The American Law Institute’s first ever Restatement of Medical Malpractice law provides an opportunity to examine how generic private law doctrine shapes itself to the distinctive core features of medical care. Various Restatement provisions reflect tort law’s recognition of key features of medical care that justify regarding medical liability as a distinct branch of negligence law. Tort law does so, however, in a somewhat anachronistic manner that regards medical care encounters in a highly individualized fashion -- one that sees patient care encounters as primarily dyadic (simply between doctor and patient), rather than being embedded in complex institutional, professional, regulatory, and economic structures. To some extent, this simplification helps determine legal obligations and enforce patient protections. In other respects, however, tort law has not yet adequately reflected fundamental changes in health care finance and delivery over the past generation or two. The Medical Malpractice Restatement considers these changes and responds to some of them, but not to others. Because a Restatement is, at its core, a synthesis of existing doctrine rather than a law reform enterprise, it is limited in the extent to which it can aim to improve or modernize law. Embedded in the Restatement are a number of key passages that point in potentially constructive directions that future evolution of tort doctrine might take. Other points of doctrinal rigidity, however, might require more overt law reform efforts to overcome.

During the sixteenth century, the King in Parliament terminated the jurisdiction of the Papacy in England and established by law the Church of England, with the King as its head. One task was to institute a new system of canon law for the national Church. Parliamentary statute provided for a commission to reform the canon law. In the meantime, pre-Reformation Roman canon law was to continue to apply to the Church of England if it was not repugnant to the royal prerogative and the laws of the realm. The commission was never appointed. The Roman canon law continued to apply on the basis of both statute and custom as part of the King’s ecclesiastical law. This chapter explores how the post-Reformation English ecclesiastical lawyers understood this continuing Roman canon law, its legal basis, and the role of the doctrine of reception in all this.

The Human Rights Act incorporates Article 9 of the European Convention of Human Rights guaranteeing the right to freedom of thought. Yet, in the absence of any guidance from the European Court of Human Rights and in line with the UK’s legal traditions, the right is protected in a piecemeal fashion akin to liberty and non-interference rather than the positive obligatory rights-based approach. As such, this chapter considers whether the right to freedom of thought exists in the common law. Finding that it does exist but that there is no certainty on its content, scope, or application, it is argued that this does not prevent the courts from determining the right under the common law. Attention is given to legal jurists and philosophers, as well as certain historical developments, which have influenced the UK’s development and protection of the right. The right to freedom of thought, like speech, is the liberty to speak truth to power, to dissent, and to organise an alternative form of governance. Contemporary legislation appears to acknowledge the forum internum (the inner realm of the mind) as a subject necessitating protection, albeit, not under the label of human rights.

Chapter 6 is a history of emancipation in New York that stresses the combined importance of economic and legal pressures on slavery in areas of Dutch control. The gradual legal freedoms slaves gained after the Revolution served as a foot in the door towards eventual emancipation. When slaves were routinely given the ability to choose new masters, to seek work on their own, and to make money on their own (with some repayment to the slave owners), they made a crucial first step into a world of freedom. Voluntary slave manumission and self-purchase emancipations were the result of a process of negotiating the terms of slavery’s demise one person at a time. This dispersed, on-the-ground struggle was shaped by statutory law, as others have recognized, but, arguably, it was the common law that demonstrated and determined New Yorkers’ changing attitudes about slaveholding. Courtroom decisions about interpreting the states’ laws on slavery guaranteed that the freedoms won through slaves’ negotiations with their enslavers would be protected by the courts.

This chapter takes Green Plan implementation as an important test case of climate policy implementation more generally and as an indicator of the potential obstacles to going beyond the mere reconciliation of environmental and human rights issues in pursuit of policies that advance environmental protection and human rights in synergistic ways.

This chapter introduces the idea of a competition–democracy nexus as the object of inquiry of the book and traces its intellectual trajectory across six centuries of legal, economic, and political thought. It shows how early manifestations of the idea of a competition–democracy nexus (competition–democracy nexus 1.0) took shape in the late 16th and early 17th century with the critique of monopoly by Thomas More, the early common lawyers and the English Leveller movement. It also recounts how early liberal thinkers, most notably Adam Smith, James Steuart and Montesquieu, celebrated the advent of competitive markets as a driving-force behind the transformation of the feudal order into a republican society. The chapter also analyses how the idea of a competition–democracy nexus (competition–democracy nexus 2.0) lay at the origin of US antitrust law and had an important bearing on various antitrust paradigms until the 1970s. The chapter further describes the emergence of the idea of a competition–democracy nexus as the central tenet of the German Ordoliberal School before and during the Second World War and its influence on the early days of EU competition law (competition–democracy nexus 3.0).

