Jurisprudence Commons^™

Section 25(6) Of The Judicature Act 1873: A ‘Procedural’ Approach, Chee Ho Tham

Research Collection Yong Pung How School Of Law

Section 25(6) was re-enacted as section 136(1), replacing the law French ‘chose in action’ with the more Anglo-Saxon ‘thing in action’, together with other minor differences, but to no substantial effect. Largely unchanged, the construct now found in section 136(1) has been part of English law for 150 years. However, understanding what section 136(1) does, and how it does it, remains muddled. On the one hand, given Lord Macnaghten’s pointed observation in William Brandt’s Sons v Dunlop Rubber that, ‘[section 25(6)] does not forbid or destroy equitable assignments or impair their efficacy in the slightest degree’, Smith & Leslie takes …

Defamation With Bayesian Audiences, Yonathan Arbel, Murat C. Mungan

Articles

How strictly should the law regulate false defamatory statements? We first show that the presence of judicial errors often puts defamation law on a Laffer curve: regulation that is too lax or too strict is inferior to moderate regulation. While moderate regulation is ideal, it is not always attainable because of practical and legal constraints. With these constraints, we consider a Bayesian audience that takes the strictness of defamation law into account when evaluating statements. The optimal standard is then taxer than is prescribed by standard models with naive audiences. These findings underscore the importance of accounting for audience effects …

The Forgotten Jurisprudence Of Parole And State Constitutional Doctrines Of Vagueness, Kristen Bell

Cardozo Law Review

The majority of carceral sentences in the United States include the possibility of discretionary release on parole. Most such sentences, however, are unconstitutionally vague. Their unconstitutionality has gone unnoticed because contemporary scholarship and litigation about vague laws have focused on the U.S. Constitution in lieu of state constitutions. This Article unearths historic state court decisions holding that sentences that end through the discretionary judgment of a parole board are “void for uncertainty.” Although state void for uncertainty doctrines share some similarity with the federal vagueness doctrine, they are far more demanding as applied to criminal punishment. By urging revival of …

Proportionality V. Categorization: The Issue Of Judicial Balancing Of Rights, Akram Mohamed

Theses and Dissertations

The fact that there is a constant conflict between individual rights and state or social interests has historically provoked the question of how to balance or harmonize such conflicting interests? On what basis shall the legislator or the judge decide in favor of this or that right in his legislation or judgement? Where shall we, for example, draw the line between the right to freedom of expression and the right to protect one’s honor and reputation? How could the legislator find the compromise between the state duty to protect fetus life and its obligation not to interfere with woman’s right …

Equity In Commerce: Too Much And Too Little?, Man Yip

Research Collection Yong Pung How School Of Law

The interaction and clash between equity and commerce have attracted much attention from judges and academics in recent years. Commercial lawyers may complain about equity introducing uncertainty into commercial endeavours and at times, (mis-)applying the ‘moral standards of the vicarage’ to actors in commercial dealings. However, the objections are not directed at all aspects of equity, but are usually addressed to some ‘disfavoured parts of it’, such as the creation of a new obligation or discretionary remedies. On the other hand, from the perspective of equity lawyers, equity’s interplay with commerce may lead to the contractualisation or commercialisation of equitable …

The Ruling Of Cosmetic Injections: A Jurisprudential Study, Ali Suleiman Al Saleh Dr.

UAEU Law Journal

Cosmetic injections are a medical procedure, completely different from surgery, where a long-term change occurs in the body. The materials used in this procedure varies by source, whether a human, animal or mineral, which would require to study the ruling of utilizing them in cosmetic or medication.

The research concluded that the ruling of using cosmetic injections varies by functions in terms of filling in facial wrinkles and organs, causing paralysis in muscles, or feeding and motivating the skin. It also varies according to the materials injected into the body in terms of generating them from human, animal or otherwise. …

Criteria For Considering The Shari’A Need When Applied To A Commercial Insurance Contract: An Applied Jurisprudential Study, Ahmed Al-Shafei Mr

UAEU Law Journal

The research aimed to know the reality of the «Shari’a Need», and how to control and measure it. By proposing a list of criteria used in assessing their existence, consideration or elimination, and to test the criteria, the researcher applied them to a commercial insurance.

