bluuebunny/crossref_metadata_2025 huggingface dataset:
The use of distilled water in the achievement of local hemostasis during surgery
Authors: van den Tillaart S. A. H. M. , Busard M. P. H. , Trimbos J. B. M. Z.
Published: January 2009

Distilled water is used worldwide to check on hemostasis at the end of pelvic oncological operations. Nevertheless, reports about this method are lacking. The aim of this study was to explain the method and to discuss possible side effects. After the addition of distilled water to the surgically exposed pelvis, rapid lysis of erythrocytes results in a transparent fluid in which a small source of bleeding is easily recognizable. A possible side effect of the lavage might be contribution to the formation of peritoneal adhesions by confusing the abdominal defence system. Systemic side effects are not to be expected. Although tumour cells might suffer from hypotonic distilled water lavage, the current use of distilled water at the end of surgery is probably not effective to lyse tumour cells. Our findings support the ongoing use of distilled water lavage to achieve hemostasis after extensive pelvic surgery.
Future risk of diabetes in mother and child after gestational diabetes mellitus
Authors: Damm Peter
Published: January 2009

Gestational diabetes mellitus (GDM) is a common pregnancy complication with increased maternal and perinatal morbidity. However, significant long‐term morbidity also exists for the mother and offspring. Women with previous GDM have a very high risk of developing overt diabetes, primarily type 2 diabetes, later in life. Moreover, the risk of the metabolic syndrome is increased 3‐fold in these women. Their offspring have an 8‐fold risk of diabetes/prediabetes at 19–27 years of age. Thus, GDM is part of a vicious circle which increases the development of diabetes in the coming generations.
Pregnancy and diabetes scenario around the world: China
Authors: Ma Ronald C.W. , Chan Juliana C.N.
Published: January 2009

Asians adopting a modern lifestyle have a higher risk of diabetes than their white counterparts living in high‐income countries. Asian ethnicity is an independent risk factor for gestational diabetes mellitus (GDM), which is associated with a 2‐fold increased risk of diabetes. In this burgeoning epidemic of diabetes, 40 million people in China are affected, with the most rapid rate of increase in disease prevalence in the young to middle‐aged group. This rising trend of young onset diabetes is largely driven by the rising prevalence of childhood obesity/metabolic syndrome. In Asia, both low and high birth weights are independent risk factors for diabetes and metabolic syndrome. Apart from the high prevalence of maternal history of diabetes in women with diabetes, the metabolic milieu of GDM may have long‐term effects on the metabolic profile and future risk of diabetes in the offspring. This complex interplay between environmental, genetic, and perinatal factors puts both mothers with a history of GDM and their offspring at risk of diabetes and metabolic syndrome, thus setting up a vicious cycle of “diabetes begetting diabetes.” Given the public health burden of diabetes in low‐income nations such as China, there is an urgent need to design and implement large‐scale awareness and intervention programs targeted at these mother–offspring pairs to interrupt this transgenerational effect of diabetes and the socioeconomic and humanistic impacts.
Limitations to the deficit attenuation hypothesis: Aging and decision making
Authors: Healey M. Karl , Hasher Lynn
Published: January 2009

The deficit attenuation hypothesis is the proposal that age related declines in basic cognitive functions often result in compensatory changes in decision making strategies. However, the patterns of cognitive changes across the adult life span are complex: Many cognitive abilities change across the adult life span while others do not. Some of the cognitive changes will be detrimental to decision making, others will have no impact and still others may actually improve decision making. We illustrate the complexity of the impact of cognition on aging and decision making with examples from working and long‐term memory and use these to suggest boundary conditions for the deficit attenuation hypothesis.
Furtum and Larceny
Authors: Duff P. W.
Published: January 2009

Anyone who studies side by side the Roman law of furtum and the English law of larceny must be struck by the fact that, whereas Roman thieves and English thieves behave much alike, Roman lawyers in discussing theft usually assume that a civil action is being brought, for money damages, but English lawyers are mainly concerned with criminal prosecution, leading to a fine, or imprisonment, or, in former times, to the gallows.
Ranulf De Glanvill in Yorkshire
Authors: Bailey S. J.
Published: January 2009

Glanvill, as we have seen, held office as sheriff of Yorkshire during the two periods 1163–1169 and 1175–1189. Throughout both periods it is he who, according to the Pipe Rolls, renders the account of that sheriffwick. During the second of these periods, however, there is reason to believe that he did no such thing. In the year 1177, the Pipe Rolls say outright, with respect to another county, that he accounts by the verumdictum of “Reiner his steward” in respect of the past three years; and although they do not speak of Reiner, or indeed of any other, as his deputy when accounts are rendered for Yorkshire, there is little doubt that Glanvill employed Reiner to act for him as sheriff in that county also. Indeed, Glanvill as sheriff of Yorkshire could hardly appear otherwise than by deputy when presenting his accounts at the exchequer where Glanvill the Justiciar presides.
Ulterior Limitations and the Rule Against Perpetuities
Authors: Morris J. H. C.
Published: January 2009

