Res Ipsa Loquitur: a step along the road to liability without fault

Traditionally, courts have required that the plaintiff prove the negligence of medical defendants through expert testimony. Res ipsa loquitur, on the other hand, allows juries to infer negligence from the circumstances surrounding the injury. The tension between those two propositions is obvious. It is incongruous to allow a lay jury to infer a proposition that generally demands expert proof.     

Preventive Justice and the Presumption of Innocence

When the state aims to prevent responsible and dangerous actors from harming its citizens, it must choose between criminal law and other preventive techniques. The state, however, appears to be caught in a Catch-22: using the criminal law raises concerns about whether early inchoate conduct is properly the target of punishment, whereas using the civil law raises concerns that the state is circumventing the procedural protections available to criminal defendants. Andrew Ashworth has levied the most serious charge against civil preventive regimes, arguing that they evade the presumption of innocence. After sketching out a substantive justification for a civil, preventive regime, I ask what Ashworth’s challenge consists in. It seems that there is broad disagreement over the meaning and requirements of the presumption of innocence. I thus survey the myriad possibilities and extract two claims that have potential bearing on preventive regimes. One claim is that of substantive priority—the criminal law comes first when assessing blame. This is the claim at the root of objections to pretrial detention based on consideration of the crime charged. The second strand of argument is one of procedural symmetry. This is the concern that with respect to citizen/state relations, certain procedures are required, including, for example, proof beyond a reasonable doubt as to the offense or defense. Having extracted these claims, I then assess their applicability with respect to the preventive regime defended. I first conclude that the criminal law must share blame and censure with other fora, and thus, the criminal law only has substantive priority when criminal proceedings have been instituted. I then survey whether procedural symmetry is required, specifically assessing whether the preventive regime I defend requires proof beyond a reasonable doubt. My tentative conclusion is that proof beyond a reasonable doubt is warranted.     

Constitutional Irregularities in the British Imperial Courts of Vice Admiralty during the Mid-Nineteenth Century

During the mid-nineteenth century there were between forty and fifty courts of vice admiralty located in colonies across the British empire. They were imperial institutions, whose officers were supposed to be appointed by the High Court of Admiralty in London. However, the complexity and obscurity of the official process, combined with the lack of priority given to the courts by imperial and colonial officials alike meant that many of these courts experienced unfilled vacancies and irregular appointments. This article discusses the shortcomings of the vice admiralty system that gave rise to these irregularities, and led to the passage of the Vice Admiralty Courts Act in 1863. It demonstrates that the courts were ineffective instruments of imperial authority, and that by the time the 1863 Act was passed their integration into the regular colonial courts was inevitable.