Construction and Execution of Trusts in Chancery,c. 1660–1750

ABSTRACT

Relatively little has been written about the detailed workings of the court of chancery after the restoration. Even less is known about the doctrines of the chancery in the eighteenth century. Yet social historians of this period have relied on legal sources to generate a narrative which suggests that the landed classes were instrumental in determining the content of the rules governing family settlements. This article seeks to situate that narrative in the adjudicative context. Through a close textual analysis of the case law, supplemented by archival material, the article argues that, whilst successive chancellors did give voice to the underlying intentions of the settlor (and thus to the estate preservative policies of their class), the settlor’s intention was not the sole prescribing law when construing family settlements.     

The Origins of Trade Secrecy Law in England, 1600–1851

This paper examines the origins of trade secrecy law from the beginning of the seventeenth century until Morison v Moat (1851), described by the Oxford History of the Laws of England as ‘foundational’. The paper reveals something of a conundrum. The first part shows that although the prevalence of guild ordinances would have familiarized many with the concept of ‘lawful secrets’, these provisions could no longer be enforced in the guild courts by the late seventeenth century, or within the wider jurisdiction of the courts of the City of London. Instead, as the second half of the paper shows, it was the law courts proper that came to provide succour to those working trade secrets, allowing them to both restrain employees from using secrets for their own benefit and/or to sell secrets to other parties. This was a halting process, but one that had certainly begun prior to Morison.     

泰国的涉外民商事管辖权制度

在泰国,对不涉及不动产或与此相关的权利和利益的诉讼,由被告住所地或诉因发生地能行使地域管辖权的法院管辖;有关不动产或其他与不动产有关的权利的诉讼,由有地域管辖权的被告住所地法院或不动产所在地法院管辖.外国国家不能成为泰国法院的当事人;当事人不能自主地选择管辖法院;在外国法院待审的案件还可向有管辖权的泰国法院提交;泰国法律制度中没有不方便法院这一概念.     

Law and Custom: Insurance in Sixteenth-Century England

A law of marine insurance began to emerge in England in the second half of the sixteenth century. A struggle between merchants and lawyers for jurisdiction over insurance disputes led first to the creation of a merchants’ court in London, and in 1601 of a hybrid court consisting of lawyers – both common and civil – and merchants. In the late 1570s, under pressure from the privy council, a substantial code of insurance was drawn up by London merchants, but it was never formally adopted. Within twenty years custom and practice had moved away from the letter of the rules which had been written down, and the opportunity to create a developed law of insurance was lost.     

Jurisdiction problems regarding Internet torts: Critical remarks

As the facts that led to the Dow Jones/Gutnick-decision of the High Court of Australia (10 December 2002) illustrate, the Internet is a powerful platform for communication. Its continuous worldwide accessibility urges discussion of a number of questions regarding tort jurisdiction. These are the starting points for some critical remarks regarding states' reciprocal claims to cross-border activities and the way in which they deal with the interests of the involved parties. For tort jurisdiction, the paper proposes and applies criteria for the assessment of the place where the harmful event has occurred or may occur (art. 5, subsection 3 Regulation 44/2001), as explained by the European Court of Justice of the European Union. Special attention is hereby given to some particularities that characterize Internet torts. On the one hand it concerns the alleged global assignment of jurisdiction that art. 5, subsection 3 may lead to and on the other hand the scope of the assigned jurisdiction in the court of the place where the damage occurs. The European approach is confronted with the principles of personal jurisdiction that are embedded in long arm statutes and the Due Process Clause, as applied in some leading American cases regarding Internet jurisdiction. It leads to suggestions regarding the development of a marginal test for the reasonableness of the jurisdiction art. 5, subsection 3 could lead to in a particular case, as well from the point of view of the weight of the connecting factor as to the scope of the jurisdiction that is based upon it.     

John Vincent’s Reading at Gray’s Inn, 1668/9, on the Merchants’ Assurances Act 1601

In Lent Term 1668/9, John Vincent, a bencher of Gray’s Inn, gave a reading on the Merchants’ Assurances Act 1601 (43 Eliz. I, c.12). The notes of the law reporter, Joseph Keble, record this observance of the centuries-old tradition of readings, which was destined to expire within the next two decades. This paper situates Vincent’s reading within the changing tradition of readings in the seventeenth century. It highlights the role readings continued to play in disseminating sophisticated legal learning, particularly in relation to newer areas of practice such as marine insurance, which were largely uninformed by statute, common law precedent or reference works, and would have been difficult to master through book-study alone. It examines a selection of issues discussed during the reading, focussing on legal outcomes grounded in the ‘customs’, usages, practices and understandings of merchants, and illustrating how these were perceived as exceptional by comparison to the ordinary rules of the common law. The nature and jurisdiction of London’s court of assurances, reconstituted and empowered by the 1601 Act, are also discussed. More generally, this paper demonstrates the value of post-Restoration readings for historians of English law in the late seventeenth century.     

