Common law thread
Post interesting precedent setting cases.
In Canada, Hunt v Sutton 2001;
tl;dr:
Hunt worked for Suttin inc. Suttin inc. hosted a christmas party which served alcohol. Hunt got drunk as fuck, left and went to a pub, left the pub, and drove home but got in a car accident and was maimed.
Hunt sued her eployer, Sutton, for allowing her to leave in such an inebriated state. The Court found the employer to be 25% liable, and the bar to be 25% liable.
This set the precedent that employers hosting parties that involve alcohol need to provide or ensure safe transportation for their employees home. It also set the precedent which can hold bars and restaurants liable if they knowingly let somebody drive home drunk.
>>830314
Remember when personal responsibility was a thing? I'm not sure how this would play out in Australia, but 25% seems fairly high. I can't see why, notwithstanding her inebriated state, her choosing to drive wasn't the last causal link in the chain to the accident.
The NSW Civil Liability Act has provisions for obvious risks but iirc they mostly pertain to dangerous sports; but the analogy can and should be drawn imo.
>>830416
>Remember when personal responsibility was a thing?
The overall effect of this precedent has a societal good. Sure employers could host events, let their staff drive home drunk and not give a fuck. But with the added liability it encourages employers to provide taxis for their staff, or make sure everybody can use public transit. Ultimately it makes social gatherings safer.
And with bars and restaurants it's the same thing. It encourages bars and restaurants to call cabs for their patrons if they are unfit to drive, or make sure they have another way home. Sure there's the "muh personal liability!"fags, but the overall purpose of this precedent is good.
>>830416
>The NSW Civil Liability Act
Tips bicorne
>>830314
Does the United States have a similar case law? Who cares about Canacucks anyway
>>830678
i wouldnt know, I'm not American.
>>830491
You're advocating for infantilism.
>>830949
sure, if it means fewer alcohol related car accidents then that's fine by me.
>>830949
>infantilism.
are you retarded? Holding one liable and wearing diapers for arousal are totally unrelated
bump law thread
>>830955
>>830959
Not him, posted earlier but consider this:
The bar employs a bartender. It provides them with training as to how to spot someone who has had too much to drink and to call a taxi / do whatever else is reasonable to accommodate them.
However in this instance the bar tender has not done so, because the lady insisted she was ok to drive home. In his opinion she had had about 1 drink per hour for three hours.
The woman gets into the accident. She sues her employer, the bar and the employee himself.
The bar says that whatever the scope of their duty of care they had fulfilled it by providing training and guidance to those who it employs to serve alcoholic drinks.
Should the bar tender then be held directly liable in negligence?
If you drink and drive, you should be thrown in jail. If anyone gets injured, you lose your ability to drive for a decade.
Don't. Fucking. Drink. And. Drive.
It's not that hard.
>>830955
Then ban the sale of alcohol
>>831175
muh gubment!
>>831182
Don't impose liability on to others lived where it is clearly not theirs.
>>831154
nice personal opinion.
You want to hear mine ?
if you want to impose your personal opinions on others, you should be decapitated.
if somebody does not like your opinions, you should be tortured before being decapitated.
>>831154
Perhaps she was charged, but the canadian law in relation to negligence didnt contain provisions excluding criminal offenders from a civil claim?
Anyway its obvious that most posters here arent legally trained so im out.
>>831142
I doubt this is a strict liability, so the women's actions coupled with the circumstance (3 drinks over a time of 3 hours) would not put a reasonable employee or employer on notice and thus not make the employee or employer culpable. The injury was not foreseeable because the bartender acted in accordance with the law by treating the women as she manifested her inebriated state to him. Further, this is in line with the policy consideration of the law to watch out for drinking employees, here the bar did watch but could not read minds. There is no causal link between the bartender and accident and he would not be liable. Even if he did everything as he should the accident would still occur.
>>831142
Yes. One drink every two hours is the threshold of being too impaired to legally drive, for men. 1 drink an hour for three hours would put the woman way over limit.
The bartender should have called the police when the woman got in the car.
Bars don't train people here btw, you have to get a license of sorts to serve alcohol, which includes training. Very shitty training, but enough for the state to put a shit ton of burden on you.
>>832228
What's the blood alcohol limit in your country?
>>832231
0.05
So one drink every two hours or so, you will probably be under, but anymore and you will probably be over.
>>830491
I'm skeptical. Maybe you could say the intentions are good at least but you know it's just legal ass-covering really. With this reasoning why shouldn't Schlitz brewery pay out for their liability? If we're going as far as breaking it down into percentages, I think the alcohol "manufacturer" had something to do with the accident. What I'm getting at is Hunt must have been a stupid cunt with nice tits.
>>832241
Same here, but they say 1 std per hour for men, and 0.7 for women, to stay under the limit, and that is obviously just an average influenced by body mass.
>>831531
This
There was a hole in the civil law which is what the percent filled
>>832317
Your point is similar to the civil claims agsinsr the tobacco companies for causing cancer.
The difference in this case I think is that the criminal law in place against drinking and driving as well as the fact that a reasonable person knows alcohol gets you drunk, (wheras the tobacco example, it wasn't until the 2000s that tobacco use related cancer was widely publicised and acknowledged by tobacco companies)
So the employer knew she was drunk and the bar served her more alcohol. There's a previous precedent which deems one is unfit to sign a contract if inebriated too, which may have played a roll in the courts alleviating some liability on Hunts part.
Also the ruling did not completely absolve Hunt of liability, she was still 50% liable, so I assume the court deemed her 50% fit to make reasonable decisions
>>830416
And THIS is why the world needs more epidemiologists, and less whatever-the-fuck-statistical-methodology came up with 25%
Fucking humanities majors.
>>832747
>and less whatever-the-fuck-statistical-methodology came up with 25%
I'm pretty sure it was a jury trial so it would have been laymen who came up with those figures. Probably because they decided she was 50% liable for her actions; the employer serving alcohol with no means of transportation for employees, and the bar serving her more alcohol and knowingly letting her drive home made up the other 50% liability
>>832747
Also the employer is relieved of liability if they provide transportation like taxis, or if they inform employees "if you do not have a safe ride home please do not drink alcohol" or promotes the idea of drink tickets permitting only a couple drinks per staff member
None of those examples are unreasonable and they'd make for a safer event
>>832762
Have the lawyers involved ever heard of expert witnesses?
hurrr durrr letz assign equal responzibilities to everyone because we're expected to du sumthing and don't have a rudimentary understanding of evidence-based causal attribution
>>832776
What's an expert witness going to say?
A doctor discussing alcohol consumption; if somebody is really drunk it's possible they're in a blackout state and have no idea what the fuck they're doing.
The jury has to consider that. Wtf do you expect, some statistics expert to teach stats 101? That's a retarded rebutle senpai
>>832776
>evidence-based causal attribution
cause 1 (25%)
>Alcohol provided by employer consumed at office event
>employer does not provide transportation
Cause 2 (25%)
>hunt goes to bar already drunk
>consumes alcohol provided by bar
>Bar sraff was proven to know she was driving home
>No attempt to stop her
Cause 3 (50%)
>hunt drives home (25%)
>Gets in a car accident (25%)
result
>Gets maimed
>>832786
Doctors, no. For one, research overwhelmingly shows their statistical literacy is appalling.
Statistician: no (not even biostatisticians, usually)
Epidemiologists: yes
Public health research generalists: Depends
You don't need to teach stats just like a psychologist doesn't need to rattle off specifics of the DSM to say someone's a bit AsPD
>>832810
The way you've compartmentalised each cause doesn't necessarily correspond with causal relationships in nature.
That's precisely why scientific language is used, because ordinary language is inadequate.
I find this almost comical except I suspect this is actually how things work in courts, right, and not just mental masturbation?
Or perhaps it's merely historical?
I suppose it doesn't matter. Lawyers become politicians, not scientists. Nobodies gonna listen to me outside of this anonymous thread where we're all equal.
>>832786
?Wtf do you expect, some statistics expert to teach stats 101? That's a retarded rebutle senpai
That's a retarded strawman. Might I add that ya'll a lawyers and get paid to argue adversarially like this while my job is to find out what's actually true, inquisitorially.
