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Sham transactions, in common law jurisdictions, and simulated transactions, in civilian jurisdictions, are transactions in which the parties use a documentary form that deliberately conceals a different internal substance. While this area of Scots law is yet to be developed, Scottish courts and legal scholars often refer to English law as a key point of reference, either citing English decisions as persuasive authorities or arguing that English developments should not be adopted in Scotland. This article submits that Scots law has a rich history that should not be neglected when discussing and developing this area of law in Scotland. Long before English courts had elaborated a doctrine of sham transactions, the Court of Session, the Institutional Writers and the Scottish Parliament developed a doctrine of simulation that has role to play in modern Scots law. This is not to imply that English law should be neglected altogether, nor that centuries-old Scots law is immediately applicable nowadays. Rather the argument is that Scotland has a rich doctrinal history to draw from. The article begins by reconstructing for the first time what the doctrine of simulation was in Scotland in the 17th and 18th centuries, showing that in the sources simulation was always a type of fraud. It then goes on to show that from a comparative perspective the doctrine of simulation admits both unlawful and lawful forms of simulation, and that Scotland knew doctrinal developments that were functional equivalents to lawful forms of simulation. It concludes by observing that the Scottish doctrine of simulation illuminates three fundamental questions that modern Scots law needs to address in developing this area of law. [ABSTRACT FROM AUTHOR]

Attorney-client privilege has been widely considered as an underlying principle in disputresolution processes. It generally insulates the information exchanged between the counsel and client from compulsory disclosure before third-party adjudicators in litigation/arbitration proceedings, which also applies in international arbitration. However, in practice, complexity arises from the straightforward rule, i.e., the cherrypicking (or "collateral waiver") of privilege, where the parties choose to disclose part of the privileged information while keeping the others under wrap. Such practice has been seen across various jurisdictions. As there is no standard rule of privilege in international arbitration, the specific deployment of attorney-client is highly contingent on the legal principle applicable. On the general legal landscape of attorney-client privilege in international settings, this article will focus on the comparative study of the rule of "cherry-picking" principle in England, Singapore, and Hong Kong in apprehending their respective practical attitude and explore their practical implication in international arbitration. [ABSTRACT FROM AUTHOR]

Statutes that create or codify causes of action sometimes contain jurisdiction provisions. The wording of these provisions can differ widely. Some of them purport to give exclusive jurisdiction to a specific court. In the private international law context, this raises the question of whether such a provision precludes the courts of any other jurisdiction from hearing a claim under the statute. This article analyses how these provisions have been interpreted. It focuses on Canadian law but draws on American, Australian and New Zealand jurisprudence. The article contends that the Canadian jurisprudence is uneven and insufficiently rigorous. Several of the decisions cannot be reconciled with each other, such that some must be regarded as incorrect. Several of the decisions fail to identify the important questions that are posed by alleged assertions of exclusive jurisdiction and also fail to answer them. Moving forward, courts should treat the claim that such a provision deprives a court of jurisdiction with caution and even scepticism. [ABSTRACT FROM AUTHOR]

The doctrinal project of delineating the supervisory jurisdiction of the common law courts and the scholarly project of elucidating the public law–private law divide have had a long and close relationship. The Supreme Court of Canada strengthened this relationship in Highwood Congregation of Jehovah's Witnesses (Judicial Committee) v Wall, establishing a bright-line test for the availability of judicial review that takes a presumed state/non-state dichotomy as its organizing principle. In this article, I build on existing critiques of the decision, describing how Wall's categorical paradigm has reduced the judicial oversight of powerful decision makers that have historically been subject to standards of fairness and rationality. However, I also use Wall to raise a more fundamental question, which is whether the public law–private law divide continues to provide the best vocabulary and framework for determining judicial review's boundaries. I explore legal pluralism, a project that has developed in parallel with the public law–private law scholarship and consider whether it might provide a superior framework for understanding the challenges to practices of normative decision making that lie at the heart of cases like Wall. I argue that legal pluralism is more phenomenologically correspondent than the public law–private law divide with cases involving norm-generating communities and more coherent with the values that the common law supervisory jurisdiction should be seeking to promote. [ABSTRACT FROM AUTHOR]

