A Common Law For The Age Of Statutes

Author: Guido CALABRESI
Publisher: Harvard University Press
ISBN: 0674029151
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The dominance of legislatures and statutory law has put an impossible burden on the courts. Guido Calabresi thinks it is time for this country seriously to consider returning to a traditional American judicial-legislative balance in which courts would enlarge the common law and would also decide when a rule of law has seen its day and should be revised. Table of Contents: 1. Choking on Statutes 2. The Flight to the Constitution and to Equal Protection Clauses 3. The Passive Virtues 4. Interpretation 5. The New Deal Response: Administrative Agencies 6. Legislative Responses 7. Structural Responses 8. A New Approach: Antecedents and Roots 9. The Doctrine: A Question of Legitimacy 10. The Doctrine: Limits and Guidelines 11. The Doctrine: Techniques and Feasibility 12. The Role of Courts in an Age of Statutes 13. The Dangers of the Doctrine 14. The Uses and Abuses of Subterfuge 15. The Choice for Candor Notes Works Cited Table of Cases Index Reviews of this book: This is a genuinely original and thoughtful book, one of the few in the jurisprudential genre that is both dearly written and devoid of cliché. It addresses current social and legal issues from an engagingly fresh, nonpolemical, and erudite perspective. --American Bar Association Journal Reviews of this book: Calabresi has brought his ample juristic talents to bear on a foundational problem of the legal and democratic process...in its quality, timeliness and provocativeness [this book] is likely to stand alongside the seminal works of Ronald Dworkin and Grant Gilmore. --Columbia Law Review

Interpreting Statutes

Author: Stephen Bottomley
Publisher: Federation Press
ISBN: 9781862875562
Size: 21.20 MB
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Interpreting Statutes was cited 4 times by the High Court in Momcilovic v The Queen [2011] HCA 34 (8 September 2011)Interpreting Statutes has been written for lawyers and judges who must interpret statutes on a daily basis, as well as for students and scholars who have their own responsibility for the future. This book takes a new approach to statutory interpretation. The authors consider the fundamental importance of context in statutory interpretation across various fields of regulation and explore the problems, which arise from the frequent disjunction between regulatory design and subsequent statutory interpretation. As a result, they bring to the fore fundamental theoretical questions underlying interpretive choice and expand our appreciation of how critical interpretive issues are to the proper functioning of our legal system. The book is divided into two parts. The first covers several areas dealing with fundamental theoretical issues. The second deals with particular areas of the law, such as criminal law or corporate law, addressing the utility and functionality of the general theories from different legal perspectives and illustrating the fact that different interpretive principles may take precedence in different areas of the law. It reveals the complexity of statutory interpretation when applied to actual practice in a particular area of law. Despite this complexity and the unique problems of statutory interpretation within each area of law, some major themes emerge including: the strong influence of constitutional interpretation; tension between common law rights and statutory innovation; questions about the interaction of domestic law with international law; tension between settled judicial principles of interpretation and principles embedded in legislation; issues concerning the interpretation of delegated legislation; and questions about gap filling and discretion in the interpretation of statutes and codes.

Law And Semiotics

Author: Roberta Kevelson
Publisher: Springer Science & Business Media
ISBN: 1461307716
Size: 59.40 MB
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of those problems in law which we inherit and/or retrieve in order to reconstruct and interpret in the light of legal semiotics, however defined. In addition to three main areas of underlying metaphysical assumptions there are also three main areas of possible editorial focus and these should be mentioned. The three areas of focus are: 1) the state-of-the-art of legal semiotics; 2) the dynamic, intense and exceptionally interactive quality of conference participation, and 3) the content of the papers presented which is the material of this volume. My choice of this triad of focal possibilities is to exclude the last since the papers speak for themselves and need but a brief reportorial caption. I also eliminate the second possible focus as the main focus since the discussion was not taped for editing into this volume and must remain for all those who participated a quality of scholarly meetings to be remembered, savored and hoped for. My main focus is on the "state-of-the-art" of legal semiotics. II At the conclusion of the First Round Table on Law and Semiotics (1987) it was noted that there were no working paradigms, in Kuhn's sense, that thus far emerged but rather that several problematic areas were disclosed which warrant attention. Therefore the first concern of Legal Semiotics should be to address the surface, i. e.