>>832827
>The way you've compartmentalised each cause doesn't necessarily correspond with causal relationships in nature
Compartmentalize it yourself then
Show me where 100% of the liability relies
>>832827
>You don't need to teach stats just like a psychologist doesn't need to rattle off specifics of the DSM to say someone's a bit AsPD
Then what could an expert witness explain to the jury?
>>832829
>this while my job is to find out what's actually true, inquisitorially.
In civil cases juries just need to determine what's probably true
>>832831
>>832832
>>832837
All those things are figured out with research, secondary research can be done expediently by reviewing population studies in a few minutes for the simplest things. However, I can't do it with the few seconds thought answers I'm giving here since I care more about systemic change and reckon you already know this. Unless you guys actually don't know how you could use scientific papers and the forensic evidence to infer what's probably true. That would be important for me to know going forward.
UK Court of Appeal case of R v Collins (1972)
>girl in bed upstairs at night
>man outside
>uses a ladder to climb up and looks through the window at her
>goes back down to the ground
>takes all of his clothes off except his socks
>about to climb back up the ladder to presumably rape the girl
>girl wakes up and looks out window
>sees this guy butt naked (aside from his socks) standing out there with a hardon
>immediately jumps to the conclusion that it's her boyfriend and invites him up
>he comes up and has sex with her
>twenty minutes in she realises it isn't her boyfriend
>oh god what the fuck get out you creep
>is convicted of Burglary with intent to rape (the 9(1)(a) limb of Burglary under the UK's Theft Act 1988 requires you to intend to commit a listed offence, not necessarily to steal something)
>appeals the decision
>defence says that since he was invited in it wasn't trespassing and therefore the actus reus (guilty act) of burglary was not complete
>court flummoxed and consult a shit load of authorities and textbooks on the definition of trespass
>eventually the appeal is allowed and the defendant is let off because the court concludes the trial judge should have asked the jury whether or not they believed it was trespass (he had not)
>trespass mens rea (guilty mind) thereafter defined as knowing you're trespassing and intent/reckless as to the consent of the other party
>>832845
>research, secondary research can be done expediently by reviewing population studies in a few minutes for the simplest things
Research which proves what to a jury though?
>>832845
>Unless you guys actually don't know how you could use scientific papers and the forensic evidence to infer what's probably true. That would be important for me to know going forward
Not that one could explain to a jury
If you go into science it's on the plaintiffs side, she was probably too drunk to know what she was doing, she factually didn't have a safe ride home as her employer didn't provide one and the bar knowingly let her drive drunk
I really don't see where you're going.
>>832848
The burglary charge makes sense because he was just going for that ass
The invited in then "omg not my boyfriend" doesn't sound like a case of mistaken identity though, that almost sounds like "oooh stranger danger! Let's sex! Uh oh wtf am I doing?"
>>832848
>trespass mens rea (guilty mind) thereafter defined as knowing you're trespassing
This makes sense in some cases
I could see if you're walking through the woods and it's a private lot which wasn't marked then ofc there's no guilty mind or intent
But walking into somebody's home is pretty clear.
Unless that girl's bf frequently used the latter to get into her room for sex which she was cool with, I really don't see how that part isn't trespassing because the act of climbing up the latter before the girl invited him in is in itself trespassing
>>832906
>Unless that girl's bf frequently used the latter to get into her room for sex
By this I mean it would be reasonable for her to believe it was her boyfriend
>>830491
Have you ever spent a second in the real world? I recommend that you leave 4chan from time to time
>>832935
Cool argument
>>832935
Are you educated?
>>832936
I work in a bar and it simply wouldn't be possible to make sure every single person I sell alcohol to gets home safe and is tucked in after you put on their pyjamas. You can't expect me to prevent every accident before it happens.
I honestly wonder if you think we should ban cigarettes and cola as well
>>832981
I'm not sure where you're from, but in Canada around the exit bars have signs with cab numbers and some have a phone that automatically connects you to a cab company
I'm sure that's in place to reduce liability
In the case with Hunt v Sutton, the bar tender was proven to know she was blasted and that she was driving home, whereas for you, in most cases, probably have no idea how people are getting home so there's no liability on your shoulders
(Bette) Midler v. Ford Motor Co. 1988
Bette Midler was approached by Ford to sing in a commercial. She asked for more money than Ford was willing to pay.
A backup singer for Midler was hired by Ford to sing a song instead.
Midler did not own the song that was sung.
The backup singer sounded just like Midler singing on the recordings, perhaps even more so than the real thing.
Midler sues claiming 'imitation is illegal'.
Judge John Noonan pulls a Citizen's United and channels Justice Roberts to read his own theory of the case into the law.
On "the protectibility of the voice of a celebrated chanteuse from commercial exploitation without her consent."
States that the space inside the public's head where the idea of Midler lives is owned by Midler.
That this invented space is best analysed under the theory of trespass because Midler has a right to exclude other people from touching 'the idea of her' inside the public's head.
Modern Copyright abuse is born. Fair use and parody overturned.
>>833151
IP law is retardedly abstract
>>833151
Parody is allowed though. How does weird al get away with it?
>>830491
>The overall effect of this precedent has a societal good.
Fucking utilitarians need to disappear.
>>833408
That's one hot opinion man
Fucking ideologues need to disappear. Literally everything wrong with this world.
>>833426
I just think it's retarded to say something is a "societal good", because any thing can be justified as a societal good within a utilitarian framework.
You can literally justify murdering half the population if that increases the net welfare of society within that framework.
In other words, saying something is a "societal good" is literally a vacuous statement.
>>833434
What about consequentialism in the moral realm generally speaking?
>>833434
>In other words, saying something is a "societal good" is literally a vacuous statement
Except your example disregards morality and the criminal law which exists, whereas providing a societal good by reducing drinking and driving in the civil law is positive imo
>>833442
What about consequentialism? I don't see how it is related.
The fact that a society has alcohol legal in the first place, is the cause of the precedent in the OP, and I think it's asinine to blame the employer or the bar for people's individual actions in such a case.
>>833454
>Except your example disregards morality and the criminal law which exists, whereas providing a societal good by reducing drinking and driving in the civil law is positive imo
Yes, but there are several ways to stop people from drinking and driving which doesn't include legally condemning people who didn't have any responsibility for the situation in the first place.
It's literally analogous to arresting a man for driving a Hummer in Texas, because pollution is rampant in China.
>>833479
Utilitarianism is consequentialist you fucking moron.
>>833479
>It's literally analogous to arresting a man for driving a Hummer in Texas, because pollution is rampant in China
Not at all
Its more analogous to the vendor of a firearm being held accountable if the purchaser murders somebody, which is why intoxicated people can't purchase firearms and there's a big push on the mentally ill to not be allowed to purchase firearms because they're not in the right mind.
The court implied the intoxicated state impaired her decision making as would a mentally ill person with a firearm
Your pollution example is a huge stretch because nobody is directly affected whereas in Hunt v Sutton there are causal links between the defendants and the plaintiffs actions
>>833508
>The court implied the intoxicated state impaired her decision making as would a mentally ill person with a firearm
And? Are women not responsible for their actions?
Do you think this case would've had the same result if a man had sued?
I don't. I think he would've been jailed for DUI, and that would've been that.
>>833518
>Do you think this case would've had the same result if a man had sued
Stewart v Pettie involved a man who got drunk at a theatre and drove home and injured somebody in a car accident,
the court ruled the restaurant 10% liable
So yeah I think the sex of the plaintiff wouldn't matter
>>833541
Without knowing the particulars of that case, or the one in the OP for that matter, the fact that the employer and the bar was deemed *more* responsible in the case in the OP, I'd say it apparently does matter what sex the plaintiff is.
The point I'm trying to make anyway, is that it's retarded to not hold people responsible for their own actions, especially when it's something as clear cut as someone choosing by their own volition to drink and then drive a car.
>>833555
I think what the ruling implies is that when intoxicated your decisions aren't necessarily reasonable. Although drinking and driving is still criminal, the civil liability rests on more than that individual.
