Common Law-1.pdf

Common Law Use of case book, Heinonline (website for American law). EXAM 1. Four specific questions. Exemple: When does concurrent jurisdiction arise in the United States and what can be done to...

Common Law Use of case book, Heinonline (website for American law). EXAM 1. Four specific questions. Exemple: When does concurrent jurisdiction arise in the United States and what can be done to prevent such a situation from arising? 2. Case brief (case seen in class) 3. Case brief (unseen case) – make a link with the course. COURSE OUTLINE 1. Forms 2. Substance 1. Sources and Methods of common law 1. Constitutional Law 2. Courts and Civil Procedure 2. Law of Torts (responsabilié civile) 3. The Jury System 3. Criminal Law 8th amendment prohibits cruel punishment. Course based on inductive approach: if a statement is true for any particular case, then it is true of the next case in a series. It is a pragmatic idea that corresponds to the nature of Common Law. Briefing case: commenter un arret, analyze it in your words, not paraphrase or an opinion. Structure that enables to read a case, a brief has four parts: ➔ 1) Facts: claimant in the UK or plaintiff in the US (demandeur) and the defendant + the relief (remedy). What is the relief (objet de la demande)? Say whether the lower court’s decision was affirmed or reversed (vacated, cassé), remanded (renvoyé, sent back the decision to the lower court). VS overruled: revirement de jurisprudence. ➔ 2) Issue(s): legal element of the dispute. Formulate a simple sentence, what is the legal question addressed to the court? Most important part of a grief. ➔ 3) Judgement (holding – suspend conclusion until you consider all relevant factors/ perspectives): judgment will be a one-word answer to the question posed (yes/no), how the court responds to the question (the court held in favor of/ against the defendant/…). ➔ 4) Discussion: given the facts, there is a discussion, court’s reasons why it answered the issue the way it did: “argued law is tough law (solid)” → should be able to argue your decision. Draw general conclusions, relate with other parts of the course, compare with your legal system. Be pragmatic (look at practice rather than theory and ideals). CASE 1: Brandenburg v. Ohio (1969) Preliminary remarks: Schenk v. United States, 1919: use of the clear and present danger test - restrict a speech if it creates a danger, whether or not the speech might lead to concrete actions (freedom of speech is not an absolute right). People distributing antiwar pamphlets in the streets cause did not want US to enter the war. Sent to prison, said it was his freedom of speech. SCOTUS said no, you can’t cause panic, it is a danger for the US. Brandenburg v. Ohio (1969): overrule Schenk v. United States, 1919 ➔ Facts: Brandenburg, a man in Ohio member of a clan that organized a demonstration, and he said heinous things about African Americans and Jewish people. He is convicted (coupable) of violating the Criminal Syndicalism Act: law that regulates speeches that punishes using violence or unlawful methods to accomplish an industrial or political reform. ➔ Issue of the case: promoting local violence, is a statute criminalizing the advocacy (plaidoyer) of political violence constitutional under the First Amendment (freedom of speech)? Does the First Amendment prohibit this statute (Criminal Syndicalism Act) that criminalizes the use of violence to pursue a political agenda? If this act violates the freedom of speech (1st amendment)? ➔ Holding: YES. The SCOTUS said that a speech can only be outlawed if it is directed to inciting violence, and it is imminently likely to do so. He has the constitutional rights to say this kind of things and the Ohio Criminal Syndicalism Act was unconstitutional (because his speech was “abstract”). Supreme court of Ohio was reversed, and the case overturned the man’s conviction (Ohio lost, the man won slay). ➔ Discussion: it is not a present danger here, so they had to formulate another standard: new legal text → speech can be prosecuted under a two-pronged test (two parameters): - If the speech provokes/incites imminent unlawful action from the audience (the speaker wants a specific reaction from the audience). - The audience must be likely to act unlawfully (concrete action, not abstract) VS those speeches that are abstract and that are not likely to produce a reaction are not punished (and his speech was indeed abstract). SCOTUS began to use this incitement test for cases where the speaker urged audiences to take unlawful actions. They did overrule what was said in Schenk v. United States, 1919: they decided to be less restrictive with the new test, no longer in favor of the danger test. 1. When was the case argued and when was the case decided (see page 444)? Argued on the 27th of February 1969 (plaidé, audience before the court), decided 9th June 1969 2. Whitney v. California was decided in 1927 (see page 447). What did the Supreme Court decide in that case? the Supreme Court upheld the conviction (confermato la condanna) of Charlotte Anita Whitney under California's Criminal Syndicalism Act. They ruled that advocating for violent overthrow of the government effects political and economic change and it involves such danger to the security of the State that the State may outlaw. A clear and present danger allows the restriction of freedom of speech. 3. What did the Supreme Court do to Whitney in this case (see page 449)? The mere advocacy was punished, it is forbidden to have an assembly to put in act this kind of action. If it is done, there will be a criminal punishment. I. Introduction: epistemology (study of knowledge) Meaning and reasons to study Common Law (A) and the obstacles linked to this study (B). Section A. Meaning and Reasons Common Law has many meanings, and its meaning depends on different contrasts of the “common law”: - Historical meaning. The first meaning is understood in this first contrast: law imposed over the 11th century; it replaces all the Anglo-Saxon’s law at the Anglo-Saxon time (England had 5 kingdoms at the time)  - Second contrast has to do with the sources of law: rule of precedent rather than statutory law. Common law is not a statutory law (statutes: laws enacted by the parliament). - Body of rights and remedies developed by Common Law courts (legal principles, rules, and remedies → rights individuals possess and the mechanisms by which those rights can be enforced or vindicated) VS equity developed from the need to provide fairness and justice. - Comparative law contrast: civil law and common law The reasons to study the Common Law can be apprehended on 3 levels: - a). The domestic dimension - b). The European dimension - c). The “global” dimension a). Domestic Dimension Mutual influence of Common Law and other legal families (point 2). 1). Transport of common law concepts: We talk about a Global Epidemic of US-Style Plea-Bargaining: the use of trial-waiver procedures has increased worldwide by 300% since 1990 and is used in countries’ criminal procedures like Australia, India, Russia, China, Nigeria, many South American countries… → Americanization of the law. An example of “explicit borrowing” of common law may be found in the American concept of “plea bargaining” (charge and/or sentence bargaining) in the criminal procedure. → A defendant waives (rinuncia) his right to contest the charges (accuse) at a trial and admits his guilt to a criminal charge (less serious than is supported by the evidence) with the expectation of receiving some concession from the government, i.e. (id est, that is) parties give up their right to litigate (cause charges were less serious). Rationale, reasons behind plea bargaining and the will of giving up the right of litigation: - Ethical considerations: utilitarianism – more important to have an immediate sentence/ conviction is better than the uncertainty of the trial. Sentenza, decisione del tribunale VS condanna: persona colpevole. - Economic considerations → efficiency, this is a response to crowded court dockets (debordés, courts have a lot of trials, and it could lead to arriéré judiciaire, delay in the resolution of cases): 97% of criminal defendants convicted in federal courts plead guilty. → Why go through all the trials with testimonies, experts… when it costs money? The reason of plea bargaining is to save money and time. - Sometimes there are genuine disputes of fact (less disagreement or dispute) that may not need a trial to be solved. ➔ UK and the presence of plea bargaining: criminal justice act reformed in 2003 and plea bargaining was added. Section 144 of the Criminal Justice Act 2003: “(1) In determining what sentence to pass on an offender who pleaded guilty before that court or another court, a court must consider:  (a) The stage in the proceedings for the offence when the offender indented to plead guilty, and (b) The circumstances where this indication was given. 1. The “Criminal Justice Act 2003” is the Act’s short title. What is the Act’s full title (see the “Introductory Text)”? An Act to make provision about criminal justice (including the powers and duties of the police) and about dealing with offenders; to amend the law relating to jury service; to amend Chapter 1 of Part 1 of the Crime and Disorder Act 1998 and Part 5 of the Police Act 1997… 2. When was the Criminal Justice Act adopted (see the “Introductory Text)”? November 20, 2003. 3. What is the title of the Chapter in which section 144 is located? Part 12 - General 4. A “trial on indictment” (processo sotto accusa) in the U.K. usually requires a jury. What are the exceptions (see sections 43 and 44)? The prosecution may apply to a judge of the Crown Court for the trial to be conducted without a jury. If an application is made and the judge is satisfied that the condition. Complexity or the length of the trial (or both). Real and present danger that would lead to jury tampering (influence) 5. How many schedules were attached to the Act? 28 ➔ France and the presence of plea bargaining: there is the Loi Perben II applicable to fines and prison sentences that are inferior to 5 years. The procedure is called “comparution sur reconnaissance préalable de culpabilité” (CRPC), or “plaider coupable” There is an ordonnance d’homologation (value of a judgment) of the President of Tribunal de grande instance that validates the agreement between the procureur, and the person charged with a criminal offence. ➔ Belgium and the presence of plea bargaining: There is art 97 of the « loi Pot-Pourri II ». The new « procédure de reconnaissance préalable de culpabilité » is now governed by Article 216 of the Belgian Code d’instruction criminelle. ➔ ECtHR recognizes the existence of plea-bargaining. For Strasbourg, it was okay under certain conditions: Natsvilishi and Togonidze v. Georgia (see paras. 