Didn't see a law thread so common law thread! What are

>>355651
just wrote a paper on aboriginal fishing rights in BC. there are some interesting cases that pretty well forced the federal government to change its position on aboriginal and treaty rights - look at the transition from the White Paper in 1969 (advocated the end of legal recognition of Indian status) and the Constitution Act, 1982 (Section 35 "recognised and affirmed" aboriginal and treaty rights). In between there was Calder v. BC, where the SCC essentially essentially decided that aboriginal title existed

>>355690
I miss writing papers in school. I've written several on aboriginal affairs. Indian act never forget

The rules of evidence are convoluted everywhere it seems

>>356153
There's another case "R v Collins" which takes it even further. R v. Buhay established that evidence obtained without a warrant can't be submitted.
R v. Collins established that if the court finds your rights were infringed during the collecting of evidence then it can't be submitted for evidence.

Stambovsky v. Ackley

Because who doesn't love a legal recognition that the presence of ghosts in a haunted house is a condition that needs to be disclosed to potential buyers?

>>356454
I wonder if that case has ever been cited in court

>>356477
It's heavily cited, because it's one of the best rebuttals of the "buyer beware" doctrine in the entirety of the law.

If a seller can be held liable for concealing ghosts, they can be held liable for concealing a great many other less esoteric problems about a property.

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iuspositivism a shit

>>356589
>If a seller can be held liable for concealing ghosts, they can be held liable for concealing a great many other less esoteric problems about a property.
that's a good point actually

>>356454

That reminds me of that Leroy and John Ivy case; where they tried to solicit a murder by voodoo. (They pled guilty though, so no interesting case)

saved

>>355845
yeah the Indian Act in its many iterations is an interesting piece of legislation. It has straddled the line between "outright racism and intent to disenfranchise aboriginals" and "well-meaning but misguided and paternalistic intervention". While the goal of assimilation would now be anathema (muh cultural mosaic) (I tend to agree here), seeing it as a wholly alien impulse hinders understanding of it, in my opinion. The trend towards compassion that we'd associate with policies in the 1960s often manifested itself in similarly problematic ways. For instance, the White Paper I noted above. While it would have done a lot of damage to aboriginal cultures, I think it was honestly well meaning. The problem was the utter lack of consultation of First Nations. The case of the razing of Africville was similar - the authorities saw a poverty-stricken, unsafe living environment so they burnt it and relocated its inhabitants without accounting for the sense of community that could be attached to such a place, shitty as it was.

>>355651
R v Brown is the go-to fun precedent. You have a few others, but I would say the jurisprudence is more interesting than the case in particular.

>>361639
This is interesting, I hadn't heard of it before. How has affected later judgements?
An issue that comes to my mind is the fact that you can consent to risk of injury (eg surgery) but not to injury as an end, according to this judgement. I'd be interested to know how that is reconciled.

It doesn't set any precedent or anything, but my absolute favorite case of all time has to be Bradshaw v. Unity Marine Corp. Small little maritime case, but I just love reading it. Unfortunately PDF uploads don't work on /his/, so if you want the full text, look up 147 F.Supp.2d 668.

>Before proceeding further, the Court notes that this case involves two extremely likable lawyers, who have together delivered some of the most amateurish pleadings ever to cross the hallowed causeway into Galveston, an effort which leads the Court to surmise but one plausible explanation. Both attorneys have obviously entered into a secret pact-complete with hats, handshakes and cryptic words-to draft their pleadings entirely in crayon on the back sides of gravy-stained paper place mats, in the hope that the Court would be so charmed by their child-like efforts that their utter dearth of legal authorities in their briefing would go unnoticed. Whatever actually occurred, the Court is now faced with the daunting task of deciphering their submissions. With Big Chief tablet readied, thick black pencil in hand, and a devil-may-care laugh in the face of death, life on the razor's edge sense of exhilaration, the Court begins.
And it keeps going like this for several pages.

I can't think of another case where the judge openly displays his outright contempt for both parties like this.