Another example; if you're hurt by a taxi driver let's say: not only is the driver liable, but you could also sue the cab company despite management having nothing to do with the accident. Perhaps it's unjust to spread the blame around I get that, but that concept already exists in the common law
>>833555
Consider this
If you knowingly enable somebody to commit murder, by lending them your car let's say, you could be charged with accessory to murder despite not participating in the crime itself
Now back to drinking and driving, there is no criminal law to hold establishments and employers accountable for the crime of drinking and driving, however a few precedents in the common law hold them accountable.
Of course first degree murder is much more severe, but the concept of enabling a crime is still there
>>833620
Seems to me that the whole system is built around jewing money out of people who have done nothing wrong.
It's guilt-by-proxy, and seems retarded to me. Where is it supposed to end? Should I go to jail, or be economically liable if my brother murders someone? This seems to be the implication of such retarded jurisprudence.
>>833655
As I said earlier which sure as another anon pointed out is very utilitarian, the precedent provides a greater good by putting a bit of the responsibility for the safety of patrons and employees on establishments and employers which ultimately promotes safety
>>833677
It only provides greater good in that specific case.
The over-arching greater good would be to ban alcohol, as the alcohol is what causes situations like that in the first place, but we all know that's not going to happen, so I think we should just hold the people who are responsible, actually liable.
>>833708
Not him, but I guess here's an example of that precedent
At my work they're hosting a bowling party, I know there will be drinking, and my employer is providing transportation. Makes sense for this to be a norm desu
>>833925
>Makes sense
Many things make sense, but just because something makes sense doesn't mean it should be a matter of law.
It makes sense not to cheat on your spouse too, but we don't have laws against adultery.
>>833943
>but we don't have laws against adultery
There are though. In Canada the common law has some provisions; If a divorce follows an act of adultery then they don't have to wait a year of separation, it's also harder for a cheating party to get custody of children and claim assets
>>832848
This is some porn doujin shit ain't it?
>>833943
>Many things make sense, but just because something makes sense doesn't mean it should be a matter of law.
But a lot of other things that make sense are matters of law. Your statement is redundant
>>833958
>If a divorce follows an act of adultery then they don't have to wait a year of separation, it's also harder for a cheating party to get custody of children and claim assets
Which I would submit is retarded.
>>833969
>But a lot of other things that make sense are matters of law.
Yeah, but we aren't talking about a "lot of other things", we are talking about whether or not a fucking restaurant should be liable in court because you are a retarded idiot that can't handle his drink and drives a car afterwards.
I don't think they should be, because the responsibility to not drink and drive lies on the person doing the action.
>>833991
Those are some hot opinions!
>>834001
Not really. I don't think having a maxim of personal responsibility should be particularly controversial.
>>833991
If you're the same anon I think you are, all of your posts have been ideologically driven opinions. Iinstead of calling people retards and saying "I don't think", perhaps you should posit some proper evidence in support of your argument (opinion).
>>834041
>ideologically driven opinions
As opposed to what? "The greater good", or "societal good" ?
They are equally as "ideological" to use that phrase.
I am simply operating on a different axiom, whereby I think individuals are responsible for their own actions and should be judged by their own actions.
And common law, at least how it is manifested in this thread, seems to be at odds with my conception of personal responsibility.
>>834058
What country are you from?
>>834075
How is that relevant?
>>834058
>I think individuals are responsible for their own actions and should be judged by their own actions.
Do you people figures of authority, such as employers, have moral duty to safeguard their employees or patrons?
>>834080
Because I think you're from a non common law country so the concept of the common law is a bit foreign
>>834085
>Do you people figures of authority, such as employers, have moral duty to safeguard their employees or patrons?
If we are talking about the police, firefighters, emergency personnel in general, sure, but a restaurant or an employer in general having a moral duty to control and supervise whether or not you are stupid enough to drive a car while inebriated?
No way.
>>834088
We have some common law, but they are not based on the Anglo common law system.
For example, if you co-habitate with a person for over 2 years, you count legally as married.
>>834104
It all comes down to negligence
The original negligence is having an unsupervised open bar at a mandatory office event. One could reasonably expect some patrons will become intoxicated.
That's the original negligence which is where some liability lies
>if you co-habitate with a person for over 2 years, you count legally as married
Is that based on a precedent or legislation passed by government?
>>834129
Are you German or Swedish?
>>834156
>It all comes down to negligence
Sure, but if you're going to say that the negligence starts at having an unsupervised open bar at an office party, why stop there? Why aren't you saying that the negligence is actually allowing alcohol to be legal?
>Is that based on a precedent or legislation passed by government?
I'm actually not sure.
>>834168
Norwegian.
>>834185
>Norwegian.
Close enough
>I'm actually not sure
In Canada common law marriage came about because a couple lived together 5 years but weren't married and wanted marriage benefits and the courts agreed
That precedent is what made the law. Before gay marriage was permitted same sex couples would do the same thing.
That's how common law works
Back to OPs example, the precedent Hunt v Sutton basically provides a framework for any future similar case brought before the court.
The judge would 'test' aspects of the case against hunt v sutton
>Anon v. Anon employer gave reasonable notice that taxis will be called for those drinking
>hunt v Sutton (common law), the employer did not give reasonable notice of taxis
Since Anon v Anon is inconsistent with the common law, the judge would not rule in accordance with Hunt v Sutton
If it's vastly different circumstances, the judge's ruling could set another precedent
>>834185
>Why aren't you saying that the negligence is actually allowing alcohol to be legal?
You don't understand the common law, this is what I mean. Sure government could legislation banning alcohol, but until the breweries and distilleries are brought to court for a drinking and driving incident, and a judge rules in favour of the plaintiff, then there's no precedent to hold the breweries/distilleries liable
A judge can't set a precedent on something that isn't before the courts
>>834300
Yeah, of course. I understand that.
I guess I'm conflating two topics somewhat, and I'm sorry for doing that tbqh, I should've been more clear.
>>834332
I get what you're saying about the ultimate liability being on the initial sake of alcohol but as I said in the other posts, they're not the ones going to court so they can't be assigned blame
>>834349
Agreed.
Lets just say for argument's sake then that I just don't agree with the court's decision.
>>834368
Fair enough
>>834368
>Lets just say for argument's sake then that I just don't agree with the court's decision.
Well, in a common law country, you're only "out" would be to ask the high court to over-rule the lower courts. But they hardly ever do that so good luck. In a civil law country, the next person with this same situation would be able to get a different judgement, if the judges decide that way, but under the common law, the ruling of any single judge is binding on ALL other judges, present and future. This emans that anyone who finds themselves in the position this stupid cunt found herself in, of having to take responsibility for her own wellbeing, will be protected by the law from their own stupidity and negligence.
>>834412
Yeah, I get what you're saying.
Sounds kind of arbitrary though, and I don't particularly like it.
I don't like the idea that a court precedent like that essentially can overrule a country's legislative branch(which it does in some sense).
>>834443
>can overrule a country's legislative branch(which it does in some sense).
It literally overrides it. Outside of Quebec Canada has no civil code. There's the "automobile insurance act" which sets out the rules on when and how insurance companies can sue each other because there were so many cases flooding the courts. There's other bits of legislation like that. But most civil law is made up of precedents, and a lot of criminal law has "read into" codified legislation with precedents
Example is in Canada the laws on self defence are very specific to defending your dwelling especially with firearms. This law is codified in the criminal code of Canada.
2 years ago a judge ruled on a case where a guy was driving his truck toward another guys house after a fight, and the home owner shot his windshield out and hit him in the face. He was charged with attempted murder but the court ruled self defence
This set the precedent that you can defend your dwelling if there is imminent threat to it, not only if there is an immediate threat like the legislation states
Make sense?
Changing codified law with precedents happens often
>>834525
>2 years ago a judge ruled on a case where a guy was driving his truck toward another guys house after a fight, and the home owner shot his windshield out and hit him in the face. He was charged with attempted murder but the court ruled self defence
kek, this literally happened 2011 in Norway too, the exact same scenario, except here the only reason he was acquitted was because the guy who came driving had threatened his life on the phone prior to the killing, which made him justified in defending his home and family with the gun.
