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Book

Cover Legal Ethics

Jonathan Herring

Legal Ethics provides an overview of this topic, highlighting that the issues surrounding professional conduct are not always black and white and raising interesting questions about how lawyers act and what their role entails. Key topics, such as confidentiality, negligence, and vnfees, are covered, with references throughout to the professional codes of conduct. The work asks: who would or should defend a potential murderer in court? Can a lawyer represent two parties on the same case? Is ‘no win–no fee’ an ethical system? What are Chinese walls and do they work? Features throughout the title to aid learning include the highlighting of key cases, principles, and definitions; the inclusion of a variety of viewpoints through cases, popular media, and scholarly articles; and the inclusion of ‘digging deeper’ and ‘alternative viewpoint’ boxes which encourage critical reflection and better understanding of key topics.

Book

Cover Legal Ethics

Jonathan Herring

Legal Ethics provides an overview of this topic, highlighting that the issues surrounding professional conduct are not always black and white and raising interesting questions about how lawyers act and what their role entails. Key topics, such as confidentiality, negligence, and fees are covered, with references throughout to the professional codes of conduct. The work asks: who would or should defend a potential murderer in court? Can a lawyer represent two parties on the same case? Is ‘no win-no fee’ an ethical system? What are Chinese walls and do they work? Features throughout the title to aid learning include the highlighting of key cases, principles, and definitions; the inclusion of a variety of viewpoints through cases, popular media, and scholarly articles; and the inclusion of ‘digging deeper’ and ‘alternative viewpoint’ boxes which encourage critical reflection and better understanding of key topics.

Chapter

Cover Legal Traditions of the World

10. Reconciling Legal Traditions: Sustainable Diversity in Law  

The legal traditions of the world contain large amounts of information relating to human conduct as well as a large amount of theory, or at least second-order information, about themselves and the relations which each of them have with other traditions. This chapter discusses the multiplicity of traditions, normativity in legal traditions, and sustaining diversity in law.

Chapter

Cover The Modern Law of Evidence

17. Evidence of character: evidence of character in civil cases  

This chapter discusses the admissibility of evidence of character. A number of factors govern the admissibility of character evidence, including whether the proceedings are civil or criminal and whether the evidence relates to the character of a party or non-party. It is also necessary to consider the nature of the character evidence in question. It may relate to either good or bad character and, in either event, may constitute evidence of a person’s actual disposition, that is his propensity to act, think, or feel in a given way; or evidence of his reputation, that is his reputed disposition or propensity to act, think, or feel in a given way. Thus, the character of a person may be proved by evidence of general disposition, by evidence of specific examples of his conduct on other occasions (including, in the case of bad conduct, evidence of his previous convictions), or by evidence of his reputation among those to whom he is known. The chapter considers civil cases in which bad character designated ‘similar fact evidence’ has been admitted.

Chapter

Cover Pearce & Stevens' Trusts and Equitable Obligations

10. Constructive trusts  

This chapter turns to constructive trusts, the second main category in informal trusts. At its simplest, the term ‘constructive trust’ describes the circumstances in which property is subjected to a trust by operation of law. Unlike an expressly declared trust, a constructive trust does not come into being solely in consequence of the express intention of a settlor. Unlike automatic resulting trusts, it does not fill gaps in beneficial ownership. Like presumed resulting trusts, intention can form an important element in its genesis. As such, a constructive trust is a trust which the law imposes on the trustee by reason of their unconscionable conduct.

Chapter

Cover Pearce & Stevens' Trusts and Equitable Obligations

30. Management and delegation  

This chapter explores trustees’ management powers. The management powers of trustees are concerned with looking after property or funds. They do not allow the trustees to choose who benefits. In addition, the powers of management conferred upon a trustee are not the same in every case. Quite obviously, the powers of express trustees are likely to differ significantly from those of constructive trustees upon whom a trust has been imposed because of their improper conduct. In the latter case, the question of the trustees’ powers rarely arises. They are wrongdoers, who are, by definition, acting in breach of duty. How far they are authorized to act is, therefore, unlikely to be an issue.

Chapter

Cover The Concept of Law

VII. Formalism and Rule-Scepticism  

H. L. A. Hart

Celebrated for their conceptual clarity, titles in the Clarendon Law Series offer concise, accessible overviews of major fields of law and legal thought. This chapter first explains the open texture of law, which shows that there are, indeed, areas of conduct where much must be left to be developed by courts or officials, striking a balance between competing interests that vary in weight from case to case. It then discusses the varieties of rule-scepticism, finality and infallibility in judicial decision, and uncertainty in the rule of recognition.

