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This paper examines the typographic form of Plowden's Commentaries within its legal, printing, and technological histories, demonstrating that its typographic appearance embeds complex tensions over the study and dissemination of the common law into its material form. There are legally relevant meanings in the shape of letters, beyond mere legibility, that are connected with the heritage of type design and print technologies. Within the context of debates over the propriety of early common law printing, this paper provides an examination of Plowden's typographic style as roman and humanist. Tracing the genealogy of roman and humanist letters that led to the ones used in Plowden's opening judgment, the typography of the Commentaries is connected to debates over the resistance of the common law (as an unwritten law) to humanism and Roman-style codification. Plowden's typographic register is thereby seen to encode the Latinate traditions to which the structure and custom of the English common law is opposed. [ABSTRACT FROM AUTHOR]

Habermas' theory of popular sovereignty has received comparatively little sustained critical attention in the Anglo-American literature since initial responses to Between Facts and Norms. In light of subsequent work on group agency, this paper argues that Habermas' reconstruction of popular sovereignty—in its denial of the normative force of collective citizen action—is best understood as a renunciation of the doctrine. The paper is structured in three sections. Section 1 examines Habermas' treatment of popular sovereignty prior to Between Facts and Norms as both (i) a principle of constitutional legitimacy or normative justification for the modern Rechtsstaat and (ii) a concept of legitimation for the rule of the ascendant liberal bourgeoisie. Section 2 then argues that Habermas' reconstruction of popular sovereignty in Between Facts and Norms, by discounting the role of collective citizen agency in the justification of the modern constitutional state, empties the doctrine of its core normative content. The final section briefly elaborates on this claim by reference to Habermas' theory of the public sphere. [ABSTRACT FROM AUTHOR]

In South Africa, freedom of testation has been an enjoyed practice since ancient times. It gave testators comfort in knowing that when they departed, their legacies and property would be looked after by those they had chosen to survive their estates. Before the advent of the Constitution, testators used to abuse this freedom. There existed a tendency to exercise this freedom without limitations. However, the Constitutional epoch brought about changes in the manner the testators exercised their freedom of testation. Amongst other things, was the limitation to freedom of testation. Legislation and Common Law also contributed to restricting or limiting this freedom. Against this backdrop, this article investigates the impact of the Constitution on freedom of testation in South Africa under the current constitutional dispensation. The paper is predicated on the assumption that freedom of testation gave testators leeway to promote discrimination and unfairness. Therefore, this paper will show that freedom of testation has evolved and is no longer absolute in South Africa, with the Courts playing an important role in the process. [ABSTRACT FROM AUTHOR]

This paper aims to determine the legal position of laws that use the omnibus method in the system of laws and regulations in Indonesia. The focus of the research focused on the legal position of laws using the omnibus method in terms of the provisions of Article 97A of the Law on the Establishment of Laws and Regulations. Using the normative juridical method through literature study, this paper concludes that with the characteristics of laws that use the omnibus method based on the regulations in Article 97A of the Law on the Establishment of Laws and Regulations, these provisions result in inconsistencies in norms with the provisions of the hierarchy of laws and regulations regulated by Article 7 paragraph (1) and paragraph (2), provision number 223 Annex II Law on the Establishment of Laws and Regulations, as well as deviating the principle of legal preverence, namely the principle of lex posterior derogate legi priori. The vagueness and inconsistency in the formulation of Article 97A norms results in legal uncertainty, thus contradicting the guarantee of legal certainty as mandated by Article 28D paragraph (1) of the NRI Constitution of 1945. [ABSTRACT FROM AUTHOR]

This is my third paper on the Restatement (Third) of Torts. In my first paper, The Theory of Tort Doctrine and the Restatement (Third) of Torts, I offered a positive economic theory of the tort doctrine that had been presented in the Restatement (Third) of Torts: General Principles, and also an optimistic vision of how positive theoretical analysis could be integrated with the Restatement project. In my second paper, The Economics of the Restatement and of the Common Law, I set out the utilitarian-economic theory of how the common law litigation process could generate optimal (efficient, wealth-maximizing) rules and compared that process to the process by which the Restatement identifies and articulates rules. In this paper, I am looking back and assessing the connection between positive tort theory and the Restatement. My general argument is that positive tort theory has been successful in explaining the grounds for the common law of torts, and at the same time it remains an underutilized and underexploited resource for the Restatement project. [ABSTRACT FROM AUTHOR]