It's exceptionally rare that a case like that leads to acquittal in Norway though, as defending yourself with a firearm is usually only justified in *extremely* specific circumstances.(i.e someone is actually trying to murder you with a gun themselves, which is the only legal justification for it as far as I know).
>>833151
Companies still hire soundalikes for commercial music all the time, it happened to Napalm Death once.
>>834564
>It's exceptionally rare that a case like that leads to acquittal in Norway though, as defending yourself with a firearm is usually only justified in *extremely* specific circumstances.
Yeah same in Canada
The law in the code says if there is an immediate threat to your person or dwelling you can use whatever force necessary to defend yourself
Previous cases involved people actually breaking into someone's house with a gun and getting shot.
The precedent the judge set with this case broadened the language "immediate threat"
That is what I mean by judges "read in" new law into legislation. Similar cases in the future could be argued self defence based on this precedent
>>834564
>he was acquitted was because the guy who came driving had threatened his life on the phone prior to the killing
The one that happened here occurred after a fist fight over an ex girlfriend
>>833925
It doesn't make sense to take away personal responsibility and force it onto other people. I have no legal right to force others to provide and take care for me.
Canadians are fucking retarded and it makes
>a fucking leaf
Meme even more real
>>834564
huh, I figured you snow hicks would be less cucked. If someone comes at me with a knife I want a revolver
>>834769
Canada has it better than other Anglo countries with gun laws desu
At least we can own hand guns, they just have to be registered
In France, we don't have much common law since the french history is such that we hate it and fought to destroy it...
But we still have a lot of decisions who were heavily controversials.
For instance, the 17 november 2000, the french cassation court gave this decision : There is a prejudice to be born.
Basically, here is the story : Miss Perruche is pregnant, and her daughter has the rubella. This means that if she gets the rubella, her baby will be born disabled. She goes to a doctor, and asks for a rubella test, basically saying that if the test is positive, she'll get an abortion.
There are two tests, the first of which is negative, and the doctor assures her that she doesn't have the rubella.
Then, her baby is born : Deaf, blind from one eye, with brain and heart problems.
After a first judgement, an appeal, a first cassation judgement, a new appeal, there is a final cassation judgement, who basically says : You can indeed say a harm was caused because your baby was born disabled :^)
>>834802
>rubella in the Year of our Lord 2000
Don't you have vaccines in france?
I also don't fully understand the judgement. So her baby was born with defects because she had rubella and the harm was the doctors fault?
>>834830
The harm was that, if the doctors had found the rubella, she would have aborted the baby.
>>834861
So who was at fault? The doctor or her for wanting to abort the baby?
>>834881
The baby obviously, for putting an undue burden on her mother by having been born with disabilities.
>>834881
The doctors. And, well, technically, the baby :^)
>>834921
Okay, I found the case
https://www.google.ca/url?sa=t&rct=j&q=&esrc=s&source=web&cd=1&ved=0ahUKEwjo_IHJn8HLAhWpwYMKHe7WAn8QFggbMAA&url=https%3A%2F%2Fdrexel.edu%2F~%2Fmedia%2FFiles%2Flaw%2Flaw%2520review%2Ffall_2011%2FFeuillet.ashx%3Fla%3Den&usg=AFQjCNFtX1AvPfwK1p0OBsycIYh5t0QKvg&sig2=6aqgLqu7RWwF7lMArkdwJw&cad=rja
and this is an article which says that France passed legislation to prevent handicapped people from suing for ever being born:
http://www.theguardian.com/society/2002/jan/11/disability.health
See in Canada the Judge's ruling would be law. It would be more likely for this case to be argued in the Supreme court than it would be for parliament to pass legislation. It is very hard for parliament to pass legislation which goes against a Supreme Court ruling here
>>834974
that's meta as fuck. Suing a doctor for being born
indeed bump.
to favor common law is the claim that one stranger can make laws and that nobody can predict what will happen, with respect to the laws, under such or such actions, since the laws are not written in codes which matter.
With Civil law, you open a code and see beforehand what you risk in terms of gains or loss, under such or such action.
nobody knows what to expect
>>833389
>>833389
Weird Al asks for consent first to be double sure.
See Amish Paradise for an example where the lines blurred with Coolio vs Coolio's staff granting consent.
Also
The law is not omnipresent.
The court does not initiate suit on its own, you need a plaintiff to decide it's worth complaining.
As it is from the Federal court of Appeals for the 9th Circuit, technically the precedent is contained to that part of the country, but most corporate plaintiffs live in Delaware in a PO box. If they wanted to it could be used.
Search for cases where it is cited to have a laugh. I can't seem to find it but even Scalia managed to shut down a lawyer for trying this shit at the SCOTUS level. Something to the effect of 'We have given you too much leash already and you have abused the privilege of broad copyright protection.'
Plaintiffs thankfully have only sparingly used the precedent, but it still sits there coiled around the common law.
AFAIK it has not been overturned.
>>836198
Civil code is meme tier
Common law is always adapting to cover a wide array of matters, and to reinterpret legislation where appropriate and set precedents. Civil code will never cover every issue and different rulings on similar cases are no less arbitrary than setting a new precedent
>>836198
A lot of civil code and criminal law is reactionary anyway
See the French case suing for being born. Government passed legislation to clarify that issue whereas in a common law country the courts ruling would be law.
Here's another case in Canada I'll tl;dr:
Rossy v. City of Westmount
Rossy was sitting in his car in a parking lot when a tree on city property fell onto his car and killed him.
The family sued the city because the death was preventable. An arbarist (tree expert) testified that the tree was rotten. The court ruled the city was negligent for not removing rotten trees which could be hazardous.
The city tried to use the "automobile insurance act" which made "no fault insurance" law. No fault insurance means that your own insurance company pays for your vehicle and liability in a car accident no matter who's fault the accident was.
This is to prevent insurance companies and individuals from suing each other over who caused an accident.
The court ruled that in this case since the tree fell on its own and it wasn't struck by his car or involved anybody else that no fault insurance did not apply.
This set the precedent that land owners and cities are liable if "preventable" acts of nature cause damage. In Rossy v Westmount it was preventable because the tree was rotten
Now you'll notice in a lot of municipalities, the city will have diseased, rotten or damaged trees removed as soon as possible.
Example in my city we had an invasive species which killed ash trees, so the city preemptively removed almost all ash trees in the city to a) control the invasive species and b) to prevent liability of a diseased tree falling.
In this case no law had to be passed by government to amend the automobile insurance act or codify "tree falling liability". The courts ruling made that law.
>>838041
>>838086
Keep in mind that the civil code can be interpretated or reinterpretated as well by the judges. Case law can even be contra legem in some occurences (except in criminal law) because the judges know fully well that sometimes the politicians who write the code articles are simply incompetent.
>>834802
>since the french history is such that we hate it and fought to destroy it...
There never was common law in french history, judges under Ancien Rรฉgime basically did just whatever they wanted while trying to follow "tradition"
>>838151
>Case law can even be contra legem in some occurences (except in criminal law)
No they can go against criminal law. The supreme court does it occasionally
>>838151
>except in criminal law
A couple years ago the Canadian government tightened the laws on prostitution and the supreme court overturned it
A few other cases with drug possession vs trafficking the supreme court redefined
>>830314
Does anyone know of any case law concerning the ADA? I'm not planning suing or anything, I'm just kind of mildly curious; I'm also not an attorney, so I want to apologize in advance if my question is phrased incoherently or I skip over an important fact.
Put simply, I know that under the ADA, employers have to offer "reasonable accommodations" to disabled employees if they can do so. I'm considered disabled under the ADA, and as part of my "reasonable accommodation", I"m generously allowed to work from home. It is so generous, in fact, that I'm to schedule at least a week in advance if I need to come into the office for any reason, and my bosses have made it quite clear that they want my work product, not me around.
Occasionally, it rankles. I'm just curious, is there any case history of people challenging their accommodations and saying they don't need it and want to be treated like everyone else? If so, how did it turn out?