The purpose of this article is to consider whether, and if so to what extent, a limitation following one which is void for remoteness is itself void. The subject is one of the most obscure in the rule against perpetuities, and it has always seemed to me that the well-known monographs are at their least satisfactory on this topic-Although I have no desire to revive old controversies, it will not be possible to avoid occasional references to such controversial matters as the rule in Whitby v. Mitchell, the application of the modern rule against perpetuities to legal contingent remainders, and the scope of the cy-près doctrine.
The Evidence of Co-Prisoners
Authors: Gooderson R. N.
Published: January 2009

A co-prisoner has never been a competent prosecution witness, save in four exceptional cases:— (i) after a nolle prosequi; (ii) after a plea of guilty; (iii) after an acquittal; (iv) after severance of the trials. Even in the four exceptional cases, it is the practice for the judge to warn the jury against convicting on the uncorroborated evidence of the co-prisoner, if they hold him to be an accomplice. As a defence witness, a prisoner was before the Act of 1898 competent for the defence of a co-prisoner only in the four exceptional cases, but it seems never to have been doubted since the Act that he is competent in all cases. Whether the evidence of the prisoner as a defence witness is evidence against a co-prisoner is a difficult question, but, although there are conflicting authorities, the better view, both in principle and upon authority, seems to be that today a prisoner is a competent defence witness against a co-prisoner in all cases, but the jury should be given the accomplice warning, if they hold him to be an accomplice.
Liability for Independent Contractors
Authors: Williams Glanville
Published: January 2009

One of the most disturbing features of the law of tort in recent years is the way in which the courts have extended, seemingly without any reference to considerations of policy, the liability for independent contractors. An independent contractor may be defined for the present purpose as any person, other than a servant, who is employed to do work. The definition includes such diverse persons as a builder, a road construction engineer, an electrician, a dentist or doctor attending a private patient, a shoe-repairer, a launderer, a dressmaker, a barber, an airline company, a taxi-driver, a copy-typist, an advisory expert, and a charwoman if not a servant. But a vendor is clearly not a contractor for this purpose (so that if, for example, I order a particular type of gunpowder to be made for me as a purchaser, I am not to be regarded as an employer of an independent contractor, and will not be liable, if the seller's works blow up, under any of the heads of liability to be discussed presently). Similarly it is submitted that a landlord who covenants to repair is not an independent contractor for the tenant; hence such rules of liability for contractors as have been developed would not apply to the tenant. The landlord would be an independent contractor for the law of tort only if it were contemplated that he was to do the repairs himself or by his servants.
Similar Facts and Actus Reus
Authors: Gooderson R. N.
Published: January 2009

Some of the complexity of the English rules of evidence in criminal cases springs from a clash, probably dating back to the formative period of those rules, between two objects, laudable in themselves but antagonistic. One most fundamental principle, of which English lawyers are justly proud, stemming from a desire that a criminal trial should be conducted in a manner as fair to the accused as possible, was that evidence of his misdoings on other occasions should be prima facie inadmissible. On the other hand, courts of justice naturally desire that cogent and weighty evidence that the accused committed the crime with which he is charged should not be excluded from consideration by judge and jury, and consequently evidence, often called similar fact evidence, of other misconduct of the accused is sometimes receivable not because it shows his bad character but in spite of that fact.
Coke's Note-Books and the Sources of his Reports
Authors: Baker J. H.
Published: January 2009

Four hundred years ago this April, Edward Coke of Trinity College, Cambridge, was admitted to the Inner Temple, an event momentous not merely in the history of the Inn but also in the history of the common law. For it was in 1572 that young Coke began to attend the courts and to observe the decisions there, to listen to Bendlowes and Plowden and Dyer as they opened for him the secrets of jurisprudence. He was to continue his attendance at Westminster Hall for forty-four years, and from 1579 to record all the important cases which came to his notice, It is, therefore, an auspicious moment to remember Coke's achievement as a reporter of cases, a matter of particular interest in “that famous University of Cambridge, alma mea mater,” to whose legal offspring Coke's literary works were especially addressed.
Unblinkering the Unruly Horse: Public Policy in the Law of Contract
Authors: Shand John
Published: January 2009

That much-flogged unruly horse, public policy, is still at large. It is therefore the purpose of this article to examine the nature, justification and operation of public policy and to consider whether this is an area of law ripe for reform. It clearly would be unrealistic to attempt to do this on a broad front in the space available, and so this survey will be limited mainly to the crude and superficially obvious case where a contract is tainted with criminality or where the party seeking a contractual remedy relies on his own criminal act. It will primarily be concerned with such statements of principle as “no man shall be permitted to profit from his own wrong” or “ex turpi causa non oritur actio.” This immediately raises a problem for the common lawyer, for such general statements are not readily recognisable as working law, and he will wish to reduce them to a more precise set of rules. Such an attempt will lead us, however, into the centre of a major jurisprudential debate.
Counsellors and Barristers. An Historical Study
Authors: Baker J. H.
Published: January 2009