The doctrinal project of delineating the supervisory jurisdiction of the common law courts and the scholarly project of elucidating the public law–private law divide have had a long and close relationship. The Supreme Court of Canada strengthened this relationship in Highwood Congregation of Jehovah's Witnesses (Judicial Committee) v Wall, establishing a bright-line test for the availability of judicial review that takes a presumed state/non-state dichotomy as its organizing principle. In this article, I build on existing critiques of the decision, describing how Wall's categorical paradigm has reduced the judicial oversight of powerful decision makers that have historically been subject to standards of fairness and rationality. However, I also use Wall to raise a more fundamental question, which is whether the public law–private law divide continues to provide the best vocabulary and framework for determining judicial review's boundaries. I explore legal pluralism, a project that has developed in parallel with the public law–private law scholarship and consider whether it might provide a superior framework for understanding the challenges to practices of normative decision making that lie at the heart of cases like Wall. I argue that legal pluralism is more phenomenologically correspondent than the public law–private law divide with cases involving norm-generating communities and more coherent with the values that the common law supervisory jurisdiction should be seeking to promote. [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]

This paper aims to carry out empirical analysis of the viability of large language models (LLMs), specifically ChatGPT, in simulating the common law system and facilitating its evolutionary processes. Drawing on the Theory of Rules Evolution, it is understood that common law generates efficient rules by natural selection through constant litigation. Nonetheless, this evolutionary mechanism faces several hindrances. The process of change is typically slow and incremental. Courts often have to wait for a case that's deemed 'appropriate' before they can change the law, leading to extended delays. Additionally, courts frequently struggle to make efficient decisions due to limited information. Other factors that decelerate the creation of efficient rules include judicial bias, unequal distribution of resources among litigating parties, and the diminishing presence of a competitive legal order. This study first assesses ChatGPT's capability to embrace the essence of the common law system, namely the doctrine of stare decisis. We then assess its potential to overcome the hindrances in common law development and promote efficient rules. Through a series of meticulously designed hypothetical cases set in a virtual jurisdiction called the "Matrix Kingdom," we observed that ChatGPT mimic the functions of a common law court by citing, following, and distinguishing its own precedents, but it accomplishes this with significantly fewer resources and in less time. This implies that humans can introduce hypothetical legal situations, enabling LLMs to replicate the natural selection process observed in the common law system but with a significantly accelerated pace. Given that LLMs are trained with diverse information sources, not just the factual contexts of cases, they could potentially lower the informational constraints in decision-making. As such, LLMs might significantly contribute to the evolutionary processes of common law development. However, it is important to remain cautious of certain limitations, such as the potential for AI Hallucination and inherent biases in LLMs, which require careful consideration and management. [ABSTRACT FROM AUTHOR]

In every American jurisdiction, accomplice liability is "derivative" in the sense that the accomplice is punished not for her own acts of aiding or abetting but for the acts of the principal whom she aids or abets. The derivative character of accomplice liability has created problems in cases where the principal and the accomplice have different affirmative defenses or mental states, as well as cases where the principal's conduct is causally efficacious but the accomplice's is not. American law has partially corrected for these problems by walking back the extent to which accomplice liability is derivative. Although at common law the accessory's liability was wholly derivative of the principal's, now many jurisdictions judge the accomplice by her own affirmative defenses and mens rea. But no jurisdiction has taken the final step of eliminating derivative liability for accomplices altogether and judging the accomplice by her own actus reus. This Article urges the law to complete this process of doctrinal evolution by abolishing derivative liability for accomplices. In some cases, judging the accomplice by her own actus reus and mens rea would not change the outcome because the accomplice's actus reus and mens rea constitute the same type of crime as the principal's. In the remaining cases, judging the accomplice by her own actus reus and mens rea would change the outcome for the better. [ABSTRACT FROM AUTHOR]