>>838214
www.adacaselaw.com
>>838232
.org my apologies
Just Google it senpai
>>832848
>UK requires intent for trespass in Land
>No "make my day law"
>Castle Doctrine pfff
>>831175
Amhed, please
>>839290
Not from UK but the intent to trespass makes sense if you're like walking through fields and you don't know the property lines
But going into somebody's dwelling without permission is obviously fucking trespassing
But in the case he posted the dumb cunt invited him in
>>839623
At least in U.S. law, (don't know if it's the same for UK law, but I'm guessing it is) intentional crimes and torts require an intentional action to perform.
Say for instance, you live in a house that's right on a roadside. And I'm driving drunk down the road. And because I'm a shitty, drunk driver, I lose control of my vehicle, crash through your front door at a high rate of speed, and have half of my car in your living room, with me in it.
Now, you've got a whole battery of things you can sue me for, depending on the extent of the damage and if you or anyone who depends on you was hurt, but at least according to U.S. caselaw, I'm not a trespasser, and you can't sue me for any sort of trespass to land: I didn't intend to go on your property, or even your house, I just wound up there through a non-intentional mishap.
>>839290
Get off my lawn.
>>830491
This is the worst sort of paternalistic tripe. Your employer is not responsible in the slightest for your actions, and the belief that your employer is liable is exactly what led to the working conditions of the early Industrial Revolution. Because employers could not trust their employees to act responsibly, they were forced to live in company housing, paid less because the company afforded them shelter, and ultimately barred from any sort of societal advancement.
>>839916
>Your employer is not responsible in the slightest for your actions
Except you're incredibly wrong here.
Companies are held liable for the actions of their employees all the time. Example: Royal Dutch Shell is currently fighting claims in court over a spill that happened in the Niger river delta which was caused by human error. The employer and the whole corporation aren't to blame, but they're being held liable.
It's not uncommon for taxi companies to be sued if an accident involving one of their drivers caused damage or harm.
Employers are most definitely responsible for their employees and are held liable when their employees do stupid shit.
>>840167
Principal-agent, apples and oranges. Your example is jack shit.
>>840180
Technically, employee acting in the scope of employment, which is slightly different from principal-agent.
Still very different from being responsible for a tortious act committed in a manner completely unrelated to business though.
>>840254
>committed in a manner completely unrelated to business though.
the Christmas party was a mandatory company event. It being mandatory was one of the factors leading to the courts decision. The open bar as well
>>840462
Drinking alcohol wasn't mandatory though. Unless the only things they served were alcoholic the employee was under no obligation to drink, save for not feeling left out.
Say if they had an open buffet instead, and one of the employees has an allergic reaction to some of the food, should the company be held responsible for the employee not acting responsibly about their own allergies? Or should the employee be considered responsible for their own carelessness?
>>840484
>Drinking alcohol wasn't mandatory though.
But it would be reasonable to expect people to consume alcohol during a social event with an open bar.
The mandatory event, free booze, and no safe ride home was where the verdict came from. I think the bar got kind of shafted, but makes sense imo for employers to have some responsibility of getting employees home safe if they're going to supply the party
>>840496
Don't get me wrong, I agree that the employer should be tasked with making sure the employee gets home safe, and the justification should come from the fact that the people there knew she was too intoxicated to drive, yet made no attempt to safeguard her and others she may injure if she gets in a car.
With regards to the bar, it makes sense that they should be tasked with the same burden, if they allow her in the bar in the first place. For example where I live, no bar is allowed to admit people that are already visibly intoxicated, and quite often you'll see police essentially warning people to go home, and that they're not allowed in the area for the rest of the night. If they violate this they most often spend the night in jail.
>>840520
The law in Ontario, where I live, is bars can't serve you if you are "visibly intoxicated" which would include things like slurring speech and unable to walk properly. Of course people get drunk at bars, but there is a duty to not over-serve people alcohol. In regards to preventing them from driving; I think offering to call a cab is about as much as they can really do. Or asking "do you have a safe ride home?" should be enough to clear any liability.
I like R v Collins which was a Supreme Court of Canada case which called for the exclusion of evidence which was obtained by violating your rights.
In R v. Collins tl;dr:
Collins was in a bar with other people using drugs. Cops knew about drug use and went in to bust them. Collins refused to open her hand to show he had no drugs and the cop grabbed her by the neck and threw her to the ground. She then opened her hand and the cop found a bag of heroin and charged her with possession.
She argued that her section 8 right, freedom from unreasonable search and seizure, was violated. The Supreme Court ruled in her favour and in accordance with section 22(b), which was a remedies clause, the Supreme Court decided to exclude evidence which was obtained if it violated rights.
Most recently there's a case of a wealthy guy accused of murdering his father, (R v. Oland) and was found guilty. The only physical evidence the Crown had was a jacket with blood on it. Now the defence is arguing that the police did not have a warrant to seize the jacket from his house thus violating his right of unlawful search and seizure.
If successful, there will be a retrial and the jacket excluded as evidence
>>840845
What were the circumstances (if you know) surrounding the seizure of the jacket? I mean, whether or not there is or isn't a warrant is usually pretty straightforward, you wouldn't think there was much of a challenge on that basis, it would be settled before it got to an appellate level.
>>840854
>What were the circumstances (if you know) surrounding the seizure of the jacket?
I'll find the news article. But I was mistaken, it was that the cops didn't have a warrant to test it.
Here's one article;
http://www.cbc.ca/news/canada/new-brunswick/dennis-oland-jacket-charter-voir-dire-1.3357225
"Dennis Oland's defence lawyers cited charter violations in attempting to have his bloodstained jacket deemed inadmissible as evidence just four months before the start of his second-degree murder trial in Saint John, court documents reveal.
Oland's three-member defence team also tried unsuccessfully to stop police from conducting additional DNA tests on the brown sports jacket, according to the Court of Queen's Bench documents, which were under a publication ban until the jury began deliberations Wednesday."
also the sections I was referencing in my post are in the Canadian Charter of Rights and Freedoms
>>840854
Tada this is what I was looking for
>>840845
All evidence obtained in a crime scene is obtained legally.
I swear to God reading this thread gives me a headache. Canadian law is fucking retarded.
ITT ignorant morons who know jack shit about law share their opinions
>codifying your laws
How utterly Byzantine.
>>840946
>All evidence obtained in a crime scene is obtained legally.
Found the statist.
>>840946
>Canadian law is fucking retarded.
It's the 4th amendment in the US, and there are precedents in the case law of when it's used. Britain probably has it too, as should all countries.
>>840962
>>830314
Look at those fucking carpets on their head. They couldn't even pick a nice wig how the fuck are they going to make laws.
>>840954
That's one hot opinion man
>>839290
I didn't make it clear, this is only a criminal case. There would almost certainly still be issues of civil liability for Trespass.
Plus, we now have Tony Martin laws as part of Defence of Property and Self Defence which means your actions in defence of life and property have to be grossly unreasonable, not just unreasonable, in order for you to be criminally liable. That gives a lot of leeway for householders to beat the shit out of a burglar so long as the jury thinks it isn't /too/ bad. That seems pretty similar to your castle doctrine based on a simple wikipedia search. The idea of being able to straight up kill someone on your property without having a fear of death yourself is just stupid as fuck though, only an American could have thought such a thing rational.
>>839729
Yeah that's just a mens rea plain and simple. Burglary requires "intent to commit a listed offence" at the point of entry or once you've entered to actually have committed an offence.
>>843256
Cont.
Tony Martin is a famous UK case which was massive in the media. Involved a householder blasting a pair of gypsies with a shotgun after he'd been burgled a number of times before by them. One of the gypsies, who had been arrested 29 times by now, aged only 16, was shot dead. Martin was accused of murder and attempted murder and brought to trial, angering a shit ton of the media. He was put away for a minimum of 8 years. The surviving gypsy then tried to sue him in tort for loss of earnings, but was found to be completely fit and healthy and photos were taken of him cycling. He was eventually released and the gypsies are still trying to hunt him down, having put a massive bounty on his head. He's essentially in
>>830491
To me it seems just as likely in that it'd just encourage employers to host dry events and save themselves the expense, work, and potential liability.
>>843256
Mens Rea only attaches to criminal cases, and often when there's a defined intent required in either the statute or the case law.