It is rather surprising that no one has yet written a history of the English Bar in its modern form. Although much valuable work has been done on the history of the legal profession, particularly in its earlier stages, and although the history of attorneys and solicitors has been written, little is known about the development of barristers as a branch of the profession and their relations with the other branches. The present article can hardly supply this deficiency, which is a very large one, but it may lay open some aspects of the subject in the hope that more research will follow.
The Adequacy of the Law of Torts
Authors: Wright Cecil A.
Published: January 2009

Any attempt to evaluate the adequacy or inadequacy of tort law in general is bound to fail unless the scope of inquiry is severely limited. All attempts to find some unifying principle have failed. In light of the diverse interests involved which may be political, domestic or economic, and the purposes to be achieved, which may range from the quasi-criminal to determination of title to property, it would be a miracle of intellectual abstraction if it were otherwise.

To confine inquiry to “accidental” injuries, i.e., those arising as a by-product of some lawful activity carried on for reasons other than the invasion of a plaintiff's interest, is helpful but not satis-factory. For example, “accidental” injury to a person's privacy, honour or reputation could fall in this category. While issues of “strict liability” or liability for “fault” permeate this field and have, in England and Canada, been developed by the courts in favour of the former, public interest in freedom to disseminate news and the encouragement of freedom of speech is an important factor here which makes it impossible to compare other branches of the law where there is no counterpart. Here too legislation is playing an important role. By statute in England attempts have been made to mitigate some of the harsher features of strict liability by eliminating damages and substituting an “offer of amends” for accidental and non-negligent defamation. While legislation in Canada has been widespread, particularly with regard to the total or partial abolition of the distinction between libel and slander, such legislation has nowhere changed the strict liability of the common law.
Causation in the Law
Authors: Williams Glanville
Published: January 2009

Hart and Honoré's book is a thorough and scholarly study of the concept of causation in Anglo-American law. Closely reasoned, with full reference to the literature and a considerable treatment of Continental theories, it represents a serious attempt to restate the law in tort, contract and crime in an intelligible way. In future, any serious student of the subject will have to take note of it. Unfortunately for the authors they have backed a loser in supporting Re Polemis and criticising the foreseeability test; and since much of their argument depends upon their opinion on this question, their book must now be accounted largely out of date, if the decision of the Judicial Committee in The Wagon Mound receives the acceptance that seems probable. In respect of the general theory of causation, however, the discussion retains its intellectual interest; and the chapters on contract and crime, though relatively short, are largely unaffected by The Wagon Mound.
Mens Rea in Manslaughter
Authors: Turpin C. C.
Published: January 2009

That the much agitated question of mens rea in manslaughter should again be essayed may require some justification. Such is readily found in the deplorable circumstance that this major crime remains obscure and controversial in its most important aspect. Decisions may be found to support any of a variety of views about the presence, absence or nature of the mental element in manslaughter; textbooks on criminal law differ widely on the question; and student, teacher, practitioner, and doubtless also sometimes judge, are left in bewilderment by the abundance and variety of dicta, argument and opinion on the subject. This may seem good reason for not adding another view, but the writer is persuaded that, upon the basis of much valuable inquiry carried out in recent years by a number of workers in the field, it is now possible to state in reasonably clear and confident terms what is that element which, together with the actus reus of killing, constitutes the crime of manslaughter in English law. The writer would begin by acknowledging his indebtedness in particular to various writings of Dr. Turner, Dr. Glanville Williams and Professor Hart. They are not to blame for what follows; but whatever illumination this article may shed is the result of his study of their work.

Encouragement to write this article was derived from the following passage in Russell on Crime:

“It is … incumbent upon writers, especially in matters of general principle, whenever there appears to be a lack of precision in the authorities, to make concrete suggestions for the removal of doubts and difficulties.
Trouble on Oiled Waters: Problems of The Wagon Mound (No. 2)
Authors: Dias R. W. M.
Published: January 2009

“yet from those flames No light, but rather darkness visible” (Milton)

The foreseeable consequences of spilling a large quantity of furnace oil from the ss. Wagon Mound into Sydney Harbour have been in dispute now in two separate appeals to the Judicial Committee of the Privy Council. The cases will go down to posterity as The Wagon Mound (No. 1) and The Wagon Mound (No. 2). What was certainly not foreseeable was the complex forensic tangle to which the decisions have led.
Temporal Approach Towards a New Natural Law
Authors: Dias R. W. M.
Published: January 2009