In criminal litigation, evidence plays a very significant role in ensuring that justice is delivered. Nevertheless, justice cannot be achieved without the correct application of standard of proof. Failure to apply the correct standard of proof could result in miscarriage of justice. This paper examines the concept of standard of proof from the Islamic and common law perspectives. It also analyses the similarities and differences in the application of standard of proof under both legal systems. This study is a doctrinal research and utilises qualitative methods. The primary and secondary data are gathered using the documentation method obtained from library, legal statutes and reported cases. The gathered data are then further analysed using content analysis method. Findings of this study show that there are similarities and differences in the concept of standard of proof in criminal cases under both legal systems. In spite of the similarities, several applications under the common law should not be referred or utilised in litigating Syariah criminal cases. This paper suggests that the standard of proof under Islamic law is to be harmonised with the common law in the prosecution of criminal cases in the Syariah courts. The research conducted contributes towards the knowledge in distinguishing between the Islamic and common law principles particularly for countries that practise Islamic criminal law. [ABSTRACT FROM AUTHOR]

Purpose: The purpose of this paper is to determine whether there is any fundamental difference in the meaning of contract in these two legal systems by analysing some of the essential principles of contract particularly parties' agreement and consideration. Design/methodology/approach: This paper seeks to investigate the degree of equivalency of the term contract and its Islamic law counterpart "Aqd". To implement this task, it applies some comparative law techniques to examine certain contractual elements under common law and Islamic law. Findings: The argument that "contract" and "Aqd" are not equivalent is superficial, and it is not well-supported by concrete evidence. The examples used to build this argument are merely limited exceptions to the general principles of contract, and some of them even exist under both legal systems in a similar manner such as "deed" and "Hibah". Practical implications: The paper is of interest to legal practitioners and professionals working in cross-cultural or international contexts, as understanding points of conformity and disconformity between "contract" and "Aqd" can help in multiple ways. These may include negotiating international transactions, contract drafting and dispute-resolution processes involving parties from Western and Islamic law-based jurisdictions. It may also aid policymaking and lawmaking processes aiming to harmonize contract principles across different jurisdictions. Social implications: The research paper is important for public attitude, as understanding similarities and differences between "contract" and "Aqd" fosters mutual respect, tolerance and cooperation between individuals and communities adhering to different legal systems. Originality/value: There is a common belief that the term "contract" substantially differs from "Aqd", and it is by no means safe to presume that every "Aqd" qualifies as a contract. The current research introduces a new point view on the degree of conceptual equivalency of the two terms by showing resemblances in aspects relating to some contractual elements which have always been viewed as an area of divergence rather than convergence. [ABSTRACT FROM AUTHOR]

Purpose: The lack of legal framework on corporate criminal liability (CCL) in Mauritius is a matter of concern with the growing number of corporate crimes. The purpose of the paper is therefore to provide a critical overview of the existing framework on CCL in Mauritius with the aim of underlining its deficiencies and lacunas. As a consequence, an attempt is made to compare the Mauritian model with the French one, so that salient features and characteristics of the French model of CCL can be borrowed into the Mauritian legal framework. Design/methodology/approach: This paper adopts the black-letter approach and the comparative research methodology. The legislative framework of Mauritius on CCL will be compared to the related laws of France with the goal of drawing lessons and inspirations for Mauritius, given that the French model of CCL is well established and highly effective. Findings: The mandatory application of the identification principle in CCL, inspired from the British common law, is a serious impediment towards successful criminal prosecution of companies responsible for criminal offences. In addition, the lack of clear legal provisions on substantive and procedural aspects of CCL is a matter of concern and demonstrates the dire need for legal amendments and action from the legislator as the paper discusses. Originality/value: To the best of the author's knowledge, this paper will be among the very first one tackling this area of law from a comparative perspective. The issue of CCL has indeed receive very little academic attention and this paper will help in filling the literature gap on this matter. It will also help future research on the matter for students, academics and corporate law practitioners. [ABSTRACT FROM AUTHOR]

