The prosecutor and human rights – from the general to the particular

It is not unusual that one or all parties commit a genuine mistake when making contracts. While there is the strict general duty under the law to respect agreements, there equally exists the duty for courts and tribunals to be fair and to render commercial justice in the factual matrix of cases before them. In national legal systems and transnational law regimes, rescission for mistake on economically efficient and just terms is embedded in contractual obligations. The Solle v Butcher (1950) doctrine, which represented the English law approach, was rejected in The Great Peace (2002). Potential conflicts and crises now exist in commercial relations and international dispute resolution when ‘English law’ is the applicable law. This extends to jurisdictions where English decisions are highly persuasive. This article examines the correctness and effect of The Great Peace decision on the doctrine of equitable rescission for genuine mistake as propounded in Solle v Butcher, and possible clarifications needed after the complications brought by The Great Peace. It analyses the conceptual importance of the remedy of equitable rescission for mistake in commercial transactions, and identifies serious substantive errors of law by The Great Peace court. Finally, it provides other effective, fair and efficient legal methods that remain available to avoid the weaknesses of the decisions.     

Litigation,Judicial Path-Dependence,and Legal Change

In this paper we consider the role that litigation and case selection play in the process of legal change. After identifying two necessary conditions for litigation, we examine the effect of judicial path dependence on the consolidation of liability rules and legal remedies, paying special attention to litigation with different win–loss ratios. We study the consequence of private litigation decisions on the contraction or consolidation of legal rules under various litigation and judicial environments. We also consider the relevance of the win–loss ratios, the existence and nature of positive litigation costs, and the weight of past precedents on the ongoing process of legal evolution.JEL K0, K40, K13, K41     

Implementing Prior Judicial Decisions as Precedents: The Context of Application and Justification

The paper concerns the conditions and methods of using previous judicial decisions as a kind of precedents in the processes of application of law within the statutory legal order. The use of such decisions, not announced by the legislator, depends on the courts, undertaking such actions on the grounds of similarity of cases or of decisional processes. Such decisions do not become an exclusive validation argument and may create a situation of their potential conflict with legal regulations as well as an inferential supplementation of their content. Dissemination of such activity of the courts leads to the development of precedential practice (relevant to the statutory legal order), though, its actual jurisdictional role depends on proper justification of decisions, within which reference to these decisions should be adaptive (in relation to the elements of the current case), generalizing (forming elements of ratio decidendi) as well as argumentative and discursive (in respect of the way in which the decisional reasoning and arguments expressed in the prior justification are used).

     

Breaking the Principle of Secrecy: An Examination of Judicial Dissent in the European Constitutional Courts

As “oracles of the law,” judges are trained to provide certainty and guidance within an often‐uncertain legal landscape. Nowhere is this statement truer than in the civil law tradition, where the idea of legal certainty has been prized as a “supreme value.” Despite this tradition, dissenting opinions are now quite common within most European constitutional courts. Using new data from five countries and interviews with constitutional court judges and clerks, I investigate factors that contribute to dissent on constitutional courts. Results indicate that legal and policy characteristics matter, but so do judicial backgrounds and the issues reviewed.     

Treatment of procedural irregularities in Nigerian courts and the need for a principled approach: Yaki v Bagudu (2015) in retrospect

The courts are usually stuck in between the need to do substantial justice to litigants and the strict observance of procedural rules. The article considers this issue in Nigerian legal system using the Supreme Court’s decision in Yaki v Bagudu as a signpost. The article argues that the absence of any clear-cut guidelines on procedural irregularities often leads to legal uncertainty and unpredictability of results. Drawing on experiences from other jurisdictions, the article suggests a principled approach which distinguishes between irregularities affecting the substantive jurisdiction of courts and those which do not as a panacea.     

In-house or in court? Legal challenges to university decisions

Every day, decisions are made in universities that affect students. When a decision adversely affects a particular student, what means of redress does that student have? The circumstances in which a student has a legal claim against their university are generally unclear. Courts have traditionally tended to draw a distinction between ‘purely academic’ decisions and disciplinary decisions. There has been reluctance on the part of courts to intervene in non-disciplinary decisions which involve academic judgment, for example, the grade to be given to a student's work. On the other hand, where the decisions are purely disciplinary, for example, in relation to a student's behaviour towards others or towards university property, the courts have made it clear that there is essentially no difference between this and disciplinary matters within any other public institution or organization. However, disciplinary decisions that are connected with allegations of academic misconduct, for example, cheating and/or plagiarism, have been more problematic for the courts. Historically, the debate was whether any such decision was justiciable in public law. Recently the question has also been whether an aggrieved student may succeed in a private law action against a university. The legal issues raised by university decisions affecting students have not yet been clearly resolved in all jurisdictions. Indeed, in some cases, judges have raised many more questions than they have answered. This article will review the framework for legal challenges to university decisions against a background of recent judicial attitudes in Australia, New Zealand, the UK and the US.     