Jurisprudence should ever be at the service of both legal scholar-ship and practice. If it were to dwell immured within the fastness of theory, this would only make it “stink,” as Dicey said, “in the nostrils of the practising barrister ” —to the mutual detriment of jurist and practitioner. This paper attempts at making a small contribution which, it is hoped, might be of service to both and which will have to be judged in the light of result.
Intention to Create Legal Relations
Authors: Hepple B. A.
Published: January 2009

The aim of this article is to examine the purpose and effect of the alleged rule of English law that an agreement supported by consideration will not be enforceable as a contract unless there is additional proof of an intention to create legal relations.
Judicial Review of Improper Purposes and Irrelevant Considerations
Authors: Taylor G. D. S.
Published: January 2009

Control of the abuse of discretion is arguably the central and most controversial part of judicial review of administrative action. Within abuse of discretion, review of improper purposes is probably the most difficult ground to define and expound. It is not seen easily as a separate and unique concept. There is no clear approach to it as a mechanism of review. On the other hand, review for the consideration of irrelevant factors appears to offer greater certainty. There has been, therefore, a tendency to bring both grounds together in terms of the latter. As a result, the line between improper purposes and irrelevant considerations has become blurred, and often they are seen as identical. A number of questions arise from this. Are the two grounds of review different? What is their content? How are they to be manipulated? Is the apparently expansive import of Padfield v. Minister of Agriculture, Fisheries and Food a significant development? If so, is it a shift in the right direction? Problems in review for abuse of discretion stem from several sources. The problems compound one another in a context of limited legal structures and judicial analysis. Abuse of discretion is too easily regarded as a “grab-bag” from which a ground of review can always be found to suit the conclusion sought to be reached on the merits. Judicial review is a flexible tool but each ground has a limited use. “Improper purposes” and “irrelevant factors” exist as distinct phrases because each represents a separate mode of analysis which is particularly useful in a given situation.
The Doctrine of Provocation
Authors: Ashworth A. J.
Published: January 2009

In English law the defence of provocation operates to reduce to manslaughter a killing which would otherwise be murder. The defence is not available on any charge other than murder: provocation is generally regarded as a matter which goes in mitigation of sentence, being insufficiently fundamental to qualify as a complete defence. Even in murder cases the defence ought only to succeed where the jury is left in reasonable doubt that the accused killed during a sudden loss of self-control caused by provocation which was enough to make a reasonable man do as he did, a test which has been criticised as unduly restrictive. The objective standard, embodied in the requirement “enough to make a reasonable man do as he did,” has attracted almost unremitting criticism from the writers. What function is the objective standard intended to perform? Does it perform this function successfully? In searching for the answers to these questions, the two factors isolated by Aristotle—the role of the provoker in causing the incident and the role of perceived injustice in weakening self-restraint —foreshadow the lines of inquiry.
The Office of the Lord Chancellor
Authors: Schuster Lord
Published: January 2009

This paper reproduces part of a lecture which I delivered in July to the students attending the special course for foreign lawyers in the University of Cambridge. Its theme was a consideration of Montesquieu's theory of the separation of powers in the British Constitution illustrated by the position of the Lord Chancellor. Being addressed to foreign students, it was largely elementary in character. But some of those who heard it thought that parts of it had a more permanent value. This is an attempt to adapt it so as to render it more suitable for The Cambridge Law Journal.
Land Charges and Notice
Authors: Bailey S. J.
Published: January 2009

The Property Acts of 1925 have restricted in several ways the old equitable doctrine of notice. This article is an attempt to bring together and summarise some of the effects and problems which result from one of the innovations which the Acts introduced to that end.

Section 10 of the Land Charges Act, 1925, enacts that certain ‘charges on, or obligations affecting, land’ may be registered as land charges in His Majesty's Land Registry. Some of these registrable charges have long been recognised as imposing an equitable burden upon the land concerned, and for present purposes we may confine our attention to two of them: (i) estate contracts, (ii) restrictive covenants. By ‘estate contract’, the section means a contract by an estate owner to convey or create a legal estate. By ‘restrictive covenant’ it means a covenant or agreement (not made between a lessor and lessee) restrictive of the user of land.

Both estate contracts and restrictive covenants are registrable if created after the Act came into force. But those which were already in existence before the Act are subject to a distinction: restrictive covenants older than the Act are not registrable—section 10, indeed, so defines a restrictive covenant (for the purposes of the Act) as to exclude them from the Act entirely; estate contracts older than the Act, however, do sometimes become registrable, namely, ‘if acquired under a conveyance’ (i.e., if the person who has the benefit of the estate contract assigns it) after 1925. This distinction, of course, is important and should be borne in mind.
The Basis of Legal Sovereignty
Authors: Wade H. W. R.
Published: January 2009

The great South African case of Harris v. Minister of the Interior will have turned the thoughts of many lawyers to the subject of legal sovereignty. Under English law the principle of the sovereignty of Parliament, “ the dominant characteristic of our political institutions,” is supposed to be something very simple and clear—and so indeed it appears in its classic exposition in the pages of Dicey. But the classic exposition is now widely controverted; an example may be taken from the recent remark of the Lord President of the Court of Session
Consent of Parties andVoluntas Legis
Authors: Dias R. W. M.
Published: January 2009