This paper aims to carry out empirical analysis of the viability of large language models (LLMs), specifically ChatGPT, in simulating the common law system and facilitating its evolutionary processes. Drawing on the Theory of Rules Evolution, it is understood that common law generates efficient rules by natural selection through constant litigation. Nonetheless, this evolutionary mechanism faces several hindrances. The process of change is typically slow and incremental. Courts often have to wait for a case that's deemed 'appropriate' before they can change the law, leading to extended delays. Additionally, courts frequently struggle to make efficient decisions due to limited information. Other factors that decelerate the creation of efficient rules include judicial bias, unequal distribution of resources among litigating parties, and the diminishing presence of a competitive legal order. This study first assesses ChatGPT's capability to embrace the essence of the common law system, namely the doctrine of stare decisis. We then assess its potential to overcome the hindrances in common law development and promote efficient rules. Through a series of meticulously designed hypothetical cases set in a virtual jurisdiction called the "Matrix Kingdom," we observed that ChatGPT mimic the functions of a common law court by citing, following, and distinguishing its own precedents, but it accomplishes this with significantly fewer resources and in less time. This implies that humans can introduce hypothetical legal situations, enabling LLMs to replicate the natural selection process observed in the common law system but with a significantly accelerated pace. Given that LLMs are trained with diverse information sources, not just the factual contexts of cases, they could potentially lower the informational constraints in decision-making. As such, LLMs might significantly contribute to the evolutionary processes of common law development. However, it is important to remain cautious of certain limitations, such as the potential for AI Hallucination and inherent biases in LLMs, which require careful consideration and management. [ABSTRACT FROM AUTHOR]

The Indian Evidence Act 1872 was a significant component of the legal codification project of colonial India. It aimed to consolidate scattered common law rules of evidence into an organized and workable code. Sir James Fitzjames Stephen, its principal draftsman, attempted to design a statute that would not only reorganize evidence law into cogent provisions but also improve its most confusing aspects, such as the fact-evidence distinction, hearsay, and relevance. Stephen did this by introducing conceptual categories and amending existing rules. In this paper, I show how the design of the Act aimed to achieve substantive reform of evidence law. I argue that judicial interpretation and academic scholarship have misconstrued the Act's principles and structure, undermining its intended improvements on common law rules. Consequently, the legal confusions it had sought to resolve have continued to persist in evidence law. [ABSTRACT FROM AUTHOR]

South African land question have not been addressed by a current democratic government well known as a progressive government which come into power in 1994. This has resulted of having many challenges regarding land occupation and land use in South Africa. Especial on farm owner and farm-dweller's occupation rights. These tensions have caused an eviction of farm-dwellers by white farm-owners in South Africa. It has been well documented that eviction of farm-dwellers in many rural countryside is still taking place either illegally or legalized by rural magistrates using a common law. This paper will illustrate aftermath of eviction by tracing those who were being evicted between 1985 and1995 on what happened to them, where did they relocate after eviction and new livelihoods after eviction. Those were third to fourth generation after the promulgation of the 1913 Land Act. Again, it will also outlined challenges that have faced by farm-dwellers after eviction, new livelihoods after were being evicted, role of a land refrom program in assisting those farm-dwellers that were being evicted and why most of farm-dwellers after eviction still prefer to live in a farming area rather than communal areas or former homeland areas. [ABSTRACT FROM AUTHOR]

A trilogy of landmark Singapore Court of Appeal decisions has defined the landscape of constitutional equal protection doctrine in Singapore: Lim Meng Suang, Syed Suhail and Tan Seng Kee. While this trio of cases has laid the doctrinal foundation for the constitutional right to equality in Singapore, three loose ends remain for clarification. First, what is the relationship between the legal tests articulated in Syed Suhail and Lim Meng Suang? Second, what is the relationship between both steps in the Syed Suhail test? Third, what is the distinction between the Syed Suhail test and the common law judicial review ground of irrationality? This paper will seek to study how these loose ends may be best tied up through a close analysis of the decisions which the Singapore courts have handed down since the landmark trilogy was decided. [ABSTRACT FROM AUTHOR]

Despite being the ultimate rule in the free market, the freedom of contract is fading away against the aim to protect the weaker party in contract law. The weaker party's socioeconomic interest can be breached in a specific way that would be summarized as the exploitation of religious beliefs. This type of exploitation is usually seen across Turkish society, but there is almost no jurisprudence concerning this subject. The paper evaluates potential legal solutions from the Turkish Code of Obligations (TCO). Theoretical views are compared to achieve an adequate way of compensation against the stronger party for the weaker party whose pecuniary damages occurred because of the contract that the latter signed with religious thoughts and inexplicable generosity for the former. Common law's undue influence and civil law's sandpile theory can suggest founded solutions against religious exploitation in the contract. Still, TCO art. 27 can give a suitable cause for the illegality: the contrariety to economic public order. This notion can prevent copied future contracts against the same group of weaker parties when the pioneer illegal contract is invalidated, and the exploiter must compensate the pecuniary damages of the counterparty. [ABSTRACT FROM AUTHOR]