Chapter

Cover The Criminal Process

3. Ethics, conflicts, and conduct  

Chapter 2 sketched a normative model of the criminal process in which the pursuit of a particular end—retributive justice—was constituted and constrained by respect for rights and other values. This chapter examines one way in which the demands of this rather abstract model can be put into practice: through the consideration of ethics. It begins with a brief discussion of the idea of ethical conduct. It then outlines some unethical practices, and is followed by attempts to examine and reconstruct some possible justifications for such practices. Next, it looks at the problems of displacing the occupational cultures and other influences which may lead to resistance against change. It goes on to discuss formal accountability systems and concludes with a consideration of the prospects for bringing about changes in the conduct of practitioners within the system.

Chapter

Cover Cases & Materials on International Law

11. State Responsibility  

State responsibility arises from the violation by a State (or other international legal person) of an international obligation that can be one of customary international law or arising from a treaty. The violation must be due to conduct attributable to a State. This chapter discusses the nature of State responsibility; attribution; breach of an international obligation of the State; circumstances precluding wrongfulness (defences); consequences of a breach; enforcement of a claim; and treatment of aliens.

Chapter

Cover International Criminal Law

7. The elements of international crimes  

This chapter discusses the elements of international crimes. In general, a crime is conceived as having two components: prohibited conduct (which may be called the objective, material, or ‘real’ element of the crime or its actus reus) and a culpable mental state (which may be called the subjective, or mental element of the crime or its mens rea). In addition to material and mental elements, certain international crimes may also require a contextual element. That is, some international crimes may require that the prohibited act occurs in or has a relationship to a particular set of circumstances: for example, a war crime must be closely connected with an armed conflict. This contextual element is sometimes also called a nexus requirement.

Chapter

Cover A Practical Approach to Alternative Dispute Resolution

6. Professional Ethics  

This chapter evaluates professional ethics in alternative dispute resolution (ADR) processes. Lawyers must advise their clients about ADR options at all stages of the dispute. They can provide an ADR service for clients, provided there is no conflict of interest. In ADR processes, lawyers must observe the rules of the Bar Code of Conduct or the Solicitors Regulation Authority (SRA) Principles and Code of Conduct. If the lawyer is acting under a conditional fee agreement (CFA), a damages-based agreement (DBA), or in a case with third-party funding, care must be taken to ensure that the settlement is in the client's best interests. When acting in mediation or negotiation, a lawyer must act within the client's instructions and take care not to mislead the other side; disclose confidential information to the other side (or the mediator) unless the client consents; reveal the details of the negotiation or what took place in mediation to third parties or to the court; and exceed the limits of their authority.

Chapter

Cover Mayson, French & Ryan on Company Law

12. Market abuse  

This chapter deals with abuses committed in the trading of shares, with particular reference to insider dealing and market manipulation, and the laws intended to control them. The chapter considers forms of control to prevent market abuse under three key pieces of legislation: Regulation (EU) No 596/2014, the Criminal Justice Act 1993 and the Financial Services Act 2012. It looks at regulations governing disclosure to regulated markets and the fiduciary duty of directors, and offences involving insider dealing and creating a false market. The chapter analyses a particularly significant case: Percival v Wright [1902] 2 Ch 421.

Chapter

Cover A Practical Approach to Effective Litigation

5. Legal Practitioners and the Developing Professional Context  

This chapter provides an overview of the roles that different types of legal practitioners traditionally take in the litigation process. In England and Wales, it remains the norm that a client will initially approach a solicitor, who may then brief a barrister to provide specialist advice, to carry out key functions such as drafting statements of case, and to appear in court if litigation proceeds. The chapter goes on to discuss the main provisions in the codes of conduct that are relevant to litigation; professional privilege and confidentiality; professional negligence; options for clients dissatisfied with the standard of work done by a lawyer; the use of alternative business structures (ABS) for the delivery of legal services; and the regulation of an ABS.

Chapter

Cover An Introduction to Tort Law

1. Introduction  

Celebrated for their conceptual clarity, titles in the Clarendon Law Series offer concise, accessible overviews of major fields of law and legal thought. This introductory chapter provides an overview of tort law. It discusses the development of the law of tort in England; how the increase in tort liability is matched by a decline in the potency of contract; the differences between statutes and judge-made law; when conduct is tortious; the forum for a claim in tort; the three focal points of torts: conduct, harm, and causation; where torts happen; and the need to restrict the number of persons who can complain of any particular conduct.