In order to achieve the goal of the research; the researcher used the inductive analytical method, by following the rules suggested by the Fuqaha’, which required an analysis of some Fuqaha’ sayings, to build standards.

The research concluded that the «Need» that some Fuqaha’ considered in the permissibility of commercial insurance does not meet these …

Part Ii: Commercial Law Harmonization: The Past As Prologue—A “Festschrift” In Honor Of Neil B. Cohen, Edward J. Janger

Brooklyn Journal of Corporate, Financial & Commercial Law

No abstract provided.

Neil Cohen’S Contribution To Uniform Secured Finance Law, Spyridon V. Bazinas

Brooklyn Journal of Corporate, Financial & Commercial Law

This Article discusses Neil Cohen’s contribution to uniform secured finance law and, in particular, to the UNCITRAL Model Law on Secured Transactions. It does so by focusing on the misgivings Neil Cohen had expressed before, and his reflections on those misgivings after, the preparation of the Model Law. The discussion presents Neil Cohen as is generally known, as a distinguished scholar, but also as he is known to his friends and colleagues, as a person with rare qualities.

Reforming The Law Reform Ecosystem, Timothy Schnabel

Brooklyn Journal of Corporate, Financial & Commercial Law

This Article outlines a series of reforms that would make global law reform efforts more effective and efficient. These efforts currently occur primarily in three multilateral organizations (UNCITRAL, UNIDROIT, and the Hague Conference). The member states of these organizations could easily increase coordination—even to the point of de facto consolidation of the organizations’ work—and could increase the attention given to selecting projects and promoting instruments. Additionally, the U.S. government could organize plurilateral law reform efforts outside these organizations and draw on U.S. domestic law reform efforts to identify new topics for work. Finally, non-government actors could themselves coordinate across the …

Commercial Law Harmonization: The Role Of The United States, Hal Burman

Brooklyn Journal of Corporate, Financial & Commercial Law

The modern field of transnational commercial law harmonization began in the United States in the mid-1960s; the international basis of that began in the mid-1940s. Before that, a limited number of areas of private international law (PIL) had active participation of US interests, such as maritime law. US participation internationally effectively began in the middle 1960s. Developments parallel to commercial law have been significant in the areas of applicable law, jurisdiction, commercial arbitration, family law, and other fields – all important areas of transnational law, but beyond the scope of this symposium. Each of these areas of law, while affecting …

The Next Revolution? Negligence Law For The 21st Century, Allan C. Hutchinson

Articles & Book Chapters

Donoghue’s neighbour is still the defining concept of Canadian tort law. Indeed, the whole history of modern negligence law can be reasonably understood as a concerted judicial effort to adapt and accommodate that principle to changing social, commercial and legal conditions. Now, 90 years later, it is perhaps time to recommend another revolution in negligence law. The Donoghue-inspired doctrine has done sterling work, but it is now weighed down with a bewildering range of conditions, clarifications and complications. When the duty analysis is complemented by other related requirements of causation and remoteness, the law of negligence has become something of …

The Next Revolution? Negligence Law For The 21st Century, Allan C. Hutchinson

Dalhousie Law Journal

Donoghue’s neighbour is still the defining concept of Canadian tort law. Indeed, the whole history of modern negligence law can be reasonably understood as a concerted judicial effort to adapt and accommodate that principle to changing social, commercial and legal conditions. Now, 90 years later, it is perhaps time to recommend another revolution in negligence law. The Donoghue-inspired doctrine has done sterling work, but it is now weighed down with a bewildering range of conditions, clarifications and complications. When the duty analysis is complemented by other related requirements of causation and remoteness, the law of negligence has become something of …

Bureaucratic Overreach And The Role Of The Courts In Protecting Representative Democracy, Katie Cassady

Helm's School of Government Conference - 2021-2024

Although only four departments at the United States’ founding, the American bureaucracy has expanded to address nearly every issue of public life. While these agencies are ostensibly under congressional oversight through monetary allowance and the supervision of the President as part of the executive branch, they consistently usurp their discretionary authority and bypass the Founders’ design of legislative power vested solely in a bicameral legislature.

