The first amendment at the crossroads: Free expression and new media technology

A century and a half after it became part of the Constitution, the First Amendment finally began to fulfill its promise of protecting freedom of speech and press. Only in recent decades have courts extended that protection to a broad range of expressive activity. In an era of emerging media technology, courts will be called on to establish new constitutional principles to deal with the changing communications landscape. Once unleashed, the “new”; First Amendment standards will be available to change the legacy of landmark cases that some consider to be overly‐solicitous of freedom of speech and press. Protecting the First Amendment in the cyberspace era is best accomplished not by creating new standards, but by applying and thus preserving established First Amendment principles.     

The Use of Unwritten Legal Principles by Courts*

Abstract. I argue that one can distinguish two types of unwritten legal principles as applied by courts (in Europe). On the one hand, what are called “structural principles,” which are induced, or at least pretended to be induced, from the written law. On the other hand, what are called “ideological principles,” which are not induced from the actual legal system, but refer to current dominant beliefs in society as to morals, politics or other non legal ideologies. It is argued that the distinction between structural legal principles and ideological legal principles could be an important element for the elaboration of a legal principle theory, as both these types of principles meet a different need and play a different role in legal practice. Structural legal principles primarily meet the need for a new ius commune, in order to achieve the coherence and the completeness of the legal system, whereas ideological legal principles, just like the human rights, meet a revived demand for an ethical framework for the law.     

Inequality,Just Price and Bad Bargains: Contracting Attitudes after the South Sea Crash, 1720

ABSTRACT

In 1720, following the crash in South Sea stock, some doubted the legal and ethical enforceability of contracts concluded on the secondary market for the purchase of future South Sea stock. This article examines the argument of David Dalrymple who drew upon civil law, natural law and the notion of a just price to advocate for the annulment of these so called ‘time bargains’. It demonstrates why Dalrymple's just price argument held a rhetorical relevance, as an ethical argument, even if the effectiveness of such a plea in both Scottish and English courts, during the early eighteenth century, is doubtful. Additionally, in setting out the context of his pamphlet and the wider debate, this article also draws attention to the emergence of a new ethical rhetoric of commerce and contracting, which argued against Dalrymple, and for the enforcement of these contracts. Lastly, this article contends that a wider conception of what constitutes the legal context of the South Sea crisis is needed, through which a deeper understanding can be gained of what role the law played in resolving the crisis and how political and ethical attitudes shaped the use of law, specifically contract law.     

Searching for direction: Courts,social science,and the adjudication of racial profiling claims

As an issue of contemporary legal and social concern, racial profiling has become part of the national discourse. As claims of racial profiling proliferate, courts are struggling to adjudicate them without sound social science research on law enforcement stop practices. This article reviews the methodological and analytical weaknesses inherent in most of the research on racial profiling and illustrates how these weaknesses have caused problems for courts in deciding racial profiling claims. It also presents a methodological strategy for curing many of the defects in previous racial profiling studies, thereby providing courts with a sound basis for deciding equal protection-based claims that often rely on statistical evidence.     

The Negotiability of Promissory Notes and Bills of Exchange in the Time of Chief Justice Holt

This paper explores the development of bills of exchange and promissory notes in England during the seventeenth and eighteenth centuries. It will be argued that the early law of negotiability was founded on a principled interpretation of the common law and that parliament's eventual rejection of this law resulted in a half-century of confusion. This time period, however, was fundamental in the development of the modern principle of negotiability as the courts struggled to create a workable framework for the transfer of written instruments. This paper examines the early conceptual difficulty of transferring written instruments and studies why bills of exchange were capable of transfer, despite the common law's bar on the assignment of choses in action, whereas promissory notes were not considered transferable at common law prior to the eighteenth century. The most important figure for the development of this area was Chief Justice Holt, whose legal interpretation of the transferability of bills of exchange was based on clearly defined and long-standing principles of common law. This interpretation of the common law was viewed as a hindrance to trade, and in response to Holt CJ's decisions, parliament passed the Statute of Anne 1704, allowing promissory notes to be transferable in the same manner as bills of exchange. This began to collapse the distinction between bills of exchange and promissory notes, which created numerous conceptual difficulties in the law of negotiable instruments. It was not until the case of Grant v Vaughan, heard in 1764, that the courts fully developed a new framework for the negotiability of written instruments. This early law displays the difficulty that courts had in developing the underlying principles of the assignment of written instruments, and deciphering its development is fundamental in understanding the modern principle of negotiability.     