Wrongful actions by two or more persons may affect a plaintiff at the same time. Where each wrongdoer causes separate harm to the plaintiff, there are generally separate causes of action without any connection between them. Satisfaction by one wrongdoer does not discharge the other wrongdoers, and the plaintiff cannot generally join the wrongdoers as co-defendants. An exception exists where the wrongdoers act in concert, in which case they are joint wrongdoers, rendering each of them liable (at common law) for the total damage caused by all of them. Thus, where A and B simultaneously trespass on C’s land, each of A and B causing separate damage, the liability regime depends upon whether A and B are acting in concert.

The law of civil remedies has frequently been described as a ‘capstone’ private law subject. In other words, it is the culmination of a student’s knowledge of private law, and it is intended to assist all the disparate strands from previously studied private law subjects to come together.

It is for this reason that we will take a generally ‘functional’ approach to the organisation of this book, grouping remedies from across different areas according to the broad functions they perform so that parallels and contrasts can be made.

Chapter 13 is a closing epilogue that summarizes the book’s thesis, namely, that the German legal system is the site of encounters amongst a variety of legal traditions. To animate and illustrate that argument a final time, an article discussing the Common Law and Civil Law characteristics of German constitutional law is presented for discussion.

The chapter presents an overview of the procedural arrangements adopted at the international criminal jurisdictions, namely the UN ad hoc tribunals for the former Yugoslavia and Rwanda and the International Criminal Court (ICC), covering the main milestones from the initiation of the investigation to trial phase to appeals against the judgment and sentence and review. Before delving into the trajectories of an criminal case before international criminal courts and tribunals, the chapter highlights the origins of international criminal procedure in the common law (Anglo-American, or ‘adversarial’) and civil law (Continental, or ‘inquisitorial’) approaches, resulting in its legal nature as a hybrid scheme where the balance between the domestic influences varies by tribunal and over time due to reforms pursued by judge-legislators (ICTY and ICTR) or by states and, to a lesser extent, judges (ICC). The chapter reviews the role and functions of the main actors in international criminal proceedings, including repeat or professional players (judges, prosecutors, and defence) and other participants such as victims and witnesses and states and international organisations. It also highlights the normative importance of human rights to international criminal process and the imperative of complying with the principles of public, fair and expeditious proceedings.

This chapter examines the development of public law in South Asia: a legal family that has been defined by its history of British colonialism and continued adherence to the common law legal tradition. It traces the evolution of constitutionalism in four countries – India, Bangladesh, Pakistan and Sri Lanka – since their independence from Britain, focusing on two common regional themes. The first is the judicialisation of politics through the adoption (or at least consideration) of the basic structure doctrine, which permits courts to define and enforce implicit limits on constitutional amendments. The second is the centralisation (and abuse of) executive power, which has imperilled democratic rule in all four countries. While neither of these developments is specific to South Asia, the interplay between them, resulting in separate spheres of unchecked judicial and executive domination, is perhaps unique to the region and warrants further attention from comparative scholars.

Does the applicable law have an impact on the legal effects of contract terms? Is there a convergence between the common law and the civil law? To what extent does the principle of good faith influence the effects of a contract? Does arbitration ensure a uniform interpretation of contracts?

For a variety of reasons, countries in Sub-Saharan Africa have retained the legal systems that had been imposed on them during the colonial period. The question that this chapter tries to respond to is whether, after six decades of independence, particularly after the fairly fundamental constitutional reforms that started in the 1990s, there have been any significant changes made to these legal systems. In other words, have the recent legal reforms resulted in the emergence of laws that are distinct and better suited to meeting the peculiar challenges of the sub-continent and have a distinct identity within or without the legal traditions they inherited? The chapter, among other things, examines the main trends in legal reforms, and highlights the nature and scope of legal changes in certain key areas. It is against this background that a comparative analysis is undertaken to assess the impact of the different legal reforms on the quality of justice and respect for the rule of law. The chapter concludes by pointing out that although there remains a clear common law/civil law divide on the continent and that no Sub-Saharan African legal system is emerging, there are some distinct sub-regional features, such as a special mix of Roman-Dutch/English common law in operation in southern Africa.