>>355651

So, is it true that Jews make good lawyers because they have the Talmud? I've heard that it's almost a primitive common law, a collection of Rabbis arguing points of law over and over again.

>>363366

You can find it on link here

http://kevinunderhill.typepad.com/Documents/Opinions/Bradshaw_v_Unity_Marine.pdf

I also like the DeKoven v. Bell one. http://law.justia.com/cases/federal/district-courts/FSupp2/140/748/2389864/

> Because, as the Court noted above, plaintiff has no constitutional right to be acknowledged as a deity, the claim is insubstantial and its underpinnings are implausible.

>>361312
>lack of consultation of First Nations.

Don't all chiefs just fuckin rob the communities of their government earned money with salaries higher than the Prime Ministers?

>law
>not being deduced autistically from pure reason alone
>mfw

It's like you like having your general and predictable rules of mixed with particular commands of desire n shit.

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>>363758
forgot my face

>had jury duty a few weeks ago
>deliberating
>one woman says "I think he probably did it, so guilty"
>nods of agreement from a group of 40-65 year olds who mostly worked in a professional environment
>me and the only other person under 25 there are trying to explain how "probably" isn't enough
>"but we have to come to an agreement anon, you don't think he's innocent do you?"

And that's how I realised old people are just as stupid as anyone. Except it's worse when they are, because they're sure of the idea that their "life experience" validates their opinion over younger people.

>>363837
To be fair, if you were in a position where the jury deliberated concerning the facts and validity of the situation then something went wrong in the process.

>>363837
The jury system is a total joke. Probably one of the worst parts of common law. No idea why it's still applied in a modern setting with dilemmas more complex than what farmer owns what piece of land.

>>363859
Jury in its 'classical' definition actually had certain inquisitive powers. It wasn't just a bunch of hicks sitting around in a room but people that actually had to do some footwork, investigate, consult and so on. Strangely, since the 19th century it became simplified while the legal system became more complex.

>>363994
so, is the jury system more of a formality?

>>364013
I think that in the contemporary world it has an educational and formative function for the most part. How often is a citizen called to serve his country? Very rarely in most western countries. It's an opportunity to have people learning about government and law, and for them to demonstrate a minimum of civic virtue.

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>tfw writing on doctrine of notice

Just kill me now lads

Is it true that because of the common law, sharia law is technically legal in some cases if both sides agree on it?

>>365564
>sharia law is technically legal in some cases if both sides agree on it?

If both sides agreed upon it and Sharia law is the 'state law', wouldn't that make it legal to begin with?

>>365564
Maybe, but I wouldn't say it's because of common law. Sharia can be codified in positive law as well.

>>365564

I'm not entirely sure about Britain, (where you hear it most talked about) but I believe they're the same in the U.S. in that two parties can elect to something called binding arbitration, which is a quasi-court proceeding using possibly different standards but whose judgments are enforceable if the two parties agree to it.

It's not a fully blank check though, a U.S. binding arbitration could say, divorce a couple along the property division lines that an Orthodox Jewish rabbinic court would instead of standard U.S. law, but they can't advocate for punishments that are beyond the scope of U.S. law, no stoning for sabbath violations.

>>365583

Here in Britain we have religious courts and the judge can give a punishment so far as it is not within the confines of criminal law or if he acts ultra vires in his decision, which can then be challenged in a legitimate court.

>>363381
It varies a lot. Couple problems with this idea though.
First, calling it "government-earned" is a little misleading. A lot of federal money that goes to First Nations is a result of the terms of treaties, where the First Nations ceded land in exchange for annuities. A lot of people seem to have the idea that it's just a matter of handouts (and sometimes it is just a case of wealth redistribution, but there I'd argue that its necessary because many groups have been relegated to land from which they cannot derive a livelihood) but really much of it is a legal obligation (which one might argue was a mistake on the part of the Crown's negotiators of treaties, but that's really neither here nor there).
Second, yeah there is certainly corruption in some communities. That being said, saying "all chiefs" would be like saying "all the heads of state of Europe" - there's cooperation between First Nations to varying degrees but you can't really make blanket statements like that. While you might have some corrupt leaders, you also have the Billy Diamonds and Frank Calders (to take examples from the White Paper/Calder case era I was discussing above)

>>362901
What was interesting was that it was formed by judges who clearly did not like homosexuals and seemingly this affected the reasoning in the case. That is, the judges found the actions of homosexuals disgusting and this was why they came to the judgment -- overly simplified, but nevertheless still true. However, the jurisprudence later prevailed in a case concerning heterosexual BDSM relationships.