Specialised domestic violence courts in Canada and the United States: Key factors in prioritising safety for women and children

ABSTRACT

This paper reviews the response of specialised domestic violence courts in Canada and the United States to contact disputes where there are allegations of domestic violence. It begins with a discussion of legal reforms responding to domestic violence in Canada and the United States, including the different types of DV courts and their rationales, key features, merits and drawbacks. Evaluations of Integrated DV courts in the United States and Canada are then reviewed. The research shows that although IDV courts hold more promise to deal with contact disputes given their inclusion of family law matters, there are few studies analysing the impact of IDV courts on these disputes, and some suggest these courts may actually increase contact and hence the potential for safety issues to arise. The final section discusses the strengths and weaknesses of IDV courts in relation to contact disputes, identifying the factors that make these specialised courts more or less successful in prioritising safety and minimising harm for women and children.     

Durie v Gardiner: Public Libel Law and Stare Non Decisis

This note examines the controversial case of Durie v Gardiner, a recent decision of the Court of Appeal of New Zealand, which radically altered the nation's public libel jurisprudence. It argues that Durie is incorrect as a matter of public libel law for three reasons. First, both Durie judgments failed to engage in freedom of expression theorising. Second, this undertheorising has caused significant confusion in Durie, including misinterpretation of material facts, breakdown of the ‘theory-doctrine’ interface, and a precipitous and unwarranted dismissal of the Court of Appeal's settled public libel principles. Third, owing to these difficulties, the Durie courts were in no position to import a new ‘public interest’ defence from foreign jurisdictions. Above all, by hastening towards wholesale law reform and ignoring its earlier comparative law deliberations, Durie arguably scuppers public libel law's best hope for advancement.     

The myth of popular justice under communism: A comparative view of the USSR and Poland

This paper describes two ‘popular justice’ institutions which exist in both the USSR and Poland: people's assessors and social courts (workers' courts and residential tribunals). An attempt is made to assess these developments in light of the official national ideology. In addition, these institutions are placed within the context of contemporary Western debates on popular justice in order to test the applicability of Western ideas to the reality of Soviet-style communism. While the paper does not attempt to assess the adequacy of the critical Western voices which warn against the dangers or illusory advantages of community justice in Western democracies, it demonstrates that these ideas are indeed validated when tested within the communist reality. The social courts tend not only to reflect the authoritarian relations prevailing in the communist economy, but also serve to perpetuate them. The lay assessors who accompany judges in ordinary courts are extremely passive and their influence on the process and outcome of the adjudication seems to be minimal. Above all, they cannot influence the law itself or the legal structures in which they are participating.     

Spectres of Coke: Judicial Supervision as a Revolutionary Inheritance

Sir Edward Coke is known for having played a central role in establishing the power of the common law courts to exercise a supervisory jurisdiction over the executive/administration. Coke is usually praised in the literature for his boldness in doing this, whilst he is at the same time censured for having dared to suggest that this jurisdiction should be a very wide one. This essay questions the inheritance of judicial supervision and enquires whether there may be a secret to uncover in Coke’s texts. Referring to Coke’s Institutes, it is suggested that the wide jurisdiction of the common law courts that Coke advanced, is linked to and should be understood in light of Coke’s pronouncements in the epigrams on law and justice. Judicial supervision, according to this reading of Coke, involves not only a necessarily limited jurisdiction in accordance with law, but also the desire for an unlimited jurisdiction, which corresponds with Derrida’s analysis of justice and law. This reading of Coke, it is suggested, calls on us to view judicial supervision as revolutionary in nature, which requires of the courts to rethink fundamentally the way in which they exercise their supervisory function.

Parallel imports: more CD than WOW?

Legal context: Intellectual property rights, particularly trade marks, haveas their primary aim the protection of the rights holder (andperhaps consumer) by allowing him and only him to sell eg, hispatented product, or his product under his trade mark. Counterfeitersand infringers are stopped in their tracks. However, intellectualproperty law has a secondary use – allowing rights holdersto stop products being marketed in Europe without their consent,even when said products are genuine. Key points: This article summarises the law on parallel importation andexhaustion of rights, focussing on two recent UK cases; thesuccessful action by the music industry for copyright infringementby CD-WOW, a leading CD retailer based in Hong Kong and thesuccessful appeal against a finding of trade mark infringementby parallel importer Mastercigars Direct, which imports Cubancigars. Practical significance: Parallel imports provide a means for entrepreneurs to exploitprice differentials between countries in Europe and countriesin the rest of the world. As such, they occur on a significantscale, generating substantial revenues. IP rights holders haveconsistently taken action against such individuals, with Sonyin particular heading to the courts on regular occasions, meetingmostly with success.     