When it comes to torts, it is quite possible to commit an involuntary tort, see pretty much any negligence case. It's just that trespassing does require an intentional act.
And not the part of the post you're responding to, but Castle Doctrine does not allow you to simply kill anyone who happens to be on your property, and it never has been as such. It's the creation of certain legal presumptions that intruders on your property intend and are capable of committing bodily harm to you, and their consequent impacts on self-defense. If you're not on your property, and you see someone breaking in, you can't gun them down with a rifle, castle doctrine or no.
>>843309
That may not necessarily be a bad thing, although I think it would be likely that the more aristocratic companies like law firms and financial firms would probably bite the bullet.
>>843256
>The idea of being able to straight up kill someone on your property without having a fear of death yourself is just stupid as fuck though
In Canada the criminal code says something like use as much proportional force necessary to defend oneself and their dwelling
It was set in a precedent, I forget the case, that Proportional means if there is an immediate or imminent threat from a weapon which can cause death or great bodily harm, then praportional defensive force could involve a weapon which can cause death or great bodily harm
That leaves it open for firearm owners to shoot knifewielding intruders into their dwelling* not simply their property. And it also closes the gap of using lethal force against an unarmed nonthreatening intruder
>>843405
>Mens Rea only attaches to criminal cases, and often when there's a defined intent required in either the statute or the case law.
I'm not sure what you're getting at. I didn't mention mens rea in relation to a civil offence, I was talking about burglary which is a criminal offence and has mens rea requirements.
>When it comes to torts, it is quite possible to commit an involuntary tort, see pretty much any negligence case. It's just that trespassing does require an intentional act.
Trespass to land here in the UK does not have to be intentional, it has a very wide scope.
>>843405
>If you're not on your property, and you see someone breaking in, you can't gun them down with a rifle
I didn't suggest that it was giving free reign to shoot anyone on your property, you're being deliberately silly now. I don't like the presumption that if somebody is on your property then they intend to harm, seriously that sounds absolutely ridiculous. If everybody wasn't armed up with guns maybe that presumption would seem a bit more woolly, perhaps Americans just assume that anyone breaking in is armed to the teeth and therefore they have the right to blast them based on a presumption that they have the right to with lethal force.
>>843458
That sounds a lot more like what we have in that respect, the U.S seems a lot more willing to tolerate householders using disproportionate force against anything potentially threatening, weapon or no.
>>843521
>That sounds a lot more like what we have in that respect
It's very specific about your dwelling, like the place you live. So even if a knife welding person breaks into your vacant storage shed on your property you cannot lawfully use praportional force
>>843521
> I didn't mention mens rea in relation to a civil offence, I was talking about burglary which is a criminal offence and has mens rea requirements.
You responded to a post of mine stating that at least in the U.S., you must commit an intentional act to commit trespass, and then likened it to criminal Mens Rea. They're not the same thing. Mens Rea requires a much narrower intention than merely an "intentional act" to attach civil liability, and usually implies an action to achieve a specific (malicious) end, not just a voluntary action of some sort to achieve any sort of end.
>I didn't suggest that it was giving free reign to shoot anyone on your property, you're being deliberately silly now.
>The idea of being able to straight up kill someone on your property without having a fear of death yourself is just stupid as fuck though, only an American could have thought such a thing rational.
Except of course, that not even in America is such a thing thought rational, or is under the color of the law. Castle Doctrine in fact works from the other direction, widening the scope of what is considered a reasonable fear for your life when it might not be so if you were somewhere else.
Furthermore, it's a presumption, not a fact, and a limited one at that. Someone in your home or the immediately surrounding real estate without your permission? At that point, it's the intruder's job to demonstrate he doesn't mean harm, not the homeowner's job to demonstrate he does. If there is no actual possibility of harm, like a long body of cases where the homeowner isn't present, you have no grounds for self defense and thus no right to harm them.
>>843562
It also applies to regular places of employment in something like 40 states, as well as personal vehicles in quite a few.
And even in any location, you can use proportional force if you have no safe retreat: Some states have "Stand your ground" wherein you don't need to retreat even if you can do so safely. And just in general, courts are pretty accepting of stories about how you couldn't retreat safely.
>>843576
>as personal vehicles in quite a few
In Canada there was a case where a guy was charged with murder for stabbing him in his hippie van, and he successfully argued that his van was his dwelling
>>843594
*despite him being able to leave his van safely
fucking leaf test
>>843722
Better?
>>843741
Just say you're canadian if it's relevant to your post
Eurofag here following OJ trial tv show.
Was OJ trial affected by 'common law'? Did it make precedents?
>>846276
Well, it was certainly affected by common law: almost all procedural law in the U.S. is common law, not statutory law. As for making it? I'm not in Cali, and they do things funny over there, but I don't think it's ever been cited to, almost all case law is in the realm of appellate stuff, not trial level stuff.
>>846534
>almost all case law is in the realm of appellate stuff
Almost all case law is civil law
>>846534
Pretty sure we have statutes against murder.
>>846589
>But then too, it's usually the appeal, not the civil trial
No. Case law is civil law. There is no civil code in common law countries. Sure there are some statutes here or there but civil law is mostly case law.
If a precedent is set during a criminal trial or by supreme court then it is law. Are you a eurofag?
>>846276
California (like most states) has done away with common law criminal offenses, so the entire case would have been under statutory law.
>>847996
There are still elements of common law in criminal law though such as how statutes are interpreted
Its not like common law is gone
>>848131
I think he meant that crimes themselves like murder are codified now
>>847807
>If a precedent is set during a criminal trial or by supreme court then it is law. Are you a eurofag?
Yes, but if it's a precedent set during a trial (or, more commonly, an appeal) it's common law, not civil law.
>>847996
>>848139
Except, you know, the procedural aspects, which are often quite important. Evidence law is mostly common law, and you can't have a criminal trial of any sort without your rules of evidence.
>>848190
>civil law.
Don't mistake civil law for civil code dude
Common law countries still has civil law, it's just in the common law as opposed to codified
>>848207
I'm getting really confused by what you're getting at.
At least in the U.S., "Civil law" refers to non-criminal law. Torts, contracts, property, that kind of stuff. You have civil law case law. You have criminal law case law. The two don't meet too often.
Now yes, the volume of caselaw in the U.S. is something like 92% civil to 8% criminal, because you have a lot more civil cases than criminal ones, and most criminal ones hinge around issues of fact as opposed to law. so thus don't make any sort of meaningful precedent. But whether civil or criminal, you get almost 0 caselaw of any sort by trials, it's almost all appellate.
>>848217
Okay we're on the same page then nvm
I thought you were implying there is no civil law in common law countries rather than different precedent for civil and criminal
>>848131
True, there's still a certain amount of common law undergirding everything in an Anglo-Saxon system, but its role in this case is about as marginal as it could be.
>>848190
The Rules of Evidence and the Rules of Criminal procedure are both codified in California. There area a few limited cases where common law might fill in some small gap, but it would not determine the fundamentals.
Criminal law precedent setting case last year here in Canada
R v. Hersi
Hersi was on his way to join Al Shabab, terrorist organization in east Africa
The criminal code has a provision for "knowingly contribute to or participate in any activity of a terrorist group for the purpose of carrying out terrorist activity."
Hersi was charged and convicted of attempting to join a terrorist organization. The trial judge set the precedent that "attempting to join a terrorist group" is an equal offence as actually joining a terrorist group
Hersi got 10 years in prison for trying to join a terrorist group and he didn't even leave the country
>>848746
>The Rules of Evidence
This is codified in Ontario as "the evidence act" for civil trials.
For criminal proceedings I'm pretty sure our court system just runs on convention though. There's no codified rule book on how to conduct criminal trials
>>830314
> The Court found the employer to be 25% liable, and the bar to be 25% liable.
Absolute bullshit. Then again, if someone is clearly fall-down-drunk you really should cut them off.
>>833151
> States that the space inside the public's head where the idea of Midler lives is owned by Midler.
Do we not have a right to our own image? Whatโs more personal to me then Me?
But the court didnโt say anything about whatโs in your head, just that you canโt profit off someone elseโs image.