Dissent and the Anarchic in Legal Counter-Culture: A Peircean View

The author analyses the role of dissent and anarchic thinking in modern legal culture. Such notions traditionally convey opposition to established authority and are essential for all free and open societies. In fact, the right to dissent and practising anarchic beliefs exist insofar as a true right of confrontation is guaranteed by the legal system. In this perpective, the author suggests some correspondences between dialogic thinking, that Peirce says allows all ideas to grow semiotically, and the development of the role of dissent in the legal culture. Generally speaking, the question concerns the well-known Peircean dichotomy between chance/spontaneity and lawfulness. This thesis is exemplified in detail looking at the history of US law, at its outset the direct consequence of a legal counter-cultural movement against British common law. Moreover, the possibility of dissent is written into the United States constitution. At least three modes of dissent are built into American law as legal counter activities: (1) voices of nondominant religions, (2) dissent within the legal system, e.g., dialogue among and within the courts, (3) challenging the legal system sanctioned by the right to civil disobedience and by other forms of reaction against an oppressive government.     

The Structure of American Legal Institutions and the Diffusion of Wrongful‐Discharge Laws, 1978–1999

This article evaluates how the social structure of American legal institutions influenced the diffusion of wrongful‐discharge laws over the period 1978–1999, and it assesses whether economic or political variables influenced the diffusion process. The results are surprising and quite striking. Precedents by other courts within the same federal circuit region were generally more influential in the diffusion process than precedents by courts in neighboring states or by courts within the same census or West legal reporting region, even though the precedents were on matters of state law rather than federal law and the decisions were usually made by state courts rather than federal courts. There is some limited evidence that political variables may also have been a factor, but economic variables were not statistically significant, even though the new employment laws may have had important economic consequences.     

Introduction: Problem‐Solving Courts

Problem‐solving courts have become a significant feature of the U.S. justice system, and their popularity appears to be growing internationally with courts under way or in development in countries such as Australia and Great Britain. Drug courts are the most visible type of problem‐solving court, but other varieties are beginning to take hold. Mental health courts, domestic violence courts, and community‐based courts among others are beginning to handle a considerable portion of the legal workload in many jurisdictions. Criminal law violations as well as neighborhood conflicts and interpersonal disputes are increasingly being referred to problem‐solving courts rather than to traditional criminal or civil courts.     

Law's Allure and the Power of Path-Dependent Legal Ideas

Gordon Silverstein's Law's Allure (2009) advances a two-part thesis on the power of legal ideas. The first is that legal precedents establish the ideological baselines on which legislative and bureaucratic policies are developed. Silverstein amply demonstrates the validity of this thesis. The second is that by establishing ideological baselines, legal precedents contribute to a version of path dependency (or the idea that early choices determine long-term developments) that is significantly more constraining than other forms of institutional entrenchment. Put simply, law shackles creativity in politics. This thesis I do not find persuasive, in part because Silverstein offers little evidence for it and in part because a growing body of literature suggests the contrary: the cross-fertilization of ideas from one field to another—law to politics, for instance—contributes to, rather than retards, creative change. Nonetheless, while its broader ambitions are not satisfied, Law's Allure's narrow thesis—that precedent profoundly shapes policy development—is important and worthy of a major book in itself.     

Medical Malpractice Appeals in a Civil Law System: Do Administrative and Civil Courts Award Noneconomic Damages Differently?