Common Law Natural Rights

Author: Ruben Alvarado
Publisher: WordBridge Publishing
ISBN: 9076660085
Size: 64.69 MB
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Common law is explored as the alternative to natural rights as a means of restricting state power. The separation of powers is weighed in the balance and found wanting as a brake on state power. The underlying root of this inability is discovered in the philosophy of natural rights. Natural rights gave birth to the separation of powers, but neither the former nor the latter has been able to restrain government. This failure is highlighted in detail, and the alternative means to the same end, the common law, is brought to the fore.

Tort Law And The Legislature

Author: T T Arvind
Publisher: Bloomsbury Publishing
ISBN: 1782250549
Size: 22.45 MB
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The study of the law of tort is generally preoccupied by case law, while the fundamental impact of legislation is often overlooked. At a jurisprudential level there is an unspoken view that legislation is generally piecemeal and at best self-contained and specific; at worst dependent on the whim of political views at a particular time. With a different starting point, this volume seeks to test such notions, illustrating, among other things, the widespread and lasting influence of legislation on the shape and principles of the law of tort; the variety of forms of legislation and the complex nature of political and policy concerns that may lie behind their enactment; the sometimes unexpected consequences of statutory reform; and the integration not only of statutory rules but also of legislative policy into the operation of tort law today. The apparently sharp distinction between judicially created private law principles, and democratically enacted legislative rules and policies, is therefore questioned, and it is argued that to describe the principles of the law of tort without referring to statute is potentially highly misleading. This book shows that legislation is important not only because of the way it varies or replaces case law, but because it also deeply influences the intrinsic character of that law, providing some of its most familiar characteristics. The book provides the first extended interpretation of legislative intervention in the law of tort. Each of the chapters, by leading tort scholars, deals with an aspect of the influence of legislation on the law of tort. While the nature, sources and extent of legislative influence in personal injury law is an essential feature of the collection, other significant areas of tort law are explored, including tort in the context of commercial law, labour law, regulation and the welfare state. Essays on the Compensation Act 2006 and Human Rights Act 1998 bring the current state of the interplay between tort, politics and legislation to the forefront. In all of these contexts, contributors explore the deeper lessons that can be learned about the nature of the law of tort and its changing role and functions over time. Cited with approval in the Singapore Court of Appeal by VK Rajah JA in See Toh Siew Kee vs Ho Ah Lam Ferrocement (Pte) Ltd and others, [2013] SGCA 29

Legal Secrets

Author: Kim Lane Scheppele
Publisher: University of Chicago Press
ISBN: 9780226737782
Size: 54.12 MB
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Does the seller of a house have to tell the buyer that the water is turned off twelve hours a day? Does the buyer of a great quantity of tobacco have to inform the seller that the military blockade of the local port, which had depressed tobacco sales and lowered prices, is about to end? Courts say yes in the first case, no in the second. How can we understand the difference in judgments? And what does it say about whether the psychiatrist should disclose to his patient's girlfriend that the patient wants to kill her? Kim Lane Scheppele answers the question, Which secrets are legal secrets and what makes them so? She challenges the economic theory of law, which argues that judges decide cases in ways that maximize efficiency, and she shows that judges use equality as an important principle in their decisions. In the course of thinking about secrets, Scheppele also explores broader questions about judicial reasoning—how judges find meaning in legal texts and how they infuse every fact summary with the values of their legal culture. Finally, the specific insights about secrecy are shown to be consistent with a general moral theory of law that indicates what the content of law should be if the law is to be legitimate, a theory that sees legal justification as the opportunity to attract consent. This is more than a book about secrets. It is also a book about the limits of an economic view of law. Ultimately, it is a work in constructive legal theory, one that draws on moral philosophy, sociology, economics, and political theory to develop a new view of legal interpretation and legal morality.

Why Lawsuits Are Good For America

Author: Carl T. Bogus
Publisher: NYU Press
ISBN: 0814737943
Size: 70.50 MB
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Judging by the frequency with which it makes an appearance in television news shows and late night stand up routines, the frivolous lawsuit has become part and parcel of our national culture. A woman sues McDonald’s because she was scalded when she spilled her coffee. Thousands file lawsuits claiming they were injured by Agent Orange, silicone breast implants, or Bendectin although scientists report these substances do not cause the diseases in question. The United States, conventional wisdom has it, is a hyperlitigious society, propelled by avaricious lawyers, harebrained judges, and runaway juries. Lawsuits waste money and time and, moreover, many are simply groundless. Carl T. Bogus is not so sure. In Why Lawsuits Are Good for America, Bogus argues that common law works far better than commonly understood. Indeed, Bogus contends that while the system can and occasionally does produce “wrong” results, it is very difficult for it to make flatly irrational decisions. Blending history, theory, empirical data, and colorful case studies, Bogus explains why the common law, rather than being outdated, may be more necessary than ever. As Bogus sees it, the common law is an essential adjunct to governmental regulation—essential, in part, because it is not as easily manipulated by big business. Meanwhile, big business has launched an all out war on the common law. “Tort reform”—measures designed to make more difficult for individuals to sue corporations—one of the ten proposals in the Republican Contract With America, and George W. Bush’s first major initiative as Governor of Texas. And much of what we have come to believe about the system comes from a coordinated propaganda effort by big business and its allies. Bogus makes a compelling case for the necessity of safeguarding the system from current assaults. Why Lawsuits Are Good for America provides broad historical overviews of the development of American common law, torts, products liability, as well as fresh and provocative arguments about the role of the system of “disciplined democracy” in the twenty-first century.