>>831175
worked out great the last time
>>848746
At least where I am (Illinois) the Rules of Evidence were codified, but it was essentially a legislative approval to pre-existing common law rulings on the matter. I'm not up on what Cali does, but I was under the impression that very few legislatures actually drafted rules of evidence, they did similar stuff to what Illinois then.
>>848977
>but it was essentially a legislative approval to pre-existing common law rulings on the matter
Same as Ontario
>>833151
I actually agree with this, at least if copyright laws are going to be on the books at all.
The issue here is clearly intent and the result. The intent is for Ford to bypass paying for Midlers "product" by passing off a imitation as authentic because its convincing enough to fool everyone.
The same "result" is reached by Ford (having people think Midler is endorsing X) without actually paying for the endorsement.
It doesn't count as parody or fair use because that was clearly not the intent. Now, if Ford had felt so slighted by her demands that they put an ugly man in bad Midler drag and had him singing like her, even convincingly that would clearly be parody and although insulting, would be fair use because the intent and result is completely different.
Bump law thread
Guys
What is the major disadvantage of civil code you Anglos see?
>>850169
You are presuming they used either Midler's face, name, or other picture. The court makes clear that they did not and that point is not in contention in the case nor did it factor into the "result".
They did pay the license for the song to the party that owned it for its use.
This is the case of conflating an 'image' which is copied form an original, with 'sound' which originates from an altogether different source.
It would be the same if all persons who sound like the famous one in the room were forbidden to speak on the telephone for fear of misatribution by the receiver.
>>851185
In civil code law it literally takes an act of parliament to adapt to novel cases.
And the law as adjudicated is by nature conservative and resistant to change.
Combine the fallibility of human foresight with the lethargy of bureaucracy in the average government and you have the jist of it.
By contrast common law runs the risk of wild-eyed judges flying off the handle and mandates thorough appellate processes to prevent the system form bubbling over into madness.
It's just what makes you happy. Personally I prefer to get to make law when I have a problem as a plaintiff tailored to my individual problem rather than wait till the next election. But I see the appeal of only fighting current prejudices rather than ancient ones.
>>852104
but the judge in civil code country can also interpret the law as he wishes, f.e. use an analogy of law to cover some possibility, that wasnt foreseen by legislature. it is somewhat rare but possible.
>>852104
>By contrast common law runs the risk of wild-eyed judges flying off the handle and mandates thorough appellate processes to prevent the system form bubbling over into madness.
I thought that the judges were elected by the people??
>>852104
That's not really the issue.
When a dispute goes to court, the judge makes a decision based on their interpretation of the existing law. If it's a novel case and the law doesn't address it very clearly, the judge has to make their own decision as to how that case should be decided. That is true under both civil law and common law.
The fundamental difference is that when a common law judge decides a novel case, that decision becomes law and judges in future cases are bound to follow it (depending which court made the decision, etc). Judges in civil law countries are not bound to follow previous decisions in that way, although in practice they often will.
So, contrary to the stereotype of 'wild-eyed judges flying of the handle', judges under common law are actually more restricted. They not only have to follow legislation, they also have to follow the previous decisions of superior courts. Common law therefore should produce more consistent and predictable outcomes. Once an issue is decided once, similar cases should always go the same way.
Of course common law decisions are only 'predictable' if you actually know the case law, which is very difficult without legal training. Having all your laws codified allows its own kind of 'predictability' since people know where to look to find the law. But if the law is unclear, there's less certainty on how any particular judge will apply it.
>>852636
>I thought that the judges were elected by the people
In US I think some are, in Canada they're appointed and have 'royal authority' to carry out her majesty's duty as a fair arbiter of the law of land or something like that
Lawyers apply to be a judge first, then if selected (takes several years) they go to judge school
Then if they're prepared to be a judge they get appointed by the vice royal in the provinces upon recommendation of the premier, or in superior or the supreme court it's the Governor General (Vice royal of Canada) who appoints them upon recommendation of the prime minister
Judges sit until age 75 or death
American here This is one of my favorites-
United States v. Causby (1946)
Causby sued the United States for trespassing on his land, complaining specifically about how "low-flying military planes caused the plaintiffs' chickens to 'jump up against the side of the chicken house and the walls and burst themselves open and die' . . . The plaintiffs sued the government, arguing that they were entitled to compensation under the takings clause of the Fifth Amendment.
Under the common law, persons who owned real property owned it "from the depths to the heavens"
The supreme court ruled
"Cujus est solum ejus est usque ad coelum et ad inferos has no legal authority in the United States when pertaining to the sky. A man does not have control and ownership over the airspace of their property except within reasonable limits to utilize their property. Airspace above a set minimum height is property of the Masses and no one man can accuse airplanes or other such craft within of trespassing on what they own."
>>853482
That's a good precedent to set
I don't understand the fifth amendment part? Like I didn't plant the glove fifth amendment?
>>853493
I think the guy argued because he owned the sky above the farm he was entitled to compensation because the military flew planes above his property And thus constituted a "taking" under the 5th. the takings clause reads-
"nor shall private property be taken for public use, without just compensation."
>>853508
Ahh and the court read in that the sky isn't private property rather you own a cube which only goes so high around your property
Do Americans with private property have mineral rights?
>>853482
>except within reasonable limits
so rigorous...
>>853538
I imagine if the land is zoned for 100 storey buildings, it would be reasonable to own the sky up to the 100th storey maybe higher
But if the land is zoned for 2 storey house that would be unreasonable to own that high
>>853534
Yes unless severed under a previous deed or an agreement
>>853543
We're kind of screwed in that regard
First you need to acquire mineral rights from the province, then you need a permit to protect the land
If you find valuable resources without mineral rights, in theory the province could expropriate your land but I've never heard of that happening
>>853602
Prospect* the land
Property rights anon here again another
case that really important is Kelo v. City of New London (2005) per wiki-
The case arose in the context of condemnation by the city of New London, Connecticut, of privately owned real property, so that it could be used as part of a โcomprehensive redevelopment plan.โ However, the private developer was unable to obtain financing and abandoned the redevelopment project, leaving the land as an undeveloped empty lot.
by a vote of 5 to four the supreme court ruled-
"The governmental taking of property from one private owner to give to another in furtherance of economic development constitutes a permissible "public use" under the Fifth Amendment. Supreme Court of Connecticut decision affirmed."
IMHO scotus screwed up this case badly
eminent domain transfer under the 5th was only to allow the government to take private
property for public use such as roads or bridges, It was never intended to allow the gov
to take someones property in order to give it
to private business. the dissenting opinions are a good read-
"Any property may now be taken for the benefit of another private party, but the fallout from this decision will not be random. The beneficiaries are likely to be those citizens with disproportionate influence and power in the political process, including large corporations and development firms."
"This deferential shift in phraseology enables the Court to hold, against all common sense, that a costly urban-renewal project whose stated purpose is a vague promise of new jobs and increased tax revenue, but which is also suspiciously agreeable to the Pfizer Corporation, is for a 'public use."
"Something has gone seriously awry with this Court's interpretation of the Constitution. Though citizens are safe from the government in their homes, the homes themselves are not"
sorry for the long winded post.
>>853679
>privately owned real property, so that it could be used as part of a โcomprehensive redevelopment plan.โ However, the private developer was unable to obtain financing and abandoned the redevelopment project, leaving the land as an undeveloped empty lot.
holy fuck, i work at a real estate law firm and we dealt with an issue exactly like this a couple weeks ago
>>853679
So basically the court ruled against expropriation?
In Ontario the last time the government expropriated land was to build an airport, and by treaty they can't expropriate first nations land. There's a highway in Ontario, Highway 400, that runs from Toronto up to Sudbury which is a northern community. The government expropriated a couple farm lands to build the highway. However it was to cut through Mohawk land, and they wouldn't have it. The government ended up having to pay the mohawks a ton of money and give them their own exit and entrance to the highway despite there being one only a few kilometers outside of their territory
>>852636
About half the states have elections for trial court judge positions. The other half, all federal judges, and all appellate level judges in every state I'm aware of are all appointed by the chief executive of the polity.