Thosewho have commented on the moribund state of consent as a defence in tort have no doubt been eating their words since the decision of the House of Lords inImperial Chemical Industries Ltd. v.Shatwell; though what precisely that case has accomplished is not clear. By regulation 27 (4) of the Quarries (Explosives) Regulations, 1959, a duty was imposed directly on shot-firers (not on employers) to carry out tests only from behind shelter; and breach of it was an offence. Two shot-firers, George and James Shatwell, who knew of the regulation and of their employers’ unsparing efforts to secure compliance in the interests of safety, decided nevertheless to disobey the injunction simply because they could not be bothered to wait until a lead long enough to enable them to test from behind shelter was fetched. Both men were injured when a detonator exploded. George, who was the prime mover in this enterprise, then sued the employers as being vicariously liable for the breach of statutory duty by James.

The lower courts reluctantly upheld his claim and rejected the defence of consent on the established ground, derived fromBaddeleyv.Earl GranvilleandWheelerv.New Merton Board Mills Ltd., that this is no answer to a breach of statutory duty. The House of Lords unanimously reversed the decision and held that consent was a defence in these circumstances.BaddeleyandWheelerwere distinguished on the ground that there the statutory duties lay on the employers, whereas here the duty lay on the employees themselves.
Them and Us
Authors: Radzinowicz Leon
Published: January 2009

I want first to explore what is happening to crime in an international context. If we look only at our own country the perspective is too narrow, the explanations and remedies too parochial. We cannot hope to comprehend ourselves without taking account of others.
The Prerogative Writs
Authors: de Smith S. A.
Published: January 2009

The object of this paper is to give a general account of the nature and development of the prerogative writs. Of these writs the best known are habeas corpus ad subjiciendum, to bring up the body of a person imprisoned on a criminal charge or in private detention; certiorari, to review orders and convictions of inferior tribunals and to remove indictments for trial; prohibition, to prevent inferior tribunals from going beyond their jurisdiction; and mandamus, to compel the performance of a public duty. All four are of high constitutional importance, and the last three in particular play a central role in administrative and magisterial law. In the common-law jurisdictions overseas their significance is not less than in England, and in some instances it is even greater because of the more extensive spheres of operation conferred upon them. In England an Act of 1938 replaced the prerogative writs of certiorari, prohibition and mandamus by orders of the same names, but the change of designation reflected only a simplification of procedure; the substantive law remains the same, and for convenience they will here be described as if they were still prerogative writs.
A Note on Broadmoor Patients
Authors: Jackson R. M.
Published: January 2009

It is not easy for students to see the subject of insanity and the criminal law as a whole. There is virtually no difficulty over what happens in court, for lawyers are concerned with that and it is adequately described in law books, notably in Archbold. But that is only part of the business, the other part being the concern of administrators. There is no mystery about what the officials do or about the reasons for their actions, and the application of intelligence to published material would give the student the right answer. However, a student may not get things right that way, as I remember that I failed to do (though whether by insufficiency of intelligence or of application I cannot say). I learned about these things when as a Home Office official I came to take part in working the system. The purpose of this note is to give students the framework of the subject. The Criminal Justice Act, 1948, has made some changes, and it is convenient to consider first the position before that Act and to begin with a trial on indictment.
Practical Reasoning and Contract as Promise: Extending Contract-based Criteria to Decide Excuse Cases
Authors: Morris Andrew J.
Published: January 2009

Two competing conceptions of contractual obligation dominate modern contract theory. “Neo-classical” scholars characterise contracts primarily as self-imposed, promissory obligations, while “progressive” scholars contend that contracts are primarily state-imposed obligations that have more in common with restitution and tort. Most theorists, located somewhere between these poles, divide the contractual domain into zones of self- and state-imposed obligations but disagree about where to draw the border. This essay considers one of the difficult border areas, the law of impossibility, frustration and mistake, which it will refer to collectively as “excuse”.
Property in Thin Air
Authors: Gray Kevin
Published: January 2009

Proudhon got it all wrong. Property is not theft—it is fraud. Few other legal notions operate such gross or systematic deception. Before long I will have sold you a piece of thin air and you will have called it property. But the ultimate fact about property is that it does not really exist: it is mere illusion. It is a vacant concept—oddly enough rather like thin air.
Property Notions in the Law of Obligations
Authors: Samuel Geoffrey
Published: January 2009

