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Author: William D. Popkin
Publisher:
ISBN: 9781611634068
Category : Judicial process
Languages : en
Pages : 0
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Book Description
This book deals with the central question in statutory interpretation -- the role of the judge. It argues that it is both legitimate and desirable for the interpreter to take into account policy considerations when determining the meaning of a statute. The author calls this pragmatic judicial partnering. The pragmatic approach rejects two traditional views of the judicial role -- textualism and intentionalism -- which assume that the interpreter is nothing but a legislative agent. Part I of the book makes the case for pragmatic judicial partnering. My claim is that pragmatic interpretation is constitutional, that it provides the best description of statutory interpretation, and that it is the best normative conception of how judges should interpret legislation. It also argues that judicial opinions should reveal the indeterminacy that is inherent in determining the meaning of legislation and the creative role that judges play in shaping that meaning. Part II is a critique of the leading advocates of the view that judge should be legislative agents -- Justice Scalia and Professor Manning (both textualists); Professor Elhauge (an intentionalist); and Professor Vermeule (an institutional literalist). An Epilogue indentifies the fundamental issue as one of legal culture. It suggests that we may be entering a period where mistrust of judging leads to rejection of pragmatic judicial partnering in favor of the judge-as-legislative-agent.
Author: William D. Popkin
Publisher:
ISBN: 9781611634068
Category : Judicial process
Languages : en
Pages : 0
Get Book Here
Book Description
This book deals with the central question in statutory interpretation -- the role of the judge. It argues that it is both legitimate and desirable for the interpreter to take into account policy considerations when determining the meaning of a statute. The author calls this pragmatic judicial partnering. The pragmatic approach rejects two traditional views of the judicial role -- textualism and intentionalism -- which assume that the interpreter is nothing but a legislative agent. Part I of the book makes the case for pragmatic judicial partnering. My claim is that pragmatic interpretation is constitutional, that it provides the best description of statutory interpretation, and that it is the best normative conception of how judges should interpret legislation. It also argues that judicial opinions should reveal the indeterminacy that is inherent in determining the meaning of legislation and the creative role that judges play in shaping that meaning. Part II is a critique of the leading advocates of the view that judge should be legislative agents -- Justice Scalia and Professor Manning (both textualists); Professor Elhauge (an intentionalist); and Professor Vermeule (an institutional literalist). An Epilogue indentifies the fundamental issue as one of legal culture. It suggests that we may be entering a period where mistrust of judging leads to rejection of pragmatic judicial partnering in favor of the judge-as-legislative-agent.
Author: Joe McIntyre
Publisher: Springer Nature
ISBN: 981329115X
Category : Law
Languages : en
Pages : 304
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Book Description
Judicial systems are under increasing pressure: from rising litigation costs and decreased accessibility, from escalating accountability and performance evaluation expectations, from shifting burdens of case management and alternative dispute resolution roles, and from emerging technologies. For courts to survive and flourish in a rapidly changing society, it is vital to have a clear understanding of their contemporary role – and a willingness to defend it. This book presents a clear vision of what it is that courts do, how they do it, and how we can make sure that they perform that role well. It argues that courts remain a critical, relevant and supremely well-adjusted institution in the 21st century. The approach of this book is to weave together a range of discourses on surrounding judicial issues into a systemic and coherent whole. It begins by articulating the dual roles at the core of the judicial function: third-party merit-based dispute resolution and social (normative) governance. By expanding upon these discrete yet inter-related aspects, it develops a language and conceptual framework to understand the judicial role more fully. The subsequent chapters demonstrate the explanatory power of this function, examining the judicial decision-making method, reframing principles of judicial independence and impartiality, and re-conceiving systems of accountability and responsibility. The book argues that this function-driven conception provides a useful re-imagining of some familiar issues as part of a coherent framework of foundational, yet interwoven, principles. This approach not only adds clarity to the analysis of those concepts and the concrete mechanisms by which they are manifest, but helps make the case of why courts remain such vital social institutions. Ultimately, the book is an entreaty not to take courts for granted, nor to readily abandon the benefits they bring to society. Instead, by understanding the importance and legitimacy of the judicial role, and its multifaceted social benefits, this books challenge us to refresh our courts in a manner that best advances this underlying function.
Author: Gabrielle Appleby
Publisher: Cambridge University Press
ISBN: 1108494617
Category : Law
Languages : en
Pages : 341
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Book Description
Revealing analysis of how judges work as individuals and collectively to uphold judicial values in the face of contemporary challenges.
Author: Emmett Macfarlane
Publisher: UBC Press
ISBN: 077482350X
Category : History
Languages : en
Pages : 266
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Book Description
In Governing from the Bench, Emmett Macfarlane draws on interviews with current and former justices, law clerks, and other staff members of the court to shed light on the institution’s internal environment and decision-making processes. He explores the complex role of the Supreme Court as an institution; exposes the rules, conventions, and norms that shape and constrain its justices’ behavior; and situates the court in its broader governmental and societal context, as it relates to the elected branches of government, the media, and the public.