Olivia Barr argued that the common law is carried on the surface of bodies and transferred through encounters, creating, altering and organising 'lawful relations'. She also argued that the common law is reconstituted through these movements, particularly the place-making activities of burying the dead. However, if the lawful treatment of the dead is cleaved from burial, can the dead still be constitutive of the common law or does this potentiate alternative nomoi ? Through a material metaphor of dance, biogram and lawscape, the author explores the potential for different configurations of jurisdiction in events following the 2018 Humboldt Broncos bus crash. [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]

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This article examines the principles of implied jurisdiction agreements and their validity on a global scale. While the existing scholarly literature primarily focuses on express jurisdiction agreements, this study addresses the evident lack of scholarly research works on implied jurisdiction agreements. As such, it contributes to an understanding of implied jurisdiction agreements, providing valuable insights into their practical implications for international commercial contracts. The paper's central question is whether implied jurisdiction agreements are globally valid and should be enforced. To answer this question, the article explores primary and secondary sources from various jurisdictions around the world, including common law, civil law, and mixed legal systems, together with insights from experts in commercial conflict of laws. The paper argues for a cautious approach to the validity of implied jurisdiction agreements, highlighting their potential complexities and uncertainties. It contends that such agreements may lead to needless jurisdictional controversies and distract from the emerging global consensus on international jurisdiction grounds. Given these considerations, the paper concludes that promoting clear and explicit jurisdiction agreements, as supported by the extant international legal frameworks, such as the Hague Conventions of 2005 and 2019, the EU Brussels Ia Regulation, and the Lugano Convention, would provide a more predictable basis for resolving cross-border disputes. [ABSTRACT FROM AUTHOR]

Reflecting the international experience, statistics show that most medical negligence cases in Ireland settle. Less is known, however, about the duration of these cases, though anecdotal evidence suggests that they are protracted in nature. Procedurally focused reforms, aimed at reducing costs and facilitating more expedient resolution of these disputes have been proposed in Ireland, yet await implementation. As such, the pace of litigation is largely determined by the parties to the dispute. Drawing on the findings of an empirical study (an analysis of closed case files and qualitative interviews), this article explores two questions: first, how long do medical negligence cases take to resolve; and secondly, what contributes to delay in this context. Whilst causes of delay may vary by case, it is important to attempt to identify and explore common factors which contribute to delay. If these factors can be problematised and understood, possible solutions may be reached. In doing so, the article contributes to the debate on medical negligence reform across common law jurisdictions, evidencing the broader considerations, in addition to procedurally focused reforms, which are required when considering the issue of delay. [ABSTRACT FROM AUTHOR]

This paper argues for reforming the rules governing the control of remedial clauses in (Commonwealth) common law jurisdictions. In simple terms, this paper argues that remedial terms should not be seen, as some would have it, as creating a debt or ironclad obligation on the promisor. Instead, such clauses should be treated as a security against default, which is adjustable according to circumstances prevailing at the time of breach or enforcement. This argument is based on two socioeconomic levers--radical uncertainty and (the imperative to curb) over-indebtedness. Based on the first lever, a case is made for applying hindsight in enforcing remedial provisions. The second lever aims to demonstrate the fragility of economic systems and that widespread indebtedness, coupled with the strict enforcement of remedial clauses, can weaken promisor firms' resilience in a climate of economic contraction or recession. [ABSTRACT FROM AUTHOR]

The article examines how state jurisdiction would impact the future of climate change litigation in the U.S. Topics discussed include history of climate change litigation in the country, state common law public nuisance claims, and the first wave of climate change litigation that ended with the Supreme Court's decision in American Electric Power Co. vs. Connecticut.