>>853679
oh here's some cases that cite kelo-
Goldstein v. Pataki (Court of Appeals, 2nd Circuit 2008)
http://scholar.google.com/scholar_case?case=1542816312841407237&hl=en&as_sdt=5,31&sciodt=6,31
Baltimore v. Valsamaki Court of Appeals of Maryland (2007)
http://scholar.google.com/scholar_case?case=5066496187098390799&hl=en&as_sdt=5,31&sciodt=6,31
County of Hawaii v. C&J COUPE FAMILY LIMITED PARTNERSHIP, Supreme Court of Hawaii. (2008)
http://scholar.google.com/scholar_case?case=11434720181643947741&hl=en&as_sdt=5,31&sciodt=6,31
New Orleans Redevelopment Auth. v. Johnson
Court of Appeal of Louisiana, Fourth Circuit. (2009)
http://scholar.google.com/scholar_case?case=4983876673902803129&hl=en&as_sdt=5,31&sciodt=6,31
gump
On a previous law thread, I saw someone mention case where the lawyers involved apparently wrote their briefs in crayon. Does anyone know what case that was? Wanted to show it to a lawyer buddy of mine, but by the time I thought of it, I couldn't find the case in the archives here.
>>852992
I join in part and dissent in part,
I concede the constraints of legislation piled upon precedent can produce a more onerous and secure body of legality that resists judicial overreach more strongly.
However the cultural idiosyncrasies of common law I believe still allow for far more radical interpretations even in decided and well worn legal doctrines, rare as the case may be. I even approve of the practice on occasion as necessary and proper.
For example the Griswold v. Connecticut case which produced a right to privacy in America. Such a right is otherwise absent from virtually every other common law jurisdiction. While one may argue that the unique and intervening factor here was the (ironically) codified American Constitution (a document), the British Constitution (their body of common law) from which it derives much of its precedent has repeatedly failed to produce anything of the kind. Further, there it is viewed as part of the tapestry of a free press that there be no right to privacy.
Whereas in America the right to privacy is commingled with the purchase of condoms as in Griswold. Citing the 'penumbra' extending from various components of the Constitution Justice Douglas states that there is an implied right not explicitly stated.
I do not decry the decision, I merely point out that in this case the law was expanded in defiance to codified law and precedent in the name of uncodified (or at least unexplicit) law by the unprecedented opinion of the judges.
I would likewise note the Brown v. Board and Plessey line of cases functionally reversing themselves one the same logic re the issue of slavery, and the more contemporary Citizen's Unities which derives unlimited campaign spending from free speech provisions. But I do not wish to be needlessly controversial.
>>854304
I believe Bradshaw v. Unity Maine 2001 is such an example in Texas.
For the record, it was crayon written on the back of gravy stained placemats.
147 F.Supp.2d 668
Apparently the case concerned a motion for summary judgement on the statute of limitations for personal injury.
The Plaintiffs had a choice of law contention concerning the maritime term of 3 years or the Texas state time of 2 years. However, due to a glorious failure to cite sources, mention Erie, etc. The Court does it's nut and throws the case out; summary judgement affirmed for defendant.
http://kevinunderhill.typepad.com/Documents/Opinions/Bradshaw_v_Unity_Marine.pdf
>>854659
Yes, that was it. Thanks!
>the American """"""legal system""""""
>no barrister/solicitor distinction
>some judges are actually elected (not even making this up)
>Supreme Court judges are questioned about their political views before appointment
>no one wears wigs
>ยง symbols
>pronouncing the 'v' in case citations as 'vee' or 'versus'
>judges allowed to continue sitting after they've clearly become senile
>>855190
>pronouncing the 'v' in case citations as 'vee' or 'versus
I'm canadian and I do this too
What do Brits do?
>>855262
'And'.
Or sometimes 'against' in criminal cases, for example 'R v Smith' is pronounced 'the Crown against Smith'.
>>855190
>having judges wear wigs in 2016
It looks retarded because it is retarded.
>>855190
>some judges are actually elected (not even making this up)
>Supreme Court judges are questioned about their political views before appointment
>judges allowed to continue sitting after they've clearly become senile
valid points
>>855305
Oh yeah that's how it would be spoken like
Her Majesty the Queen against Anon, but
Written its still R v. Anon
Civil I still see versus though
>>855340
Why is electing judges bad?
>>855461
Because they're rulings are more likely to be populist instead of impartial to ensure reelection
>>855461
It results in judges making popular, rather than correct, decisions.
>>855309
>the most important cases are decided by people dressed as Father Christmas
>retarded
Pick one and only one.
>>855461
To take a topical example, in Chicago, you get the two main judge blocks of
>Irish
>Blacks
Because literally nobody will vote for anyone who isn't in one of those two ethnic groups. Whether or not they're good judges is a much less important factor.
Plus, as the other anons have said, it means that their positions arent' completely independent, they'll be incentivized to make rulings that will keep their re-election chances high.
>>855461
Be black in a majority white neighbourhood with elected judges.
>>830491
please be trolling.
If you can't handle your liquor and are hurt through actions entirely of your own agency, then you have no one to blame but yourself.
Anything else is infantilism.
>>855461
separation of powers?
>>855309
Joined in part and dissenting in part.
When lice was a pandemic problem forcing judges to shave their heads, wigs are a totally cool way to show solidarity with the young lawyers who began using them for that reason.
Now that we have sanitation and pest control, wigs are symbolic of a brief fad whose time has past at best.
Codified wig protocols enforcing larger wigs for 'more powerful' judges versus lawyers, are indicative of the opposite; a divide between the bench and the bar which is counterproductive to the rule of law.
Though I concede it does not of itself necessitate a bias on the part of the wearer, the language of it is all wrong.
>>855504
>Implying prejudice in a law thread
To take a topical example, white people voted a black man into the Office of the President of the United States.
Because literally nobody is so hidebound as to have their mind locked within a ethnicity defined by someone else.
The individual mind is not subsumed by the group and never shall be. Democracy works, we all vote our conscience, even in times of tyranny, end of discussion.
So here in New jersey there is a long series of court cases dating to 1985 that cover's poor school districts where the court determined children are receiving inadequate education in violation of the state constitution which reads-
[t]he Legislature shall provide for the maintenance and support of a thorough and efficient system of free public schools for the instruction of all the children in the State between the ages of five and eighteen years.
The court beginning in Abbot I (1985) mandated that state funding for these districts be equal to that spent in the wealthiest districts in the state. In Abbott II (1990) and subsequent decisions the court mandated the state assure students in these districts receive adequate education through various reforms including standards-based education supported by parity funding. In Abbott II The court laid out the criteria for a district to be covered-
1. must be those with the lowest socio-economic status, thus assigned to the lowest categories on the New Jersey Department of Education's District Factor Groups (DFG) scale;
2."evidence of substantive failure of thorough and efficient education;" including "failure to achieve what the DOE considers passing levels of performance on the High School Proficiency Assessment (HSPA)
3.have a large percentage of disadvantaged students who need "an education beyond the norm;"
4. existence of an "excessive tax [for] municipal services" in the locality where the district is located.
The court has issued numerous Abbott decisions since, most recently in Abbott XXI (2011)
tl;dr
The state supreme court basically has usurped the state legislatures job in regards to school funding in poor districts.
If you like to read all about the Abbot cases-
http://scholar.google.com/scholar?q=Abbott+v.+Burke&hl=en&as_sdt=6&as_vis=1&oi=scholart&sa=X&ved=0ahUKEwif14qWwcvLAhUBYSYKHQrBAzEQgQMIGzAA
and here- http://www.judiciary.state.nj.us/supreme/abbott/
>>855698
Muh self responsibility
>>830491
You mean employers only host dry events and nobody is ever allowed to have fun anymore because some cunt saw dollar signs?
>>856463
Or they take an effort to prevent drunk driving
bo
>>830491
I agree. If you encourage people to treat each other well they usually embrace it as the civil thing to do. In this case liability initially forced employers to make sure everyone got home saefly, now you're a dick if you dont. All we need is a push. We really do like being around each other.
>>857268
This
>>857898
Imo it promotes a civil duty to each other
>>831524
"Everyone is allowed to have their own opinion so shut up and stop having your own opinion!"
sums up this generation entirely.
Saved
>>861810
same