The impact of an exclusive jurisdiction clause on a winding‐up petition is settled in the English and Singaporean common law jurisdictions. In Hong Kong, the matter has recently been decided in the case of Re Guy Kwok Hung Lam (2023) 26 HKCFAR 119. Nonetheless, a similar issue has been brought up again in the cases of Re Simplicity & Vogue Retailing (HK) Co Ltd [2023] HKCFI 1443 (HCCW 457/2022, 30 May 2023) (per Linda Chan J) and Re Shandong Chenming Paper Holdings Ltd [2023] HKCFI 2731 (HCCW 175/2017, 25 October 2023) (per Harris J). The different approaches adopted in the two cases have sparked on the correct appraoch to be adopted. This article briefly introduces the different appraoches and suggest that the correct approach is to stay a winding‐up petition in favour of an arbitration proceeedings launched purusant to an arbitration agreement. [ABSTRACT FROM AUTHOR]

Section 75 of the Criminal Justice Act (CJA) of 2003 overturned the principle in English law that a person cannot be retried for an offense of which he has been acquitted, recognizing advances in forensic science that uses modern analysis of DNA in adducing in evidence. The special plea of autrefois acquit can be overturned based on finding of compelling evidence after a previous acquittal of a suspect who can now be tried again for the same offense. The double jeopardy arises only after a lawful acquittal or autrefois convict of the accused for the first offense and these principles have allowed exceptions to the rule against double jeopardy developed by the courts. There is an analogous rule in common law courts based on the unreasonable splitting of the case when there is a severing of indictments which overrides the bar on the accused being retried for the same offense. This paper examines the difficulty of trying a defendant fairly in the English courts when the defense has pleaded an abuse of process and there is no clear overall argument for trial. This question needs an appraisal of legal ethics in criminal courts because a retrial of the accused on the same charge breaches the autrefois acquit doctrine, and severing of an indictment can cause the fair trial process to be undermined. [ABSTRACT FROM AUTHOR]

In criminal litigation, evidence plays a very significant role in ensuring that justice is delivered. Nevertheless, justice cannot be achieved without the correct application of standard of proof. Failure to apply the correct standard of proof could result in miscarriage of justice. This paper examines the concept of standard of proof from the Islamic and common law perspectives. It also analyses the similarities and differences in the application of standard of proof under both legal systems. This study is a doctrinal research and utilises qualitative methods. The primary and secondary data are gathered using the documentation method obtained from library, legal statutes and reported cases. The gathered data are then further analysed using content analysis method. Findings of this study show that there are similarities and differences in the concept of standard of proof in criminal cases under both legal systems. In spite of the similarities, several applications under the common law should not be referred or utilised in litigating Syariah criminal cases. This paper suggests that the standard of proof under Islamic law is to be harmonised with the common law in the prosecution of criminal cases in the Syariah courts. The research conducted contributes towards the knowledge in distinguishing between the Islamic and common law principles particularly for countries that practise Islamic criminal law.

Expert testimony is only admissible in common-law systems if it will potentially assist the trier of fact. In order for a forensic-voice-comparison expert's testimony to assist a trier of fact, the expert's forensic voice comparison should be more accurate than the trier of fact's speaker identification. "Speaker identification in courtroom contexts – Part I" addressed the question of whether speaker identification by an individual lay listener (such as a judge) would be more or less accurate than the output of a forensic-voice-comparison system that is based on state-of-the-art automatic-speaker-recognition technology. The present paper addresses the question of whether speaker identification by a group of collaborating lay listeners (such as a jury) would be more or less accurate than the output of such a forensic-voice-comparison system. As members of collaborating groups, participants listen to pairs of recordings reflecting the conditions of the questioned- and known-speaker recordings in an actual case, confer, and make a probabilistic consensus judgement on each pair of recordings. The present paper also compares group-consensus responses with "wisdom of the crowd" which uses the average of the responses from multiple independent individual listeners. • Forensic voice comparison based on automatic-speaker-recognition technology. • Speaker identification by groups of collaborating lay listeners. • "Wisdom of the crowd" from independent individual-listener responses. • The forensic-voice-comparison system outperformed most groups of listeners. [ABSTRACT FROM AUTHOR]