90 and 92): the ECtHR examined cases involving plea bargaining to ensure that defendants are not coerced into pleading guilty, that they fully understand/ fully aware of the consequences of their plea, and that they have access to legal representation during the process. The ECtHR does not explicitly recognize plea bargaining as a right, but it examines plea bargaining practices to ensure they comply with the fair trial guarantees of the ECHR. Assessment? Try to evaluate what plea bargaining does. In our domestic systems of law, we have this borrowing/ importation of major concepts of the criminal justice system from the US, like the plea bargaining. BUT it is a bit controversial because there are many ethical problems involved : → Defendants shirk (sottrarsi) responsibility for the crimes they committed. Ex: plead for assault rather than rape, sentence is going to be inferior, → Ethical issue: is the plea bargaining a fair and voluntary contractual arrangement between two relatively equal parties.? NO because parties are not equal there is no equality  between parties, because this person just wants to save himself. There is also a disproportionate pressure on the defendant: plead guilty because afraid… This process of “plea bargaining” undermines 3 constitutional rights (gives away) – right to a trial by jury, right against self-incrimination, right to confront witnesses (examining witnesses against them), but it is nevertheless supported by SCOTUS in Brady v. United States, 397 U.S. 742 (1970) - debate on the constitutionality of the plea bargaining, but the SCOTUS accepted it. 2) Transport of civil law (other legal families) concepts to the Common Law One notable example in US Contract Law: unconscionability. It refers to two things: 1. Procedural unconscionability: fault or unfairness in the bargaining process to enter a contract there are big unfairness. 2. Substantive unconscionability: fault or unfairness in the bargaining outcome ➔ Either way, the court may refuse to enforce (far applicare) the contract or clause or limit the application of the clause to avoid an unconscionable result (unconscionability is in the Uniform Commercial Code. Reference of unconscionability and the European origins of the Uniform Commercial Code in the works of the American scholar Karl Llewellyn aware of the importance of moral fault in many civil code-based rules, he brought this concept from other legal families (like Germany’s Civil code) into American law. Compare with German BGB, §138(2): “A legal transaction is void by which a person, by exploiting the predicament, inexperience, lack of sound judgment or considerable weakness of will of another, causes himself or a third party, in exchange for an act of performance, to be promised or granted pecuniary advantages clearly disproportionate to the performance.” Unconscionability does exist in Europe: in Belgium it is la “lesion qualifiée” (article 1907ter of the Code civil) - Cass., 29 avril 1993, J.T., 1994, p. 294 - Appel Liège, 13 septembre 2001, R.R.D., p. 195 Illustration: Jones v. Star Credit Corp., Supreme Court of New York (a state court, not a federal one). Advantage of the other party = the contract is unconscionable. Facts: contract of sale. Poor couple and uneducated, illiterate (plaintiffs that are beneficiaries of welfare programs in the US for poor people (welfare recipients)). They purchase a freezer for much more than its actual worth (900$ but it is worth 300$). when they found out, they contacted the salesman before the supreme court of NY: see if the contract was fair or not since there was no violence and one party was very weak. In the US law there is the general principle of unconscionability (which does not exist in English law, they will use other principles like fraud). BUT there is NO fraud in this case, what the salesman did was legal. Case issue: The question is whether the transaction and the contracts could be considered unconscionable? Judgement: YES. Could the contract be enforced? No, the contract is unconscionable. Discussion: existence in US law of a general principle of unconscionability. If it is unconscionable, the court may: - refuse to enforce the contract,  - excise (remove) the objectionable clause and apply what was not unconscionable. - or limit the application of the clause to avoid an unconscionable result. The court says that it is unconscionable and applied the second option: enforce the contract without the unconscionable clause. Concern for the uneducated and illiterate victim of inequality of bargaining power, usually the poor, the principle of unconscionability is about price inequality but also about this inequality of bargaining power. The judge says “as a matter of law” → based on legal principle and jurisprudence (determination of the judge, not the jury) VS “matter of fact” is based on the specific facts of the situation (referencing the specific situation). Holding (§9): he enforces the remainder of the contract without the unconscionable clause. They already paid 600$, they do not have to pay more but they won’t be reimbursed either lol. b). The European Dimension: Legal Cross-Fertilization Before UK left EU there was a legal cross-fertilization between common law and civil law families, but now not anymore. Presence of one EU directive: Council Directive 93/13/EEC of 5 April 1993 on Unfair Terms in Consumer Contracts (= clauses abusives dans les contrats conclu avec les consommateurs). This directive establishes the concept of “good faith”, contrat conclu avec le consommateur. Reluctance of the UK towards it: the term “good faith” was too abstract for them and in reality there was no definitions, the other European states applied it in different directions. So, the UK gave a definition of “good faith” → helpful, shame it left EU. c). The Global/ International Dimension International Contract Law influenced a lot by common law. For one French scholar, Michel Guénaire, “L’usage de la Common law dans les contrats est devenu la règle”. Renaud Denoix de Saint Marc highlights the following “… l’approche pragmatique du droit anglo- américain utilise le contrat comme un instrument juridique autonome dépourvu de liens nécessaires avec les codes ou les lois en vigueur”. → CISG (in French “CVIM”) International treaty that governs the law of contracts: Vienna Convention on the International Sale of Goods (CISG) of April 11, 1980. Articles 71-73 CISG: it becomes clear to one party that the other party to the contract will either not perform a substantial part of its obligations or that it will commit a fundamental breach: this may lead to an anticipatory breach of contract → this reflects common law, because in this legal family you can put an end to the contract if you have a solid guarantee that the seller will not comply his obligations vs in Belgium, need to wait for the contract deadline to expire. → Arbitration rules : International arbitration relies heavily on the Common Law We are not only speaking about contracts, but also basic arbitration rules that rely on the common law (les règles d’arbitrage international): - There are several extraterritorial applications of American statutes and executive orders (lois et décrets présidentiels) : an example is the US sanctions of Nov. 5, 2018 adopted under the Trump administration on banks, airlines, or the shipping industry that do business with Iran (for example if a Belgian bank has banking relationships with Iran, it  will be punished under American law for doing business with Iran → extra territorial application of American status and executive orders) → Presence of Anglo-American law-firms in Europe that do business in Europe, they have a huge turnover (affaires). The presence of these law firms has taken an overwhelming role today that English-speaking courts are being set up in European cities (consequence of the Brexit). There is a lot of literature on this topic saying for example: “l’américanisation de la justice française” … Consequences of Brexit, an example in Brussels: The Brussels international business court “BIBC”, a court that does English proceedings. A bill (proposal of a new law) was presented to the Parliament, but nothing moved/ happened. BIBC is still there lol. Another angle to look at this global dimension of global law is the conflict of law: → Conflict of Laws embedded in concepts of Common Law Conflict of laws (or “private international law”) is the branch of international law that regulates lawsuits involving a foreign law element between natural or legal persons. So, it is a situation that involves persons rather than states, it is private international law between natural or legal persons and NOT public international law (between states). → The necessity to resort to the Common Law may come from the need to classify a foreign concept in our domestic legal order (necessary to assign an X concept to the appropriate national juridical category) – we need to do this classification; we resort to Common law. Judges look at things in their own domestical system, they have to quality the foreign concept in a national/ domestic legal order, otherwise there is the denial of justice. The major illustration of conflict of law is the trust: this is the quintessential concept of the common law. Conflict of laws and trust: link ? Trust illustrates conflict of laws, a common law concept that involves a situation between persons (settler, trustee, beneficiary) rather than states. The trust 1) Definition of Trust: there is a definition in international law in the Hague Convention on the Law Applicable to Trusts and on their Recognition (1984) - Article 2: trust is a “a fiduciary relationship (confidence) under which one person (the trustee) holds title to property and deals with it for the benefit of another (the beneficiary or cestui que trust)” To make it simpler: → Three parties in this relationship: - The settlor, the one that begins the process of property transfer to the trustee (le constituant). He will transfer several assets/shares to the trustee (property). The settlor drafts a trust settlement where he outlines his wishes, the assets (les actifs) that he’s going to dispose of towards the trustee. - The trustee has a legal title, he deals with these assets and uses it for the benefit of another (the beneficiary). - The beneficiary (the one that trusts) has also ownership (equity) and a right to force the trustee to perform the trust (use the assets for the benefit of the beneficiary). The settlor might be the beneficiary at the same time, might happen after a person died (testamentary effects) or it might just happen inter vivos, between living beings. When the person is insolvable, the trust fund is protected from creditors. 2) English origin of this concept: according to Frederic Maitland, the trust is probably one of “the greatest and most distinctive achievement performed by Englishmen in the field of jurisprudence (science of law)”. The law of trust made the common law jurisprudence distinctive. 3) Essence of the Trust: separation of legal and beneficial ownership, ownership is divided, it is NOT A STIPULATION → we talk about equity (VS Belgium: ownership is absolute and complete) → The trustee has the legal title to the property (property is legally vested in (conferita) the trustee), legal ownership. → The property is held for and belongs in equity to the beneficiary, beneficial ownership, equity ownership. Judiciary relationship between these two: - The trustee’s interest is to be regarded as an in rem right with respect to the property (real or personal) – droit sur la chose, legal ownership. - The beneficiary’s interest is to be regarded as an in personam right to compel the trustee to perform the trust – droit envers qqun, de lui faire executer the trust, beneficial ownership. Triangle = three parties, but sometimes there is a protector 4) Foundations of Trust: why is the trust so important today and how did it come about at the very beginning? All this is about equity as an objective system of rules that has nothing to do with some sort of subjective appreciation.  Origin 1°: Medieval origins. In historical terms, mediaeval origins: when knights were absent because they were fighting in the crusades, they would leave a trusted individual to safeguard their land and family. "You are the owner of my land until I come back and when I come back, I will again take ownership of my land": so, ownership is separated between legal title and equitable title.  