The Nature and Authority of Precedent


Author: Neil Duxbury
Publisher: Cambridge University Press
ISBN: 1139470973
Category: Law
Page: N.A
View: 5732

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Neil Duxbury examines how precedents constrain legal decision-makers and how legal decision-makers relax and avoid those constraints. There is no single principle or theory which explains the authority of precedent but rather a number of arguments which raise rebuttable presumptions in favour of precedent-following. This book examines the force and the limitations of these arguments and shows that although the principal requirement of the doctrine of precedent is that courts respect earlier judicial decisions on materially identical facts, the doctrine also requires courts to depart from such decisions when following them would perpetuate legal error or injustice. Not only do judicial precedents not 'bind' judges in the classical-positivist sense, but, were they to do so, they would be ill suited to common-law decision-making. Combining historical inquiry and philosophical analysis, this book will assist anyone seeking to understand how precedent operates as a common-law doctrine.

Interpreting Statutes

A Comparative Study
Author: D. Neil MacCormick,Robert S. Summers
Publisher: Routledge
ISBN: 1351926381
Category: Law
Page: 576
View: 1568

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This book is a work of outstanding importance for scholars of comparative law and jurisprudence and for lawyers engaged in EC law or other international forms of practice. It reviews, compares and analyses the practice of interpretation in nine countries representing Europe as well as the US and Argentina in common and civil law; it also explores implications for general theories of interpretation and of justification. Its authors, who include Aulis Aarnio, Robert Alexy, Ralf Dreier, Enrique Zuleta-Puceiro, Michel Troper, Christophe Grzegorczyk, Jean-Louis Gardes, Enrico Pattaro, Michele Taruffo, Massimo La Torre, Jerry Wroblewski, Alexsander Peczenik, Gunnar Bergholtz and Zenon Bankowski, as well as editors Robert S. Summers and D. Neil MacCormick, constitute an international team of great distinction; they have worked on this project for over seven years.

Law and Judicial Duty


Author: Philip HAMBURGER
Publisher: Harvard University Press
ISBN: 0674038193
Category: Law
Page: 704
View: 5193

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Philip Hamburger’s Law and Judicial Duty traces the early history of what is today called "judicial review." The book sheds new light on a host of misunderstood problems, including intent, the status of foreign and international law, the cases and controversies requirement, and the authority of judicial precedent. The book is essential reading for anyone concerned about the proper role of the judiciary.

The Power of Precedent


Author: Michael J. Gerhardt
Publisher: Oxford University Press
ISBN: 0199795797
Category: Law
Page: 350
View: 7836

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The role that precedent plays in constitutional decision making is a perennially divisive subject among scholars of law and American politics. The debate rages over both empirical and normative aspects of the issue: To what extent are the Supreme Court, Congress, and the executive branch constrained by precedent? To what extent should they be? Taking up a topic long overdue for comprehensive treatment, Michael Gerhardt connects the vast social science data and legal scholarship to provide the most wide-ranging assessment of precedent in several decades. Updated to reflect recent legal cases, The Power of Precedent clearly outlines the major issues in the continuing debates on the significance of precedent and evenly considers all sides. For the Supreme Court, precedents take many forms, including not only the Court's past opinions, but also norms, historical practices, and traditions that the justices have deliberately chosen to follow. In these forms, precedent exerts more force than is commonly acknowledged. This force is encapsulated in the implementation and recognition of what Gerhardt calls the "golden rule of precedent," a major dynamic in constitutional law. The rule calls upon justices and other public authorities to recognize that since they expect others to respect their own precedents, they must provide the same respect to others' precedents. Gerhardt's extensive exploration of precedent leads him to formulate a more expansive definition of it, one that encompasses not only the prior constitutional decisions of courts but also the constitutional judgments of other public authorities. Gerhardt concludes his study by looking at what the future holds for the concept, as he examines the decisions and attitudes toward precedent exhibited by the shift from the Rehnquist to the Roberts Court. Authoritative and incisive, Gerhardt presents an in-depth look at this central yet understudied phenomenon at the core of all constitutional conflicts and one of undeniable importance to American law and politics. Ultimately, The Power of Precedent vividly illustrates how constitutional law is made and evolves both in and outside of the courts.