Indigenous-derived boundaries have been existent since time immemorial in Australia. The landmark Mabo decision recognised the continued existence of Indigenous customary title under the common law and the Commonwealth Native Title Act 1993 (NTA) codified the processes for recognition and extinguishment. After thirty years of ongoing recognition, Australia is moving into the implementation and leveraging phases of legislative Native Title. This paper considers how the boundaries of these interests can be unambiguously identified on the ground if required. To do this we first discuss Indigenous customary title itself, how boundaries were understood in pre-European Australia and the nature of evidence relied on by the Federal Court to make Native Title determinations. By examining all litigated Native Title determinations made under the NTA we analyse the decisions in light of the well-established common law boundary determination principles. Similarities are drawn between the hierarchy of evidence used to reinstate typical cadastral and Native Title boundaries. From this, an elementary framework was constructed to allow a surveyor to better understand the Court's decision-making. We conclude that it is too early to be definitive as to how the courts will resolve Native Title boundary disputes, if they ever eventuate, but there is sufficient evidence to make preliminary evaluations of the relative merit of Native Title boundary evidence. ● Native Title interests need to be unambiguously definable on the ground. ● Native Title boundaries are different in nature to conventional boundaries. ● Traditional evidence hierarchies are not valid for Native Title boundaries. ● Ambiguity in determination boundary descriptions need their own agreed resolution framework. ● Litigated Native Title determinations are the only source in determining the framework. [ABSTRACT FROM AUTHOR]

In 1983, South Dakota's Legislature confirmed that the Rule Against Perpetuities ("RAP") was neutralized: "The common-law rule against perpetuities is not in force in this state. The legislative pronouncement, essentially unnoticed at the time, proved to be theseed from which thestate's trustindustry grew. This article, the second of two installments, continues the life history of RAP in South Dakota. The first installment surveyed common law RAP and its obscure, labyrinthine, counter-intuitive mechanics. Thisinstallment picks up with a survey of pre-1983 caselaw and uncovers an interesting nugget-it appears that South Dakota never recognized RAP in the first place. South Dakota, it is contended here, has never subjected its citizens to the Rule Against Perpetuities, as an analysis of the state's decisional law largely confirms. Following the caselaw survey, the (arguably superfluous) legislative repeal is retold. The article concludes with a brief narrative of the success story of South Dakota trust companies in the years following 1983 and concludes with three appendices, one containing sample form provisions for the statutory dead hand restrictions that South Dakota retainstwin statutory rules addressing unreasonable and absolute restraints on alienation. [ABSTRACT FROM AUTHOR]

The doctrinal project of delineating the supervisory jurisdiction of the common law courts and the scholarly project of elucidating the public law–private law divide have had a long and close relationship. The Supreme Court of Canada strengthened this relationship in Highwood Congregation of Jehovah's Witnesses (Judicial Committee) v Wall, establishing a bright-line test for the availability of judicial review that takes a presumed state/non-state dichotomy as its organizing principle. In this article, I build on existing critiques of the decision, describing how Wall's categorical paradigm has reduced the judicial oversight of powerful decision makers that have historically been subject to standards of fairness and rationality. However, I also use Wall to raise a more fundamental question, which is whether the public law–private law divide continues to provide the best vocabulary and framework for determining judicial review's boundaries. I explore legal pluralism, a project that has developed in parallel with the public law–private law scholarship and consider whether it might provide a superior framework for understanding the challenges to practices of normative decision making that lie at the heart of cases like Wall. I argue that legal pluralism is more phenomenologically correspondent than the public law–private law divide with cases involving norm-generating communities and more coherent with the values that the common law supervisory jurisdiction should be seeking to promote. [ABSTRACT FROM AUTHOR]

Sovereign immunity statutes set the boundaries of liability for tortious conduct by state government actors. Legislatures can shield state entities and agents from liability for a wide range of tortious conduct. They can even--as some states have--waive immunity to the extent of liability insurance coverage. These restrictive statutory immunity schemes can facilitate discretion and prevent the overdeterrence of helpful conduct. But by preventing state courts from hearing certain claims of tortious conduct, such schemes effectively leave injured plaintiffs in the lurch and future misconduct undeterred. This Note argues that legislatures should allow courts more leeway to set the standard of care for state government tortfeasors. Stripping courts of their capacity to adjudicate cases of garden-variety misconduct by government actors is misguided. By applying the "public duty doctrine"--a default rule that the government owes no general duty of care in tort to the public at large--courts can negotiate the interests that animate restrictive sovereign immunity statutes. This court-centered approach would fill gaps in civil damages liability under federal constitutional law that otherwise leave government negligence unremedied and undeterred. Moreover, it would let courts adapt the common law to define the scope of the government's duties to the public. [ABSTRACT FROM AUTHOR]