Parenting plan evaluators are expert witnesses who offer their opinion. Courts in common law jurisdictions generally do not accept evidence of an opinion as it is not considered to be reliable evidence from which to establish a fact. An exception to that general principle is expert opinion evidence. In short, an opinion from a person with specialized knowledge or expertise about the area in which they are an expert may be sufficiently reliable to form an evidentiary basis from which to make a finding of fact, provided the opinion meets certain criteria. These criteria will be discussed in this article, as well as what is relevant, reliable and persuasive evidence. The relevant legal principles will be examined in an historical and contemporary, theoretical and practical context. The authors reflect on their considerable experience as consumers of expert evidence and apply this to parenting plan evaluations, as well as considering future challenges in the field. Key points for the family court community: As a parenting plan evaluator you need a basic understanding of the rules of evidence to write an admissible report.If your parenting plan evaluation is written with these rules in mind it is more likely to be persuasive to a Court.When you understand the purpose of the rules it is easier to follow them and to write better reports.There are some rules which are specific to each jurisdiction and you should always ask for guidance, especially when starting out.There are many future challenges confronting parenting plan evaluators and the Courts in relation to parenting plan evaluations. [ABSTRACT FROM AUTHOR]

The study aims to analyze the regime of the private domain of the state and the administrative-territorial unit, as it is regulated by the Administrative Code. At the center of the analysis is the problem resulting from its title, which are the courts competent to resolve disputes arising from the capitalization of assets belonging to the private domain of the state and administrative-territorial units. The need to clarify this issue is generated by the provisions of the Administrative Code, according to which the rules regarding contracts for the concession, rental, administration or free use of public property assets also apply to similar contracts that concern assets from the private domain of the state or administrative units- territorial. The opinion we formulate is that as far as disputes are concerned, they should fall to common law courts, as opposed to disputes concerning public property, for which the legislator establishes, mainly, the competence of administrative litigation courts. [ABSTRACT FROM AUTHOR]

This Article explores a more expansive adjudicative role for domestic judiciaries in the United States, United Kingdom, and Canada in private law disputes that concern personal and environmental harm by multinational corporations that operate in the Global South. This expansive role may confront, but not upend, existing understandings around the separation of powers in common law jurisdictions. After canvassing existing literature on judicial activism and detailing legality gaps in the select common law home States that may warrant a more activist judicial role, this Article suggests three ways to actualize activism. First, judges can heed Thomas Franck's recognition that there is a distinction between judicial policy and foreign policy. That distinction encompasses transnational business and human rights litigation, which does not directly involve governments as parties to the litigation. Second, home State judges can prioritize the need to fill transnational access to justice gaps in two ways: expanding the list of violations in the Alien Tort Statute's "law of nations" requirement and better aligning the ex-ante/ex-post flip in "boomerang litigation." Third, transnational business and human rights litigation may be an apt area to employ judicial morality in deciding "hard cases." Judges can utilize a natural law framework that prioritizes corporate accountability over formalistic doctrinal conceptions. [ABSTRACT FROM AUTHOR]

The treatment in common law courts Of findings of the law of a foreign juitsdiction as findings of fact has been considered "peculiar". This particularly has been so with appeals against those findings. The treatment of the subject by the Hong Kong Court of Final Appeal in 2019 has now been considered by the Privy Council and accommodated in its "spectrum approach" which may now be adopted across common law jurisdictions. [ABSTRACT FROM AUTHOR]

In recent decades, jurisdictionally separate common law commercial courts have emerged alongside existing civil law judicial systems, particularly in the Middle East. Although these unique common law judicial outposts are creating complex jurisdictional dynamics with their local civil law counterparts, their existence is also inspiring innovative structural solutions and cultural interactions. Recent cases in Dubai and Qatar reveal that the originally intended limited jurisdiction of these common law courts is expanding beyond what Michael Hwang once famously termed 'common law lakes in civil law oceans'. One of the ways in which common law courts are expanding their remit beyond the bounds of their financial centre 'lakes' is by making it easier for litigants to 'opt in' to the jurisdiction. Increasingly, an identity crisis has also gripped some of these courts as they now regularly accept and identify themselves as local 'State courts'. From the perspective of these courts and their institutional credibility, the State court designation is positive for their growth and acceptance. Being a State court allows financial centre courts to capture litigation where contractual language has employed the State courts language in forum election clauses. This article explores the expansion of these international commercial courts and consequent or potential tensions with local judicial structures. Delicately managed, the expansion of jurisdiction of these common law 'outposts' can contribute to a legal synthesis influencing both law and legal cultures, including the broader judicial systems of host States. The experience of the two jurisdictions explored in this article is instructive for the future design of similar judicial instrumentalities in similar financial centre projects in other emerging economies. [ABSTRACT FROM AUTHOR]

