Search

This article discusses the Criminal Appeal Act Section 8 and its implications for retrials in criminal cases. The Court of Appeal (Criminal Division) has the power to order a retrial if it believes it is in the interests of justice. Section 8 of the Act sets a two-month time limit for re-arraignment after a retrial order, and failure to comply with this requirement can result in the retrial being deemed invalid. The article presents a case study where the appellant argues that their conviction should be quashed due to a failure to comply with Section 8. The Court of Appeal ultimately agrees with the appellant and quashes the conviction. The article also provides commentary on the importance of arraignment and compliance with Section 8 in retrial cases. [Extracted from the article]

Technology and law both rest upon, acknowledge and borrow from their forebears, but the trajectory of technological development is distinct from legal precedent. The former thrives on innovative and creative leaps where non-linear progression is celebrated. The latter derives purpose and respect from its conservatism and predictability, adhering to established traditions. At moments of technological rupture, the law's path forward becomes uncertain. By taking the advent of the photographic camera as its focus, this article comments upon the ways in which the law grapples to smooth over technological rupture and naturalize the outcomes of its often ambiguous and hesitant decisions. As the gendered battle for rights in a photographic image during the last few decades of the 19th century shows, the primary owner of copyright in a photograph was not naturally or obviously the photographer. This article encourages us to reflect upon moments of technological rupture and the process by which the once achievable or feasible becomes absurd or forgotten. [ABSTRACT FROM AUTHOR]

The binding authority of substantive decisions made by the Crown Court in the exercise of its criminal jurisdiction is often assumed to be negligible. In 2013, the Court of Appeal appeared to confirm the correctness of that assumption. Yet there was little in the way of explanation or case law that was cited in support by the court. This article suggests that a re-evaluation of the place and treatment of such decisions within the doctrine of precedent is overdue, and considers that they should be recognised to have some binding effect if there is able to be established a reasonably satisfactory process to facilitate their systematic and public dissemination, whether electronic or otherwise. [ABSTRACT FROM AUTHOR]

This commentary assesses the state of scholarship on law and narrative and argues for a more holistic approach to the topic. Narrative and law do not encounter each other accidentally but are ineluctably intertwined. Law is a dominant narrative form in the modern world; narrative suffuses not just testimony but all legal practice. We urge scholarship that recognizes law and narrative as part of the same socio-cultural project of making the world. [ABSTRACT FROM AUTHOR]

Storytelling pervades almost every aspect of the law. Many narrativistic legal elements, however, have in fact been little more than historically transitory. Given the precarious status of narrative at law, I argue we should focus instead on one of the most historically consistent acts of legal storytelling: the judicial opinion. Here I examine in particular the invocation of precedent in legal opinions, what I call "judicial emplotment," as an almost archetypal act of formalized storytelling. As I go on to argue, the courts justify legal outcomes by invoking precedent, thereby placing decisions within a specific and heavily formalized legal-narrative structure. [ABSTRACT FROM AUTHOR]

Millar v Taylor is an iconic case for statutory interpretation. It has long been regarded as the case in which the rule prohibiting reliance on legislative history was first put forward by Mr. Justice Willes in 1769. However, a close reading of the judgment reveals an uncomfortable fit between the rule that the case purports to stand for and the judicial reasoning within it. Meanwhile, the case was cited frequently throughout the 19th century, but never in support of the exclusionary rule. During that time period, the judiciary was aware of the fact that Mr. Justice Willes’ famous statement was contradicted by reasoning in the case. It was in the 20th century that scholars began citing Millar v Taylor in support of the exclusionary rule—a time when the quantity of published cases and secondary literature had increased significantly, and cases like Millar v Taylor were being cited without necessarily being read. This stands as a cautionary tale: one ought to quote with care, particularly when citing older cases. [ABSTRACT FROM AUTHOR]

This case note comments on a recent English Court of Appeal judgment departing from the pre-existing duty rule in contract law found in Foakes v Beer and extending the concept of practical benefit as good consideration to this situation. The note addresses the questions of precedent, the nature of the purported benefit in pre-existing duty situations, its relationship with the vitiating factor of economic duress and the future of the doctrine of promissory estoppel. The note argues that the Court of Appeal’s method of sidestepping recent Court of Appeal decisions upholding Foakes v Beer is open to question, that the Court of Appeal failed to consider the relationship between practical benefit and economic duress and that the future of the doctrine of promissory estoppel is in doubt. [ABSTRACT FROM AUTHOR]

In Uganda, legislation does not define ‘life imprisonment’. However, the 2006 Prisons Act provides that, for the purpose of remission, life imprisonment means 20 years’ imprisonment. In 2011, the Supreme Court, the highest court in the country, held that life imprisonment should mean imprisonment for the remainder of an offender’s natural life. However, since then there have been cases from the Court of Appeal, the second highest court in Uganda, questioning the Supreme Court’s ruling. In a common law country where legal precedent is revered, this is unheard of. In this paper the author argues that although the Court of Appeal may not be impressed with the Supreme Court’s judgement, the principle of legal precedent obliges it to follow that judgement. The author submits that the sentence of life imprisonment remains imprisonment for the remainder of the offender’s life as interpreted by the Supreme Court and that the legislature may have to intervene to amend the law to expressly state what life imprisonment means. [ABSTRACT FROM AUTHOR]

The article discusses two British Court of Appeal cases related to criminal justice, namely R v Jogee and Ruddock v The Queen, citing decisions of the Supreme Court and the Judicial Committee of the Privy Council. It states that in both the cases appellants had been convicted of murder after trial, and mentions that the Supreme Court has considered the doctrine of secondary participation. It notes pertinence of the case Chan Wing-Siu v The Queen.