Horizontal Effect and the Constitutional Constraint

This article offers a new interpretation – the ‘constitutional constraint’ model – of the duty the Human Rights Act imposes on the courts to give horizontal effect to European Convention rights through the common law. The model requires courts to develop the common law compatibly with the Convention, but only where compatibility can be achieved by incremental development. We argue that models requiring more than incremental development are unsustainable; that deep constitutional norms compel the constraint of incrementalism, which is preserved under the HRA; and that by virtue of section 2 of the HRA, Convention rights function as principles rather than hard‐edged rights in this context. This further undermines the idea that the courts must strictly apply Convention rights and cannot allow them to be overridden by non‐Convention factors. The final section explores the nature of incrementalism in this context and the impact of the model on the doctrine of judicial precedent.     

On building a sovereign state from scratch: The law and economics of Theodor Herzl's programmatic work

Rarely has one book had the impact of Herzl's Der Judenstaat. To which other book can we points as having led to the creation of an entire state? In looking at the slim volume today, we are struck by its freshness of insight and its strict adherence to trying to find institutional solutions that would allow people to establish the new state and then conduct their lives according to what Herzl conceived as modern Jewish principles. This study is exemplary not only for its success. In a time of great economic and legal change, scholars particularly in the transitional economies are looking for analyses that help them create the functioning institutions that need to be built, often quite literally, from scratch. Herzl, who wrote his book not as a contribution to law and economics but as a contribution to furthering his cause, nevertheless left a remarkable exercise in applied law and economics.     

Improving justice and mental health systems interactions

Over the last three decades, theorists and practitioners in the field of mental health law have adhered to adoctrinal analysis paradigm characterized by an emphasis on legal doctrine, rational analysis of self-evident, albeit abstract legal principles, and law reform. Acknowledging that the paradigm has been highly successful in facilitating major reform of mental health law, the thesis of this article is that its value for understanding and improving justice and mental health systems interactions is largely exhausted. It urges a “paradigm shift” to an approach that emphasizes the interrelated steps, tasks, and processes in the interactions of the justice and mental healthsystems. It suggests several directions where such a shift might lead: (a) inquiry focused on such organizational components of justice and mental health interactions as court clinics; (b) the development of a meaningful statistical portrait of the number and composition of cases that impact both the justice and mental health systems; (c) a better understanding of the missions, goals, objectives, and administrative structures of the components in the justice and mental health systems interactions; (d) a greater emphasis on the work of trial courts, as opposed to appeals courts; and (e) the development of a new information architecture for the field of mental health law.     

Cyber-trespass and 'Unauthorized Access' as Legal Mechanisms of Access Control: Lessons from the US Experience

The common law doctrine of trespass to chattels has recentlybeen revived and applied by courts in the United States (US)to cover intrusions (in the form of electronic signals) to computersystems connected to the Internet. These cases represent judicialrecognition of the need to protect certain unwanted intrusionsin cyberspace, though the principles developed therewith areremarkably expansive. As such, they overlap with the conceptof ‘unauthorized access’ under computer misuse legislationin the US and elsewhere. This overlap has yet to be judiciallyacknowledged. Since the US, the United Kingdom and other commonlaw countries not only share a common law ancestry but also‘unauthorized access’ principles as the primarytrigger for computer misuse, this paper seeks to examine theconsequences of developing a broad cyber-trespass doctrine beyondthe US, and its corresponding implications for judicial interpretationsof ‘unauthorized access’ in the common law world.     

(Non‐)Enforcement of Directors’ Duties in Corporate Groups: Goh Chan Peng v Beyonics Technology Ltd

Corporate groups, a ubiquitous feature of modern business, pose formidable challenges for common law courts relying on traditional corporate law doctrine. Arising out of a corporate group's recent bid to recover millions of dollars in lost profits from a former director and CEO who had diverted a core business, Goh Chan Peng v Beyonics Technology Ltd raised thorny issues of separate legal entity doctrine, single economic unit theory, and reflective loss shared by common law legal systems. Despite finding that the defendant had breached his duties to the ultimate holding company, the Singapore Court of Appeal absolved the faithless director from most of his liabilities, relying on limited domestic precedent to the exclusion of a rich body of Commonwealth jurisprudence – including the House of Lords’ landmark Johnson v Gore Wood decision. This note explores the paths not taken by the court, and highlights the pitfalls of a narrow, autochthonous approach to problems of common law doctrine.     

The Uses of the Outputs of the International Law Commission in International Adjudication: Subsidiary Means or Artefacts of Rules?

This paper examines the methods which international courts and tribunals (ICTs) employ when using ILC outputs for the purpose of determining rules of international law and their content. Specifically, it identifies common patterns in the ways in which ICTs, first, justify their reliance on ILC outputs and, second, deal with their ambiguities. The paper argues in favour of a consistent methodology for the treatment of ILC outputs in international adjudication. Such a framework is based on the distinction between the identification of the status of a normative proposition contained in these texts and the determination of its content or its interpretation. The identification of the status of a normative proposition requires a critical assessment and reconstruction of the evidence leading up to its development taking also into account that these instruments are not a monolith from the perspective of sources. However, the interpretation of a proposition whose status is uncontested follows a line of inquiry akin to treaty interpretation. This observation has broader implications for the process of interpretation in international law. Specifically, apart from the context of treaty interpretation, international courts or tribunals interpret the normative propositions contained in ILC outputs as a methodological shortcut for the interpretation of rules of customary international law or general principles of law. Conversely, the employment of methods akin to treaty interpretation in this context can constitute evidence of the emergence of common rules, principles, or good practices of interpretation that are also applicable to unwritten international law.

