A Common Law for the Age of Statutes

Author: Guido CALABRESI

Publisher: Harvard University Press

ISBN: 0674029151

Category: Law

Page: 331

View: 6074

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

Retroactivity and the Common Law

Author: Ben Juratowitch

Publisher: Bloomsbury Publishing

ISBN: 1847314104

Category: Law

Page: 270

View: 3227

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

Industry of Anonymity

Inside the Business of Cybercrime

Author: Jonathan Lusthaus

Publisher: Harvard University Press

ISBN: 0674989023

Category: Social Science

Page: 280

View: 2631

Jonathan Lusthaus lifts the veil on cybercriminals in the most extensive account yet of the lives they lead and the vast international industry they have created. Having traveled to hotspots around the world to meet with hundreds of law enforcement agents, security gurus, hackers, and criminals, he charts how this industry based on anonymity works.

Tort Law and the Legislature

Common Law, Statute and the Dynamics of Legal Change

Author: T T Arvind,Jenny Steele

Publisher: Bloomsbury Publishing

ISBN: 1782250557

Category: Law

Page: 546

View: 9995

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

The Nature of the Common Law

Author: Melvin Aron Eisenberg

Publisher: Harvard University Press

ISBN: 9780674604810

Category: Law

Page: 204

View: 4136

Much of our law is based on authoritative texts, such as constitutions and statutes. The common law, in contrast, is that part of the law that is established by the courts. Common law rules predominate in some areas of law, such as torts and contracts, and are extremely important in other areas, such as corporations. Nevertheless, it has been far from clear what principles courts use--or should use--in establishing common law rules. In this lucid yet subtly argued book, Melvin Eisenberg develops the principles that govern this process. The rules established in every common law case, he shows, are a product of the interplay between the rules announced in past precedents, on the one hand, and moral norms, policies, and experience, on the other. However, a court establishing a common law rule is not free, as a legislator would be, to employ those norms and policies it thinks best. Rather, it can properly employ only those that have a requisite degree of social support. More specifically, the common law should seek to satisfy three standards. First, it should correspond to the body of rules that would be arrived at by giving appropriate weight to all moral norms, policies, and experiential propositions that have the requisite support, and by making the best choices where norms, policies, and experience conflict. Second, all the rules that make up the body of the law should be consistent with one another. Third, the rules adopted in past precedents should be applied consistently over time. Often, these three standards point in the same direction. The central problems of legal reasoning arise when they do not. These problems are resolved by the principles of common law adjudication. With the general principles of common law adjudication as a background, the author then examines and explains the specific modes of common law reasoning, such as reasoning from precedent, reasoning by analogy, drawing distinctions, and overruling. Throughout the book, the analysis is fully illustrated by leading cases. This innovative and carefully worked out account of the common law will be of great interest to lawyers, law students, students in undergraduate legal studies programs, scholars interested in legal theory, and all those who want to understand the basic legal institutions of our society.

The Principle of Legality in Australia and New Zealand

Author: Matthew Groves,Dan Meagher

Publisher: N.A

ISBN: 9781760021252

Category: Justice, Administration of

Page: 304

View: 7044

In this age of statutes and human rights the common law principle of legality has assumed a central importance. The principle holds that unless Parliament makes unmistakably clear its intention to curtail or abrogate a common law right, freedom or principle, the courts will not construe a statute as having that operation. As Lord Hoffmann famously observed, this "means that Parliament must squarely confront what it is doing and accept the political cost".The principle of legality is now central to the operation of Australian and New Zealand public law. Yet its content, methodology and scope remain elusive and has never been examined in detail. This book fills that gap by drawing together leading judges, practitioners and scholars to explore a range of interesting issues and challenges for the application of the principle of legality and its future trajectory: How does the principle operate? Which rights and freedoms fall within its scope and why? What is its relationship to the (so-called) common law bill of rights? Has proportionality a role to play in its application? How, if at all, does it differ from the presumption with international law? And in the construction of statutes does the principle serve to fulfil or frustrate the will of Parliament?

Law and Judicial Duty

Author: Philip HAMBURGER

Publisher: Harvard University Press

ISBN: 0674038193

Category: Law

Page: 704

View: 3902

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.

A Concise History of the Common Law

Author: Theodore Frank Thomas Plucknett

Publisher: The Lawbook Exchange, Ltd.

ISBN: 1584771372

Category: History

Page: 802

View: 5626

Plucknett, Theodore F.T. A Concise History of the Common Law. Fifth Edition. Boston: Little, Brown and Company, 1956. Reprinted 2001 by The Lawbook Exchange, Ltd. LCCN 00-067821. ISBN 1-58477-137-2. Cloth. $125. * "Professor Plucknett has such a solid reputation on both sides of the Atlantic that one expects from his pen only what is scholarly and accurate...Nor is the expectation likely to be disappointed in this book. Plucknett's book is not...a mere epitome of what is to be found elsewhere. He has explored on his own account many regions of legal history and, even where the ground has been already quartered, he has fresh methods of mapping it. The title which he has chosen is, in view of the contents of the volume, rather a narrow one. It might equally well have been A Concise History of English Law...In conjunction with Readings on the History and System of the Common Law by Dean Pound...this book will give an excellent grounding to the student of English legal history." Percy H. Winfield. Harv. L. Rev. 43:339-340.

