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ARTICLES Paul Evon Nessen* THE USE OF AMERICAN PRECEDENTS BY THE HIGH COURT OF AUSTRALIA, 1901-1987 INTRODUCTION N Australia, as with other countries whose legal systems are based upon English concepts, the merits of the common law system are considered at an early stage in the study of law. Central to the common law process is the recognition ofjudicial decisions as primary I In sources of law which must be accorded authoritative value. a unitary system, efficient administration of the common law requires that the higher a court stands in the appellate hierarchy, the greater the authoritative value of its judgments. The use of foreign judgments by the courts of any common law jurisdiction, however, involve greater discretion. As such their use reveals much about both the development of the common law * Associate Professor, Department of Business Law, University of Melbourne, BA (Duke) JD (cum laude) South Carolina, LLM Cambridge University. The author would like to thank Professor Lawrence Friedman, Stanford University for his advice and the Law Center of the University of South Carolina for its provision of office space while working on this article. 182 VON NESSEN - AMERICAN PRECEDENTS internationally and the attitudes of judicial authorities within a jurisdiction about their role in the common law process. The tenn "common law" connotes a process of unifonn application throughout the common law world. Initially, common problems were thought to be capable of a common solution throughout the British Commonwealth,1 and appeals from the -
The Australian Experience
Pepperdine Law Review Volume 33 Issue 4 Article 3 5-15-2006 Is There Anything To Fear in Transnationalist Development of Law? The Australian Experience Paul von Nessen Follow this and additional works at: https://digitalcommons.pepperdine.edu/plr Part of the International Law Commons, Jurisprudence Commons, and the Transnational Law Commons Recommended Citation Paul von Nessen Is There Anything To Fear in Transnationalist Development of Law? The Australian Experience, 33 Pepp. L. Rev. Iss. 4 (2006) Available at: https://digitalcommons.pepperdine.edu/plr/vol33/iss4/3 This Article is brought to you for free and open access by the Caruso School of Law at Pepperdine Digital Commons. It has been accepted for inclusion in Pepperdine Law Review by an authorized editor of Pepperdine Digital Commons. For more information, please contact [email protected], [email protected], [email protected]. Is There Anything To Fear in Transnationalist Development of Law? The Australian Experience Paul von Nessen* I. INTRODUCTION II. AUSTRALIA'S HISTORICAL CONTEXT Ill. DESCRIPTION OF THE EMPIRICAL STUDY METHODOLOGY A. ConstitutionalLaw B. Public Law C. Contractsand Related Commercial Law D. Tort Law E. CriminalLaw F. Other Common Law Areas G. Statutory Areas H. Miscellaneous Others IV. DATA SUMMARY OF ORIGINAL HIGH COURT STUDY V. EXPLANATIONS FOR THE TRENDS REVEALED IN THE ORIGINAL STUDY VI. AN UPDATE OF THE EMPIRICAL STUDY VII. USE OF AMERICAN PRECEDENTS REVISITED EMPIRICALLY VIII. CONCLUSIONS IN 2002: MODIFICATIONS TO THE ORIGINAL OBSERVATIONS I. INTRODUCTION The recent decisions by the United States Supreme Court concerning the Guantanamo Bay detainees1 and the application of capital punishment to minors 2 have instigated renewed debate about the appropriateness of using international law or transnational legal developments as guidance in * Professor, Department of Business Law and Taxation, Monash University, Melbourne, Victoria, Australia; Special Counsel, McCullough Robertson, Lawyers, Brisbane, Queensland, Australia. -
The Law Handbook YOUR PRACTICAL GUIDE to the LAW in NEW SOUTH WALES
The Law Handbook YOUR PRACTICAL GUIDE TO THE LAW IN NEW SOUTH WALES 15th EDITION REDFERN LEGAL CENTRE PUBLISHING 01_Title_piii-iii.indd 3 28-Nov-19 08:08:13 Published in Sydney by Thomson Reuters (Professional) Australia Limited ABN 64 058 914 668 19 Harris Street, Pyrmont NSW 2009 First edition published by Redfern Legal Centre as The Legal Resources Book (NSW) in 1978. First published as The Law Handbook in 1983 Second edition 1986 Third edition 1988 Fourth edition 1991 Fifth edition 1995 Sixth edition 1997 Seventh edition 1999 Eighth edition 2002 Ninth edition 2004 Tenth edition 2007 Eleventh edition 2009 Twelfth edition 2012 Thirteenth edition 2014 Fourteenth edition 2016 Fifteenth edition 2019 Note to readers: While every effort has been made to ensure the information in this book is as up to date and as accurate as possible, the law is complex and constantly changing and readers are advised to seek expert advice when faced with specific problems. The Law Handbook is intended as a guide to the law and should not be used as a substitute for legal advice. ISBN: 9780455243689 © 2020 Thomson Reuters (Professional) Australia Limited asserts copyright in the compilation of the work and the authors assert copyright in their individual chapters. This publication is copyright. Other than for the purposes of and subject to the conditions prescribed under the Copyright Act 1968, no part of it may in any form or by any means (electronic, mechanical, microcopying, photocopying, recording or otherwise) be reproduced, stored in a retrieval system or transmitted without prior written permission.