Origin 2°: the conveyance of land to an ecclesiastical foundation. Conveyance (sale of land, atto di compravendita) of land to an ecclesiastical foundation: monasteries have a lot of lands in the 12-14th century, BUT monks take three vows (chastity, obedience, poverty). Lol, yet they have lands. - How could they have a lot of lands, with the vow of poverty? Through the trust. Legally these monks do not have titles to their lands, they do not have legal ownership which belongs to the trustee (transferred to them, hypocrites lol). What they have is equity ownership since they benefit of the beneficial ownership. Hence, they are in conformity with the vow of trust. 5) Current Purpose and use: → Today, the trust mechanism has a lot of different purposes: protect minors, persons of unsound mind, spendthrifts or young adults who might fall under the spell of X… → Another purpose of trust is to tie property so that it may be enjoyed by successive generations (with limitations upon the use of property by the present generation, like maintaining family assets intact). → Third purpose: trust is often used for pension schemes, trade union funds, charitable purposes (promotion of education or health, relief of poverty…), thus minimizing the impact of tax on family wealth. Advantage of the trust? You fall into the legal fiction that you are not the owner of something, you do not have the legal title. The trustee is not obligated to pay over the income of the trust to anyone other than the beneficiary (the beneficiary is protected from the claims of his creditors). There are exceptions of a few claims (alimony – paghi il coniuge, child support, and taxes) → here the trustee pays someone else than the beneficiary. SO, normally creditors have no say in what happens with trust (except in the case of alimony, child support, taxes) 6) Main Features of the trust: - Fiduciary character: there must be confidence and trust between the parties. - The trustee is under an absolute obligation to act for the benefit of the beneficiary in every aspect of the relationship several obligations (not in detail) 7) The Trust in Civil Law Jurisdictions Cour d’appel de Paris (1re Ch.), 10 janvier 1970, Epoux Courtois c. consorts de Ganay: This case is an example of conflict of laws: how do civil law jurisdictions deal with the trust. French tribunal civil court de la Seine in 1969 had to characterize the trust system although the concept is completely foreign to French civil law (to avoid déni de justice) Facts: old lady in 1926 who went to the American consulate in Paris, and she drafted a trust, she is the settlor, and she transfers some shares to a trustee (a company in Pennsylvania) to manage them. She is also the beneficiary. Company (trustee) has legal ownership; the lady is the beneficiary and receives profit (dividends from the shares – distribuzione dei profitto agli azionisti) every year (since shares should get bigger over the year). In her trust settlement, she said that when she died, the shares would be sold, and the capital would be transferred to designated heirs (trust was both inter vivos and testamentary). → Claimants’ grievance (complaint) : some heirs were unhappy because they weren’t designated, and they wanted their slice of the cake. They said she couldn’t do that: you cannot dispose the goods however you want. It is unfair to us; plus is France : art 544 ne prévoit pas a split of property, it is absolute. French courts had never seen this concept of trust, they need to classify it in a national categorization (conflict of law). - “Le trust, institution anglo-saxonne inconnue du droit français, constitue au regard de la loi française … une institution qui se rattache à la dévolution successorale. Au regard de cette loi, (la dame) ne pouvait valablement disposer de ses biens par le moyen d’un trust, cette institution se caractérisant par un ‘éclatement’ du droit de propriété…” Characterizing the Concept: The French judges must give a response to this problem; they cannot just say this concept is unknown to our system. Otherwise, they could be condemned to a denial of justice. Thus, they had to characterize/ classify the concept of trust in their legal system. Decision of the judge between two choices (second chosen): 1) If the judges decided that the trust had to do with rules of succession, French law of succession would apply. 2) If the judges decided that the trust was a contract, then American law would govern the case, applying the principle of la loi d’autonomie under French law → the Cour d’appel decided that it was a contract, so nothing to do with the succession and so French law does not apply here. → Important to emphasize that the trust is a trust! Cause there were many attempts in French law to make the trust something different, some other juridic mechanism like usufruit… - “On n’arrivera pas à faire entrer les droits respectifs du trustee et du cestui dans nos catégories. L’un est propriétaire qui administre le bien d’autrui, et l’autre a une créance à caractère réel, qui porte le nom de propriété sans en avoir la nature” Henri Motulsky, l’impossibilité juridique de constituer un trust anglo-saxon sous la loi française. The trust is something different because there is the splitting of property between two people. However, the trust mechanism is characteristic of the common law and received recognition under French law in 2007 with « la fiducie » (example of domestic dimension, how France imported a common law concept). It is still understood as an independent concept from the common law’s trust, but it’s like the trust. - Defined as “l’opération par laquelle un ou plusieurs constituants transfèrent des biens, des droits ou des sûretés, ou un ensemble de biens, de droits ou de sûretés, présents ou futurs, à un ou plusieurs fiduciaires qui, les tenant séparés de leur patrimoine propre, agissent dans un but déterminé au profit d’un ou plusieurs bénéficiaires”. The trust is a fiduciary relationship: a relationship based on confidence between the settlor, the trustee, and the beneficiary. So, this French law is like the trust mechanism. Section B. Obstacles to the Study of the Common Law a). Untidiness of Common Law English pragmatism: you have conflicts and problems, try to solve them. Common law is scattered in cases and volumes. - Lord Porter (judge) said in Best v. Samuel Fox & Co1952: “The common law is a historical development rather than a logical whole, and the fact that a particular doctrine does not logically accord with another or others is no ground for its rejection” We also find this pragmatism in America. The law in the United States presents greater, more obvious, difficulties (Why? It is a federal state, law different to state to state) - Scores of American examples as well, and a very famous quote by Oliver Wendell Holmes Jr (1841-1935): “the life of the law has not been logic but experience” → pragmatism. b). Reading the Common Law Why is common law a difficult source? Different reasons: ➔ There are linguistic issues (false friends, polysemy… words that have different meaning regarding the common law). The question of reading the Common law includes two levels of understanding: 1. Cultural dimension: greatly developed by Pierre Legrand, he says it is impossible to understand the common law if you are not born in the common law, since culture is in our nature and it influences our understanding 2. Reading unilateral acts and contracts, statutes, constitutions: focus on unilateral acts and contracts: A. Unilateral Acts and Contracts The aim of construction in Romanistic codes influenced by Roman law is to discern the real intention of the parties → it is a subjective approach. In Belgium, France, Italy… you adapt your vision based on the legal system and the intentions of the parties (subjective). ➔ The Common law takes an objective approach. Why? Common law is based on case- law (will of guaranteeing a sort of coherence for people for a unilateral act or contract) and so the intentions of the parties are unknown. Case regarding a testamentary trust (unilateral act): Gale v. Gale. Casebook, pp. 13-15: If it is a civil case, there is not the word versus, but something else like “and”. When it is a criminal case, there is the word “against”. Facts: Testamentary trust of two goods: two houses. Gale is the settlor, and there are a certain number of executors and trustees and there are 2 beneficiaries (his wife and another woman with whom he had cohabited). Dispute between husband and his wife regarding the ownership of certain shares. Citation a comparaitre, summons that raises a singular point of construction (interpretation). Her wife gets the house, his mistress gets money every month and another house. His mistress Dorothy made an affidavit (document that states the relation between her and the testator, the reason she asks for it is because she’s a spinster – unmarried woman, zitella), but she’s referred as “Mrs.”. Case issue : §6 (line 8-9): Can Dorothy take benefit in the house having regard to a terminological error in the will? Because in the will it is said that she can benefit from it during her widowhood, but she was not the wife of Gale lol. Holding: no, Dorothy gets nothing, everything to his wife. Held in favor of the wife. Discussion: How the judge is bound: binding force of judiciary precedent: there are two possible ways for this case - The first is to follow the principles in the decision Re Boddingon, Boddington y. Clariat: it is declared in the will that Dorothy can enjoy the house and the weekly payment during her widowhood, but the problem is that this period of “widowhood’ does not exist at all since she was never married to Mr. Gale. - The other option would be considering the house and the payment as a gift from the testator, which is to continue until she gets married (if she gets married, she will not benefit from it anymore. Donation sous condition resolutoire: I give you something, if you do not satisfy it, you lose the benefit of this legs). In this case, she could enjoy the house and the payment. The lawyer says it would work until she would get married, but such a condition is void and against public policy because it is not possible to prohibit someone to get married. In the end, the judge says that he is bound, and he ought to follow the decision in Re Boddingon, Boddington y. Clariat. Dorothy gets nothing, everything to his wife. He held in favor of the wife.  ➔ Objective reading of the law in common law (judiciary precedent) VS subjective in the Romanistic (circumstances of each case). We can understand the importance of the rule of precedent with this case: Boddington y. Clariat is closer with the Gale case (the judge is bound). ➔ We look at the literal sense of the will VS in countries like French you would interpret it with the intentions of the parties in mind. ➔ IMPORTANT: third lesson – the style of the judgement. The judge in a personal way shows that he’s not happy with the result: “I think that if the testator had been consulted, he would have said that he did not intend to leave her without any provision at all, but he has used language in his will which I think has that effect”. Caveat! Attenzione! There are mistakes in Wills today (atti di volontà). When it is clear from the language of a will that the words do not represent the testator’s intention, these words can be omitted, changed, or inserted: room to construct a will, this is proven in Re Neeld, deceased, Carpenter v. Inigo-Jones. The judge wants a strict relation with spinsters. Lord Evershed MR, president of the civil division of the court of appeal, the master of the roles in a case wrote this: “As to the failure of a conditional gift, it does not follow that: “the language used must be of so exactly precise a character that no question can ever sensibly thereafter arise on the particular facts as they have occurred, whether, according to the terms of the instrument, a divesting has or has not taken place… So long as the concept expressed in the will … is clear and can be precisely formulated, then it is no objection to the validity of the clause that on occasion its application may give rise to difficulty.” B. Statute Law A statute was adopted in 1982 (Administration of justice Act 1982, section 20) regarding the rectifications with respect to wills drafted by persons other than the testator Start of the course’s first part: PART 1. FORM Chapter 1. Sources and Methods of the Common Law Introduction A. Adversarial Nature Presence of parties, the judge is a backseat that controls that parties are not abusive. The process of litigation lies entirely in the hands of the parties to the dispute. Jones v National Coal Board Facts: husband died; he suffocated cause the roof collapsed. The widow goes to court and brings a suit for damages. Coalminer’s widow brings an action for damages against the NCB. Word responsabilié may be translated in: - Responsibility (personal duty). - Accountability (idea of hierarchy). - Liability (society at large is concerned). Legal connotation, to be liable = the widow sued the NCB to be held liable for the wrongful death of her husband → responsabilité civile. How so? She invokes the breach of statutory duty and the negligence at common law. In this case the judge conducted an investigation/ examination, but the litigation is in the hands of the parties. The judge “was anxious to understand the details of this complicated case, and asked questions to get them clear. He was anxious that the witnesses should not be harassed unduly in cross-examination and intervened to protect them when necessary. He was anxious to investigate all the various criticisms that had been made against the board, and to see whether they were well founded or not. Hence, he took them up himself with the witnesses from time to time. He was anxious that the case should not be dragged on too long, and intimated clearly when he thought that a point had been sufficiently explored.” The issue in this case: did the trial judge exaggerate during the trial? Holding, judgement: yes, he did. He wanted to help, but his intervention was counterproductive. Three ensuing consequences: 1. Judges do not initiate lines and query (= question), they do not control the procedure and do not decide the verdict in criminal cases, the judge is just an arbitrator 2. Each side produces its witnesses → examination in chief. The witnesses are examinated/ can be questioned by the other party → cross examination. 3. Very strict rules of evidence to prevent the jury to receive untrustworthy evidence. - The proof is the preponderance/ balance of evidence (civil) - The proof is beyond any reasonable doubt (criminal) a). Foundations Common law was marginally influenced by Roman law: marginal because the influence was exclusive to Roman citizens and tribes living elsewhere were not really influenced. → At the Anglo-Saxon times you had some forms of evidence. We go from irrational forms of proof to a more elaborate administration of justice: from private revenge (each person was the avenger) to a blood-white (if I lose my arm, a price should be paid to my family, influence by the church). In Belgium you have the ordalies (jugement religieux): → The Norman Conquest, William the conqueror came from France, and he tried to impose rules. It is in 1086 that he adopts the Domesday Book → snapshot, list of all the goods that existed in England at the time. Important for common law. → The most important king of England: Henry II, adopted in 1166 the Assizes of Clarendon which gives rules on how to begin a trial and how the trial should be upheld to what is now the Court of Justice. b). Civil Justice: Risk of Exacerbated Litigiousness – top-down approach Lawsuits make policy (claims culture/ culture of complaint), risque d’un contentieux hors controle. This culture of complaint concerns the second amendment controversies.  - Fallout from the SCOTUS ruling in Bruen of June 23, 2022, Bruen case: right of people to keep and bear arms in NY. Look at the intention of the framers: they say that there is no problem, so the bear of guns is accepted. This situation is frustrating. United States v. Rahimi (5th Cir., February 2, 2023): an abuser that slaps his wife can’t be deprived of his right to have a gun, because it is not addressed in the Constitution when it was first adopted by the framers. Risk of Exacerbated Litigiousness: this kind of cases are brought before court. 1). Instrumentalist Approach/ vision to Law and Adjudication: bottom-up approach Law represents the client to change the law, judges would also instrumentalize the law (law forged to achieve a political objective). Impact litigation: contentieux de l’impact → use law to obtain some socials ideals. Examples: Dobbs v. Jackson → instrumentalist approach to overrule what was ruled before concerning abortion. 2). Total Justice Idea of having compensation for everything, a bottom-up demand for total justice. In the US, Rule 11 of the FRCP: (internet) Rule 11 stops Litigation abuse (misuse legal rules to bother the other party, cause delays, gain time…) by making sure legal papers are fair. If someone doesn't follow Rule 11, they can get in trouble with the court. - Trump and Alina Habba sanctioned in Trump v. Clinton. B. Judicial Precedent The foundation of the judicial precedent is in the stare decisis: stand by the decision/ let the decision stand → you want to support your decision and the previous one (what the other courts said on the same issue). The term “judicial precedent” has two meanings: 1. The “process” whereby judges follow previously decided cases. 2. Reference to the “decided case” itself - a “precedent” which may be relied on in the future, he said that it is complicated. a). Precedent in English Law Two parameters affect the nature of the rule of precedent: 1) Varying scope with respect to content 2) Varying scope with respect to jurisdiction - Application: Miller v. Jackson – sometimes it can become complicated. 1). Focus on the content of the decision. A decision concerns questions of law, and NOT questions of fact (decisions on questions of fact may not be used as precedents lol). The decision or judgment of a judge may fall into two parts: ➔ Ratio decidendi: the principle of law on which a decision is based. For Sir Rupert Cross and J.H. Harris, the ratio decidendi is “any rule of law expressly or impliedly treated by the judge as a necessary step in reaching his conclusion, having regard to the line of reasoning adopted by him, or a necessary part of his direction to the jury” → this is the most important element.  ➔ Obiter dictum (dicta): literally “something said by the way”. Practically speaking, speculation by the judge about what his decision would or might have been if the facts had been different. Statements that that have no impact on future cases.  These two are intertwined, never separated. The ratio decidendi has to differ, this is understood in the case Miller v Jackson of the Court of Appeal 2). The Jurisdiction Delivering the Decision House of Lords (until 2009)/ supreme court today Court of Appeal (only one in UK) – self binding with three exceptions High court – no self-binding Authority of role of precedent: - Vertical proceedings in common law. - More complicated with the self-binding precedent ➔Vertical precedent: the high court is bound by the judgement of appeal; the court of appeal is bound to the judgements of the supreme court (not those of the high court). Divisional court: formation of the High court with at least two judges of the high courts involved in the judicial review proceedings – controle d’exces de pouvoir en droit administratif. Divisional court is bound by the court of appeal. The high court has a persuasive authority: usually followed. ➔Self-binding precedent: here it is a binding authority VS persuasive authority. We have self-binding in the court of appeal: they are bound by their own judgements, but three exceptions listed in Young v. Bristol Aeroplane Co. Ltd: - 1. the court of appeal is confronted with two previous decisions that contradict with one another; the court must choose one - 2. Per incuriam judgement: there was a judgement deliberated by the court of appeal that was taken carelessness. The court did not consider a relevant statute or a relevant precedent. VS not the same as the words per “curiam”, be careful. - 3. Previous decision has been overruled, considered that the ratio has been overruled. House of lords/ supreme court Declaratory theory of law concerning the self-binding precedent of the Supreme Court. This theory says that it is impossible to overrule itself – the judge can’t make law, the judge only declares the existing state of law. SO, until 1966, the Supreme Court was bound by its own decisions. The House of Lords, in a famous case London Tramways v London County Council, 1898 comes to the same conclusion as well: the House of Lords is normally bound by its own decisions/precedents. ➔ Practice Statement 1966 adopted by Lord Gardiner (p 17 case book): → the house of lords gave this new rule, 4 paragraphs. It put an end to the “declaratory theory”. - Paragraph 1: precedent is indispensable to decide what is the law and its application. The use of precedents provides coherence and stability to the system. It provides certainty, cause individuals can rely on the use of precedent in the conduct of their affair, it is also a basis of legal rules. - Paragraph 2: judicial precedent is indispensable, BUT it is put away to meet the changing social conditions → a too rigid adherence to the use of precedent may lead to injustice, so with this Practice statement, the house of lords says that the decisions of the House of lords are STILL binding, but when it is right to do so, we must grow apart from it. - Paragraph 3: careful with the law, in some fields we must be careful concerning the overruling. Lord Gardiner says there are a certain number of fields where we will have to be careful regarding a possible overruling, and he determines those fields: contract law, property law, fiscal arrangements, and the need for certainty as to the criminal law. - Paragraph 4: this Statement is reserved to the house of lords. "We can depart from our own previous decisions, but not the court of appeal" → no self- binding for the House of Lords, the House of lords can overrule a previous decision, but there is still self-binding for the Court of appeal (as seen before). ➔ This Practice Statement put an end to the “declaratory theory” and gave the possibility to the House of Lords to depart from its previous decisions “when it appears right to do so.” BUT there is very few overruling by the house of lords and supreme court - reluctance. THREE reasons for overruling itself: - supreme court wants to keep pace with the case law of the European court of human rights: an illustration where troops were killed in Iraq while on duty, the Supreme court overruled the decision it had delivered a few years before. - The supreme court does not want a legislation reform, no prospect of legislation reform, so the court overrules (changes the judgement, decision). - Remain consistent with the needs, expectations, and values of contemporary society. Montgomery v. Lanarkshire Health Board (2015), woman had diabetes, more complications when delivering a baby. The supreme court said that it is a medical judgement that does not really matter, but they’re going to change the rule: the doctor should’ve said to the patient the complications related to her diabetes. 