Family strategy of economic inequality among brothers in Korean rural society, 1690–1795

This article examines how inequality among brothers was practised as a family strategy in Korean south-eastern rural society from the end of the seventeenth to the late eighteenth century as a response to local economic changes. The Wolchon area experienced a process of downward levelling in this period. Using the household registers and land registers, the authors reconstituted 58 families with brothers who held land and 406 families who possessed nobi (‘serfs’ or ‘slaves’) for further examination. As a family strategy, most of these families attempted a strategy of unequal inheritance that resulted in maintaining high economic status for only one of the children among all the brothers. This child, in most cases, would be the eldest son, but also could be another son. The degree of inequality among brothers with regard to nobi-holding declined over time. Most families successfully maintained inequality, and through this family status, by efficiently practising the unequal inheritance strategy, while some families failed to keep the same level of inequality by the end of the eighteenth century. The degree of inequality among brothers is intimately connected to family property size. Each family sought its own strategy to suit the actual economic condition of the family. While very wealthy families attempted to give a similar inheritance to all brothers to provide an equal chance to each of them, less wealthy families reduced the survival chances of some children by the concentration of property given to only one child.     

Auctioneers and Misdescription: Between Scylla and Charybdis

In Elidor Investments SA v Christie's, Manson Woods Ltd the court implied a term as to Wednesbury reasonableness into an auctioneer's agency contract which fettered its ‘sole and complete discretion’ to describe lots. It is contended that, in so doing, the court unjustifiably and unnecessarily extended the jurisdiction into areas where it was not required and, in granting an injunction to restrain the sale of the lots, failed properly to apply the appropriate criteria.     

The criminal underworld of Medieval England

Abstract

In contrast to views put forward by Marjorie Blatcher, it is argued here that the impact of Bills of Custody on business in the court of King's Bench in the late fifteenth century can only be judged if all custodial bills are counted and only if special attention is given to those bills dealing with matters which would otherwise have been outside the court's normal jurisdiction. It is shown that the increase in the numbers of such cases is too modest to support Blatcher's claims of a massive increase in business since the 1450s, that the extension of the notion ‘in custody’ to people on bail did not happen in 1452, as she stated, but 20 years earlier, that it was extended to people on mainprise as well, at least for some time, and finally that fictitious Bills of Middlesex and writs latitat were not as important in connection with custodial bills as Blatcher thought.     

Anti‐suit Injunctions and the Doctrine of Comity

Hin‐Pro International Logistics Limited v CSAV is an important case in the areas of anti‐suit injunctions, contractual interpretation and private international law. Despite the ambiguities surrounding the jurisdiction clause contained in the bills of lading, the Court of Appeal construed the jurisdiction clause as ‘exclusive’ in the context of a ‘contractual background’, and affirmed the continuation of the anti‐suit injunction granted by the Commercial Court. It is argued that the approach of applying the common law principles of contractual interpretation to a bill of lading is questionable. The approach used to apply English private international law is problematic in a number of ways. There are legitimate reasons for concern that the doctrine of comity in English private international law may become undermined as a result.     

Sex and Capacity: The Management of Monsters?

The first consideration by a civil court of the test of capacity to engage in sexual relations – X City Council v MB, NB and MAB – is as recent as 2005. This article places this and subsequent cases in the historical context of the way in which the law has constructed the sexuality of persons with intellectual impairment. The article argues that, beginning with a series of rape cases in the mid to late nineteenth century, which recognised the concept of consent given through the expression of animal instincts, the law has accepted and deployed a model of intellectual impairment which understands expressions of sexuality in terms of an increasingly unstable opposition between vulnerability and danger, understood as the presence or absence of instinct, and as indicating an underlying ‘monstrosity’. The article argues that the historical continuity apparent in the modern case law is unfortunate and should be rectified.     

The changing legal environment of the juvenile court

The American juvenile court is in a state of legal flux. From its informal beginning in English chancery law, to its formal inception in the United States in 1899, the court has been exposed to a number of diverse, competing pressures. Since the Supreme Court case of In re Gault in the mid-1960’s, the whole underpinnings of the juvenile court have been so shaken that one must now ask whether or not the last vestiges of parens patriae have been swept away. If this is indeed the case, America should now seek alternatives to the present system of juvenile adjudication —for the sake of the child and for the sake of justice.     