This study compares countries with common law with countries with civil law systems and investigates the possibility of predicting legal systems using artificial neural networks (ANNs). The OLS model, ANOVA, ANN, and Tensor Flow are used in the research to analyze the data. The goal is to find out how board characteristics and country legislative frameworks affect how European corporations disclose their social performance. The performance of a hidden layer with five nodes is best, according to the ANN model. The model's accuracy throughout testing and validation is 0.750. The confusion matrix shows that, of the four observations in the test set, three were correctly categorized as "Civil law" and one was incorrectly categorized as "Common law." To evaluate the model's efficacy, evaluation metrics are computed. The model's accuracy is 0.750, which represents a prediction success rate of 75%. For the "Civil law" class, the recall (true positive rate) is 1.0, indicating that all "Civil law" cases are correctly identified. Metrics for the "Common law" class, however, are not available due to the scant amount of data that is available. The prevalence of countries with common law and civil law systems is compared in the ANOVA analysis. As shown by the computed F-value of 0.482, there is less variance inside each legal system than there is between the two. There is no statistically significant difference in frequency between the two legal systems, according to the p-value of 0.495. Overall, the research's conclusions imply that social performance disclosure between countries with common law and civil law systems differs only slightly. The neural network model's network weights provide insight into the importance of different features in prediction. [ABSTRACT FROM AUTHOR]

The concept of legal gap is tackled from a number of logical perspectives and semantic methods. After presenting our own goal (Section 1), a first introduction into legal logic refers to Bobbio's works and his formalization of legal statements (Sections 2 and 3). Then Woleński's contribution to the area is taken into account through his reference to the distinction between two juridical systems (viz. Common Law vs Civil Law) and the notion of conditional norms (Section 4). The notion of reason is also highlighted in the case of Raz's legal logic, thereby leading to a future connection with von Wright's logic of truth and an analogy made with an anti-realist reading of truth-values and norms (Section 5). Our personal contribution is introduced through a reflection on how logic should deal with the logical form of norms (Section 6), before entering a number of crucial definitions and distinctions for the concepts of norm, legal statement, and promulgation (Section 7). The final point is a proposed semantics for legal statements, which is both many-valued and gap-friendly (Section 8). A distinction between a number of requirements for permission and forbiddance leads to a set of non-classical juridical systems in which non-permission and forbiddance are not equivalent with each other any more; this does justice to Woleński's former distinction between Common Law and Civil Law, also leading ultimately to a non-classical square of legal oppositions in which several legal operators may collapse into other ones (Section 9). [ABSTRACT FROM AUTHOR]

There are different types of equitable estoppel under English law including promissory estoppel, estoppel by convention and proprietary estoppel. In this article the various types of estoppel under English law are considered and the doctrine of proprietary estoppel in the context of the creation of a trust is discussed. The English doctrine of equitable estoppel is compared to the principle of promissory estoppel in United States law, including the superimposition of the Statute of Frauds. Its protection of the principle of equitable estoppel has extended to the mixed jurisdiction of Louisiana which has adopted the civil law remedies which are equivalent and lead to similar outcomes. [ABSTRACT FROM AUTHOR]

The article discusses issues beyond the concept of the U.S. Constitution as a living entity and as a product of common law. Also cited are some cases decided by the Supreme Court on textualism and the rights of citizens beyond constitutional provisions like Brown v. Board of Education, Lawrence v. Texas, and Loving v. Virginia, and the views of Professor David Strauss on the Constitution as a living constitution.