>you can consent to risk of injury (eg surgery) but not to injury as an end
I don't know whether this is entirely true. Surgery is necessarily injurious, especially in the form of amputation or gender-reassignment (which isn't necessary). In previous cases, the judges held that surgery was an exception to common assault and therefore GBH -- which makes little to no sense. You cannot consent to injury caused by a prancing homosexual, but you can consent caused by an expertly trained medical professional (for non-essential operations, such as cosmetic surgery).

>>363758
What?

>>365549
>doctrine of notice
Where you studying, bud?

>>365564
It has nothing to do with common law. In fact, the availability of Sharia law as a means of arbitration was founded in statutory law -- in the UK at least. That statute said that such decisions determined by the arbitrator would be binding as long as conducted fair and reasonably. So, this would preclude some mental religious decision from occurring really.

Also, and this is quite obvious to most, but arbitration is a means to settle contractual disputes. Saying Sharia is legal means contracts can be settled by a Muslim jurist; Sharia law is not imposed onto Muslims, and Sharia cannot affect criminal law or matrimonial law, or a range of other areas of law. Just contracts.

>>365623
Excuse me. What religious courts do we have? And which ones determine "punishments"?

Quieten down, you AS-studying ignoramus.

>>365865
Yeah I would guess that the distinction might be made between practices where harm is incidental (eg. surgery) and those where "harm" is intentional. Plus these BDSM practices likely involve things that are specifically prohibited by law, eg. striking someone or choking someone. I wonder where this leaves something like boxing or american football then, where you are 1. doing things that are specifically prohibited, and 2. doing them in a way that is likely to cause injury (one might hold that injury is incidental, but the evidence that brain damage is likely in either of this sports is pretty damning). It seems to me that the main factor is that boxing is culturally accepted in England, whereas homosexual sadomasochism is not. Or maybe there are specific exceptions for boxing in assault laws...I don't know UK law very well (or any law for that matter)

>>365983
There is no law which specifically prohibits choking someone. The people who drafts statutes are far too lazy to go through every violent act in detail to prohibit. There are many situations where choking would be fine, such as in a movie or something. If we were in the next James Bond, no judge would throw you in prison for squeezing my throat for a bit.

Yeah, as I mentioned, there are exceptions at the common assault level. So for R v Brown, we're talking about judges saying that people cannot consent to BDSM acts which amount to the offence of GBH. For the offence of GBH, you first need a common assault for the offence to be committed. In previous cases which discussed common assault, they mention horseplay/sports and surgery as things not amounting to common assault. You'd be perfectly able to play your American football here and you'd get into no trouble, unless you injured someone maliciously.

The thing with law is that even though one case might say "nothing which causes really serious harm (in the form of GBH) can be defended by the fact the victim consented", you might have a succeeding case which refines the meaning of that previous case. You have to mix and match all the different elements together to ascertain what truly the law is. And lawyers do this on purpose; for if the law were simple, you'd have no need of them!

>>355845
>>361312
where did you study? were you in history?

No offense, but Canadian law seems really immaterial. Law school in US touches on some English court cases, but doesn't bother even taking a glance north. Cool you guys have your own cute little trinkets to discuss though. Aboriginal rights? Very quaint.

>>366052
English law was used as the foundation of the legal systems of many established countries and continues to this day to be the legal system adopted by much of international commercial disputes. It is quite natural that English law is referenced more so than Canadian law.

