Ceylon Coffee,the Comtesse and the Consignee: A Historical Reappraisal of Rochefoucauld v Boustead

This paper examines the Court of Appeal judgment of Rochefoucauld v Boustead [1897] 1 Ch. 196 through use of archive records, rarely cited law reports and nineteenth-century academic opinion. A full and hitherto untold account of the facts of the case is presented. It is revealed that the land which was the subject matter of the dispute was sold under the direction of the Ceylon District Court, and that the plaintiff was an accomplished individual who utilized various means to frustrate her former husband's attempts to obtain the land. The Court of Appeal's rulings that the defendant was a trustee of the land for the prevention of fraud, and that the trust was to be treated as an express trust, are also analysed with the aim of establishing how these issues were understood at the time of the judgment. It is argued that both of these aspects of the judgment were regarded as uncontroversial because there was a settled concept of equitable fraud, and because trusts imposed for the prevention of such fraud were an established category of trust in their own right, separate from express, resulting or constructive trusts.     

Supreme Court Preview:Reed v. Town of Gilbert to Address Content Neutrality in Sign Regulation

Abstract

For the first time in two decades, the U.S. Supreme Court is scheduled in the 2014–2015 term to review the thorny planning and legal subject of local government regulation of outdoor signs and billboards and the core First Amendment requirement that regulations of speech be ”content neutral“. In basic terms, the content‐neutrality doctrine prohibits the government from regulating a speaker's content or message–including messages on outdoor signs. In Reed v. Town of Gilbert, the Court will be asked to decide whether Gilbert, Arizona's sign code, which distinguishes among several categories of signs, including religious, political, and ideological signs, meets the content neutrality requirement. In so doing, the Court may provide direction on how far local governments can go in regulating speech based on message, and the Court can resolve a longstanding division among the federal appellate courts over the meaning of content neutrality     

Fair Share Housing for Managed Growth

The Mt. Laurel decision represents the culmination of judicial thinking in exclusionary zoning type litigation. Implicit in decisions striking down local land use controls found to be “exclusionary” in nature has been the notion that a community has a legal duty to accept a “fair share” of the housing needs of the region. Fair share housing now begins to take on some substance with the New Jersey court's decision. Similar language on responsibilities for regional needs may be found in the Pennsylvania Supreme Court decisions in Kit-Mar and Girsh, and in the federal district court's opinion in Petaluma.     

Marr v Collie: The Ballooning of the Common Intention Constructive Trust

The decision in Marr v Collie represents a significant expansion of the common intention constructive trust doctrine. Unsupported by authority, it relaxes the requirement that the property be acquired for a ‘domestic’ purpose, and widens the doctrine to encompass all property, whether real or personal. The decision's abrogation of the ‘purpose’ restriction redraws the line between the common intention constructive trust doctrine and the presumed resulting trust doctrine and expands the former to the greatest possible extent. This exacerbates a doctrine already apt to adversely affect both individual litigants and the justice system as a whole, and which creates incongruous theoretical divisions within the law of intentionally created trusts. As the doctrine is reliant on the proposition, unsupported by authority or legislation, that conveyance of a title to land into joint names necessarily gives rise to a trust, it is hoped that a future apex court will reconsider the doctrine's proper scope.     

Knowing receipt: continuing trusts and conscionability Byers v Saudi National Bank

In Byers v Saudi National Bank [2022] EWCA Civ 43 the Court of Appeal examined a seemingly straightforward question: where rights are dissipated in breach of trust, is it a necessary condition of the recipient being liable for ‘knowing receipt’ that the dissipation did not extinguish the beneficiary's rights? The answer sheds considerable light on the juridical nature of liability for ‘knowing receipt’. This note argues that the Court of Appeal's analysis correctly supports the theory that so-called ‘recipient’ liability is in fact a species of liability for breach of trust. It also examines the implications of that conclusion for the elements of, and remedies for, ‘knowing receipt’.     