The COVID-19 pandemic and subsequent economic restrictions have placed many contractual parties under great strain to honour their agreements as contracts have become commercially impracticable and excessively onerous. This article explores the legal position in England, France and the Middle East under the doctrine of impossibility, impracticability and unforeseen circumstances. Strongly rooted in contractual autonomy and commercial certainty, this article argues that frustration in English common law is not sufficiently broad because the consequence (automatic discharge) is too rigid and does not allow a renegotiation of obligations. French civil law is more accommodating but only formally adopted imprévision in civil law in 2016, meaning it lacks traction. However, Middle Eastern civil law countries accept the doctrine as an integral part of their law and theory of justice, allowing obligations to be rebalanced in a more flexible manner. The English legal system should consider the advantages of a similar reform. [ABSTRACT FROM AUTHOR]

The article focuses on the intersection of tribal constitutional law and traditional tribal law principles regarding tribal customary rights. Topics include the balance between responsible governance and protecting fundamental rights within tribal communities, how tribal courts interpret and apply these principles, and recommendations for enhancing tribal sovereignty through the integration of customary law into governance practices.

In every American jurisdiction, accomplice liability is "derivative" in the sense that the accomplice is punished not for her own acts of aiding or abetting but for the acts of the principal whom she aids or abets. The derivative character of accomplice liability has created problems in cases where the principal and the accomplice have different affirmative defenses or mental states, as well as cases where the principal's conduct is causally efficacious but the accomplice's is not. American law has partially corrected for these problems by walking back the extent to which accomplice liability is derivative. Although at common law the accessory's liability was wholly derivative of the principal's, now many jurisdictions judge the accomplice by her own affirmative defenses and mens rea. But no jurisdiction has taken the final step of eliminating derivative liability for accomplices altogether and judging the accomplice by her own actus reus. This Article urges the law to complete this process of doctrinal evolution by abolishing derivative liability for accomplices. In some cases, judging the accomplice by her own actus reus and mens rea would not change the outcome because the accomplice's actus reus and mens rea constitute the same type of crime as the principal's. In the remaining cases, judging the accomplice by her own actus reus and mens rea would change the outcome for the better. [ABSTRACT FROM AUTHOR]

Hong Kong presents a test case of China's willingness to adapt Western liberal values of individual freedom and the rule of law in a corner of China. The Western model of governance, along with its common law system and capitalist economic system, has been permitted to operate side by side with the Chinese socialist system within the framework of Chinese sovereignty and the People's Republic of China's (PRC) political and legal system. The formation and implementation of the policy of 'one country, two systems' (OCTS) entail Chinese law-makers' selective integration of international and Western rules of governance into the Hong Kong and China context to serve the interests of the PRC party regime. This article explores the approaches taken by the PRC to the governance of Hong Kong in light of the regime's political and economic goals and how the Western concept of rule of law and autonomy is perceived and substantiated in terms of the communist ideology. The author argues that the intrinsic value of OCTS lies in seeking complementarity and coexistence between the Western liberal norms of governance and Chinese communist ideology, and that this intrinsic value should be upheld and remain in full force to serve as a normative consensus between China and the West. [ABSTRACT FROM AUTHOR]

The U.S. antitrust order is undergoing a radical challenge along three key dimensions. First, the challengers seek to denaturalize markets and replace a commitment to competition with an anti-domination norm. Second, the challengers seek to dramatically alter institutional arrangements, with Congressional legislation and agency rulemaking replacing antitrust's longstanding commitment to judicial common law incrementalism. Finally, the challengers would replace the antitrust order's preferred juridical approach--open-ended rule of reason analysis--with a return to bright-line prohibitory rules and a related demotion of economists as decision-makers. Each of these challenges entails significant consequences, many of them unintended, counter-productive, or perverse. Contrary to the broad consensus that antitrust should be apolitical, a shift to an anti-domination norm would require antitrust analysis to become more explicitly political, considering the relative deserts of different classes of stakeholders. It also threatens the antitrust agencies' objectivity and independence by requiring them to coordinate policy decisions with other bodies. The bid to curtail judicial supremacy might work if Congress passed significant new legislation, but, failing that, the challengers' strategy of suing and then refusing to settle in order to reform the law is putting judges ever more firmly in charge of antitrust norms. Similarly, an aggressive rulemaking strategy may backfire and further entrench the influence of judges. Finally, a push for rules of per se illegality may push courts to the opposite extreme--creating new rules of per se legality. Paradoxically, although antitrust reformers often cite Europe as a model of more aggressive antitrust enforcement, a return to formal per se rules and a demotion of economic analysis would move the United States in the opposite direction from trends in Europe. [ABSTRACT FROM AUTHOR]