Social context and racial disparities in punishment decisions

Although the social context of a court is often claimed to be important to understanding the effect of the offender's race on punishment decisions, the links between context and racial disparities in punishment decisions are not well understood. I propose and test four hypotheses involving elements that may link social context to racial disparities in punishment decisions: urbanization, racial threat, economic threat, and crime control. I test these four hypotheses with sentencing data from the Pennsylvania Commission on Sentencing for the period 1991 to 1994. The main findings are as follows: (1) punishment severity varies by court jurisdiction, even after controlling for offender and case characteristics; (2) racial disparities vary by court jurisdiction, with controls for other offender and case characteristics; (3) measures of social context explain little of the contextual variation in punishment decisions for all offenders; and (4) measures of social context do not explain racial disparities in punishment decisions. Thus, I find convincing evidence of contextual variation in punishment decisions, but typical indicators of social context do not explain these variations.     

What additional authority does the civil court need to uphold the objectives of temporary injunction? – A case study of Bangladesh

The civil court in Bangladesh, following some formal procedures, usually protects the subject matter of any suit by issuing an order of temporary injunction. But such orders are sometimes disobeyed and in toto preservation of suit property becomes unfeasible. Even the remedial measure for such disobedience seems insufficient to punish or restrain the violators. This study suggests that if the civil court had sufficient legal authority to direct local police to restrain the opposite party from violating its orders, the ultimate objectives of temporary injunction could be upheld properly. The higher courts in India have also found the legality of this concept.     

UNITED STATES COURTS AND THE OPTIMAL DETERRENCE OF INTERNATIONAL CARTELS: A WELFARIST PERSPECTIVE ON EMPAGRAN

E. Hoffmann–La Roche Ltd. v. Empagran S.A. concerned aprivate antitrust suit for damages against a global vitaminscartel. The central issue in the litigation was whether foreignplaintiffs injured by the cartel's conduct abroad could bringsuit in U.S. court, an issue that was ultimately resolved inthe negative. We take a welfarist perspective on this issueand inquire whether optimal deterrence requires U.S. courtsto take subject matter jurisdiction under U.S. law for claimssuch as those in Empagran. Our analysis considers, in particular,the arguments of various economist amici in favor of jurisdictionand arguments of the U.S. and foreign government amici againstjurisdiction. We explain why the issue is difficult to resolve,and identify several economic concerns that the amici donot address, which may counsel against jurisdiction. We alsoanalyze the legal standard enunciated by the Supreme Court andapplied on remand by the D.C. Circuit, and we argue that itsfocus on "independent" harms and "proximate" causation is problematicand does not provide an adequate economic foundation for resolvingthe underlying legal issues.     

Gang membership and criminal processing: A test of the “master status” concept

Using data on 370 criminal defendants processed in an urban court, we examine whether gang membership constitutes a master status that influences both charging and sentencing decisions. We first review various formal efforts to confront the “gang problem” in this jurisdiction, and provide a theoretical foundation for treating gang membership as a master status. After deriving hypotheses from this master status characterization of gang membership, we estimate statistical models for gang and nongang members to determine whether different factors are used in processing and adjudicating each. The results provide some support for the characterization of gang membership as a master status. We discuss alternative explanations for the findings and their implications for public policy on gang prosecution and criminal processing.     

不方便法院制度的几点思考

不方便法院制度是法院在涉外民商事诉讼中依当事人申请决定中止诉讼的一项制度。这一制度的概念产生于 1 7世纪 ,完善于 2 0世纪初。我国采用该制度有助于实现公平与效率 ,且不与国家主权原则矛盾 ,但应以互惠为前提。在我国适用该原则应具备受诉法院有管辖权、案件处理结果与本国利益关系不大、在程序上有异议主体等条件。法院应以不同方式对适用该原则作出裁定。     

援助与纠纷解决:对印度“人民法庭”制度的考察

印度“人民法庭”为普通民众特别是社会底层民众能够接近司法提供了一个渠道.印度法律明确规定了它的组织机构、受案范围、经费来源和组织成员等.“人民法庭”具有受案范围较广、选择自愿、程序快捷、裁决终局、解决案件免费等特点,它既能对弱势群体予以法律援助也能减轻法院积案负担.鉴于印度“人民法庭”和我国人民调解有较大的相似性,其制度对我国人民调解制度的完善有一定借鉴意义.     

Characteristics associated with rape attrition and the role played by scepticism or legal rationality by investigators and prosecutors

Abstract

This paper reports a multidimensional scaling analysis of features associated with rape attrition by identifying key aspects of the rape that are associated with loss of cases at the stages of police investigation, prosecutors’ considerations and in court. The research utilized a case-file analysis (n=105) consisting of all rapes reported to one division within a large UK urban police force by females over the age of 16 from April 1998 to April 2003. In addition, interviews were conducted with police officers and Crown Prosecutors to explore their understanding of the reasons why attrition occurs. The findings illustrate the extent to which prejudicial attitudes and legal logic influence police officers’ and solicitors’ modes of thinking and subsequently influence decisions for rape cases to proceed to court. Methodological and practical issues are considered.