This paper discusses the relationship between the English hearsay rule and the principles governi... more This paper discusses the relationship between the English hearsay rule and the principles governing the right to a fair trial under Article 6 of the European Convention on Human Rights. While the provisions serve similar purposes, they do not always produce the same result. Two sorts of cases are discussed: cases where the hearsay rule admits evidence that should be excluded because it violates the defendants right to examine or have examined the witnesses against him, and cases where the hearsay rule excludes evidence that should be admitted to protect the defendants right to a fair trial. The treatment of these cases is contrasted to the treatment of similar cases under the Sixth Amendment to the U.S. Constitution.
Recent decisions of the Courts of Appeal in England and Northern Ireland in Dallagher and O'D... more Recent decisions of the Courts of Appeal in England and Northern Ireland in Dallagher and O'Doherty highlight the risks of error which flow from the current lax standards of English law relating to the admission of expert evidence. Notwithstanding that in both decisions, the court purported to apply the same principles, an analysis of these cases indicates tensions in the law, and adds support to calls for the adoption of a stricter test for the admission of expert evidence.
This article discusses different approaches that courts have used in deciding on the applicable l... more This article discusses different approaches that courts have used in deciding on the applicable law in cases arising under the Rome Convention, focusing on the case by case approach seemingly favoured by English courts as contrasted with the more rule-based approach that obtains in the Netherlands and, apparently, in Scotland. It argues for a third approach, based on the use of a set of presumptive rules that are both consistent with the case law to date and responsive to the language and purposes of the Rome Convention.
This article analyses the proposed Hague Convention on Jurisdiction and Judgments, which has been... more This article analyses the proposed Hague Convention on Jurisdiction and Judgments, which has been the subject of lengthy and ongoing negotiations. The issues that continue to divide the parties centre on differences between approaches to jurisdiction broadly similar to those used in Europe, and the approach used in the United States. The most comprehensive draft of the Hague Convention starts from a European approach, but makes a number of concessions to the US approach. The United States has rejected this draft, and the parties appear to have accepted this rejection and are now discussing whether a narrower convention can be drafted upon which the parties can reach consensus. The article argues that the broad draft convention was a sound one, that it made all of the concessions to the US approach that were warranted, and that the goal of harmonising world approaches to jurisdiction in civil cases would be better promoted by adopting the broader convention, if necessary without the participation of the United States. Ten years ago, the United States proposed that the members of the Hague Conference on Private International Law attempt to negotiate a worldwide convention on jurisdiction and enforcement of judgments. Such a convention would be a welcome development to most of the world, as it would tend to avoid wasteful duplication of proceedings and hinder efforts by debtors to avoid legitimate debts by transferring assets abroad. In addition, many countries are attracted to the idea of a convention on jurisdiction and judgments by a desire to limit what they view as exercises of exorbitant jurisdiction by other countries. To take only one example, French courts have jurisdiction over virtually any case in which the plaintiff is a French national. 1 Although France is bound not to exercise such jurisdiction against persons domiciled in most other countries in Western Europe as a result of its accession to the Brussels and Lugano Conventions, 2 absent such agreements, French courts can and do exercise jurisdiction on this n School of Law, University of Warwick. The author wishes to thank Roger Leng, Julio Faundez and Jorge Guira, as well as the anonymous referees for this journal, for their helpful comments on previous drafts.
Page 1. Fresh Expert Evidence in CCRC Cases William E O'Brian Jr* ... The author wishes to t... more Page 1. Fresh Expert Evidence in CCRC Cases William E O'Brian Jr* ... The author wishes to thank Mike Redmayne, Paul Roberts, John Wagstaff, Andrew Roberts, Jackie Hodgson and Roger Leng for helpful comments on previous drafts of this article. ...
The International Journal of Evidence & Proof, 2011
... defiance of the English courts By William E. O'Brian Jr* ... T * Email: w.obrian... more ... defiance of the English courts By William E. O'Brian Jr* ... T * Email: [email protected]. The author wishes to thank Mike Redmayne, Andrew Choo, Roger Leng and an anonymous peer reviewer for this journal for helpful comments on previous drafts. ...
ABSTRACT This article explores the implications of the Harm Principle, modified to accommodate re... more ABSTRACT This article explores the implications of the Harm Principle, modified to accommodate recent criticisms by Arthur Ripstein, for theories of distributive justice. It concludes that the resulting Sovereignty Principle leads to a left-libertarian theory of justice that is based not on egalitarianism but rather on considerations internal to the Principle itself. This theory avoids criticisms of incoherence that have been rightly applied to other recent versions of left-libertarianism, and supports a requirement of substantial redistribution without necessarily precluding further redistribution for reasons other than those of justice.
... Before Crawford, the analysis of the Confrontation Clause followed the framework set forth in... more ... Before Crawford, the analysis of the Confrontation Clause followed the framework set forth in the leading case of Ohio v. Roberts. ... adversarial testing would add little if anything to its reliability. The Roberts test attracted a good deal of scholarly criticism, some of which ...
This chapter analyzes the leading theories of freedom in recent legal and philosophical theory, f... more This chapter analyzes the leading theories of freedom in recent legal and philosophical theory, focusing on the pure negative freedom approach, the Kantian approach, and the Republican approach, contrasting these with the leading “positive freedom” approach, that of capabilities. Adopting elements of all of these theories, the chapter develops a Kantian approach incorporating elements of the Republican analysis of freedom. In doing so, the chapter discusses the Principle of Fairness, and applies the Principle of Fairness to the concept of political obligation. The resulting theory lends support to a particular principle, the Reciprocal Sovereignty Principle, which permits restrictions of freedom only where doing so is mutually beneficial.