The Myth Of The Imperial Judiciary

Author: Mark Kozlowski
Publisher: NYU Press
ISBN: 0814749291
Size: 41.93 MB
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Few institutions have become as ferociously fought over in democratic politics as the courts. While political criticism of judges in this country goes back to its inception, today’s intensely ideological assault is nearly unprecedented. Spend any amount of time among the writings of contemporary right-wing critics of judicial power, and you are virtually assured of seeing repeated complaints about the “imperial judiciary.” American conservatives contend not only that judicial power has expanded dangerously in recent decades, but that liberal judges now willfully write their policy preferences into law. They raise alarms that American courts possess a degree of power incompatible with the functioning of a democratic polity. The Myth of the Imperial Judiciary explores the anti-judicial ideological trend of the American right, refuting these claims and taking a realistic look at the role of courts in our democracy to show that conservatives have a highly unrealistic conception of their power. Kozlowski first assesses the validity of the conservative view of the Founders’ intent, arguing that courts have played an assertive role in our politics since their establishment. He then considers contemporary judicial powers to show that conservatives have greatly overstated the extent to which the expansion of rights which has occurred has worked solely to the benefit of liberals. Kozlowski reveals the ways in which the claims of those on the right are often either unsupported or simply wrong. He concludes that American courts, far from imperiling our democracy or our moral fabric, stand as a bulwark against the abuse of legislative power, acting forcefully, as they have always done, to give meaning to constitutional promises.

English Common Law In The Age Of Mansfield

Author: James Oldham
Publisher: Univ of North Carolina Press
ISBN: 0807864005
Size: 69.92 MB
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In the eighteenth century, the English common law courts laid the foundation that continues to support present-day Anglo-American law. Lord Mansfield, Chief Justice of the Court of King's Bench, 1756-1788, was the dominant judicial force behind these developments. In this abridgment of his two-volume book, The Mansfield Manuscripts and the Growth of English Law in the Eighteenth Century, James Oldham presents the fundamentals of the English common law during this period, with a detailed description of the operational features of the common law courts. This work includes revised and updated versions of the historical and analytical essays that introduced the case transcriptions in the original volumes, with each chapter focusing on a different aspect of the law. While considerable scholarship has been devoted to the eighteenth-century English criminal trial, little attention has been given to the civil side. This book helps to fill that gap, providing an understanding of the principal body of substantive law with which America's founding fathers would have been familiar. It is an invaluable reference for practicing lawyers, scholars, and students of Anglo-American legal history.

Law In The Making

Author: Alessandro Pizzorusso
Publisher: Springer Science & Business Media
ISBN: 3642730523
Size: 58.27 MB
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The present volume presents a part of the results of a research project launched by the European Science Foundation (ESF) in 1977. Tribute should be paid to the late Professor Aleck Chloros, Judge in the Court of the European Community, whose belief in the European ideal and enthusiasm for European cooperation and the comparative study of legal problems made him an elo quent advocate of a large-scale ESF venture into the field of com parative law. Judge Chloros had envisaged the creation of a per manent, sizable and well-equipped European institute for compa rative legal studies. The successive working parties convoked by the Executive Council of the ESF, which I had the honour of chairing from the beginning, came to the conclusion that this am bitious vision could not be realized immediately; the financial sit uation of the member organizations of the ESF also deteriorated, making a cautious approach a necessary virtue. The solution ulti mately adopted by the last of the working parties - the Ad Hoc Committee for Comparative Law -and submitted to the General Assembly of the ESF in 1979 called for the launching of four pi lot projects. In November 1980, the Assembly approved detailed plans for two of these projects. The first of these - dealing with medical responsibility - has already been presented in an impres sive volume (E. Deutsch and H. -L. Schreiber, editors, Medical Responsibility in Western Europe.