Globalisation has brought the world closer and urged nations to consider the differences between their various legal systems. Comparative law is vital to facilitating this. There are many reasons for the discipline to consider the legal systems of the Middle East and North Africa (MENA) region. The MENA population does not only represent a large part of the world, but the MENA region also has attractive markets with active investment opportunities. Recent studies indicate a remarkable move towards foreign investment in the MENA region business market. This chapter provides an overview of the fundamentals of the MENA region’s legal systems. What is new about this study is that it does not adopt the classical approach of examining Islamic law as the legal cornerstone in this area of the world. Rather, the chapter provides a comparison between the impact of Western laws – founded initially on either the Napoleonic Code or common law doctrines – versus the impact of Islamic law ‘Shari‘a’ on building the legal systems of the MENA countries. The chapter also gives examples of the role of comparative law in shaping some contemporary issues in the MENA countries today, such as migration and women’s rights.

This chapter outlines the workings of the common law. It starts out by providing a historical background to legal institutions, conceptual distinctions, pedagogy and literature constituting the common law tradition before going on to identify and discuss some of the core features of the common law’s method. The chapter also seeks identify factors causing convergences and divergences between the working of the law in many of the jurisdictions all over the world that tend to be classified as common law systems.

Conclusion. The books conclusion reprises the arguments advanced for and against recognition of the new public nusiance law, evaluating the competing claims made by the critics and commentators. The conclusion strives for a balanced appreciation of the merits and demerits of the competing arguments. The conclusion turns to three central themes: (1) that of the continued, creative, innovative plaintiffs lawyering for fifty years in mass tort litigation, continually asserting new claims and expanding legal boundaries, (2) that the new public law is best understood as yet another innovation in the historical arc of mass tort litigation, and (3) that the fate of the new public law is most likely to follow the legal trajectory of the development of medical monitoring as a tool in the mass tort litigators toolbox. The narrative history of the evolution of medical monitoring is explored to demonstrate the parallelism between medical monitoring and the new public nuisance law. The book concludes with the observations that the new public nuisance law is in its nascent stages of development and is in flux. But it is here to stay, in the same way that mass tort jurisprudence embraced medical monitoring.

Chapter 8 illuminates the intermediary stages of litigation before the early Tudor kings. It takes up the little-studied perspective of defendants in cases heard by the king’s Court of Requests and examines the potential for even this most authoritative kind of justice to be resisted. The chapter begins by studying the testimonies of messengers, recorded in Requests’ order books, for evidence of accused parties evading or rejecting the initial summons into court. It then reconstructs the process by which defendants made formal answers to petitions, and outlines the arguments they raised in their own defence. In line with debates ongoing contemporarily in Parliament and Council, defendants’ answers often contrasted extraordinary royal justice with the due process enshrined in English law. These lines of contestation were crucial to the increasing definition of royal justice under the early Tudor regimes, this chapter argues.

Chapter 3 explores the willingness of some state courts in the early 21st century to consider and approve plaintiffs assertion of public nuisance claims in developing mass tort litigation. This chapter involves a case study of the lead paint litigation, describing high incidences of childhood lead paint poisoning in older buildings as the basis for the lead paint lawsuits. These lawsuits attempted to hold the manufacturers and sellers of lead paint liable on a theory that the defendants created and maintained a public nuisance relating to lead paint. Many courts initially declined to allow plaintiffs to assert public nuisance claims in the lead paint litigation, based on various defenses sounding in lack of proximate caustaion, remoteness, and failure to satify the elements of a public nuisance claim. However, courts in Wisconsin and California subsequently accepted the plaintiffs pleading of a lead paint public nuisance claim, based on the defendants advertising and promotion of their products. These successful lead paint cases illustrated a conceptual breakthrough in judicial receptivity to communitywide public nusiance claims. However, other courts continued to reject lead paint public nuisance claims, illustrating the unsettled nature of public nuisance law.

This chapter outlines the reasons behind the appointment of foreign judges in the Commonwealth. It discusses the ways in which foreign judges are appointed to national courts in overseas dependent territories and in Commonwealth member states. It also discusses how foreign judges are appointed to ad hoc tribunals or on temporary assignments for sensitive political cases or impeachment processes. The chapter draws attention to some of the challenges and pitfalls encountered as well as the advantages in using foreign judges in national courts around the Commonwealth to enrich legal and judicial developments across the Commonwealth.