In case law, and in the associated academic literature, numerous judges and jurists have labelled parts of tort law 'anomalies'. This description – with its pejorative overtones – seemingly highlights a cause for concern about the state of the law. Yet closer analysis suggests otherwise. First, commentators mean different things when they speak of anomalies; only some of which provide genuine reasons for unease. Secondly, all but two of the aspects of tort law considered in this article that have been described as anomalous turn out to be no such thing. Finally, even those two remaining parts of tort law that have been labelled anomalies can be defended because (1) they have a great deal going for them in practical terms, and (2) the internal coherence of tort law (which they are thought to undermine) is not the unqualified good it is widely supposed to be. [ABSTRACT FROM AUTHOR]

This Article develops a new vision of mens rea by returning to a bygone era's conception of the guilty mind. The common law understanding Of mens rea is broad and moralistic: it encompasses all mental characteristics bearing on an actor's blameworthiness. Undertheorized and oft neglected, this "Guilty Minds" approach has been replaced with the Model Penal Code's reconceptualization of mens rea as the purpose, knowledge, recklessness, or negligence applicable to every element of a criminal offense. Modern criminal law's embrace of this narrower and more legalistic "PKRN" approach to mens rea has brought with it many well-known benefits. But there are also overlooked costs of divorcing mens rea doctrine from its moral foundations. This Article demonstrates how the Guilty Minds approach, once clarified and refined, can address these costs while revealing a promising new pathway for criminal law reform. Synthesizing a wide body Of experimental research, the Article transforms the historically vague Guilty Minds approach into a multidimensional model of culpability rooted in the community's sense of justice. Drawing on contemporary criminal theory, the Article then makes the moral philosophical case for viewing this reconceptualization of mens rea as a critical constraint on criminal liability. After identifying structural flaws in contemporary mens rea policies that violate this constraint, the Article proposes a novel statutory solution: an insufficient blameworthiness defense, which empowers factfinders to dismiss charges based upon a structured assessment of an accused's mitigating mental states. The Article argues that the proposed defense would be accessible to juries, administrable by courts, and harmonious with the PKRN approach-thereby providing all U.S. jurisdictions with an effective way to bolster mens rea protections in their criminal codes. [ABSTRACT FROM AUTHOR]

It is common in Hong Kong courts to apply cases from multiple common law jurisdictions regarding the same principle at the same time--a phenomenon that is less frequently seen in other jurisdictions. The courts adopt suitable ones as applicable law, not just quoting them for mere comparisons. The obvious, tempting benefits of having a greater pool of re/drenee materials have already been well-established by existing literature, so this Article is instead the first tofocus on the drawbacks. In particular, the courts have failed to spot that sometimes the cases are actually inconsistent, which hampers clarity, certainty. and proper development. Three illustrative examples are discussed to show that this pit#ill exists and is not one-of. To avoid this, it is suggested thal whenever authorities. from multiplejurisdiclions are cited concurrently, court and counsels should be skeptical and actively check for inconsistency. No matter how similar the principle may seem, there should never be any rash assumption of consistency. The judiciary should consider introducing a practice direction-which has already been done by Singapore and the United Kingdom-that requires counsels to cite local authority flrst. This Article also explains why it is not helpful to limit the number of jurisdictions referred to, hire judicial assistants, and rely on comparative secondary sources. The insights will be helpful to other common law courts that occasionally refer to Foreign precedents. [ABSTRACT FROM AUTHOR]