Chapter

Cover An Introduction to Tort Law

13. Economic Torts  

Celebrated for their conceptual clarity, titles in the Clarendon Law Series offer concise, accessible overviews of major fields of law and legal thought. This chapter deals with economic torts. Economic torts include deceit, malicious falsehood, passing-off, inducing breach of contract, intimidation, and conspiracy. The first three involve deception: deceit is telling lies to the claimant; telling lies to a third party is malicious falsehood; misleading a competitor's customers, even bona fide, is passing-off. The other three torts all involve collaboration, whether reluctant, as a result of threats, complaisant as a result of positive incentives, or spontaneous. The chapter discusses the nature of the harm; the defendant's conduct and purpose, anti-competitive conduct; and the various ‘economic torts’ in terms of their various components: intention, conduct, and wrongfulness.

Chapter

Cover The Principles of Equity & Trusts

9. Constructive Trusts  

This chapter examines the nature of the constructive trust. It explains that a trust is considered constructive when it arises by operation of law, typically as a result of the defendant’s unconscionable conduct. The chapter discusses the theoretical foundations of constructive trusts and describes different interpretations of the constructive trust, which include institutional and remedial constructive trusts. This chapter also considers the conditions under which institutional constructive trusts will be recognized and explains that, though a constructive trust is a real trust, it does not follow that a constructive trustee is under the same obligations as any other type of trustee. The chapter also examines whether the remedial constructive trust should be recognized in English law or whether a different interpretation of the trust should be recognized involving a modified institutional constructive trust.

Book

Cover Ashworth's Principles of Criminal Law
Principles of Criminal Law takes a distinctly different approach to the study of criminal law, while still covering all of the vital topics found on criminal law courses. Uniquely theoretical, it seeks to elucidate the underlying principles and foundations of the criminal law, and aims to engage readers by analysing the law contextually. This tenth edition looks at issues such as the law’s history and criminal law values, alongside criminal conduct, actus reus, causation, and permissions; criminal capacity, mens rea, and fault, excusatory defences; homicide; non-fatal violations; property crimes; financial crimes; complicity; and inchoate offences. A special aim of the book is to bring an understanding of business activity—in particular small business activity—closer to the centre of the stage, in a discussion of the values protected by the criminal law and of the way in which the law shapes its principles, rules, and standards. A large proportion of criminal offences are drafted with the conduct of businesses, as well as individuals, in mind.

Chapter

Cover Ashworth's Principles of Criminal Law

5. Criminal Conduct: Actus Reus, Causation, and Permissions  

This chapter focuses on the ‘general part’ of the criminal law—the rules and principles of the criminal law whose importance and application can be analysed and debated without necessarily referring to a specific crime. It first examines the limits of the notion of involuntary conduct. It then looks at various challenges to the ‘voluntary act’ requirement—where is the act if the law criminalizes the occurrence of a state of affairs, or mere possession? Next, it considers how the voluntary act requirement relates to crimes of omission. This is followed by discussions of causation and the circumstances in which conduct may be recognized as justifiable.

Chapter

Cover Smith, Hogan and Ormerod's Essentials of Criminal Law

2. Actus reus  

David Ormerod and John Child

This chapter provides an overview of actus reus, which refers to the ‘external elements’ of an offence. These external elements do not simply relate to D’s conduct. Rather, as we will see, the actus reus of an offence includes any offence elements outside the fault element (‘mens rea’) of the offence. Before discussing the elements that form the actus reus, this chapter considers the distinction between actus reus and mens rea. It then describes the three elements of actus reus: conduct, circumstances, and results. It also explains the categories of actus reus offences, omissions liability, and causation before concluding with sections that outline potential options for legal reform and a structure for analysing the actus reus of an offence when applying the law in a problem-type question. Relevant cases are highlighted throughout the chapter, with a brief summary of the main facts and judgments.

Chapter

Cover Smith, Hogan and Ormerod's Essentials of Criminal Law

3. Mens rea  

David Ormerod and John Child

This chapter provides an overview of mens rea, loosely translated as ‘guilty mind’. Whereas the concept of actus reus focuses on the external elements of an offence, mens rea focuses on state of mind or fault. The mens rea of the offence describes the fault element with which D acted: D intended, believed, foresaw as a risk the proscribed element(s), and so on. The chapter first considers how offences differ in the role mens rea plays. For some offences, a mens rea element may be required in relation to each actus reus element; for other offences there are actus reus elements that do not have a corresponding mens rea and vice versa. The chapter moves on to discuss the legal meaning of central mens rea terms such as ‘intention’, ‘negligence’, ‘dishonesty’, and ‘recklessness’. Finally, it outlines reform debates, and a structure for analysing the mens rea of an offence when applying the law in a problem-type question. Relevant cases are highlighted throughout the chapter.