Settled Versus Right

A Theory of Precedent
Author: Randy J. Kozel
Publisher: Cambridge University Press
ISBN: 1108228658
Category: Law
Page: N.A
View: 2609

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In this timely book, Randy J. Kozel develops a theory of precedent designed to enhance the stability and impersonality of constitutional law. Kozel contends that the prevailing approach to precedent in American law is undermined by principled disagreements among judges over the proper means and ends of constitutional interpretation. The structure and composition of the doctrine all but guarantee that conclusions about the durability of precedent will track individual views about whether decisions are right or wrong, and whether mistakes are harmful or benign. This is a serious challenge, but it also reveals a path toward maintaining legal continuity even as judges come and go. Kozel's account of precedent should be read by anyone interested in the nature of the judicial role and the trajectory of constitutional law.

The Law of Nations

Or, Principles of the Law of Nature Applied to the Conduct and Affairs of Nations and Sovereigns. A Work Tending to Display the True Interest of Powers
Author: Emer de Vattel
Publisher: N.A
ISBN: N.A
Category: International law
Page: 563
View: 8362

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The Nature of the Judicial Process


Author: Benjamin Nathan Cardozo
Publisher: Yale University Press
ISBN: N.A
Category: Judges
Page: 180
View: 7672

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In this famous treatise, a Supreme Court Justice describes the conscious and unconscious processes by which a judge decides a case. He discusses the sources of information to which he appeals for guidance and analyzes the contribution that considerations of precedent, logical consistency, custom, social welfare, and standards of justice and morals have in shaping his decisions.

Kelsenian Legal Science and the Nature of Law


Author: Peter Langford,Ian Bryan,John McGarry
Publisher: Springer
ISBN: 3319518178
Category: Law
Page: 320
View: 5593

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This book critically examines the conception of legal science and the nature of law developed by Hans Kelsen. It provides a single, dedicated space for a range of established European scholars to engage with the influential work of this Austrian jurist, legal philosopher, and political philosopher. The introduction provides a thematization of the Kelsenian notion of law as a legal science. Divided into six parts, the chapter contributions feature distinct levels of analysis. Overall, the structure of the book provides a sustained reflection upon central aspects of Kelsenian legal science and the nature of law. Parts one and two examine the validity of the project of Kelsenian legal science with particular reference to the social fact thesis, the notion of a science of positive law and the specifically Kelsenian concept of the basic norm (Grundnorm). The next three parts engage in a critical analysis of the relationship of Kelsenian legal science to constitutionalism, practical reason, and human rights. The last part involves an examination of the continued pertinence of Kelsenian legal science as a theory of the nature of law with a particular focus upon contemporary non-positivist theories of law. The conclusion discusses the increasing distance of contemporary theories of legal positivism from a Kelsenian notion of legal science in its consideration of the nature of law.

Yearbook of International Sports Arbitration 2015


Author: Antoine Duval,Antonio Rigozzi
Publisher: Springer
ISBN: 9462651299
Category: Law
Page: 398
View: 3312

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The Yearbook of International Sports Arbitration is the first academic publication aiming to offer comprehensive coverage, on a yearly basis, of the most recent and salient developments regarding international sports arbitration, through a combination of general articles and case notes. The present volume covers decisions rendered by the Court of Arbitration for Sport (CAS) and national courts in 2015. It is a must-have for sports lawyers and arbitrators, as well as researchers engaged in this field. It provides in-depth articles on burning issues raised by international sports arbitration, and independent commentaries by esteemed academics and seasoned practitioners on the most important decisions of the CAS (e.g. the Dutee Chand case) and national courts (e.g. the Pechstein and Wilhelmshaven decision rendered by the OLG München and OLG Bremen in Germany). Dr. Antoine Duval is Senior Researcher for International and European Sports Law at the T.M.C. Asser Instituut in The Hague. He holds a Ph.D. on the interaction between Lex Sportiva and EU Law from the European University Institute in Florence. Prof. Antonio Rigozzi teaches international arbitration and sports law at the University of Neuchâtel, Switzerland, and is the partner in charge of the sports arbitration practice at Lévy Kaufmann-Kohler, a Geneva-based law firm specializing in international arbitration.