This paper discusses the relationship between the English hearsay rule and the principles governi... more This paper discusses the relationship between the English hearsay rule and the principles governing the right to a fair trial under Article 6 of the European Convention on Human Rights. While the provisions serve similar purposes, they do not always produce the same result. Two sorts of cases are discussed: cases where the hearsay rule admits evidence that should be excluded because it violates the defendants right to examine or have examined the witnesses against him, and cases where the hearsay rule excludes evidence that should be admitted to protect the defendants right to a fair trial. The treatment of these cases is contrasted to the treatment of similar cases under the Sixth Amendment to the U.S. Constitution.
Recent decisions of the Courts of Appeal in England and Northern Ireland in Dallagher and O'D... more Recent decisions of the Courts of Appeal in England and Northern Ireland in Dallagher and O'Doherty highlight the risks of error which flow from the current lax standards of English law relating to the admission of expert evidence. Notwithstanding that in both decisions, the court purported to apply the same principles, an analysis of these cases indicates tensions in the law, and adds support to calls for the adoption of a stricter test for the admission of expert evidence.
This article discusses different approaches that courts have used in deciding on the applicable l... more This article discusses different approaches that courts have used in deciding on the applicable law in cases arising under the Rome Convention, focusing on the case by case approach seemingly favoured by English courts as contrasted with the more rule-based approach that obtains in the Netherlands and, apparently, in Scotland. It argues for a third approach, based on the use of a set of presumptive rules that are both consistent with the case law to date and responsive to the language and purposes of the Rome Convention.
This article analyses the proposed Hague Convention on Jurisdiction and Judgments, which has been... more This article analyses the proposed Hague Convention on Jurisdiction and Judgments, which has been the subject of lengthy and ongoing negotiations. The issues that continue to divide the parties centre on differences between approaches to jurisdiction broadly similar to those used in Europe, and the approach used in the United States. The most comprehensive draft of the Hague Convention starts from a European approach, but makes a number of concessions to the US approach. The United States has rejected this draft, and the parties appear to have accepted this rejection and are now discussing whether a narrower convention can be drafted upon which the parties can reach consensus. The article argues that the broad draft convention was a sound one, that it made all of the concessions to the US approach that were warranted, and that the goal of harmonising world approaches to jurisdiction in civil cases would be better promoted by adopting the broader convention, if necessary without the participation of the United States. Ten years ago, the United States proposed that the members of the Hague Conference on Private International Law attempt to negotiate a worldwide convention on jurisdiction and enforcement of judgments. Such a convention would be a welcome development to most of the world, as it would tend to avoid wasteful duplication of proceedings and hinder efforts by debtors to avoid legitimate debts by transferring assets abroad. In addition, many countries are attracted to the idea of a convention on jurisdiction and judgments by a desire to limit what they view as exercises of exorbitant jurisdiction by other countries. To take only one example, French courts have jurisdiction over virtually any case in which the plaintiff is a French national. 1 Although France is bound not to exercise such jurisdiction against persons domiciled in most other countries in Western Europe as a result of its accession to the Brussels and Lugano Conventions, 2 absent such agreements, French courts can and do exercise jurisdiction on this n School of Law, University of Warwick. The author wishes to thank Roger Leng, Julio Faundez and Jorge Guira, as well as the anonymous referees for this journal, for their helpful comments on previous drafts.
Page 1. Fresh Expert Evidence in CCRC Cases William E O'Brian Jr* ... The author wishes to t... more Page 1. Fresh Expert Evidence in CCRC Cases William E O'Brian Jr* ... The author wishes to thank Mike Redmayne, Paul Roberts, John Wagstaff, Andrew Roberts, Jackie Hodgson and Roger Leng for helpful comments on previous drafts of this article. ...
The International Journal of Evidence & Proof, 2011
... defiance of the English courts By William E. O'Brian Jr* ... T * Email: w.obrian... more ... defiance of the English courts By William E. O'Brian Jr* ... T * Email: [email protected]. The author wishes to thank Mike Redmayne, Andrew Choo, Roger Leng and an anonymous peer reviewer for this journal for helpful comments on previous drafts. ...
ABSTRACT This article explores the implications of the Harm Principle, modified to accommodate re... more ABSTRACT This article explores the implications of the Harm Principle, modified to accommodate recent criticisms by Arthur Ripstein, for theories of distributive justice. It concludes that the resulting Sovereignty Principle leads to a left-libertarian theory of justice that is based not on egalitarianism but rather on considerations internal to the Principle itself. This theory avoids criticisms of incoherence that have been rightly applied to other recent versions of left-libertarianism, and supports a requirement of substantial redistribution without necessarily precluding further redistribution for reasons other than those of justice.
... Before Crawford, the analysis of the Confrontation Clause followed the framework set forth in... more ... Before Crawford, the analysis of the Confrontation Clause followed the framework set forth in the leading case of Ohio v. Roberts. ... adversarial testing would add little if anything to its reliability. The Roberts test attracted a good deal of scholarly criticism, some of which ...
This chapter analyzes the leading theories of freedom in recent legal and philosophical theory, f... more This chapter analyzes the leading theories of freedom in recent legal and philosophical theory, focusing on the pure negative freedom approach, the Kantian approach, and the Republican approach, contrasting these with the leading “positive freedom” approach, that of capabilities. Adopting elements of all of these theories, the chapter develops a Kantian approach incorporating elements of the Republican analysis of freedom. In doing so, the chapter discusses the Principle of Fairness, and applies the Principle of Fairness to the concept of political obligation. The resulting theory lends support to a particular principle, the Reciprocal Sovereignty Principle, which permits restrictions of freedom only where doing so is mutually beneficial.
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Papers by Bill OBrian