3). Miller v. Jackson, COURT OF APPEAL, 1997: casebook p 18, rule of precedent applied in England: finding the ratio decidendi of a case, need to read the case and withdraw the ratio itself. BUT not easy since there is no method to determine the ratio of a case. Complicated case. Brief the case, going through the different issues. Judgement of the court of appeal. Facts: substantive issues → cricket club established in an area, then a couple decided to build their house at the edge of the club. The couple is the claimant in this case against the cricket club. Disadvantage: balls fall on their garden. The club offers to remedy any damage and to pay any expenses, but the couple wants to go to court. So, they requested and injunction from the trial court to stop the activity of the cricket club. The injunction was granted by the trial court, which condemns the club lol. Not an easy case. Procedural facts: the injunction was granted; the case was brought before the court of appeal. So, we have three different judgments (pp 18 – 24 opinion of lord Denning, 24 – 28 Geoffrey, the rest it is Cumming). They’re not really lords, it is just a title. Four Issues in this case: → Substantive Issues (essential legal matters): negligence and nuisance → Two remedies (common law remedy VS equity). This case is just an injunction. - liability in negligence, is the club liable (responsabile) in negligence? - Liable in nuisance? - Another issue: can the club be sentenced to pay damages to the Millers? CL remedy - Can the cricket club be sentenced to stop its activity, granting injunction? Equitable remedy First substantive issue: NEGLIGENCE The tort of negligence = actions (or omissions) that create an unreasonable risk that the injury will occur. We presume that everyone, by their living in society, knows what acts or omissions create unreasonable risks of harm, negligence = conduct that falls below the standard of care deemed by the law as necessary to protect others from unreasonable risks of harm. → Three principal elements developed in Donoghue v. Stevenson by the house of lords: two ladies go to a café and one of them has ginger beer (soft drink), one of the ladies has health problems because of the drink lol. Here there is no contract between the lady and the factory of beers, could she obtain damages by negligence? In a negligence pursuit, three things must be proven: - Duty of care (“reasonable person standard”, what a reasonable person would do): the judge refers to prior judicial decisions, cases and standards of conduct set out in regulatory statutes to see if there was a duty of care. - See if this duty was breached by the person sued - Causation, causal link between the duty of care and the breach in the duty of care → the conduct of the defendant determines the action. The claimant must prove that the defendant’s breach of duty was both the “cause-in-fact” (“but for” test) and the “proximate cause” of the claimant’s injury (foreseeability of the harmful results of the defendant’s actions) Alternative Causes of Action by Lord Denning We have other causes of action, like the tort of trespass. He refers to a case Letang v. Cooper [1964) → no trespass because unintentional. Trespass is when you’re on a property that’s not yours, not authorized to be there, but no negligence. The doctrine of Rylands v. Fletcher imposed strict liability with respect to abnormally dangerous activities → strict liability (responsabilité sans faute), you have this abnormal dangerous activity that should never have been undertaken → Lord Denning says that cricket is not an abnormal dangerous activity. These 2 causes of actions are rejected in the Miller case. Second substantive issue: PRIVATE NUISANCE = trouble de voisinage. Private nuisance is defined by Lord Denning in Miller v. Jackson (casebook, p. 22, para. 21): “It is the very essence of a private nuisance that it is the unreasonable use by a man of his land to the detriment of his neighbor. He must have been guilty of the fault, not necessarily of negligence, but of the unreasonable use of the land.” In this case, negligence and nuisance are considered. Two remedies of this case (solutions in law that the court gives to adress and repair the cause): damages (common law remedy) and injuction (equitable remedy). Third issue: DAMAGES, a common law remedy - JURY If the judge considers that there is negligence/ nuisance, the judge just has to admit it (simple), no discussion. BUT here it is different with the remedy of damages: it is a matter of restitution; the defendant has to make the claimant “whole” (restitution). - Why? For centuries, jury is composed of laymen (person who has no knowledge of law). This JURY decides to condemn on damages, not the judge → in the common law, damages are a simple remedy. It is a Common-law remedy: available as of right. If the claimant proves his case, they’re entitled to their remedy of damages and it does not matter that their own conduct has been bad, or that he has been dilatory in seeking relief, or that the outcome is unfair to the defendant. Purpose in the law of tort is to place the claimant in the same position, as far as money can do it, as if the tort had not been committed (whole). Fourth issue: INJUCTION, an equitable remedy - JUDGE Equity = providing specific remedies. It’s the equitable remedy: sometimes damages are not a good remedy, they’re not enough, you need more. It’s linked to equity, and it is more solid. - Who decides to grant an injunction? THE JUDGES, not the jury (VS damages). This is of course more complicated. Equitable remedy: discretionary remedy (granted on the exercise of judicial discretion). Equity is interested in the conduct of the parties - the conduct of the claimant and that of the defendant. It is a prohibitory injunction in this case = compelling the cricket club to stop its activity; order of the court to restrain the doing, continuance, or repetition of the wrongful act. Judgement, holding: - Negligence: two out of three judges said that there is negligence. The only one that said that there was NO negligence is lord Denning. - Concerning nuisance, same (2/3), Denning is the only one against it. - Damages: 2/3 minus Geoffrey Lane (he is the minority here). Here Lord Danning accepts damages, he is ready to give damages. Why did he say it, even if he was against negligence and nuisance? He accepted it because the cricket club kindly offered to pay damages. - Injunction: 1/3 → only Geoffrey is ready to grant an injunction, to affirm the decision of the high court of justice. Remains the question of finding the ratio decidendi. Different methods to understand it, one is to read the case, you establish different propositions and want to understand if these propositions are material or not (important or not). The teacher invented these propositions: 1). Prior Existence of the Club → théorie de la pré-occupation in French law. The cricket club has been in existence for 70 years. The house was just built 4 years ago. Is this something material or immaterial? Immaterial, not that important. He read the first paragraph, it is an obiter dictum: Lord Danning define those in the house the “newcomers”, he directs his reader. In the end, Danning is a minority judge concerning negligence and nuisance (who said that there were not). 2) It’s raining cricket balls on the Millers’ house: Material = important because it is a risk. 3) No accident has occurred yet. No injury has yet been inflicted. Immaterial = it does not matter. 4) Mrs. Miller is slowly (but surely) losing her marbles (becoming neurotic): material. 5) The cricket club makes offers that are rejected by the Millers: immaterial, does not matter 6) Cricket is a sport practiced in the general interest: material 7) Precedent of Sturges v. Bridgman : material, because important. Paragraph 48, Geoffrey Lane speaking, 4 instances : - In the first one, he says that it does not matter that the cricket was there for 70 years, because there is a precedent. - Second instance: if the matter was res integra, without precedents, he confesses that he would be in favor of the defendants (cricket club). - Third: unfortunately, he is bound by Sturges v. Bridgman (1879) → it’s like what happened in the Gale case, where the judge would have done X if there was no precedens, but however there is the precedent. - Fourth instance: authority (rule of precedent) - it may be that this rule works injustice, but it is not for this court to alter a court that stood for so long.  Context of Court of Appeal being self bound by one of its decision by the 19th century (we are not in one of the three exceptions). Now, ratio decidendi: a long and difficult process to understand it, because you need to understand all the issues and invent reasons to know if something is important or not. A neighbor’s enjoyment of his land is offended, so there is nuisance and negligence, since the neighbor’s enjoyment has been interfered with, regardless of 4 considerations: 1. The interference was inflicted unintentionally, and efforts were made to mitigate the adverse effects of the offending interference, essayer d’attenuer les causes nefastes de cette activité 2. The persons who interfered with the neighbor’s enjoyment of his land pursued a legitimate interest – cricket. 3. No injury was actually inflicted (it sufficed that there was a risk of harm) 4. Pre-occupation: it does not matter that the cricket club was there for 70 years. Notwithstanding, the injunction to put an end to the offending activity (prohibitory injunction) involves a balance between the interests of the public at large and those of the individual. Bruce and Danning considered that the public interest of the village of having this cricket club was more important than the private interest of the individual (discretionary remedy). BUT in the end, the cricket club lost. - This judgement also illustrates the courtiness of judges, their strage attitude seen in the opinion for example of Danning (at the very end he accepts the damages, but at first he is against negligence and nuisace). Courtness of the judges also in what Geoffrey says. VERY important case to understant the rule of precedents in common law, in England.  