Between Authority and Interpretation

On the Theory of Law and Practical Reason
Author: Joseph Raz
Publisher: OUP Oxford
ISBN: 0191580341
Category: Law
Page: 432
View: 1756

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In this book Joseph Raz develops his views on some of the central questions in practical philosophy: legal, political, and moral. The book provides an overview of Raz's work on jurisprudence and the nature of law in the context of broader questions in the philosophy of practical reason. The book opens with a discussion of methodological issues, focusing on understanding the nature of jurisprudence. It asks how the nature of law can be explained, and how the success of a legal theory can be established. The book then addresses central questions on the nature of law, its relation to morality, the nature and justification of authority, and the nature of legal reasoning. It explains how legitimate law, while being a branch of applied morality, is also a relatively autonomous system, which has the potential to bridge moral differences among its subjects. Raz offers responses to some critical reactions to his theory of authority, adumbrating, and modifying the theory to meet some of them. The final part of the book brings together for the first time Raz's work on the nature of interpretation in law and the humanities. It includes a new essay explaining interpretive pluralism and the possibility of interpretive innovation. Taken together, the essays in the volume offer a valuable introduction for students coming for the first time to Raz's work in the philosophy of law, and an original contribution to many of the current debates in practical philosophy.

Without Precedent

Chief Justice John Marshall and His Times
Author: Joel Richard Paul
Publisher: Penguin
ISBN: 1594488231
Category: LAW
Page: 512
View: 9781

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The remarkable story of John Marshall who, as chief justice, statesman, and diplomat, played a pivotal role in the founding of the United States. No member of America's Founding Generation had a greater impact on the Constitution and the Supreme Court than John Marshall, and no one did more to preserve the delicate unity of the fledgling United States. From the nation's founding in 1776 and for the next forty years, Marshall was at the center of every political battle. As Chief Justice of the United States - the longest-serving in history - he established the independence of the judiciary and the supremacy of the federal Constitution and courts. As the leading Federalist in Virginia, he rivaled his cousin Thomas Jefferson in influence. As a diplomat and secretary of state, he defended American sovereignty against France and Britain, counseled President John Adams, and supervised the construction of the city of Washington. D.C. This is the astonishing true story of how a rough-cut frontiersman - born in Virginia in 1755 and with little formal education - invented himself as one of the nation's preeminent lawyers and politicians who then reinvented the Constitution to forge a stronger nation. Without Precedent is the engrossing account of the life and times of this exceptional man, who with cunning, imagination, and grace shaped America's future as he held together the Supreme Court, the Constitution, and the country itself.

A History of the Supreme Court


Author: Bernard Schwartz
Publisher: Oxford University Press
ISBN: 9780195093872
Category: History
Page: 465
View: 2427

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A comprehensive history of the United States Supreme Court from its ill-esteemed beginning in 1790 to one of the most important and controversial branches of the Federal government.

Retroactivity and the Common Law


Author: Ben Juratowitch
Publisher: Bloomsbury Publishing
ISBN: 1847314104
Category: Law
Page: 270
View: 5481

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This book analyses the common law's approach to retroactivity. The central claim is that when a court considers whether to develop or change a common law rule the retroactive effect of doing so should explicitly be considered and, informed by the common law's approach to statutory construction, presumptively be resisted. As a platform for this claim a definition of 'retroactivity' is established and a review of the history of retroactivity in the common law is provided. It is then argued that certainty, particularly in the form of an ability to rely on the law, and a conception of negative liberty, constitute rationales for a general presumption against retroactivity at a level of abstraction applicable both to the construction of statutes and to developing or changing common law rules. The presumption against retroactivity in the construction of statutes is analysed, and one conclusion reached is that the presumption is a principle of the common law independent of legislative intent. Across private, public and criminal law, the retroactive effect of judicial decisions that develop or change common law rules is then considered in detail. 'Prospective overruling' is examined as a potential means to control the retroactive effect of some judicial decisions, but it is argued that prospective overruling should be regarded as constitutionally impermissible. The book is primarily concerned with English and Australian law, although cases from other common law jurisdictions, particularly Canada and New Zealand, are also discussed. The conclusion is that in statutory construction and the adjudication of common law rules there should be a consistently strong presumption against retroactivity, motivated by the common law's concern for certainty and liberty, and defeasible only to strong reasons. 'Ben Juratowitch not only gives an account of the operation of the presumption, but also teases out the policies which underlie the different rules. This is particularly welcome. Lawyers and judges often seem less than sure-footed when confronted by questions in this field. By giving us an insight into the policies, the author provides a basis for more satisfactory decision-making in the future. ...The author not only discusses the recent cases but examines the question in the light of authority in other Commonwealth jurisdictions and with due regard to the more theoretical literature. This is a valuable contribution to what is an important current debate in the law. Happily, Ben Juratowitch has succeeded in making his study not only useful, but interesting and enjoyable.' From the Foreword by Lord Rodger of Earlsferry

Not in Feather Beds

Some Collected Papers
Author: Cyril John Radcliffe Radcliffe (Viscount)
Publisher: Hamish Hamilton
ISBN: N.A
Category: Law
Page: 277
View: 7353

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Twenty-two lectures, addresses, speeches and articles spanning a period of twenty years on a variety of subjects.