How do courts award noneconomic damages? Does it matter if the state is the defendant? This article addresses these questions in the context of medical malpractice appeals to the Spanish Supreme Court. Moreover, this study provides the first empirical analysis of the quantification of noneconomic damages in medical malpractice cases in administrative courts, where the state is the defendant, and in civil courts. This separation of jurisdictions is a common feature in civil law tradition countries. Yet, critics of this separation in general, and specialized courts in particular, argue that parties might be subject to different treatments and that similar cases might reach different outcomes, namely in terms of the quantification of damages. A consistent result of this paper is that no significant differences between noneconomic damages in civil and administrative appeals were found. The separation of jurisdictions does not necessarily imply that courts reach different outcomes, even when the state is the defendant. Citizens should not refrain from bringing their claims forward against the state, a more powerful party. In the current era of increasing juridification and judicialization of modern life (Ginsburg 2009; Hirschl 2006; Hirschl 2011), it is crucial for society that citizens and other parties litigating with the state are not disadvantageously treated.     

Legal Position of Foreigners in the USSR Under the New Civil Legislation

Given the constant expansion of the international ties of the Soviet Union, the need has long since arisen to give legal form to a number of points bearing on the legal status and rights in civil law of foreign citizens, enterprises and organizations, the applicability of foreign civil laws, as well as the execution of legal decisions and orders of foreign courts in civil matters.     

Investors’ Rights in (Crypto) Custodial Holdings: Ruscoe v Cryptopia Ltd (in Liquidation)

Ruscoe v Cryptopia Ltd (in Liquidation) is a landmark decision of the New Zealand High Court that considers for the first time in a comprehensive way whether cryptocurrencies are property at common law and to what extent account holders’ (interests in) cryptocurrencies are protected from the claims of the insolvent crypto‐exchange's creditors. The ruling relies on a body of case law from various common law jurisdictions and, to a significant extent, on the findings of the UK Jurisdiction Taskforce Legal Statement on Cryptoassets and Smart Contracts. In tackling complex areas of legal uncertainty, it provides an authoritative conceptual benchmark for future court decisions and normative initiatives.     

A microeconomic model of the demand of civil justice: is one institutional context better than another?

The paper analyzes how institutional elements affect the decision to file of risk neutral agents. In particular, we introduce an objective probability of winning given by the combination of a precedent-weight parameter (defining the type of legal system) and a transparency factor. 603,000 simulated trials, shaped upon our model, reveal two main findings: (1) the transparency level matters in terms of inefficient decisions; (2) a precedent driven system is not necessarily more efficient. Hence, policy makers should invest in increasing the level of information among courts and between courts and the parties both in civil and common law systems.     

试论法律方法的意义及其局限之克服

对于法律的理解,人们难免会有争议,其原因在于前理解(前见)。为避免法律解释流于恣意,应以法律方法加以制约,但由于各种法律方法并不一致,导致各种解释结果产生矛盾。为此,应引入先例和学说中对有关规范的解释,对法官裁判加以限制。     

中国传统的司法和法学

近来祖国大陆的法学界流行着两种对于中国传统的批评:其一指责中国传统司法者不遵循法律和先例,仅仅就事论事,凭天理人情作成判决;其二声称中国传统文化里几乎没有法学可言。二者都与事实不符。第一,中国自秦汉时起,法律已极繁多,在有明文可以适用或有成案可以比照的情形下,司法者都乐于遵循,不会自找麻烦另寻判决的依据。如果没有法律或成案可用,任何法制里的司法者都该先仔细分析案情(“就事论事”),然后探索法的精义(“天理人情”)而作成一个合乎公平正义的判决;中国传统司法者的做法并非例外。第二,中国历代都有许多学者不仅以纯理性的观点和方法对于当代的法律加以注释、批详,并且从历史背景和社会经验中去深究其渊源、目的和效能,以及法与其它社会规范的关系、法的正当性,法律条文不足时应该如何补救等法学上的重要问题,留下许多著作,对于这些问题提出了精辟的见解。只因他们的观点、方法和所用的语言及陈述方式与近人习见的不同,所以被忽略了。中国传统法制自成一系,与世界另几个重要法系并立,各有短长。如要加以检讨,应该先对它作一番整体的、深入的研究;如果想用另一法系的某些规定作为他山之石以改善中国法制,则更须对那些规定甚至整个法系作一番同样的研究,看清了二者的优劣,慎为取舍,不可以轻易地将中国目前的问题一概归咎于传统,更不该盲目地仿效他人。     

The effects of legal and extra-legal characteristics on organizational victim decision-making