Author: Robert Schertzer
Publisher: University of Toronto Press
ISBN: 1487500289
Category : History
Languages : en
Pages : 349
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Book Description
In The Judicial Role in a Diverse Federation, Robert Schertzer uses the example of the Supreme Court of Canada to examine how apex courts manage diversity and conflict in federal states. Schertzer argues that in a diverse federation where the nature of the federal system is contested the courts should facilitate negotiation between conflicting parties, rather than impose their own vision of the federal system. Drawing on a comprehensive review of the Supreme Court federalism jurisprudence between 1980 and 2010, he demonstrates that the court has increasingly adopted this approach of facilitating negotiation by acknowledging the legitimacy of different understandings of the Canadian federation. This book will be required reading both for those interested in Canada's Supreme Court and for those engaged in broader debates about the use of federalism in multinational states.
Author: Grant Huscroft
Publisher: Cambridge University Press
ISBN: 9780521887410
Category : Law
Languages : en
Pages : 332
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Book Description
What does it mean to interpret the constitution? Does constitutional interpretation involve moral reasoning, or is legal reasoning something different? What does it mean to say that a limit on a right is justified? How does judicial review fit into a democratic constitutional order? Are attempts to limit its scope incoherent? How should a jurist with misgivings about the legitimacy of judicial review approach the task of judicial review? Is there a principled basis for judicial deference? Do constitutional rights depend on the protection of a written constitution, or is there a common law constitution that is enforceable by the courts? How are constitutional rights and unwritten constitutional principles to be reconciled? In this book, these and other questions are debated by some of the world's leading constitutional theorists and legal philosophers. Their essays are essential reading for anyone concerned with constitutional rights and legal theory.
Author: American Bar Association
Publisher: American Bar Association
ISBN: 9781590318393
Category : Law
Languages : en
Pages : 212
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Book Description
Author: Laura Pineschi
Publisher: Springer
ISBN: 3319191802
Category : Law
Languages : en
Pages : 330
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Book Description
This book examines the role played by domestic and international judges in the “flexibilization” of legal systems through general principles. It features revised papers that were presented at the Annual Conference of the European-American Consortium for Legal Education, held at the University of Parma, Italy, May 2014. This volume is organized in four sections, where the topic is mainly explored from a comparative perspective, and includes case studies. The first section covers theoretical issues. It offers an analysis of principles in shaping Dworkin’s theories about international law, a reflection on the role of procedural principles in defining the role of the judiciary, a view on the role of general principles in transnational judicial communication, a study on the recognition of international law from formal criteria to substantive principles, and an inquiry from the viewpoint of neo-constitutionalism. The second section contains studies on the role of general principles in selected legal systems, including International Law, European Union Law as well as Common Law systems. The third section features an analysis of select legal principles in a comparative perspective, with a particular focus on the comparison between European and American experiences. The fourth and last section explores selected principles in given areas of law, including the misuse of the lex specialis principle in the relationship between international human rights law and international humanitarian law, the role of the judiciary in Poland as regards discrimination for sexual orientation, and the impact of the ECtHR case law on Italian criminal law with regard to the principle of legality. Overall, the book offers readers a thoughtful reflection on how the interpretation, application, and development of general principles of law by the judiciary contribute to the evolution of legal systems at both the domestic and international levels as well as further their reciprocal interactions.
Author: Brian M. Barry
Publisher: Taylor & Francis
ISBN: 0429657498
Category : Law
Languages : en
Pages : 361
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Book Description
A judge’s role is to make decisions. This book is about how judges undertake this task. It is about forces on the judicial role and their consequences, about empirical research from a variety of academic disciplines that observes and verifies how factors can affect how judges judge. On the one hand, judges decide by interpreting and applying the law, but much more affects judicial decision-making: psychological effects, group dynamics, numerical reasoning, biases, court processes, influences from political and other institutions, and technological advancement. All can have a bearing on judicial outcomes. In How Judges Judge: Empirical Insights into Judicial Decision-Making, Brian M. Barry explores how these factors, beyond the law, affect judges in their role. Case examples, judicial rulings, judges’ own self-reflections on their role and accounts from legal history complement this analysis to contextualise the research, make it more accessible and enrich the reader’s understanding and appreciation of judicial decision-making. Offering research-based insights into how judges make the decisions that can impact daily life and societies around the globe, this book will be of interest to practising and training judges, litigation lawyers and those studying law and related disciplines.
Author: Alexander Hamilton
Publisher: Read Books Ltd
ISBN: 1528785878
Category : History
Languages : en
Pages : 420
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Book Description
Classic Books Library presents this brand new edition of “The Federalist Papers”, a collection of separate essays and articles compiled in 1788 by Alexander Hamilton. Following the United States Declaration of Independence in 1776, the governing doctrines and policies of the States lacked cohesion. “The Federalist”, as it was previously known, was constructed by American statesman Alexander Hamilton, and was intended to catalyse the ratification of the United States Constitution. Hamilton recruited fellow statesmen James Madison Jr., and John Jay to write papers for the compendium, and the three are known as some of the Founding Fathers of the United States. Alexander Hamilton (c. 1755–1804) was an American lawyer, journalist and highly influential government official. He also served as a Senior Officer in the Army between 1799-1800 and founded the Federalist Party, the system that governed the nation’s finances. His contributions to the Constitution and leadership made a significant and lasting impact on the early development of the nation of the United States.