That said, Canadian law and Australian law are touched upon in English law schools ... perhaps you are simply not the most well-read student.

>>366091
>touched upon

Yes, I'm sure it's very relevant.

>>366112
Canadian law cases are touched upon as persuasive precedents which either founded an English precedent (in its likeness) or operates itself as the sole case which sheds light on what the law is in a particular area -- because an English precedent does not exist.

>>366052
quite right, we should probably abandon our legal tradition and import american law

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>mfw this thread

>>366185
you could contribute examples from other countries. I'm just doing what I know

>tfw civil law

Whatever. I feel like these evidence rules that say you can't use particular evidence based on how you obtained it are a bit odd. No such limitations here.

>>366305
If police are going to obtain evidence illegally, they need to be deterred from doing that. The evidence rules make sense for jurisdictions where the problem exists. For your country, your police might be more developed and disciplined; however, I do not understand what it's got to do with civil law and common law.

>>366327

I was just commenting the rules since they were mentioned in the thread.

>>366335
I know, man. I have no issue with that; I am just asking whether it's really to do with your status as a civil law country which determines whether or not you have evidential rules, or merely the fact your police service are respectable people.

>>366355

Yeah I don't know if it has any connection to it. I think your explanation is pretty good.

>>366366
Which jurisdiction are you from?

>>366387

I'm Swedish.

>>366032
>history
I went to queens and studied politics

>>366327
Said it better than I could

>>363377
Nice one

>>363837
That's why you were on the jury m8

Did you 12 angry men then into a not guilty verdict?

Australia has significant issues with its indigenous population.

As of the 1967 referendum, Australia can make special laws with respect to any race of people, including Aborigines.

Kartinyeri v Commonwealth (1998) 152 ALR 540 was a very interesting case in determing what powers the federal government actually had to make such laws, where a proposed bridge to Hindmarsh Island was contrary to the religious beliefs of the Aboriginal people.

The upshot of the 2:2 judgment is, it still has not been determined whether the Commonwealth has constitutional power to make detrimental laws with respect to different races.

>>367902
What do the judges appeal to in determining whether federal actors have the ability to make "special laws" detrimental to Aboriginal people?

For the UK, we'd look at the Human Rights Act and before then we had common law rights which one might assume would be protected. In the US, you'd look at the entrenched Bill of Rights. What about Australia?

>>368006
In Canada we have the entrenched charter of rights and freedoms

>>368006
There were 2 judges that said the Races Power wouldn't support detrimental laws: Kirby J and Gaudron J.

Justice Gaudron formulated a "no manifest abuse" test and that the exercise of power be necessary, not merely appropriate or expedient. However, Justice Kirby argued that we must look towards international law such as the UDHR, and disagreed with this test on the basis that it would allow a gradual creeping of what manifest abuse, citing Apartheid and Nazi Germany as abusive regimes that grew slowly.

Their disagreement means there isn't a great deal of clarity in the area.

>>355651
What was the name of that dude who in the 17th century criticised the codification of laws? There's actually a note quoting him, in a Edgar Allan Poestories and poems book.

>>369860
Was he a thinker or just some rando?

>>370421
no, a thinker. Why would anyone quote a "rando"?

>>370440
Poe was random like that

>>369860
Barry Allen?

>>370742
no, his name was one word, I think starting with D. And he was pretty known. Don't make me look for it, the book is dusty and whenever I touch it a scream can be heard throughout my newly rented mansion.

>>370788
Descartes.

>>370860
no man, less known, but known most probably by the law "scientists".

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>>355651
I just started my Law studies this year [spoiler] and I'm brazillian [/spoiler] and I would like to ask if you guys on the Common Law actually study Kelsen and Schmitt theories and what you, or the general consensus on the university, thinks about them.
Specially interested in Schmitt's since I've been studying him quite a lot.

>>370871
Daniel

>>371004
All I know is that they were positivists
I haven't started law school yet, I'm hoping I get accepted and I Wil start next fall

Canada here

>>370871
DaVinci

>>370871
Dick

Does religion belong in common law?