A variety of factors influence decisions to mobilize formal social control. With few exceptions, studies considering the effects of legal (e.g., case specific) and extra legal (e.g., offender and victim characteristics) variables have concentrated on sentencing under criminal law, an outcome subject to sample selection bias given that the majority of cases never reach this stage. Analyses of earlier decision points (e.g., victim calls for service, police use of force, and arrest), have focused on street crime and single jurisdictions. A neglected research context is the organizational victim’s response to employee fraud. Using a sample of 663 fraud cases, this study applies Black’s (The behavior of law, San Diego, Academic, 1976) theory of law to victim organizations’ decisions to mobilize formal social control. Results demonstrate that extralegal characteristics weigh heavily on decisions to initiate both criminal and civil outcomes. Specifically, offenders’ education and age decreased the odds of criminal legal mobilization. Mobilization of criminal law was also more likely by government agencies. Implications for Black’s theory and directions for further research are discussed.     

The Impact of Judicial Opinion Language on the Transmission of Federal Circuit Court Precedents

Why do some federal circuit court precedents transmit across circuits when others do not? Does judicial opinion language influence which cases are more likely to transmit? Previous research on the transmission of precedents has focused primarily on attributes of the circuits or judges who wrote the decisions, without considering whether opinion language also influences citations. This study hypothesizes that precedents are more likely to transmit to other circuits when judges communicate their importance using features of opinion language such as the legal grounding, the amount of supporting evidence, and the decision to file a per curiam opinion. The results indicate that opinion language does influence the transmission of precedents, which suggests that judges who care about policy and are willing to take affirmative steps to encourage citations can use opinion language to enhance their impact.     

The Influence of Administrative Law Judge and Political Appointee Decisions on Appellate Courts in National Labor Relations Board Cases

Scholars have long been simultaneously concerned with the factors that influence appellate court decision making and the level of deference that the courts allow for agencies. However, scholars have treated administrative agencies as unitary actors with a single level of decision making, but in reality agency decisions involve input from multiple actors within the agency. I argue that appellate courts rely more heavily on decisions made by actors in the bureaucracy with greater levels of expertise and who are less politically motivated as cues in their decision making. This theory is bolstered by legal precedent in the area of administrative law that suggests courts should more heavily rely on the expert judgment of administrative judges. Thus, as a result of their increased expertise, appearance of political neutrality, and institutional support, courts will be more reliant on decisions issued by administrative law judges (ALJs) than those issued by the political appointees as cues in their decision making. Using over 300 unfair labor practice decisions issued by the federal appeals courts on review of cases from the National Labor Relations Board (NLRB or Board), I develop a model of appeals court decision making in unfair labor practice cases as a function of the initial decision of the ALJ, the final order of the political appointees of the NLRB, case characteristics, the ideology of the deciding appeals court panel, Supreme Court influence, and economic factors. Though the ideology of the court plays a role in its decision making, cues from ALJ decision making and that of the Board weigh more heavily in appellate court outcomes. However, cues from ALJ decisions play the most consistent role in appellate court decision making, even in more difficult cases. This has important implications for agency strategy in courts and suggests that future research should consider the influence of lower‐level decision making over appellate court decision making in the area of administrative law.     

Supreme Court of Canada's “Beautiful Mind” case

The Supreme Court of Canada's (SCC) first case involving capacity and the refusal of involuntary psychiatric treatment involved a self described “professor” who had been referred to as “Canada's Beautiful Mind”. He had been found not criminally responsible on account of mental disorder for uttering death threats. While considered incapable of making a treatment decision by psychiatrists and a review board, three levels of court, including the SCC, found him to be capable. “Professor” Starson therefore continued to refuse treatment for his psychosis and spent over seven years detained because he refused the treatment required to become well enough to be released. This refusal of treatment is permitted under Ontario law, although it is not permitted in some other Canadian provinces, and in many other countries.This article describes Starson's situation, Ontario's law with respect to consent to treatment and relevant Canadian constitutional and criminal law. It provides an analysis of the Consent and Capacity Board decision and the court appeals. Implications from Starson's case are analyzed in relation to what happened to Starson, human rights and comparative law pertaining to involuntary patients' refusal of treatment, especially their relevance to the Canadian Charter of Rights and Freedoms, and laws in some other countries. Many Canadian and foreign jurisdictions where laws apparently accord with human rights codes do not allow a person to refuse the treatment required to restore their liberty. We conclude that a law that allows a person with a mental illness to be incarcerated indefinitely in a “hospital” because needed psychiatric treatment cannot, by law, be provided is not justifiable in a caring democratic jurisdiction.