b). Precedent in U.S. Law Planned Parenthood of Southeastern Pennsylvania v. Casey (1992), O’Connor says “no judicial system could do society’s work if it eyed each issue afresh in every case that raised it… Indeed, the very concept of the rule of law requires such continuity over time that a respect for precedent is, by definition, indispensable.” This concerns everyone, the rule of precedent is considered as a remnant of colonial independence. There were states that wanted to outlaw references to the common law (and so precedent) because they wanted to do things anew. The debate about the adoption of the Common Law in the US is still not 100% settled: it is debated if the use of precedents (even those for the impeachment trial of trump) should be relied upon and used: → Example of second impeachment trial of Trump: overthrow the elections, there was this process/ trial when he already left the White House (he was no more in exercise). Can we institute impeachment proceedings against an officer of the state who’s no longer in office? There was a precedent, but Trump lawyers say that they have no intention of using this rule because Trump was no longer in the White House. - Castor (Trump lawyer): “I can’t believe these fellows are quoting what happened pre- Revolution lol, as though that’s somehow a value to us.” Castor continued: “We left the British system. If we’re really going to use pre-Revolutionary history in Great Britain, then the precedent is we have a parliament and we have a king (irony). Is that the precedent that we are headed for?” (It is not.) The rule of precedents has become an issue in the USA in the last two years. Major concerns concerning precedent after SCOTUS’s 2022 term (Dobbs v. Jackson, June 24, 2022, → case about abortion). According to Justice Alito, Roe v. Wade “was wrong from the start. Its reasoning was exceptionally weak, and the decision had damaging consequences. And far from bringing about a national settlement of the abortion issue, Roe and Casey have enflamed debate and deepened division.” We will come back to this case, important for constitutional law and respect for the law of precedent. c). Precedent in Perspective 1). Greater Number of Overrulings in the United States VS UK Why this difference in overruling? The perspective changes. American courts overrule precedents on three principal grounds: ➔ 1) Change in circumstances used by the supreme court to overrule precedents, the previous precedents become obsolete.  Example: State Oil Company v. Khan, 552 U.S. 3 (1997): casebook, pp. 34-37, in this case the supreme court says that the previous precedent has become obsolete. ➔ 2) Overrule because there is a moral and social enlightenment, change precedent is no longer acceptable:  Example: Roper v. Simmons, 543 U.S. 551 (2005), where there is an overruling of the case SCOTUS Stanford v Kentucky (1989) on the 8th amendment to the Constitution that proscribes “cruel and unusual punishment” (death penalty applied to juveniles). There is a progression starting from the Kentucky to Simmons case. For Kentucky: no problem to sentence juveniles to a death penal, but with Simmons in 2005 the Court said that it is a cruel and unusual punishment (overruling).  ➔ 3) Third ground: the precedent was substantively erroneous or badly conceived  Example: Erie Railroad v. Tompkins, U.S. (1938); Kiobel v. Royal Dutch Petroleum (SCOTUS, April 17, 2013) and bobs v Jackson, we will see these cases later. Three reasons for these differences with the UK: ➔ 1). “Systemic” or “Organic” Nature of Law: it is claimed that there is this difference cause USA is a technologically advanced, wealthy and highly mobile society which is made up of a large number of small law districts. UK is smaller compared to the USA and can keep a strict application of the rule of precedent, but in the USA, you have federal states, and it is more complicated. ➔ 2). Volume of Case-Law: Each of the 50 states has its own separate body of precedents and corresponding conceptual apparatus. Legal authority for almost any legal proposition… Less reliance on formality and more substantive reasoning VS UK. American law is different from state to state, less formal than the UK. ➔ 3). More Dissenting Opinions in the USA, where judges express their dissenting opinions, and this has an impact on the application/ authority of the rule of precedent (since you have a lot of voix discordantes). High dissent rates weaken the precedential value of a decision as a source of clear and dependable rules. 2). Prospective Overruling not on the exam: a court upholds the existing precedent in the instant case but declares it overruled for the future (a bit controversial, very American) 3). Precedent and Economic Analysis of Law: common in law schools in USA. Rule of precedents, common law is economically efficient: it is wealth maximizing VS statute law is inefficient. Posner, very important in this legal theory. Inefficient rules are more likely to be litigated and overruled than efficient rules (efficient rules would never be litigated and they would always be settled) – the idea behind this school of law is that we have a process that goes towards an efficient outcome, wealth maximizing. By contrast, statute law would be more concerned with re-distributional goals and would serve special interests (legislator making choices) VS Common law is efficient for all interest groups: common law would be preferred to statute law because it embodies customs and practices, it tested and refined by the judiciary over time. - Okay, but efficiency is not necessarily embedded in the rule of precedents, because Courts are not only interested in efficiency, but they also have other interests as well. This is putting your trust in a judicial regulation, which is not necessarily a good thing → illustration of American distrust of regulations, judicial regulations… debate on the exacerbated litigiousness of the USA. 4). Foreign Sources: In England, comparative law is okay VS USA does not want comparative law. - Example of Justice Scalia dissents in Atkins v. Virginia (2003), or in Roper v. Simmons (2005) concerning the 8th amendment. Virginia case concerned the death penalty to mental handicapped people. Justice Kennedy bases himself on what is said in other jurisdiction, but Justice Scalia says that these values are not applied in the US → it shows that US doesn’t want foreign reference/comparative law.  C. Statute Law, statutory law Common law → emphasis on case law. VS civil law → only characterized by statutory law – it is an authority in civil law – classic separation, but we’ve seen that differences are disappearing today. Convergence between these two families, common law, and civil law, why is that? - Importance of statute of law in the common law. Westminster gets involved more and more; P 40 of casebook: Lord Denning says that in every case, you would have to interpret a statute. Precedents are still the source of law, but with lesser legal force. - In the civil law, the role of judicial decisions has been increasing → like l’arrêt le Ski. - Also, UK was a member of the UE: Europeanization of UK law, with important statutes. a). Statute Law and Precedent The requisite recognition of the superiority of Parliamentary legislation (Westminster in the UK, Congress in the US + state legislatures) over judge-made law: all judge-made law is inferior to, and can be overruled by, Parliamentary or delegated legislation → precedent is important in the common law, but Parliament is supreme, sovereign, can change case law. Westminster and congress have this power. b). Traditional Rules of Statutory Construction: interpretation Book “statutory interpretation”. Rules that sometimes are illogical and chaotic. Attempts at coherence in England and the US: in England → Interpretation Act 1978 and in the US → the Uniform Statute and Rule Construction Act (USRCA) completed by the Uniform Law Commissioners in 1993. Courts developed three rules of interpretation: literal rule, golden rule, mischief rule. - Literal rule: courts use the literal, grammatical meaning of the words. - Golden rule: the literal interpretation would be absurd, so courts can interpret it in a way to avoid absurdity. - Mischief rule: the court sees if there is a gap or mischief in the law, find the wrong, the mischief in a statute to correct it. 1). Literal (Ordinary or Plain-Meaning) Rule Literal: textual interpretation, the judge will just stand by the words of the statute. The text of a statute must be examined objectively (ordinary, plain, and natural meaning), irrespective of hardship. This goes back to English Bill of Rights (1689). Careful: There are two bills of rights: 1689 UK and 1791 in the US. - Art 9 of the English Bill of rights: forbidden to question the impeach. Not another interpretation other than the one of Westminster, can’t question words of the parliament. → Textual (frozen-in-time) interpretation: it says that judicial interpreters should be constrained by the meaning of a statute at the time that statute was enacted. This meaning of the statute is objectively determinable.  Reasons why we want to avoid interpretation that goes beyond words. 1. Basic formalism – legi-centric approach to the norms in the 19th century. O.W. Holmes: “We do not inquire what the legislature meant; we ask only what the statute means”. 2. Separation of powers argument: respect for democratic governance - curtail judicial lawmaking. 3. Judicial minimalism: cases are to be decided as “narrowly and shallowly” as possible (avoidance of foundational issues, abstract issues): P 21 of the textbook, Regina v. Bentham , decision delivered by the house of lords. Facts: person committing robbery, he has two fingers in his pocket imitating a firearm. The person didn’t have a firearm (or an imitation) in his pocket, but he committed a robbery by putting his two fingers in his pocket pretending that he had one. Paragraph 1: the lord says that he gave the impression that he had a gun. Firearms Act 1968 says that you can’t carry a firearm in your pocket. The crown court said yes, the court of appeal upheld that decision, he was accused of possessing an imitation of a firearm. Case issue at the beginning of the case: can a person who pretends that has a gun by using his fingers be violating the Firearms Act 1968? Can it violate this statute? The house of lords said no. Holding: no, you can’t be in possession of your fingers. The statute says that you must be in possession of an imitation of a firearm. “One cannot possess something which is not separate and distinct from oneself (...). What is possessed must under definition be a thing; fingers are not things”. - Paragraph 12: it excludes the conviction of Bentham; they have to give a literal meaning to the law (firearm act of 1968 that only says that people have an imitation of a firearm, the lower courts give importance to the impression made on the victims, but it is not relevant to possession). 2). Golden Rule: statutes that contain something inconsistent, repugnant, or absurd (remember these three words). Under the golden rule, the literal rule leads to an “absurd, repugnant or inconsistent” outcome, which Parliament could not have intended: the judge can substitute a reasonable meaning in the light of the statute as a whole (mere corrections of careless language by the judge which gives the true meaning and object of Parliament) → the judge resorts to the golden rule: The rule allows the court to: - (i) alter the structure of sentences, - (ii) give unusual meaning to particular words, - (iii) alter the collation, - or (iv) reject them altogether. Application of the golden rule: R. v. Allen : Section 57 of the Offences Against the Person Act 1861 stated that: “Whosever being married shall marry any other person during the life of the former husband or wife … shall be guilty of bigamy.” - The formulation of this statute is absurd – “Whosever being married shall marry”, if you marry, you can’t marry again. Judges gave a common sense interpretation: Impossible for a person already married to “marry” someone else.  3). Mischief (Social-Purpose) Rule What mischief was the legislator aiming for? True reason of the remedy? Giving a commonsense answer. Also known as the “common sense” rule (purposive approach in the US). The rule is based on the Heydon’s case (1584). A statute will be construed to accomplish the social purpose it was designed to accomplish, even if that reading would contradict its literal reading. Application of the mischief rule: Smith v. Hughes [1960 – very old case] regarding the Street Offences Act 1959, making it an offence to solicit for prostitution in a public place. Facts: Defendants were prostitutes charged under the strict offence act. They used coins to tap on the windows – the act said that it is an offence to solicit in a street or public place for prostitution. Issue: Could they be convicted? The judge uses mischief rule: no matter where they are (next to a window, a balcony…), the meaning of the act was to prevent people from being molested by prostitutes. The activities of the defendants were within the mischief rule. The court must make such construction of the statute as would “suppress the mischief and advance the remedy.” The literal and golden rules want to find out what the Parliament SAID, while the Mischief rule what the Parliament MEANT. This mischief rule wants to find the wrong, the mischief in a statute to correct it. The statute is interpreted in the light of this. → these three are the traditional rules of statutory construction. Il y a des lois VS gale v gale: interprétation unilatérale, il n’y a pas de loi en gale en gale. b). Traditional Rules of Statutory Construction = interpretation i). English Offshoot: Relaxing the Exclusionary Rule Exclusionary rule → references to “extrinsic material” (or external aids), including travaux préparatoires, as an aid to statutory construction, is traditionally not permissible in English law. “Hansard” – official report of parliamentary debates in England. Judges can’t consult these external sources lol. Relaxation of the exclusionary rule begins with EU law: ECJ, Case 41/74, Van Duyn v. Home Office : it had to do with free movement of workers, look at the usual effects of the remedy, not simply the words - new method of construction at the EU level. Lord Denning challenges the exclusionary rule (to him, it is okay to consult these external aids) in a case concerning the construction of section 1 of the Domestic Violence and Matrimonial Proceedings Act 1976 (dicta under Davis v. Johnson , p. 276-277 – could use this new method of construction at the EU level). - Denning, obiter dictum: « Some may say - and indeed have said - that judges should not pay any attention to what is said in Parliament. They should grope about in the dark for the meaning of a statute without switching on the light. I do not accede to this view. And it is obvious that there is nothing to prevent a judge looking at these debates himself privately and getting some guidance from them. Although it may shock the purists, I may as well confess that I have sometimes done it. I have done it in this very case. It has thrown a flood of light on the position » → let’s change the way we look at statutes. Denning is severely criticized by his colleagues on the bench of the Court of Appeal lol.  Creeping Purposive Approach Method used by judges to interpret what statutes (or laws) mean. → give effect to the true intention of Parliament, look at purpose and intent. Pickstone v. Freemans plc : permissible to give a purposive construction to primary or delegated legislation of the UK Parliament which was designed to give effect to EU law (case concerning equal pay legislation) - House of lords says that this is okay only with primarly legislation or delegate legislation of the UK that affects EU law. - If it’s just english law, literal rule prevails. The process of legitimizing reference to Hansard (parliamentary debates) culminates in Pepper (Inspector of Taxes) v. Hart by the house of lords: the exclusionary rule is not so important. Reference to Hansard is allowed as an aid to the construction of UK domestic primary legislation. Pepper v. Hart, a landmark case concerning statutory construction of s. 63 of the Finance Act 1976 on the taxation of benefits in kind (perks/ fringe benefits - vantaggi/benefici accessori, these three words are synonymous, avantages en nature). This provision of finance act deals with the taxation of benefits and kind (perks/fridge benefits in the US). Facts: The case was about a private school, very prestigious and expensive: Malvern college. The Malvern college gave to its employees a benefit in kind: their children could go to that school, paying 1/10 of the tuition that other kids would have to pay. Their children would pay a different tuition that the “normal” students. Issue: how to tax that benefit in kind? Holding: parents would be taxed on marginal cost. Discussion: The section was not clear, there are two solutions that could be read form this section, the act could receive these two interpretations. The benefits could be taxed on either: 1. Tax the marginal (or additional) cost to the employer of providing it to the employee (which, on the facts, was nil - zero), having another 10, 20, 30 students cost nothing to the university. 2. Tax the average cost of providing it to both the employee and the public. The employee would pay less, normal parent more. – this interpretation is not advantageous. House of Lords decided to modify existing practice: Hansard revealed clear statements that the intention was to tax employees on the benefits on their marginal cost to the employer. House of Lords said they should have a look at the parliamentary debates (Hansard) → parents would be taxed on marginal cost, which is 0, nil. This case relaxes the exclusionary rule and enhances the purposive approach (nothing to do with EU law, this has to do with English law). ➔ In this case the House of lords says three things. Exclusionary rule: you only look at the statute and nothing more, but here we have to look at the debates → relax the exclusionary rule is permissible only when there are three conditions - it means that the judge can rely on those external sources like the debates at the parliament: 1. The legislation is ambiguous, or obscure, or its literal meaning leads to an absurdity. 2. The material relied upon consists of statements made by a Minister or other promoter of the Bill – can only rely on their statements. 3. The statements relied upon are clear – their statements are clear. Dissent of Lord Mackay of Clashfern LC on the use of Hansard – opinion that differed from the others. He was fearful of “an immense increase in the cost of litigation”, lawyers wishing to avoid the risk of being sued in negligence by their clients. Lawyers felt obliged to use these travaux parlementaires, s’ils ne le faisaient pas, leurs clients could sue them to justice lol. - The resolution of the entire case proceeded on the basis of the purposive approach to statutory construction (give effect to the true intention of Parliament) → Lord Denning was finally vindicated with Pepper - House of Lords agrees with his reasoning. ii). Social Purpose Rule (mischief rule called social purpose rule in the US) United States v. Souther (2000) involving the construction of U.S. Sentencing Guidelines aimed at “brandishing, displaying, or possessing” a “dangerous weapon” during robberies. Facts: the person didn’t have a firearm in his pocket, but he committed a robbery by putting his two fingers in his pocket pretending that he had one. He was prosecuted for infringing the firearms act: he was deemed to carry an imitation firearm in his pocket. Court: he is convicted for violating the act → same facts as Regina v. Bentham but different conclusion. In Regina it does not matter, he uses his hands to imitate a firearm. VS in this case we have the opposite holding. It appeared as a weapon. US Faithful Agent Theory This represents pragmatism in the US. “Faithful agent theory of judging”: the aim is to use all available evidence to reconstruct the way Congress would have resolved the issue before the court. Judge will have little problems to look at the text and see the outcomes/ results of the conflict before the court. Friedrich v. City of Chicago, (7th Cir. 1989), involving the Civil Rights Attorney’s Fee Awards Act of 1976. The statute authorized a prevailing plaintiff to recover a “reasonable attorney’s fee” in specified categories of civil rights cases. Cases that concern civil rights in the US – this statute authorizes a paintiff that WINS a civil right case to have a reasoanble attorney fee. You won, so the other party will pay for theirs and our attorney – similar in Belgium. The statute refers to attorney fees. Issue: is a prevailing plaintiff entitled to fees paid to an expert for advice provided in preparation for trial and testimony given at trial? Holding: yes, he/she is. It is admissible that the legislator envisaged that the prevailing plaintiff could recover the fees paid to an expert. - Judge Posner felt “confident that if someone had told Congress in the deliberations leading up to enactment that it had neglected to say anything about the shifting of expert witness fees, Congress would have added language making clear to the most literal-minded that such fees should be shifted. UNTIL HERE WE’VE SEEN: → Statutes always prevail over judicial precedents – UK no constitution, so we have Parliementary soverreignty and statutes are really important. → Traditional rules of construction – the three traditional rules of UK and the US (for the mischief rule, focus on UK and US). The third problem is the fundemental adaptation.  c). Fundamental Adaptations, statutory construction 1). U.K. → HRA 1998: important - statutory construction and relation with Europe 2). USA → agencies 1). United Kingdom: Human Rights Act 1998 (HRA 1998) With the human rights act, the Parliament incorporated the European convention of human rights CAREFUL: UK is still in the Council of Europe, but not in the EU. UK: link to the European union. 1.1). Starting-Point: British Dualism – really important Monism: you have only one legal order on top of each other (France) VS UK: dualist. National and international norms are separated. the two legal order don’t necessarily touch. The national law must transport the international law into their system otherwise judges cannot recognize the international law. Why is that? - Consequence of Parliamentary supremacy: no one is above parliamant. - Two steps process: 1) Signature of the ECHR 4/11/1950, UK ratified it in 1951. In the UK, for the ECHR to apply, they had to wait 15 years. It would not be recognized in England even though they signd and ratified. 