Litigation in the Fossil Fuel Divestment Movement

The fossil fuel divestment movement has been described as the fastest‐growing disinvestment movement in history, and in recent years it has continued to expand. Despite its growth, however, the movement has made little use of legal action, instead utilizing tactics of public pressure and persuasion, and the future role of litigation in the movement is unclear. To consider litigation's potential role in the movement and the challenges it may face, I examine the first and only case of litigation in the fossil fuel divestment movement thus far: Harvard Climate Justice Coalition et al. v President and Fellows of Harvard College et al. (2015), in which seven Harvard students (including the author) filed suit to compel the university to divest its endowment from fossil fuel companies. I examine motivations for filing the suit in the context of the broader fossil fuel divestment movement, the case's history, and the challenges faced by the suit, including arguments surrounding causation, particularization, representation of future generations, limiting principles, and framing. I then discuss potential opportunities for fossil fuel divestment litigation in the future. As the field of climate change law develops further, litigation over fossil fuel investments could grow in frequency and importance.     

Introduction: Commentaries on Ensuring Corporate Misconduct by Tom Baker and Sean J. Griffith

This essay reviews some of the more striking findings in Tom Baker and Sean J. Griffith's Ensuring Corporate Misconduct: How Liability Insurance Undermines Shareholder Litigation (2010), particularly concerning the tension between two competing narratives of shareholder litigation—one stressing the important deterrent effect of such litigation, the other viewing such litigation as abusive plaintiff opportunism. The essay then introduces commentaries on the book by Carol Heimer and Jodi Short, which follow.     

The Mask of Neutrality: Judicial Partisan Calculation and Legislative Redistricting

Do judges ruling on redistricting litigation increase electoral competition in congressional races while simultaneously drawing districts favoring their party's congressional candidates? I offer a novel theory of judicial partisan calculation, arguing that judges draw more competitive districts than legislatures or commissions, but that judge‐drawn districts favor the electoral interests of their copartisans. These claims are reconcilable because judges target districts held by contrapartisan legislators to maximize their copartisans’ fortunes. I find that Democratic judges draw competitive districts by adding Democratic voters to Republican‐held House constituencies. Court‐administered redistricting increases competitiveness, ostensibly due to judicial neutrality. This mask of neutrality, however, conceals sophisticated partisan calculation.     

Insurance Litigation Involving the Zong and Other British Slave Ships, 1780–1807

The infamous Zong case played an instrumental part in the abolition movement of the late eighteenth and early nineteenth centuries, and it is well known to historians of the slave trade. Not so well known, however, are the characteristics and practices of insuring slave cargo. Also the full story of the Zong incident and the subsequent litigation in the court of King's Bench has never been told. This article first explains the manner in which the standard Lloyd's marine insurance policy was understood by ship owners and merchants. Special adaptations for slave cargo are then examined, such as the circumstances in which the loss of slave cargo would not be covered because not due to ‘perils of the sea’, and exclusions for slave insurrections. Finally, the Zong case itself is explored, as enlarged by scarce and newly-discovered documentary sources. Two surprises emerge: that the words used in the printed Lloyd's marine insurance policy did not necessarily mean what they said; and that the legal strategy employed in the court of King's Bench on behalf of the owners was seriously flawed.     

Ideological Neutrality in the Workplace

This note assesses the decisions of the Court of Justice of the European Union in Achbita v G4S Secure Solutions NV and Bougnaoui v Micropole SA, the first cases dealing with religious discrimination under the Equal Treatment Directive 2000/43. Both cases concerned Muslim women wishing to express their religious beliefs by wearing an Islamic headscarf while working in a private undertaking. The Court held that the employees’ dismissal could not be justified by reference to clients’ prejudices against the headscarf. However, dismissal could be justified if pursued on the basis of a corporate policy of ideological neutrality which prohibited all visible religious, political and philosophical symbols. This note criticises the latter part of the Court's decision for, inter alia, placing too much weight on an employer's freedom to run its business in spite of the grave effects this has on employees’ fundamental right to manifest their beliefs at work.     

Remedies for Breach of Trust

The decision of the Supreme Court in AIB Group (UK) Plc v Mark Redler & Co confirms the approach taken by Lord Browne‐Wilkinson in Target Holdings Ltd v Redferns: where a trustee misapplies trust assets, a beneficiary is limited to a claim for equitable compensation for losses caused by the trustee's breach of duty. This seems to be a departure from traditional equitable doctrine, which held that the beneficiary could falsify the trustee's unauthorised disbursement and bring a claim for an ‘equitable debt’. This note considers the impact of the decision of the Supreme Court, and how the law regarding ‘equitable compensation’ might continue to develop.     