In 2017, the institutional structure of the Supreme Court of Cameroon was amended to include a Common Law Division (CLD). That was done partly to address a violent conflict that originated from wider discriminatory practices against the English-speaking minorities, the unsatisfactory application of the common law, and longstanding difficulties experienced by common law lawyers in accessing that court. This article applies conflict transformation theory to investigate the transformative potentials of the CLD, through a qualitative exploration of its organization and functioning and the common law lawyers' perception and experience of the CLD. It finds that participants were generally receptive to the CLD, despite cautious optimism in the extent to which it could effectively represent and develop the common law, due to some limitations imposed by application of the 2006 Supreme Court Law. Consistent with conflict transformation theory, the findings highlight the need for the continuity of the transformation process to further refine the CLD. The findings have broader implications for the agency of courts in conflict transformation in postcolonial divided societies. [ABSTRACT FROM AUTHOR]

Recently, scholars have uncovered many ways in which our traditional understandings of the U.S. Constitution have failed to grapple with American empire and colonialism. This work has shown that the nation's history of mistreating Indigenous peoples is constitutive of its legal order. In this Article, I provide evidence of a similar kind of imperialistic effect in the realm of statutory interpretation. To the extent there is a conventional understanding about statutory interpretation, it does not attach special significance to the demands of empire. But much like American constitutional design, statutory interpretation has not been neutral with respect to imperial expansion and colonization. To illustrate this dynamic, I reconstruct a contentious debate over the laws of adoption and inheritance in nineteenth century Hawai'i. Judges construed these statutes with the stated aim of imposing civilization on Hawaiians, challenging settled assumptions about the relationship between common law and legislation in America. Empire thus implicated not only an imposed statutory regime, but also interpretive presumptions against relying on Hawaiian customs and practices. In relying on this civilization canon, judges articulated Hawaiians as racialized legal subjects who had to be transformed before courts would presume that the legislature intended to preserve their worldviews and cultural practices in law. [ABSTRACT FROM AUTHOR]

This article attempts to counter the widespread skepticism that surrounds any appeal to natural law principles, starting with Roman law at one end and the appeal to general law under Swift v. Tyson on the other. It steers a systematic middle course between moral absolutism, which treats all relationships as fixed and immutable, and modern realist positions that insist the infinite variety of legal approaches to most legal problems proves that there is no solid core to either natural law or general law. The natural law positions set out the basic relationships for marriage and family, for alluvion and avulsion of rivers and streams, for the formation of agreements, and for the transfer of various forms of property under the private law. But at that point, these rules may be modified as needed to create strong Pareto improvements by the introduction of various formalities that improve the security of transactions or, more substantively, which overcome key holdout issues that can arise, for example in the upper airspace on the one side or with caves on the other. These principles can carry over to public law as well. Systems of taxation have to be structured (with flat taxes) as the best way to avoid theft from one group to another, and also for eminent domain powers when the public must be compensated, unless under the police power they are designed to prevent wrongful conduct from the party regulated, as under the common law of nuisance, which is not subject to infinite variation. Similarly on procedural matters, the two Roman principles of "hear the other side" (audi alterem partem) in cases before a neutral judge and "no one shall be a judge in his own cause" (nemo judex in causa sua) have to apply universally whereas other fact finding devices, for example juries, are subject to wider variations. These principles were tested in the Insular Cases where this norm held in check any American impulse to dictate legal practices and norms to conquered groups. This rule that explains why the Supreme Court was correct in refusing to hear the case intended to compel American Samoa to force federal citizenship on indigenous peoples who refused to have it. These basic natural law principles, most notably the rule that no one should profit from his own wrong explains, contrary to today's understandings, why the common principle of birthright citizenship applies only to the offspring of legal aliens, but not illegal ones. In dealing with the transition between Swift and Erie Railroad v. Tompkins, the key insight is that Swift was correct insofar as it used a set of general (i.e., neutral) principles to decide disputes that took place across state lines, but not for those that took place solely within a given state. Thus, using general principles for negotiable instruments and boundary disputes eliminates local favoritism and gravitates to the best of common practices. But there is no reason to use these common principles for complex private disputes (rules for mortgages or local antitrust laws) where the general law (as expanded before Erie) often slights local interests, such that the key decision in Clearfield Trust v. United States reestablishing general common law for negotiable interests and Hinderlider v. La Plata River & Cherry Creek Ditch Co. with respect to boundary disputes, pushed the law back in its correct direction. It is only by patiently working through all of these ancient and modern, private and public law cases, the conceptual unity of our basic legal system can be defended. [ABSTRACT FROM AUTHOR]