>>371004

STUFENBAU

>>372027
No it starts with D

>>371926
It might be subtly mentioned in some common law countries. "By the Grace of God, we have come to the conclusion ..." Also there are legal principles borne from common law which suppose a God, such as "an act of God" as the cause of damaged property. That's the limit in England and US.

However, there is nothing which stops theocratic countries, such as those applying Sharia Law, from ascertaining the law through previous precedents. That is, Mohammed al-Mahmoud might see that Alahun a'Muhummud adjudicated on a case which possessed the same facts as his own. Therefore, the former might follow the reasoning (or jurisprudence) of the latter.

>>373805
>"an act of God"
It's called act of nature now
t. My dad's car was fucked up by hail and insurance covered it as an act of nature and my dad told me it used to be called act of God
This is in Canada tho

>>373883
Yeah, it's still called an "act of God" in England.

>a precedent set by a dim witted judge is law in his country

>>374110
>A statute passed by dim witted politicians is a law in his country

Precedents can be challenged by a higher court anyway

>>374110
If the legislature do not agree with the legal principle established by a judge, they are perfectly able to overturn it. There is a passive acceptance afforded to the courts by the legislature if the legal principle is not challenged.

>>374123
>they are perfectly able to overturn it
Uhh not in the US and sort of not in Canada
We have the notwithstanding clause which allows parliament to ignore a supreme court ruling but it expires after 5years and is rarely used. Usually a supreme court ruling is law. In the US they don't even have a notwithstanding clause, the supreme court is law.

In Canada at most the government will appeal the ruling. The NWS is too controversial

>>374140
I was replying to the remark "in his country", considering it seemed to me the person was me the person was replying to. In the UK, Parliament is supreme. In the US, Congress and state legislatures are supreme up until matters of constitutional law are considered -- matters which are not constitutional makes up the majority of US law cases. I assume the NWS clause operates only for constitutional law, too.

>>374162
*it seemed to me that it was me the person was replying to

>>374162
>In the US, Congress and state legislatures are supreme
No, the courts have supremacy in the US

>>374162
The notwithstanding clause only applies to some sections of the charter rights

An example of when it was used, in 1991 Quebec wanted to ban English signs outside of shops to help preserve the French language
The Quebec gov was taken to court and the SCC ruled it violated freedom of expression, so Quebec used the NWS clause to over rule that ruling
5 years later a new government was elected and they didn't renew the NWS clause so the banning of English signs was no longer permitted

>>374162
>In the US, Congress and state legislatures are supreme up until matters of constitutional law are considered -- matters which are not constitutional makes up the majority of US law
Okay I get what you're saying now

What kind of law is used in Sri Lanka?

We hired a guy who was a lawyer in Sri Lanka as a law clerk doing power of sale (debt collection)
He seems to be doing alright, but is there any chance if he wrote the Canadian bar exam he could become a lawyer here or is his law degree in Sri Lanka irrelevant to based common law?

>>374140

>Uhh not in the US

Definitely in the U.S., unless a constitutional decision is being made, which is relatively rare.

Look up the history of the Americans with Disabilities act. After a number of narrowing scope rulings by the Supreme Court in the late 80s and early 90s, Congress re-drafted the law into its current incarnation, which has stuck.

>>376477
>Definitely in the U.S., unless a constitutional decision is being
I misunderstood, I was assuming that anon were only discussing constitutional law

>>356628
legal positivism is objectively correct. natural law theory is just muhfeelings.

>>377321
Legal positivism is just muh collective feelings codified

What do my fellow yuros think of the EU court and EU legislation in general?

>>378227
Canadian here

How much authority does EU court really have on national laws? Like Britain uses common law, does EU court set precedents?