Impact of deception detection errors on public's trust in the police

Purpose. The present study explored the public's attitude towards errors in police officers’ detection of deception. Based on findings on trust in the police after responses to terrorist threats, we predicted a positive influence of a correct credibility assessment and of a risk‐averse response bias of police officers on public's trust. Methods. A general population sample (N= 151) read a hypothetical scenario concerning a credibility judgment and indicated their trust in the officers making the judgment. Decision outcome was manipulated by varying the four outcomes of a signal‐detection task, namely, Hit, Miss, False Alarm, and Correct Rejection. Results. In line with findings on trust in the police following responses to terrorist threats, people trusted police officers more if they judged the credibility of a suspect correctly. Moreover, officers who disbelieved the suspect's statement were trusted more than officers who believed, independently of outcome correctness. Furthermore, this effect was moderated by individual differences in error weighting. Conclusions. In sum, these findings indicate that lie‐biased credibility judgments made by police officers are supported by the public and increase their trust in the police. In addition, the present findings suggest that an asymmetrical weighting of judgment errors is a relevant factor in explaining the development of and attitude towards lie bias.     

Constructing the State Action Doctrine, 1940–1990

According to the state action doctrine, the Constitution restricts the activities of governmental but not private entities. Despite this rule's apparent simplicity, the Supreme Court has been clearly uncomfortable with precedents like Shelley v. Kraemer (1948) and has varied considerably in its receptiveness to state action claims from 1940 to 1990. The attitudinal model provides barely a beginning in accounting for both Shelley and changes in state action limitations. While liberal justices did initially relax state action requirements and conservative justices subsequently tightened them, that explanation ignores changes in the NAACP's litigation strategy, the Court's creation of doctrinal alternatives, and powerful civil rights legislation that together produced a sharp decline in state action claims involving race after 1970. These nonattitudinal “regime politics” factors enable a more complete and nuanced understanding of the state action field and help us to see the Court as collaborative rather than independent, dependent, or countermajoritarian.     

Mechanisms and Consequences of Professional Marginality: The Case of Poverty Lawyers Revisited

A partial replication of Jack Katz's (1982 ) Poor People's Lawyers in Transition, this article explores the manifestations and consequences of professional marginality of legal aid lawyers. Based on thirty‐five interviews with poverty attorneys and interns in Chicago, the authors show that scarce material resources and unclear expectations continue to give rise to the marginalization of this segment of the legal profession. The authors analyzed ideological, task, status, and material dimensions of attorneys' professional marginality. With no access to reform litigation, central to the legal aid “culture of significance” in the 1970s, present‐day poverty lawyers seek new ways to cope with marginality. The authors argue that these lawyers' coping strategies have many negative consequences. Thus, over time, poverty lawyers' deep engagement with clients, ideals of empowerment, and social justice orientation give way to emotional detachment, complacency, and an emphasis on “making do” within the constraints of the system.     

The Signaling Effect of Pro se Status

When claimants press their claims without counsel, they fail at virtually every stage of civil litigation and overwhelmingly fail to obtain meaningful access to justice. This research program harnesses psychological science to experimentally test a novel hypothesis: mainly, a claimant's pro se status itself sends a signal that biases decision making about the claimant and her claim. We conducted social psychological experiments with the public (N = 157), law students (N = 198), and employment discrimination lawyers (N = 39), holding the quality and merit of a Title VII sex discrimination case constant. In so doing, we examined whether a claimant's pro se status itself shapes stereotypes held about the claimant and biases decision making about settlement awards. These experiments reveal that pro se status influences stereotypes of claimants and settlement awards received. Moreover, the signaling effect of pro se status is exacerbated by socialization in the legal profession. Among law‐trained individuals (i.e., law students and lawyers), a claimant's pro se status generates negative stereotypes about the claimant and these negative stereotypes explain the adverse effect of pro se status on decision making about settlement awards.     