When the coach carrying Mr. and Mrs. Houghland from Ternhill to Cheshire arrived at its destination, Mrs. Houghland's suitcase could not be found. The suitcase had been loaded on to one of Low's coaches at Southampton, but this coach had broken down at Ternhill and the luggage had been transferred by the passengers to the luggage compartment of a relief vehicle which had arrived some three hours later. The coach company was unable to trace the case or to explain how it had disappeared and in a subsequent claim, either for its value or for damages for its loss, the County Court found in Mrs. Houghland's favour. An appeal to the Court of Appeal was dismissed.
The Homicide Act 1957
Authors: Armitage A. L.
Published: January 2009

So far as the law of England and Wales is concerned the Homicide Act, 1957, can be divided into two distinct parts. Part I of the Act makes certain reforms in the law of murder whether or not the murder be capital or non-capital. These reforms are important in themselves quite apart from the controversy in relation to the death penalty. Part II of the Act restricts the death penalty as the punishment to be imposed by the courts for the crime of murder to (a) certain kinds of murder defined in section 5 and called capital murder and (b) to murders by a person who has previously been convicted of murder as defined in section 6. For murders not falling within sections 5 and 6 of the Act the sentence “shall be imprisonment for life.”
Equality Before the Law in India
Authors: Chowdhury Subrata Roy
Published: January 2009

The Constitution of the Republic of India came into operation on January 26, 1950. The doctrine of equality before the law is contained in Article 14 of the Constitution which declares:

“The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India.”
The Strength and Weakness of French Administrative Law
Authors: Weil Prosper
Published: January 2009

It is often said that the French system of judicial control of the Administration is one of the best existing today. The French have no difficulty in believing this, and although Common Law jurists have long been influenced by Dicey, who wrote at a time when Administrative Law was different from that which we know today, they, also, are becoming aware of the merits of the work of the French Conseil d'Etat: Professor Hamson is in no small way responsible for this change of attitude. Moreover, the adoption of the French Administrative Law techniques by the European Communities and their introduction, albeit hesitantly, into the Law of International Organisations have also contributed towards increasing its reputation. Yet, at the very moment when it seems to have become an excellent product for export, the merits and the efficacy of French Administrative Law are causing considerable doubts among the French themselves. It has become fashionable to criticise what was unreservedly praised, and one wonders if adulation will give way to systematic denigration. The answer, not surprisingly, is to be found between the two extremes. The French system comprises elements both of strength and of weakness. This lecture is an attempt to evaluate these elements.
Forensic Evidence and Terrorist Trials in the United Kingdom
Authors: Walker Clive , Stockdale Russell
Published: January 2009

The issue of miscarriages of justice1 has been at the heart of much recent discourse—legal, political and social—concerning the English criminal justice system. Indeed the crisis of confidence in the system has prompted attempts to re-establish legitimacy, which include such tried and tested methods as changes of personnel,2 and the appointment of a wide-ranging Royal Commission 3 which followed the attempt to quell the disquiet by the more focused May Inquiry.4 Much of the concern has arisen from the conduct of terrorist trials in Britain in the mid-1970s, the most important and significant 5 of which for the purposes of this paper were the trials of groups of terrorist suspects commonly known as the Birmingham 6,6
Standing for Ecosystems—Going Dutch
Authors: Betlem Gerrit
Published: January 2009

Traditionally, common lawyers are used to examining other jurisdictions of their legal family as a source of inspiration for law reform or even as persuasive authority for the development of case law. Developments in continental civil law jurisdictions are less noted. However, particularly in the field of public law, English law is now being influenced by civil law concepts through the mediation of Community law.1 Product liability provides an example in private law of rules shared by the civil and common law jurisdictions of the European Union due to harmonisation by the Product Liability Directive. An important new area of non-contractual liability is environmental liability. Firmly established in the United States, liability for damage to the environment is increasingly being introduced in many countries around the world.3 In the European Union, the first step towards Community-wide legislation was taken in March 1993 with the publication of a Green Paper by the Commission.4 One of the many controversial aspects of a possible environmental liability regime is the issue of standing to sue.
The Correlation of Allegiance and Protection
Authors: Williams Glanville L.
Published: January 2009

In the last number of the Cambridge Law Journal Professor Lauterpacht made the decision in R. v. Joyce the occasion of a lucid discussion of the topics of allegiance and protection, including the correlation of allegiance and protection, the diplomatic protection of non-nationals and the duty of allegiance of protected persons. He came out in support of the decision in Joyce, though he was cautious in assessing its implications outside the actual facts of the case. Since the argument for the decision has been put so fully it is perhaps as well that the legal aspect of the case for the other side should also be stated, particularly as it does not completely appear from the judgments and speeches.
Skinning the Pantomime Horse: Two Early Cases on Limited Liability
Authors: Jenkins Dafydd
Published: January 2009