For just the sheer amount if impact it's had on Tort Law, I'd say Donaghue v Stevenson. It's got everything, interesting facts, valid dissenting opinions and extended Negligence. Even got interesting debates around whether subsequent cases extended it beyond what the HoL intended as well

>>378448

The EU has been given authority within a number of areas. For example, matters regarding the four freedoms, human rights or other areas where directives exist.

https://en.wikipedia.org/wiki/European_Union_law

The brits have to follow both the legislation and the rulings. I believe some countries have exceptions within certain areas. We swedes are allowed to have our snus, for example.

>>378509
Alright, A-Level student faggot.

>>379803
Oi, maybe I'm sick and tired of all the convuleted property law bullshit and I just like a nice simple(ish) case about a snail in a bottle. Do you bongs actually do law in High School? We basically don't even begin until Uni here in NZ

>>379941
in Canada we have law courses in grade 11 and 12 which are electives. I took them but not many do. Then you need an undergraduate degree or many years work experience before you can apply to law school

>>380039
I think our way is a bit odd actually. Here you go straight from High School into a Bachelor of Laws, then profs then the Bar

>>377321
legal positivism is autism incarnate.

There's no sane reason why a sistem of laws designed by men should be analised only by the parameters also designed by said men.

As my first post implied, there is no meaningful diference between a code of law and the Yu-Gi-Oh! rulebook, except which one gets you killed if you disobey. Something so vain does not deserve that kind of respect.

>>380541
tfw I played yugio without the rules and we solved disputes on a case by case basis as we played, creating an uncodifed list of rules we'd play with

>>382097
they did that in the show too!
>aim for the castle

>>382118
It was the best way to play. Our rules were loosely based on the TV show but other than that they were probably totally off

bamp

>>380425
I did my bachelors in public policy and I plan on going to law school in a couple years. You would have to be really fucking smart to get into law school without an undergraduate degree though. Even if you have a lot of work experience, without a university degree you'd need to ace the LSAT or schools wont even look at you

>>385310
This is in Canada

>>380425
Where are you from?

>>385310
In the UK, we study law as undergraduates.

>>385631
The degrees here are JD, juris doctor
Doctor of law. Same as in the US. It used to be an LLB which is a bachelor of law

Idk what difference the name of the degree makes, but it is true law school is a post graduate program

>>385685
LLB is bachelor of laws. The Latinists would break your balls off with their teeth if you don't pluralise it.

The bachelor side is not really a reference to undergraduate, though. It makes sense. For example, Oxford has a highly prestigious postgraduate programme called a bachelor's of philosophy (BPhil).

Interesting case

http://www.cbc.ca/beta/news/canada/montreal/quebec-right-to-die-appeal-1.3356779

Quebec principal parliament introduces right to die aka dying with dignity legislation

Quebec superior court rules it's unconstitutional and shuts it down

Quebec is now appealing the ruling.

They won't do it but it would be interesting if Quebec parliament used the notwithstanding clause

>>385708
I think Canadian school started to offer JDs to make Canadian schools more appealing to Americans

>>387552
Bump

These threads always die. We don't have enough lawyers or prospective lawyers to maintain them.

>if you're a good boy, we may lower the sentance
>omfg he was swearing and disrespectful in court, let me lob on a few years of extra tax payer funded jailtime
Common law is shit tier and extremely corrupt.

>>388183

It's also just common law, though I like to invade these threads anyway.

>>388183
This thread is almost a week old
I think the issue is the civil law fags don't want to take part and get BTFO

>>388225
>and extremely corrupt
How is it corrupt at all? Politicians are more likely to be corrupt than judges. When have you ever heard of a scandal of corrupt judges?
Common law makes sense, also I don't think the example you provided actually happens

>>388225
Muh special rule book!

>>389074

If common and civil could make peace, we could have decent (and maybe more active) threads. Instead we get... well, look at the last few posts.

The whole "common law is stupid" or "civil law is stupid" needs to stop.

>>389074
>>389382
I think it's because the people who tend to engage with these threads are more at the "prospective" stage of their careers, so they don't really have too much to go off. Demonising the "other" camp might seem quite sensible for them.

An opening up of the debate would be interesting. Seeing how civil law differs, in practice, to common law.