The Supreme Court holds an indispensable role in mitigating the overreach of bureaucratic agencies. However, despite their obligation to protect the rights of the American people, the courts’ inability to hold bureaucrats accountable has diluted …

Tender And Taint: Money And Complicity In Entanglement Jurisprudence, Amy J. Sepinwall

Notre Dame Law Review

Because liberalism is concerned with individual freedom, it finds that one person is responsible for the conduct of another only under very narrow circumstances. To a large extent, the law reflects this narrow conception of complicity. There is however one glaring exception to the law’s general resistance to complicity claims: where one actor becomes connected to another’s act through a pecuniary contribution, the law’s liberalism falls away. Money forges a cognizable association no matter how tenuous the causal connection and no matter the subsidizer’s attitudes toward the subsidized act. For example, in Burwell v. Hobby Lobby, the Supreme Court recognized …

Vol. 6, Issue 1 Table Of Contents

SAIPAR Case Review

No abstract provided.

Contingency And Contestation In Christianity And Liberalism, Michael P. Moreland

Notre Dame Law Review

What is the relationship of Christianity to liberalism? Answers include: Liberalism is a product of the moral legacy of Christianity, such as the dignity of individual human persons, equality, rights, perhaps even some forms of democratic institutionalism. Or liberalism is a hostile reaction against Christianity by way of an autonomous individualism set against divinely ordained creatureliness and dependence, democracy against authority, egalitarianism against hierarchy. Or liberalism is in a modus vivendi relationship with Christianity and vice versa. Or perhaps there is something true about each of these answers.

Critiques of liberalism in law and politics come in waves. The liberal-communitarian …

Liberalism And Orthodoxy: A Search For Mutual Apprehension, Brandon Paradise, Fr. Sergey Trostyanskiy

Notre Dame Law Review

This Article seeks to evaluate and contextualize recently intensifying Christian critiques of liberalism’s intellectual and moral claims. Much of this recent critique has been from Catholic and Protestant quarters. Christianity’s third major branch—Orthodox Christianity—has not played a prominent role in current critiques of liberalism. This Article seeks to help fill this void in the literature. In helping to fill this void, it contributes to understanding how liberalism fits with one of the world’s most ancient Christian traditions.

The Article begins by disambiguating the terms Orthodoxy and liberalism. After identifying each body of thought’s foundational commitments, it notes that Orthodoxy endorses …

Close Enough To Stand?: Reconsidering The Fair Debt Collection Practices Act's Relationship With The Right To Privacy, Ryan Karerat

Fordham Law Review

With the passage of the Fair Debt Collection Practices Act (FDCPA) in 1977, Congress created a private right of action through which consumers could sue debt collectors for overzealous and improper conduct traceable to their debt collection efforts. FDCPA violations can abridge a consumer’s rights under the statute without producing tangible economic or physical injury. As a result, many plaintiffs bringing claims under the FDCPA plead different theories of intangible harm to establish the required injury in fact conferring Article III standing to file suit in federal court. To establish that they have suffered an injury in fact, a plaintiff …

Coase’S Parable, F.E. Guerra-Pujol

Mercer Law Review

Some stories have heroes and villains. Others involve a voyage, a quest, or a monster to be defeated. The law is no exception. Most legal stories are about identifying wrongdoers and vindicating the rights of victims, and this standard victim-wrongdoer model not only informs recent developments in legal scholarship, such as feminist jurisprudence or critical race theory; it also informs our classical liberal tradition.5 But what if harms are reciprocal or jointly caused? In other words, what if victims are just as responsible as wrongdoers for their plight?