Common Law Notes 2023-2024

• These are notes on common law from 2023-2024

Exam Details

• The exam includes 4 specific questions.
• One possible question is about when concurrent jurisdiction arises in the United States and how to prevent it.
• There will be a case brief of a case seen in class.
• There will be a case brief of an unseen case which requires making a link with the course.

Course Outline Topics

• Forms
• Sources and Methods of common law
• Courts and Civil Procedure
• The Jury System
• Substance -Constitutional Law -Law of Torts (responsabilié civile) -Criminal Law

Cruel Punishment

• The 8th amendment prohibits cruel punishment.
• The course uses an inductive approach, where a statement true for a particular case is true for the next in the series. This is pragmatic and corresponds to the nature of Common Law.

Briefing a Case

• Briefing a case involves analyzing it in your own words, without paraphrasing or opinion.
• A brief has four parts:
• Facts: Who is claiming/suing and what remedy they seek -Issue(s): Legal element of the dispute and the legal question addressed to the court -Judgement (holding): Suspend conclusion until you considered all relevant factors -Discussion: Court's reasons for answering as they did, drawing conclusions including comparison to your legal system.

Case 1: Brandenburg v. Ohio (1969)

• Preliminary remarks include Schenk v. United States (1919) which used the "clear and present danger" test to restrict speech if it creates a danger.

• Freedom of speech isn't absolute.

• Distributing antiwar pamphlets in the streets after the US didn't want to enter war was determined to not cause panic, and therefore not a danger

• Brandenburg v. Ohio (1969) overruled Schenk v. United States, 1919

• Facts: Brandenburg, an Ohio clan member, organized a demonstration and made derogatory statements about African Americans and Jewish people. -He was convicted of violating the Criminal Syndicalism Act, which regulates speeches that punish violence or unlawful methods to accomplish industrial or political reform.

• Issue: Is a statute criminalizing advocacy of political violence constitutional under the First Amendment (freedom of speech)? -Does the First Amendment prohibit the Criminal Syndicalism Act that criminalizes using violence to pursue a political agenda? -Does the act violate the freedom of speech?

• Holding: SCOTUS said speech can only be outlawed if it incites imminent violence. -Brandenburg had the constitutional rights to say what he did, and the Ohio Criminal Syndicalism Act was unconstitutional because his speech was "abstract." -The Supreme Court of Ohio was reversed and the man's conviction was overturned.

• Discussion: A new standard was formulated because there wasn't a present danger. -Speech can be prosecuted under a two-pronged test: -If the speech provokes or incites imminent unlawful action from the audience. -The audience must be likely to act unlawfully (concrete action, not abstract).

• Abstract speeches unlikely to produce a reaction aren't punished.

• SCOTUS began using this incitement test for cases where the speaker urged unlawful actions.

• It overruled Schenk v. United States, 1919 and decided to be less restrictive with the new test (no longer favoring the danger test).

• The case was argued on February 27, 1969, and decided on June 9, 1969.

• Whitney v. California (1927): The Supreme Court upheld Charlotte Anita Whitney's conviction under California's Criminal Syndicalism Act. -They ruled that advocating for violent overthrow of the government affects political and economic change, posing a danger to the State, and the State may outlaw it.

• A clear and present danger allows restricting freedom of speech.

• The Supreme Court punished the mere advocacy in Whitney's case. It is forbidden to have an assembly to put in act this kind of action, which will have criminal punishment.

Introduction to Epistemology of Common Law

• Common Law studies knowledge.
• There are meanings and reasons to study it with link obstacles.

Chapter 1: Meaning and Reasons

• Common Law has many meanings depending on different contrasts:

• Historical Meaning: Imposed over the 11th century and replaced Anglo-Saxon law during the Anglo-Saxon time.

• Second contrast: Rule of precedent rather than statutory law.

• Common law isn't a statutory law.

• It is also body of rights and remedies developed by Common Law courts VS equity developed to provide fairness and justice.

• Comparative Law Contrast: Civil law and common law.

• The reasons to study Common Law can be understood on 3 levels: -Domestic dimension -European dimension -The "global" dimension

§1. Domestic Dimension

• The Mutual influence of Common Law and other legal families.

A. Transport of Common Law Concepts

• There is a global epidemic of US-Style Plea-Bargaining, increasing the use of trial-waiver procedures worldwide by 300% since 1990.
• It is used in criminal procedures in Australia, India, Russia, China, Nigeria, and many South American countries. -This represents the Americanization of the law.

1. Plea Bargaining

• Plea bargaining is an example of “explicit borrowing” of common law ("charge and/or sentence bargaining”) in the criminal procedure.

• A defendant waives the right to contest charges at a trial and admits guilt to a criminal charge with the expectation of getting some concession from the government. -Parties give up their right to litigate, and the will of giving up the right of litigation.

• Reasons behind plea bargaining: -Ethical Considerations: -Utilitarianism where immediate sentence/conviction is better than the uncertainty of the trial. -Economic Considerations: -Efficiency as a response to crowded court dockets: 97% of criminal defendants convicted in federal courts plead guilty. -It saves money and time by foregoing trials with testimonies and experts.

• Sometimes, there are genuine disputes of fact that may not need to be resolved through a trial.

• The Criminal Justice Act in the UK was reformed in 2003 to include plea bargaining in Section 144. -A court must determined what sentence to pass on an offender who pleaded guilty: -The stage in the proceedings for the offense when the offender indented to plead guilty. -The circumstances where this indication was given.

-The full Act title is to make provision about criminal justice.

