealand. Our study demonstrates both the internationalisation of pseudolaw, and that the phenomenon adapts and evolves to suit local legal discourses. We conclude by offering suggestions to respond to pseudolaw. [ABSTRACT FROM AUTHOR]

In Meyer v. Nebraska and Pierce v. Society of Sisters, the Supreme Court drew from centuries of common law and decades of state supreme-court jurisprudence. This article examines these common-law commentaries and cases in order to show, first, their account of the role of parental educational rights in a liberal regime and, second, the flexible jurisprudence by which courts were able to hold the middle ground between state and parental absolutism. For common-law commentators such as William Blackstone, James Kent, Joseph Story, and James Schouler, parental educational rights represented a sphere of liberty in which parents could fulfill their natural duty to their children. Since parents typically know and love their own offspring, these rights were seen as a way to help children, parents, and the broader political community flourish. In the mid-nineteenth and early-twentieth centuries, state supreme courts upheld the authority of the state to form an educated citizenry (by compelling school attendance, maintaining order in public schools, and enforcing minimum requirements for students educated at home) but also the right of parents to exempt their children from certain curricula and educate their children at home. The article concludes by discussing contemporary implications. [ABSTRACT FROM AUTHOR]

The article discusses divorce settlement issues in Florida, particularly how to ensure the equitable distribution of properties and other assets between the partners. Also cited are the limitations of common law in achieving equity in property distribution and the efforts by state courts, particularly the Florida Supreme Court,to achieve divorce fairness and equitable property distribution.

The mature minor doctrine is an exception to the common law rule of parental informed consent for a child's medical decisions. The mature minor doctrine is applicable as either doctrine or statute in some states, but not all. Connecticut currently upholds the common law view for a minor child's medical decisionmaking authority. Consequently, one prominent topic of discussion in recent years deals with the Covid-19 pandemic and the public policy discussions over nationwide vaccination efforts. Many minors, children legally under the age of eighteen, are looking to make their own medical decisions when dealing with vaccination for the Coronavirus. By expanding the parameters of the mature minor doctrine, and implementing it into Connecticut statute, mature minors can be given the autonomy to acquire, or resist, vaccination despite their parent's wishes. Although there has been a history of case law favoring parental authority over children, psychologists and legal scholars have brought to light new studies demonstrating adolescent development and capacity with understanding medical treatment. Furthermore, other northeastern U.S. states have gradually started to recognize mature minors in the context of vaccinations. As with any new introduction of a rule to a particular state, Connecticut legislation and courts must weigh the benefits, as well as the potential drawbacks that the mature minor doctrine may bring to light. Overall, the mature minor doctrine is a complicated doctrine, and it includes many different competing interests. However, if applied correctly, the doctrine can help competent and capable minors to make their own informed medical decisions in the state of Connecticut. [ABSTRACT FROM AUTHOR]

There are important differences between two sources of law that govern contracts: the common law and the Uniform Commercial Code ("UCC"). Common law rules govern contracts involving the sale of services, real estate, and intangibles. The UCC governs contracts involving the sale of goods. In general, the UCC takes a more liberalized approach than the common law, applying various rules to find that an enforceable contract exists if the parties intended to enter into one. In contrast, the common law will sometimes find that no enforceable contract was made, even if the parties intended to create one. Additionally, in some instances, the UCC imposes additional requirements than the common law when the contracting parties are merchants. In this Article, we illustrate the differences between these two sources of law through the use of a case study. We also suggest several ethical issues that arise within the context of contract performance. [ABSTRACT FROM AUTHOR]

Recently, scholars have uncovered many ways in which our traditional understandings of the U.S. Constitution have failed to grapple with American empire and colonialism. This work has shown that the nation's history of mistreating Indigenous peoples is constitutive of its legal order. In this Article, I provide evidence of a similar kind of imperialistic effect in the realm of statutory interpretation. To the extent there is a conventional understanding about statutory interpretation, it does not attach special significance to the demands of empire. But much like American constitutional design, statutory interpretation has not been neutral with respect to imperial expansion and colonization. To illustrate this dynamic, I reconstruct a contentious debate over the laws of adoption and inheritance in nineteenth century Hawai'i. Judges construed these statutes with the stated aim of imposing civilization on Hawaiians, challenging settled assumptions about the relationship between common law and legislation in America. Empire thus implicated not only an imposed statutory regime, but also interpretive presumptions against relying on Hawaiian customs and practices. In relying on this civilization canon, judges articulated Hawaiians as racialized legal subjects who had to be transformed before courts would presume that the legislature intended to preserve their worldviews and cultural practices in law. [ABSTRACT FROM AUTHOR]

This article examines the relationship between local codes of conduct and the common law prohibition on apparent bias in local government committees. It highlights two recent cases that questioned decisions made by local authority planning committees based on apparent bias. The High Court concluded that while compliance with the code of conduct is not definitive, it can be considered by a fair-minded observer when assessing the potential for bias. The judgments emphasize the importance of examining the specific facts and context of the decision-making process, and also suggest the possibility of challenging a code of conduct through a claim for judicial review. [Extracted from the article]

The article discusses the UK Supreme Court's approach to Closed Material Procedures (CMPs) and the Privy Council's decision in the Ramoon v Governor of the Cayman Islands case. The Supreme Court initially held that a CMP could only be adopted with Parliament's authorization, but later changed its stance. The Privy Council, as the final appellate court for certain former colonies, ruled that CMPs cannot be authorized under common law without statutory provisions. The ruling has implications for other jurisdictions under the Privy Council's jurisdiction, as the decisions of the Privy Council are binding on all courts that have a final appeal to the Privy Council. The ruling suggests that jurisdictions may legislate for CMPs in the future, but it may require a recalibration of human rights within the Privy Council's jurisdictions. [Extracted from the article]

Forensic mental health clinicians are often tasked with assessing and reporting upon a defendant's fitness for trial. However, because fitness is a legal construct, not a clinical one, clinicians are often unaware of the impairment thresholds to be found unfit to stand trial. Common law holds that only 'basic' abilities are required to be fit in Australia, yet what constitutes basic abilities is not defined in legislation. The following article presents a review of fitness case law and outlines how R v Presser1 ('Presser') has been interpreted in the Australian courts. The seven Presser standards are systematically reviewed to explain what abilities a defendant must possess under each criterion and the degree of impairment required to be found fit or unfit to stand trial, and indicates where proportionality (eg the seriousness of the charge, complexity of the evidence) has been applied to raise or lower the threshold for fitness. [ABSTRACT FROM AUTHOR]

The article discusses the evolution of animal rights in common law, legislation, and standing in the U.S. and around the world by examining nonhuman personhood and the liberty interests for highly sentient animals. Other topics include the modern jurisprudence on the use of habeas corpus to free said animals from tourism and exhibition, and the remedies to legally challenge the treatment of animals like the public nuisance claim.