2) Incorporation of the ECHR via the Human Rights Act 1998: it was incorporated in UK national law; it entered effect in 2000. We have three major changes: i). Section 19 of the statute - HRA: Statements of Compatibility (1) A Minister of the Crown in charge of a Bill in either House of Parliament must, before Second Reading of the Bill: - (a) make a statement to the effect that in his view the provisions of the Bill are compatible with the E Convention H rights ( → “a statement of compatibility”); or - (b) make a statement to the effect that although he is unable to make a statement of compatibility the government nevertheless wishes the House to proceed with the Bill – making a statement to say if it or not is compatible (2) The statement must be in writing and be published in such manner as the Minister making it considers appropriate. ii). Section 3 of HRA: Rule of Construction We’ve seen the three rules (golden rule…). To learn by heart: “So far as it is possible to do so, primary legislation (droit primaire) and subordinate (droit dérivé) legislation must be read and given effect in a way which is compatible with the Convention rights”. - As far as it is possible, they must interpret primary and subordinate legislation in a way that it is compatible to the ECHR. This is a new approach, something the judges never had before, they now have a guide on how they must do it.  iii). Section 4 of HRA: Declaration of Incompatibility (1) Subsection (2) applies in any proceedings in which a court determines whether a provision of primary legislation is compatible with a Convention right. (2) If the court is satisfied that the provision is incompatible with a Convention right, it may make a declaration of that incompatibility. – les juridictions, English courts peuvent faire une declaration d’incompatibilité entre UK law and ECHR. (6) A declaration under this section (a declaration of incompatibility): what are its effects? - (a) does not affect the validity, continuing operation, or enforcement of the provision in respect of which it is given; (the declaration does not affect the validity of the provision that is not compatible, it has a political effect) - (b) is not binding on the parties to the proceedings in which it is made – it is only a declaration, not binding. This is a new rule: English courts no longer simply interpret and apply legislation. They are required to evaluate the effect of primary legislation in terms of Convention rights and where necessary make a declaration of incompatibility. - Subtle compromise between Art. 9 of the Bill of Rights of 1689 (which laid the foundations for the ultimate sovereignty of Parliament) and Parliament’s decision in 1998 to give greater protection to human rights, whilst preserving its sovereignty Glanville Williams (in casebook): there are questions and a tabella – SEE WHAT I WROTE IN THE CASE BOOK. WilliaMs says that law is divided into criminal law and civil law: terminology is different, procedure and the outcome are also different. The distinction does not reside in the nature of the act, because an act can be a crime but also a civil wrong (example: i leave my bag to a person working in a left-luggage and this person runs away with it → we have a crime of theft and civil wrongs – tort of interfering with goods and the breach of the contract with me). THE TRUE DISTINCTION IS IN THE LEGAL CONSEQUENCES OF THE ACT: IF WE HAVE A CRIMINAL PROCEEDING, IT IS A CRIME (OR OFFENCE), IF WE HAVE CIVIL PROCEEDINGS, THEN IT IS A CIVIL WRONG. IF IT IS FOLLOED BY BOTH, IT IS A CRIME AND A CIVIL WRONG. Criminals – guilty VS Civil – liable. Transpass is not a criminal offence, but a civil wrong: WOODEN LIE. Four cases to understand this novelty in english law: ➔ 1 case: Saunders v. United Kingdom (ECtHR), 1996, p 49-50, Important, st the whole case is a wink wink – UK condemned by ECtHR (court) lol. The starting point to an important change in English law. - Unlawful share support operation - Insider trading → the buying or selling of a security by someone who has access to non- public information about the security. Insider trading can be illegal or legal depending on when the insider makes the trade. It is illegal when the material information is still non- public. Facts: This concerns a rachat d’une entreprise par une autre intreprise. The CEO Saunders wants to take over another company and in this take over process, the CEO of the company was lying, there were allegations of fraud, so he is arrested, and the department of trade and industry compelled him to testify, if he did not, he would be guilty of contempt. A man who had been compelled (forcé) to give testimony during an investigation by the inspectors of the department. Case issue: was his right of freedom from self-incrimination (art 6.1 of the convention) infringed (violated) by the use of his statements that he had been compelled to make? Did UK infringe the right of freedom from self-incimination by compelling him to testify and using his statements? Holding: yes, it infringes the right of freedom from self-incrimination. Discussion: A judge who feels someone is improperly challenging the court’s authority has the power to declare the defiant person (called the “contemnor”) in contempt of court → If he did not testify, he would be found guilty of contempt court (entrave à la bonne administration de la justice). - Two types of contempt: criminal contempt (or direct contempt, the contemnor interferes with the ability of the court to function properly) and the civil contempt (or indirect contempt, the contemnor disobeys a court order.). This case is a criminal contempt English courts agree that he was compelled, the Crown Court (cour d’assise) convicted him of conspiracy, false accounting and theft. The Court of appeal rejects the appeal but reduces his sentence. House of Lords refuses leave to appeal, the permission to appeal. In the judgment it is written that “this is star chamber stuff”: the interrogations happen in windowless rooms and are intimidatory. For this chamber there was no appeal, and in this case the court of appeal rejected the appeal, and also the House of Lords refused leave to appeal (refused the permission to appeal). This does not go well with the European convention. What is the court of star chamber? Jurisdiction established by Henry II (end of 15th century) and abolished by Charles I (17th), this court is a ramnent of the use of all tortures. - Initially it was a judicial body that oversaw the operations of lower courts but, overtime, its mandate expanded to include instances of public disorder: it delivered swift and severe punishment (torture, prison, and fines), no right of appeal, sessions held in secret – still today it is a synonym to abuse of power by the king. - Abolished in 1641, the name of the Star Chamber now designates arbitrary and secretive proceedings, in opposition to personal rights and liberty. Last paragraph, Times legal correspondent: right to silence. Conclusion: there is a massive hole that appears in the prosecuting authorities, this EctHR judgement secures the defendant’s right to silence. The burden of proof is on the prosecution, it is not the defendant that has to prove if he’s guilty lol, he has no obligation to help them doing it. This right has been called the golden thread, but it has been eroded. There were two laws (companies act of 1967 and 1985) that eroded this right of silence and freedom from self-incrimination. The ruling of the European court shows that there is a hole in the prosecuting autorities to combat fraud. ➔ 2nd case: R. v Staines and Morrissey (Court of Appeal), 1997 Facts: very similar to the Saunders case, the department of trade and industry used statements made by the appellants under compulsion. The appellants said that the trial judge should have excluded these statements in light of the Saunders case. Issue: very similar to the Saunders case (persons make statements under compulsion, is the right of freedom from self-incrimination infringed?) Holding: the court of appeal says no. The Court of Appeal dismisses the appeal: discomfort of Lord Bingham of Cornhill, LCJ (apparent in paras. 2, 3, and 4) Discussion: Lord Bingham said that in all precedent cases, there is nothing that distinguishes this case from all the others (he is bound by the rule of precedent). If the court excluded the evidence gathered under compulsion in this case, it would have to happen in every other case. This would cause repeal of statutes that are in force → abroger une disposition legislative qui est en vigueur (in force). This would condemn the UK on the international level, - It is said that the Saunders judgement of the EctHR is irrelevant. You lost your appeal because you based it on Saunders case, but this case as a matter of strict law is irrelevant. - The use of this evidence is allowed, it is treated as fair in this context. LORD BINGHAM SAYS THAT ALL THIS IS UNSATISFACTORY: the appellants can go to Strasbourg and win their case, they migh even have claims to comepensation against the UK (who will lose). UK has obligations to the treaty, The european convention. - Careful: when Bingham states “Our domestic law remains as declared by this Court in Saunders” (end of para. 4), he is referring to the previous judgment of the Court of Appeal (and not to the judgment of the European Court of Human Rights) – so basically in the end the Court of appeal said no, there is no violation. ➔ 3rd case by the House of lord: R. v. Secretary of State for the Home Department, ex parte Simms, 1999 No facts, issue or holding slay. In the entire text Lord Hoffmann develops two ideas: - (i) the scope of parliamentary sovereignty under the HRA 1998: The relation with the Human rights act. lord Hoffman says that Parliement is sovereing, if it wants, it can legislate contrary to human rights lol. - (ii) THREE changes brought about by the HRA 1998.  For the first time, the U.K. has a specific text on fundamental human rights (according to Lord Hoffmann, is this a radical novelty in England’s notion of fundamental human rights?) UK adopted a text as a part of domestic law – it is not likely to cause radical change, they already have these fundamental rights in English law, there was no need to incorporate it, but it was incorporated (bar argument for the teacher).  Principle of legality enacted as a rule of construction (principle used to interpret statutes). in section 3, the principle of legality will also be supported by the fact that the Minister in charge of a Bill has to make a statement of computability under section 19 of the human rights act (HRA, s.3 and s.19) Step 1  Courts can make a “declaration of incompatibility” (HRA, s.4) Step 2, when the principle of legality is not respected, courts make a declaration of incapability. The Parliament can decide if to remove or not the incompatibility. ➔ 4th case: R. (Anderson) v. Secretary of State for the Home Department (House of Lords), 2003 Notable application of the HRA 1998 in this case. Speech by Lord Steyn. Facts: Man compelled to give testimony under compulsion. Anderson was convicted of two murders, kicked the victims to dead in both cases. Sentenced to life prison on the basis of the Crime sentences act of 1997. This statute lets the home secretary determine when a person sentenced to life prison will be released. Every punishment has two things: retribution and deterrence. Can he take the decision alone? He consults two people for advice: trial juge (juge du fond) and the president of the court of appeal, but he takes the decision alone. If we reject the advice of the trial judge, he has to spend some time in prison. If it is followed, he could get out of prison tomorrow. Issue: Is the decision of the home secretary compatible with the Human rights act of 1998 by which the Parliament incorporated the European convention of human rights? Is the Home secretary an independent and impartial tribunal as required by article 6 of the convention? Holding; NO, it is a member of the executive branch; it has no judicial function – article 6 of the European convention is infringed. Discussion: - Until now we’ve seen that the remedy is a mean by which a court of law, usually in the exercise of civil law jurisdiction, enforces a right, imposes a penalty, or makes some other court order to impose its will. Distinction between legal remedies (e.g. money damages) and equitable remedies (e.g. injunctive relief) - Also, the means by which the Crown, acting through its courts, effects control over inferior courts or public authorities (“judicial review”) Two possibilities of remedies → The first remedy would be section 3 of the Human rights act (read the legislation in a compatible way to the convention) – not used, →The second would be section 4 (declaration of incompatibility). Lord Steyn in says, “in this way parliamentary sovereignty was preserved” → Courts may make a declaration, but it has no effect on the law, parties so parliament sovereignty is preserved. Anderson’s lawyer (counsel) wants to use section 3 (interpretative obligation) to read into section 29 of the crime sentences act of 1997. But this can’t be followed. Anderson was not successful, the House of lords rejected section 3, because this is not interpretation but interpolation (estimating values, guessing what comes based on what you know - impute dans la