The practice of “lifting the veil” from the modern company seems at times to be regarded as a sign that corporate personality is a ficition. This view is hardly logical: if the personality of the company were a ficition, there would be no veil to lift, the liability of the company must be the liability of the members, and limited liability must be an illusion. It is precisely because the legal personality of the company is real that special arrangements must be made for lifting the veil of this personality when it conceals the wrongdoing of a member or director. To use a more florid metaphor, when the powerful hoofs of the pantomime horse are used for improper kicking. Back Legs will be stripped of his protective covering, and made to account for his use of an engine of destruction more powerful than his own boots—on exactly the same principle as if he were made to account for his use of a natural horse's to cause damage. It makes no difference whether he sits on the horse's back or stands inside its skin; and it makes no difference to the man's liability for wrongful use of the horse whether the horse has a legal personality or not. (It may of course make a difference to what the victim does about it, since he may have good reasons for choosing to sue the horse rather than the man.)
Liability for Accidents
Authors: Jolowicz J. A.
Published: January 2009

In the Preface to his recent book, Samples of Lawmaking, Lord Devlin rather sadly doubted “whether judges will now of their own motion contribute much more to the development of the law. Statute,” he said, “is a more powerful and flexible instrument for the alteration of the law than any that a judge can wield.” Since those words were written Lord Devlin has himself contributed to some substantial judicial reforms of the law, notably in Rookes v. Barnard and Hedley Byrne & Co. Ltd. v. Heller & Partners Ltd., but it does, of course, remain true that it is very much easier for the legislature than for any court, however strong, to bring changes to the law. It is also true, generally at least, that when we speak of law reform we mean reform by statute and we try to formulate in a draft Bill the rules of law that we should like to see. To my mind, however, it is unfortunate that we so often try to find a formulation which provides in some detail for the particular situations we have in mind and which is designed to give the court the minimum opportunity for what is sometimes called creative interpretation. With a few exceptions—the Contributory Negligence Act and the Occupiers’ Liability Act are examples—we do not legislate in such a way as to give the judges a new principle expressed in general terms and leave it to them to work out the application of that principle in the cases that arise.
Dr. Cowell
Authors: Simon Jocelyn
Published: January 2009

The beginning of the sixteenth century saw a grave constitutional conflict, ending in a revolution—a conflict and revolution in which lawyers became principal actors. “In the hands of Coke the Common Law forged the axe which beheaded Charles I.” Dr. Cowell, Master of Trinity Hall from 1598 to 1611, played a leading part in that conflict—though on the losing side.
The Decline of Innocence
Authors: Kadish Sanford H.
Published: January 2009

The criminological positivists at the turn of the century started a good deal of creative rethinking about the criminal law. Some of their proposals have gained widespread acceptance in the criminal law as we know it today. Others made no headway at all. One particular proposal, and a very fundamental one indeed, began a controversy which has ebbed and flowed regularly since. That is the proposal to eliminate from the criminal law the whole apparatus of substantive principles, or at least some of them, such as the legal insanity defence, which owe their presence to the law's traditional concern for distinguishing the guilty and the innocent in terms of their blameworthiness. The essence of the proposal is that innocence in this sense, moral innocence, if you will, should not disqualify a person from the consequences of the penal law. Moral innocence should, it is urged, give way to social dangerousness as the basis for a criminal disposition.
The Office of Attorney-General
Authors: Jones Sir Elwyn
Published: January 2009

One of my famous predecessors, Francis Bacon, once said that the office of Attorney-General was “the painfullest task in the realm.” It fell to another Attorney-General a few centuries later, Sir Patrick Hastings, to say that to be a law officer was to be in hell. I am happy to say that it is only occasionally that I feel like that about it.

Although it became a great office of state, its early history is wrapped in obscurity. The basis of the office appears to have been that as the sovereign could not appear in person in his own courts to plead in any case in which he had an interest, an attorney appeared on his behalf. As early as 1243 one Lawrence Del Brok, a professional attorney, was prosecuting pleas of particular concern to the sovereign. In the year 1247 he was paid a regular fee of £20 a year for “suing the King's affairs of his pleas before him.” As the functions of sovereignty became more complex and more extensive, and acquired a more public character, so the role and duties of the Attorney-General became wider. Already by the end of the thirteenth century the duties attaching to the King's Attorney's office had become burden-some. When Richard de Brettiville performed the duties, a medieval clerk added the postscript at the foot of a list of cases in which the King's Attorney was engaged, “Oh Lord, have pity upon Brettiville.”

