Common law

About: Common law is a research topic. Over the lifetime, 30135 publications have been published within this topic receiving 280701 citations. The topic is also known as: judicial precedent & judge-made law.

AAPL Practice Guideline for the Forensic Psychiatric Evaluation of Competence to Stand Trial

Abstract: Competence to stand trial is a legal construct used to identify those criminal defendants who have the requisite mental capacity to understand the nature and objective of the proceedings against them and to participate rationally in preparing their defense. This Practice Guideline has described how psychiatrists should evaluate individuals concerning their competence to stand trial. The Guideline describes acceptable forensic psychiatric practice for such evaluations. Where possible, it specifies standards of practice and principles of ethics and also emphasizes the importance of analyzing an individual defendant's case in the context of statutes and case law applicable in the jurisdiction where the evaluation takes place. The recommendations in the Guideline both reflect and are limited by evolving case law, statutory requirements, legal publications, and the current state of psychiatric knowledge. The authors have taken note of nationally applicable case law, federal constitutional standards, statutory language, and federal and state interpretations of the rights or statutes, recognizing that jurisdictions may differ in their specific interpretation or application of statutes or general constitutional standards. The review of cases concerning specific psychiatric diagnoses illustrates general U.S. trends, and psychiatrists must remain cognizant of their jurisdictions' interpretations of statutes or constitutional requirements. By surveying a variety of practices and approaches to data gathering and case analysis, the authors believe that this Guideline will stimulate additional collegial discussion about what is necessary and sufficient for adequate evaluations of adjudicative competence. The notion that psychiatrists should apply expertise to competence assessments stems from the principal that, before allowing a defendant to face criminal prosecution and possible punishment, courts need reasonable assurance--based, if necessary, on a careful, individualized evaluation--that the defendant has adequate mental capacity to make a defense. At a minimum, a psychiatrist's opinion about adjudicative competence should reflect an understanding of the jurisdictional standard and of how the defendant's mental condition affects competence as defined with the jurisdiction. The psychiatrist's report should clearly describe the opinion and the reasoning that leads to it. Psychiatrists who provide mental health expertise concerning adjudicative competence give trial courts information needed to assure that defendants can appropriately protect themselves and that criminal proceedings will be accurate, dignified,and just.

In the Shadow of Marriage: Gender and Justice in an African Community

Abstract: This is a comparison between the traditional customary legal system and the colonial common law of courts and magistrates in Botswana. It sets out to show how the structure of both legal institutions is based on power and gender relations which heavily favour males. Griffiths' analysis is based on careful observation of how people actually experience the law as well as the more standard tools of statutes and cases familiar to Western legal scholars. She explains how women's access to law is determined by social relations over which they have little control. In this powerful feminist critique of law and anthropology, Griffiths shows how law and custom are inseparable for Kwena women. Both colonial common law and customary law pose comparable and constant challenges to Kwena women's attempts to improve their positions in society.

Unconscionability: A Critical Reappraisal

Abstract: THE classical conception of contract at common law had as its first premise the belief that private agreements should be enforced in accordance with their terms. That premise of course was subject to important qualifications. Promises procured by fraud, duress, or undue influence were not generally enforced by the courts; and the same was true with certain exceptions of promises made by infants and incompetents. Again, agreements that had as their object illegal ends were usually not enforced, as, for example, in cases of bribes of public officials or contracts to kill third persons. Yet even after these exceptions are taken into account, there was still one ground on which the initial premise could not be challenged: the terms of private agreements could not be set aside because the court found them to be harsh, unconscionable, or unjust. The reasonableness of the terms of a private agreement was the business of the parties to that agreement. True, there were numerous cases in which the language of the contract stood in need of judicial interpretation, but once that task was done there was no place for a court to impose upon the parties its own views about their rights and duties. "Public policy" was an "unruly horse,"' to be mounted only in exceptional cases and then only with care. This general regime of freedom of contract can be defended from two points of view. One defense is utilitarian. So long as the tort law protects the interests of strangers to the agreement, its enforcement will tend to maximize the welfare of the parties to it, and therefore the good of the society as a whole.2 The alternative defense is on libertarian grounds. One of the first functions of the law is to guarantee to individuals a sphere of influence in which they will be able to operate, without having to justify themselves to the state or to third parties: if one individual is entitled to do within the

Corporate Environmental Responsibility: A Legal Origins Perspective

Abstract: In this study, we examine the determinants of corporate environmental responsibility (CER), as well as the relationship between legal systems and CER as measured by a unique set of global environmental cost data. Results of our analyses show that firms’ legal origins affect CER, which requires a long-term management perspective. Specifically, our results indicate that civil law firms exhibit significantly higher levels of CER than common law firms. In addition, results of an auxiliary test suggest that manager shareholding has a significant, nonlinear relationship with CER. The association between a firm’s legal origin and its CER performance remains robust after controlling for the effects of managerial ownership and issues related to endogeneity. Our findings imply that although the majority of corporate law studies in the past few decades provide support for the common law system emphasizing the maximization of shareholder value and investor protection, the civil law system stressing the maximization of stakeholder wealth and the importance of CER may become more influential in the coming decades as CER becomes central to firms’ operations.

The Common Legal Past of Europe, 1000-1800

Abstract: This is a broad history of the western European legal tradition. From the modern age the author looks back to a time when Europe had a common law that transcended national and legal boundaries. This common law, which Bellomo calls the "ius commune", had developed in the 12th century from the fusion of Roman, canon and feudal law. Existing within the framework of the "ius commune" were the local laws or "iura propria" - the myriad laws of everyday life, the laws particular to the various kingdoms, principalities, cities, guilds and secular and ecclesiastical corporations. Bellomo illustrates how for centuries the "ius commune" permeated every aspect of the "iura propria", marking European law indelibly with its stamp. Because the "iura propria" emerged from the unifying norms and principles of the "ius commune", one can not properly understand local European systems of law without first understanding the "ius commune" and its influence on the legal concepts, institutions, procedures, documents, and doctrines of the "iura propria". Linking his history to modern day concerns, Bellomo argues that the codification that occurred in European countries during the 18th and 19th centuries has introduced ambiguity, rigidity and uncertainty into legal systems. A new common law for the whole of Europe, he asserts, would provide a much better vehicle for legal change and development in a time when the economic barriers between European nations are crumbling. Bellomo then describes the beginnings of the "ius commune" in the schools of the 12th century, discusses the development of Italian, French and German "iura propria", and incorporates into the text sketches of the great jurists who gave common law its intellectual vigour. He concludes with an account of the humanist jurists of the 15th, 16th and early 17th centuries.