On the Relations between Agent and Principal: Angove's Pty Ltd v Bailey

In Angove's Pty Ltd v Bailey the Supreme Court faced ‘two important and controversial questions of commercial law’: whether an agent's authority could ever be ‘irrevocable’, and whether the receipt of money by an imminent insolvent could ever give rise to a constructive trust of that sum. It answered both in the affirmative, albeit subject to heavy qualifications. This note supports these conclusions in principle, however it will argue that the court's reasoning, especially in answering the second question, leaves much to be desired. In particular, it ignored the central role of fiduciary law in regulating the conduct of agents.     

Elements of the Support Structure for Campaign Finance Litigation in the Roberts Court

This article considers the organizations, financial patrons, and lawyers involved in two significant campaign finance cases decided by the Roberts Court: Citizens United v. Federal Election Commission and McCutcheon v. Federal Election Commission. The research indicates that these elements of the support structures for litigation on both sides of these cases, like the justices to whom they direct their advocacy, fall into well‐defined opposing and partisan camps. It also suggests that strategic case selection on the challengers' side, the diversity of organizations supporting their positions, their network and coordination, and a simple and powerful frame around which to rally may have contributed to their success and to the Roberts Court's fundamental reshaping of campaign finance doctrine.     

The Legal System and Child Sex Abuse—Ross Cheit's The Witch‐Hunt Narrative: Politics,Psychology, and the Sexual Abuse of Children

Cheit, Ross E. 2014 . The Witch‐Hunt Narrative: Politics, Psychology, and the Sexual Abuse of Children . New York: Oxford University Press. Pp. xvii + 508. $49.95 cloth. The prosecution of child sex abuse in cases involving very young children presents difficult problems for the justice system. Ross Cheit's book The Witch‐Hunt Narrative: Politics, Psychology, and the Sexual Abuse of Children (2014) addresses these problems in the context of the 1980s cases involving daycare centers. While the conventional conclusion drawn from these cases is that young children are not credible witnesses, Cheit's examination of the trial records in these cases reveals credible evidence of abuse in many, as well as evidence of injustice attributable to untrained and/or overenthusiastic interviewers. Cheit's examination of this litigation provides an opportunity to evaluate the legal system's treatment of child witnesses in sex abuse cases, as well as to discuss the appropriate use of social scientific evidence in litigation, the impact of mass media accounts on public policy, and the respective merits of criminal versus civil lawsuits in child sex abuse cases.     

The Georgia State Litigation: Literal Copying in Education

This case note examines the long‐standing litigation against Georgia State University in relation to the posting, by faculty and library staff, of unauthorised copies of book extracts on the University's electronic reserves and virtual learning environment. The central question in this litigation has been whether these acts of copying fall within the fair use doctrine in US copyright law. In answering this, a key question for the US courts – and one relevant to other jurisdictions with free exceptions for education, such as the UK – has been whether existing and potential licensing activity is relevant to the question of whether an exception applies. This case note discusses how market effect has been analysed in Georgia State, including the recent rejection by the Court of Appeals for the Eleventh Circuit of a strongly empirical approach to market harm.     

The Place for Custody Evaluations in Family Peacemaking

Custody evaluations can serve the dual purpose of providing neutral, objective information to the court while also contributing to the possibility of earlier settlement, which coincides with the therapeutic jurisprudence goal of more positive outcomes for children and families. Research suggests that most cases settle after custody evaluations. However, most of the literature is focused on the use of custody evaluations for litigation. Evaluators, attorneys, and mental health consultants can influence parents to focus more on children's needs and less on their conflict as they go through the evaluation process. This article urges family courts to develop processes and require professionals to learn skills needed for an interdisciplinary process to utilize evaluations in peacemaking.

Key Points for the Family Court Community:
• All custody evaluation processes should aim to reduce and/or shorten children's exposure to parental conflict.
• Evaluators, attorneys, and mental health professional consultants should use the evaluation process to influence parents to be more aware of their children's needs and less invested in their adversarial positions.
• Evaluators should learn to write and orally present information and state opinions with consideration of the parents themselves as consumers of the custody evaluation as well as the court.
• Attorneys and mental health professional consultants should help clients review the report, process their emotional reactions, and consider their options for settlement versus litigation in terms of emotional and financial costs to the family.
• Court processes should be developed to contain the time and cost of custody evaluations and provide dispute resolution after custody evaluations.