In medieval times the political duties which now fall upon the Attorney-General werecompletely absent.
When and why does the Grundnorm Change?
Authors: Harris J. W.
Published: January 2009

In Pakistan, Uganda and Southern Rhodesia, courts have held themselves entitled to declare that the effect of a successful revolution has been to change the law in their respective jurisdictions. Judges appointed under one constitution have held themselves to be bound to recognise the validity of laws promulgated under a different constitution; the judge's own political opinions have been said to be irrelevant.
New Light on Slade's Case
Authors: Baker J. H.
Published: January 2009

The number of extant reports of Slade's Case, by different hands, indicates the significance which the case possessed for contemporary lawyers. Its subsequent significance was assured by its inclusion in Coke's Reports, an honour which entitled it to all the attention which posterity is obliged to bestow on leading cases; but, for three centuries, the more that was written about it the more difficult it became to remember or to imagine what it had meant when it was decided. The case has been partially redeemed from its oblivion by recent studies, but it is becoming plain that it is still not understood, and perhaps will not be fully understood for some years to come. It is hoped that the publication of some of the leading arguments in the case, in the last issue of this Journal, will help to bring understanding within closer reach. Those arguments, however, presuppose a familiarity with the problems the case was intended to solve. Although part of the background may be learned from the published reports and Year Books, the story which they reveal is neither complete nor clear. The older cases are too sparse, too badly reported and cover too many years for any safe general conclusions to be drawn from them. They are relevant to the investigation in so far as they formed part of the Elizabethan lawyers' common education, providing a starting point for further discussion, and a recourse for those who sought authority for everything in their old books. But the burning questions in the minds of those who awaited the final pronouncement in Slade's Case were not Year Book questions, or ancient moot points, but new questions which had only come to the fore in the preceding ten or fifteen years.
The Problems Of Entrapment
Authors: Heydon J. D.
Published: January 2009

The police use “entrapment” to detect and apprehend one whom they suspect is about to commit a crime by providing him with, or urging him to take advantage of, an opportunity to do so. The practice is much commoner in England than was once thought; it raises a number of relatively undiscussed problems which fall into two groups, one centring on the trapper, the other on the entrapped accused. The first group comprises such issues as: Is the trapper criminally responsible? Does the rule relating to the corroboration of accomplice evidence apply to him? If not, should there be any warning about his testimony? Does his conduct sometimes require the exclusion of his testimony as being unfairly obtained? Secondly, has the accused a defence? Has he grounds for pleading in mitigation of sentence? Before looking at these issues, we shall examine the purposes and dangers of entrapment, and we shall see how the practice sometimes prevents either trapper or accused being criminally responsible for certain offences.
The Royal Prerogative Re-Visited
Authors: Markesinis B. S.
Published: January 2009

Of the two most often-quoted definitions of the royal prerogative, Dicey's definition as “the residue of discretionary or arbitrary authority, which at any given time is legally left in the hands of the Crown,” has often received the express or implied approval of the courts. Thus, besides the weight of the authority of its great author, the above definition also enjoys the privilege of official and almost universal recognition and acceptance. It was therefore with great diffidence that the present writer decided to “re-visit the prerogative” and examine it critically. Yet, he has done so in the belief that the passage of time is bound to have had some effect on a definition which is nearly ninety years old and which, when first published, naturally reflected the nineteenth-century theory on this subject.
Iudex in Propria Causa: an Historical Excursus
Authors: Yale D. E. C.
Published: January 2009

That it takes three persons, a plaintiff, a defendant and a judge, to make a case and reach a judgment, was clear to the earliest writers on English law, and implicit in such a proposition was the understanding that a judgment was not properly attainable unless the three persons of the trinity were kept distinct. A fundamental idea of this nature is not, of course, the peculiar property of English law, and being axiomatic it has long been enshrined in the maxim that no one may be judge in his own cause. As might be expected, Coke turned the notion into a phrase. “It is,” he wrote, “a maxim in law aliquis non debet esse iudex in propria causa.”
Irreversibly Comatose Individuals: “Alive” or “Dead”?
Authors: Skegg P. D. G.
Published: January 2009

In recent years, there has been increasing support for the view that at least some irreversibly comatose individuals should be considered dead. In this article, an attempt is made to ascertain whether the English courts should at present regard any irreversibly comatose individual as dead for the purpose of any rule of law.
The Courts and the Executive: Four House of Lords Decisions
Authors: Allott Philip
Published: January 2009

The purpose of the present study is to consider the constitutional significance of four House of Lords decisions which raise fundamental questions about the legal status of the Executive branch of government in the United Kingdom and its relationship to the courts. The decisions are those in: Burmah Oil Co. Ltd. v. Lord Advocate [1965] A.C. 75; [1964] 2 All E.R. 348; Carl Zeiss Stiftung v. Rayner & Keeler Ltd. (No. 2) [1967] 1 A.C. 853; [1966] 2 All E.R. 536; Conway v. Rimmer [1968] A.C. 910; [1968] 1 All E.R. 874; Nissan v. Attorney-General [1970] A.C. 179; [1969] 1 All E.R. 629.
Kelsen's Concept of Authority
Authors: Harris J. W.
Published: January 2009

The concept of authority is one which may be explicated in many ways—normatively, psychologically, sociologically, politically. That is to say, one may seek to show how it is used in the contexts of normative justifications or of assertions about psychological, sociological or political phenomena. As a normative concept, “authority” relates to situations in which there is given as a reason warranting that something should, must not, or may be done the fact that a particular individual or individuals has so laid it down.