The intertwined rhetoric of precedent and fulfillment underlies the biblical rhetoric of the Sermon on the Mount and the legal rhetoric of the common law. This article wants to draw a parallelism between how Jesus approaches the corpus of Mosaic law in the Sermon on the Mount and how judges approach the corpus of the common law in case after case. Both Jesus and common law judges are fulfillers, not followers, of precedents. The follower of precedent repeats the norms of the past in the present, while the fulfiller of precedent redeems the norms of the past in the present. [ABSTRACT FROM AUTHOR]

The determination that sexual harassment constituted “discrimination based on sex” under Title VII was first made by the lower federal courts, not Congress. Drawing from the literature on policy diffusion, this article examines the adoption of hostile work environment standards across the U.S. Courts of Appeals in the absence of controlling Supreme Court precedent. The results bolster recent findings about the influence of female judges on their male colleagues and suggest that in addition to siding with female plaintiffs, female judges also helped to shape legal rules that promoted gender equality in the workplace. [ABSTRACT FROM PUBLISHER]

This article demonstrates that the apocryphal text of Tobit sheds important light on notions of deliverance that were emerging in Second Temple Judaism. Raphael, the angel-deliverer of Tobit, depicts a stage in the development of angelic mediation that stands apart from angelic deliverers in previous Jewish texts, and can be significantly associated with early Christianity's view of Jesus. Here, for the first time, is a heavenly being who appears as a nondescript Israelite and brings news of hope, healing and demonic liberation to suffering Israelites of little account. Raphael offers a precedent for Christian accounts that the historical Jesus was a preexistent savior who lived as a simple Israelite. [ABSTRACT FROM AUTHOR]

This article argues that Heidegger’s concept “Authenticity” can be used to provide a justification for the doctrine of precedent beyond traditional predictability and equality arguments. This justification is based on an attitude towards existence itself rather than prescriptive claims about judging. The article demonstrates that a Heideggerian description of adjudication can allay the fears of writers such as Hobbes and Holmes that adherence to precedent might impede reason or justice. It further suggests that precedent presents judges with a rare opportunity to develop their own sense of reason or justice in adjudication. Particular emphasis is placed on efforts by adjudication to capture the nature of real entities. For illustrative purposes, use is made of the concept of a “lease” in the English case Ashburn Anstalt v. Arnold. [ABSTRACT FROM AUTHOR]

The article describes a case wherein the British Court of Appeal had ruled that the Crown Court had no power to impose a confiscation order when an offender was sentenced to a conditional discharge. Four unconnected applications for leave to appeal against sentence were made to the Court of Appeal following the case R. v. Clarke, with each applicant having been sentenced to a conditional discharge but had been the subject of a confiscation order. The implications of the case for the issue of precedent within the Court of Appeal are also examined.

This article presents a model of collective choice when group decisions must be justified by arguments from first principles. Individuals may have preferences over both the actions chosen and the arguments used to justify them. Defining a notion of stability in the arguments made and actions supported within a group, I characterize the set of actions that can be justified as well as the arguments that will be used to justify these actions. Of particular interest in the article is the fact that each individual's preferences over different arguments are endogenously determined by the collection of actions justified by the arguments. [ABSTRACT FROM AUTHOR]

Does the hierarchical relationship between the district courts and the courts of appeals influence decision making at the trial level? Do these judges anticipate responses by appellate panels and condition their decisions based on these expectations? Using a sample of district court cases from 1925 to 1996 that were subsequently reviewed by the courts of appeals, and incorporating a strategic choice statistical framework, I discover that the district courts are constrained by the anticipated responses of the appeals courts. However, this conclusion is not apparent if one analyzes the data using traditional maximum likelihood methods. Only when empirical analyses specifically model underlying strategic relationships does one discover this constraint. If the federal trial judges anticipate a negative response on appeal, then they curtail their ideological influences (the magnitude of influence decreases by approximately one-half). This pattern remains consistent when one examines civil liberties and economic cases, but not for criminal cases. Thus, the hierarchical structure of the federal judiciary appears to exert a significant constraint on the district courts. [ABSTRACT FROM AUTHOR]

How do the justices of the Supreme Court make their decisions? How does the Supreme Court of the United States make its decisions? The answer to these questions may not be the same. In studying judicial decision making, there has been a disconnection between individual and institutional levels of analysis. Lifetime tenure insulates individual justices and permits them to act on their substantive preferences. At the same time, the Court lacks the "sword and purse" and must rely on the other branches to fund or implement its directives. This study develops an integrative model to explain Supreme Court decision making. Using constitutional civil liberties and civil rights cases in the 1953 to 2000 period, conditions favorable to the attitudinal model, we find that institutional decision making is a function of attitudinal, strategic, and legal factors. [ABSTRACT FROM AUTHOR]

The combination of government process, ownerships rights, and violation of land use turns public participation into city rights versus citizens rights. When citizens experience the exploitive manner of incompatible development and irreversible expansion, contrary to the dictates of histoic preservation law according to the Home Rule Act of the District of Columbia, they rightfully expect a recourse and fair review process from its regulatory agencies, legislative branch, and executive branch of city government. Citizens coalesce, divide into task groups, and create a record of evidence supporting their opposition and a record of city procedures. When this monitoring and scrutiny uncovers suspicions of political patronage and underhandedness, an applicant to build digs in its heels. The opposition stiffens, and the court seems the likely arbiter to enforce appropriate standards of conduct among the city's regulatory agencies. Enforcement then sets a citywide precedent for lawful accountable land use for all parts of the District of Columbia. [ABSTRACT FROM AUTHOR]