     

To Be (Present) or Not To Be (Present): Trials In Absentia before the Special Tribunal for Lebanon

One feature of the Special Tribunal for Lebanon (‘STL’)differentiating it from other international criminal tribunals(except for the Nuremberg International Military Tribunal) isthat its Statute allows for trials in absentia. The Statutepermits such trials when an accused failed to appear in courtor even to appoint a defence lawyer, but only on the conditionthat, where the indictment could not be served or notified tothe accused, it was duly publicized through the media or communicatedto the state of residence or nationality of the accused. Followingthe case law of the European Court of Human Rights, Article22(3) of the STL Statute allows for retrial, except where anabsent defendant was represented at trial by counsel of hisor her own choosing. The author argues this right to retrialshould not be applied either where (i) the accused expresslywaived in writing his right to be present, but then failed toappoint counsel of his choosing; or (ii) a state's failure tohand the accused over to the STL does not cure the accused'srefusal to voluntarily surrender to the STL. She also arguesthat the right of retrial following trials in absentia oughtto accrue to Lebanese courts, notwithstanding Article 5(1) ofthe Statute, which seems to prohibit Lebanese courts retryingindividuals convicted by the STL. Finally, she takes into accountthe position of states that prohibit trials in absentia, butare requested to surrender a person convicted in absentia bythe STL for the purpose of executing his sentence, suggestingan ad hoc agreement between the state in question and the STLmay be required as a remedy.     

Clashing conceptions of press duties: Public journalists and the courts

This article bridges the growing, but controversial, public journalism movement with First Amendment jurisprudence and libel law. It examines whether the movement finds support in laws that affect the press and, in particular, in court‐created defenses and privileges that protect journalists in modern defamation law. Do defenses that safeguard journalists in their traditional routines as fact gatherers and reporters also protect them in the kinds of roles and duties envisioned by public journalism advocates? Furthermore, has the United States Supreme Court, in non‐defamation cases involving the First Amendment, expressed concern for protecting what might be called the “public journalism functions” of the press? Does the Court create a different image for the press than the one envisioned by public journalism advocates? This article addresses these questions. It ultimately concludes that public journalists and courts have two very different conceptions about the role that journalists play in a democracy.     

Interpretation of Law and Judges Communities

The principle of omnia sunt interpretanda refers to the derivational conception and derivational theory of interpretation. The principle appears in disputes concerning the role of a judge in the process of interpretation, and this has produced an effect that Polish theory of law is currently getting closer to the conceptions presented in the American debate on activism and textualism. In the practice of jurisdiction, the principle of omnia sunt interpretanda is mostly invoked outside theoretical context. It becomes a manifestation of a new dimension of judicial independence, namely an independent authority over the meaning of legal text. In the following paper the legal cultures and legal theories involved in the dispute are being disclosed in order to put in question the possibility of achieving a clear result of interpretation against a background of a crisis of the relations between law and law-making state, which manifests itself in the peculiar process of legal institutions becoming autonomous in relation to state institutions. In this context, the aforementioned principle constitutes the manifestation of the way in which courts come up with a new definition of the role of the third (sui generic) power. The certain organizational requirements placed upon the courts (especially the SAC and provincial administrative courts) are being scrutinized in order to find out in which mode it is possible to at least reduce the degree of inconsistency of the results of interpretation. Here, the attempt to organize a community of judges for the activities of legal interpretation undertaken by them plays a crucial role.     

The Rule of Law in Fragile States: Dictatorship,Collapse, and the Politics of Religion in Post-Colonial Somalia

The fate of the rule of law in fragile states rests in religious politics. Three defining periods of Somali politics illustrate this argument. First is the authoritarian regime of Mohamed Siad Barre in Somalia (1969–1991). This dictatorship used religion to rule by law. The regime executed religious leaders for disagreeing with the government's interpretation of Islam. Second is the rise of Islamic courts in Mogadishu, Somalia's capital city (1991–2007). The Islamic courts apprehended criminals, expelled warlords, and provided spaces for Somalis to resolve disputes peacefully. Third is the breakaway of Somaliland (1991–present). Somaliland has advanced Islamic legal principles to build peace and constitutional law. Taken together, these three periods demonstrate how religious politics transform law and society.