• A "trial on indictment” in the U.K. usually requires a jury, but there are exceptions in sections 43 and 44, like complexity and jury tampering.

• There are 28 schedules attached to the Act.

• In France, the Loi Perben II applies to fines and prison sentences inferior to 5 years.

• It is called "comparution sur reconnaissance préalable de culpabilité" (CRPC) or “plaider coupable".

• There is an ordonnance d'homologation that validates the agreement between the procureur and the person charged in front of the President of Tribunal de grande instance.

• In Belgium, art 97 of the « loi Pot-Pourri II » is now governed by Article 216 of the Belgian Code d'instruction criminelle called procédure de reconnaissance préalable de culpabilité.

• The ECtHR examined cases involving plea bargaining to ensure that defendants aren't coerced into pleading guilty, fully understand/fully are fully aware of the consequences of their plea, and have access to legal representation.

• The ECtHR does not explicitly recognize plea bargaining as a right but examines practices to conform with ECHR mandates

• Ethical issues include: -Defendants shirk responsibility for the crimes they committed -It isn't a fair and voluntary contractual arrangement because parties are not equal, having a disproportionate pressure on the accused.

• Undermines 3 rights: Right to a trial by jury, right against self-incrimination, and right to confront witnesses, however, it is supported by SCOTUS in Brady v. United States, 397 U.S. 742 (1970)

B. Transport of civil law Common Law

• There are transports of civil law (other legal families) concepts to the, one notable example is unconscionability in US Contract Law.

• Unconscionability refers to two things: -Procedural unconscionability: Fault or unfairness in the bargaining process to enter a contract. -Substantive unconscionability: Fault or unfairness in the bargaining outcome.

• The court may refuse to enforce the contract/clause, or limit the application of the clause to avoid an unconscionable result (unconscionability is in the Uniform Commercial Code.

• The American scholar references Unconscionability and European origins of UC in the works of the scholar from moral fault, he brought this concept like Germany's Civil code.

• There is a German statute on the same concept of legal transaction being void if it causes one of injustice.

• Unconscionability exists in Europe/Belgium as "lesion qualifiée".

• Courts says that Advantage of the other party = the contract is unconscionable

• Jones v. Star Credit Corp., Supreme Court of New York:

• Facts: A poor couple bought a freezer for much more than its actual worth, and later contacted the salesman before the supreme court wanting it to be fair as one party was very weak, and there's no fraud. -In the US there's the principle of unconscionability (but not in English law).

• Issue: Whether the transaction and the contracts could be considered unconscionable.

• Holding: YES, the contract cannot be enforced.

• Discussion: There is US principle of unconscionability: -Refuse to enforce the contract -Excise the unreasonable clause and apply what isn't -Limit the application of clause to avoid unreasonable result

• The court applied the 2nd option: Enforce the contract without the unconscionable clause over concern for the the uneducated/illiterate victim due to inequality of bargaining power (price and power).

• Based on Legal Principle Judge determination and specific facts of the situation They have paid they will not be reimbursed more lol'

§2. The European Dimension: Legal Cross-Fertilization

• Before UK left EU, there was cross-fertilization, due to directive on consumer clauses

• This directive establishes the concept of "good faith”, contracted with the consommateur. reluctance because it the term was “abstract".

• Now there's definition by the UK on “good faith”

§3. The Global/ International Dimension

• International Contract Law influenced a lot by common law. For “... l'approche pragmatique du droit angloaméricain utilise le contrat comme un instrument juridique autonome dépourvu de liens nécessaires avec les codes ou les lois en vigueur".

• CISG governs law of contracts: Vienna Convention on the International Sale of Goods (CISG) of April 11, 1980.

• Articles 71-73 CISG discusses clear breaches in the contract.

• Arbitration: international arbitration relies heavily on common law, including applications like the US sanctions of Nov. 5, 2018

• British law firms have huge turnovers. The presence of these law firms has lead to English-speaking is being setup (Consequences of the brexit).

• Consequences of Brexit led to an international business centre.

• The conflict of laws is the concept of common law conflict or as “private international law".

A. Trust

• One of the major parts of conflict of law is trust being a quintessential part of common law.

• The definition of trust in the Hague Convention on the Law Applicable to Trusts and their Recognition (1984) states there are 3 parties, the settler, the trustee, and the beneficiary.

• Settlor transfer asset, and creates a draft in outlining his wishes of transferred asserts.

• The trustee deals with the asserts and beneficial.

• The beneficiacy owns and have right to force to property beneficial: -The settler might be the beneficiary at the same time -When the person is insolvable there's trust fund

• According to Frederic Maitland is that trust is distinctive Englishman of law

• The Separation of Legal and Beneficial Ownership is important

• Trustee has title of legal, legal, and legal of owner.

• The property and benficical right to enforce and exectue

Foundations of Trust has important history:

• Medieval Origin: Medieval origin, to have safeguard or family assets. and to keep ownership separate legal ownership.

Origin 2

• Sale of Church for monks to take those vows or poverty .

Then current and usage protection, and limit

• There's a Legal fiction who has trustee of the benficiacy, they'ren't obligated.

• The has no say or creditor The important

• The trustee must confidence for benefit

7. The Trust in Civil Law Jurisdictions

• This example.

• Judges cannot classify in french, justice.

• They cannot characterize

• Decision of judge decide that either rules contract is valid. The trust it's importance

Trusts

Chapter 2. Obstacles to the Study of the Common Law

• It's to untidy

There are 3 aspects that contribute to the difficulty

• There are linguistic difficulties

• Understanding the common in and with

• Intensions of the parties: subjective

• is based

• is closer with is

• is

• are It cannot be followed