Law and Legitimacy in the Supreme Court


Author: Richard H. Fallon
Publisher: Harvard University Press
ISBN: 0674975812
Category: Constitutional law
Page: 240
View: 1924

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"The book addresses questions about the roles of law and politics and the challenge of legitimacy in constitutional adjudication in the Supreme Court. With all sophisticated observers recognizing that the Justices' political outlooks influence their decision making, many political scientists, some of the public, and a few prominent judges have become Cynical Realists. In their view Justices vote based on their policy preferences, and legal reasoning is mere window-dressing. This book rejects Cynical Realism, but without denying many Realist insights. It explains the limits of language and history in resolving contentious constitutional issues. To rescue the notion that the Constitution is law that binds the Justices, the book provides an original account of what law is and means in the Supreme Court. It also offers a theory of legitimacy in Supreme Court adjudication. Given the nature of law in the Supreme Court, we need to accept and learn to respect reasonable disagreement about many constitutional issues. If so, the legitimacy question becomes: how would the Justices need to decide cases so that even those who disagree with the outcomes ought to respect the Justices' processes of decision? The book gives a fresh and counterintuitive answer to that vital question. Adapting a methodology made famous by John Rawls, it argues that the Justices should strive to achieve a "reflective equilibrium" between their interpretive principles, framed to identify the Constitution's enduring meaning, and their judgments about appropriate outcomes in particular cases, evaluated as prescriptions for the nation to live by in the future. The book blends the perspectives of law, philosophy, and political science to answer theoretical and practical questions of pressing national importance"--

Nature's Trust

Environmental Law for a New Ecological Age
Author: Mary Christina Wood
Publisher: Cambridge University Press
ISBN: 0521195136
Category: Law
Page: 462
View: 9082

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This book exposes the dysfunction of environmental law and offers a transformative approach based on the public trust doctrine. An ancient and enduring principle, the public trust doctrine empowers citizens to protect their inalienable property rights to crucial resources. This book shows how a trust principle can apply from the local to global level to protect the planet.

Elements of Legislation


Author: Neil Duxbury
Publisher: Cambridge University Press
ISBN: 1107021871
Category: Law
Page: 249
View: 1791

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Neil Duxbury combines analytical legal philosophy and legal history to explore the concept of legislation.

Legal and Political Hermeneutics, Or, Principles of Interpretation and Construction in Law and Politics

With Remarks on Precedents and Authorities
Author: Francis Lieber
Publisher: The Lawbook Exchange, Ltd.
ISBN: 1584772263
Category: Law
Page: 240
View: 5444

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Lieber, Francis. Legal and Political Hermeneutics, or Principles of Interpretation and Construction in Law and Politics, with Remarks on Precedents and Authorities. Enlarged Edition. Boston: Charles C. Little and James Brown, 1839. xii, [13]-240 pp. Reprinted 2002 by The Lawbook Exchange, Ltd. ISBN 1-58477-226-3. Cloth. $65. * "The Hermeneutics was intended as a chapter of his Political Ethics, but became so extended that it was published separately. His distinction between interpretation and construction had great influence among legal writers of his day. The first is 'the art of finding out the true sense of any form of words' (...) in the sense which the author intended to convey, while construction is the drawing of conclusions respecting subjects that lie outside the direct expression of the text. Constitutions should be construed closely, he holds, since their words have been carefully weighed. The treatise received high commendation from Chancellor Kent, Henry Clay, Rufus Choate, and others." (DAB). Lieber was a Prussian scholar and political activist who was persecuted for his liberalism. He emigrated to the United States in 1827, and his writings, among them an encyclopedia that was the foundation of the Encyclopedia Britannica, advanced his reputation. He became professor of history and political economy at South Carolina College, and was later appointed to the same chair at Columbia College. In 1865 he moved to Columbia Law School, where he was renowned as a prominent political philosopher. Dictionary of American Biography VI: 236-237.