The Common Law of Intellectual Property

Essays in Honour of Professor David Vaver

Author: Catherine W Ng,Lionel Bently,Giuseppina D'Agostino

Publisher: Bloomsbury Publishing

ISBN: 1847315933

Category: Law

Page: 528

View: 810

This collection of essays was written in honour of David Vaver, who recently retired as Professor of Intellectual Property and Information Technology Law and Director of the Oxford Intellectual Property Research Centre at the University of Oxford. The essays, written by some of the world's leading academics, practitioners and judges in the field of intellectual property law, take as their starting point the common assumption that the patent, copyright and trade mark laws within members of the 'common law family' (Australia, Canada, Israel, Singapore, South Africa, the United Kingdom, the United States, and so on) share some sort of common tradition. The contributors examine, in relation to particular topics, the extent to which such a shared view of the field exists in the face of other forces that are producing divergence. The essays discuss, inter alia, issues concerning court practices, the medical treatment exception, non-obviousness and sufficiency in patent law, originality and exceptions in copyright law, unfair competition law, and cross-border goodwill and dilution in trade mark law.

Dynamic Statutory Interpretation

Author: William N. Eskridge

Publisher: Harvard University Press

ISBN: 9780674218789

Category: Law

Page: 438

View: 4000

Contrary to traditional theories of statutory interpretation, which ground statutes in the original legislative text or intent, legal scholar William Eskridge argues that statutory interpretation changes in response to new political alignments, new interpreters, and new ideologies. It does so, first of all, because it involves richer authoritative texts than does either common law or constitutional interpretation: statutes are often complex and have a detailed legislative history. Second, Congress can, and often does, rewrite statutes when it disagrees with their interpretations; and agencies and courts attend to current as well as historical congressional preferences when they interpret statutes. Third, since statutory interpretation is as much agency-centered as judgecentered and since agency executives see their creativity as more legitimate than judges see theirs, statutory interpretation in the modern regulatory state is particularly dynamic. Eskridge also considers how different normative theories of jurisprudence--liberal, legal process, and antiliberal--inform debates about statutory interpretation. He explores what theory of statutory interpretation--if any--is required by the rule of law or by democratic theory. Finally, he provides an analytical and jurisprudential history of important debates on statutory interpretation.

Statutory Default Rules

How to Interpret Unclear Legislation

Author: Einer Elhauge

Publisher: Harvard University Press

ISBN: 9780674033672

Category: Law

Page: 400

View: 3230

Most new law is statutory law; that is, law enacted by legislators. An important question, therefore, is how should this law be interpreted by courts and agencies, especially when the text of a statute is not entirely clear. There is a great deal of scholarly literature on the rules and legal materials courts should use in interpreting statutes. This book takes a fresh approach by focusing instead on what judges should do once the legal materials fail to resolve the interpretive question. It challenges the common assumption that in such cases judges should exercise interstitial lawmaking power. Instead, it argues that--wherever one believes the interpretive inquiry has failed to resolve the statutory meaning--judges can and should use statutory default rules that are designed to maximize the satisfaction of enactable political preferences; that is, the political preferences of the polity that are shared among enough elected officials that they could and would be enacted into law if the issue were on the legislative agenda. These default rules explain many recent high-profile cases, including the Guantanamo detainees case, the sentencing guidelines case, the decision denying the FDA authority to regulate cigarettes, and the case that refused to allow the attorney general to criminalize drugs used in physician-assisted suicide.

Liberalism with Excellence

Author: Matthew H. Kramer

Publisher: Oxford University Press

ISBN: 0191083844

Category: Political Science

Page: 456

View: 4696

During the past several decades, political philosophers have frequently clashed with one another over the question whether governments are morally required to remain neutral among reasonable conceptions of excellence and human flourishing. Whereas the numerous followers of John Rawls (and kindred philosophers such as Ronald Dworkin) have maintained that a requirement of neutrality is indeed incumbent on every system of governance, other philosophers — often designated as 'perfectionists' — have argued against the existence of such a requirement. Liberalism with Excellence enters these debates not by plighting itself unequivocally to one side or the other, but instead by reconceiving each of the sides and thus by redirecting the debates that have occurred between them. On the one hand, the book rejects the requirement of neutrality by contending that certain subsidies for the promotion of excellence in sundry areas of human endeavour can be proper and vital uses of resources by governments. Advocating such departures from the constraint of neutrality, the book presents a version of liberalism that can rightly be classified as 'perfectionist'. On the other hand, the species of perfectionism espoused in Liberalism with Excellence diverges markedly from the theories that have usually been so classified. Indeed, much of the book assails various aspects of those theories. What is more, the aspirational perfectionism elaborated in the closing chapters of the volume is reconcilable in most key respects with a suitably amplified version of Rawlsianism. Hence, by reconceiving both the perfectionist side and the neutralist side of the prevailing disputation, Liberalism with Excellence combines and transforms their respective insights.

Reflections on the Australian Constitution

Author: Robert Shenton French,Geoffrey Lindell,Cheryl Saunders

Publisher: Federation Press

ISBN: 9781862874626

Category: Law

Page: 266

View: 959

Leading Australian constitutional practitioners and scholars come together in this volume to reflect on 100 years of the Australian Constitution and on possible directions for the future. The essays are designed both to evaluate the Australian Constitution, in the light of the experience of the past 100 years, and to identify issues for the future. Most of the authors are prominent figures in Australian constitutional law at the turn of the past century. Some are distinguished in the practice of constitutional law: a former Chief Justice of Australia, Sir Anthony Mason; a senior Justice of the Federal Court of Australia, who also was the inaugural President of the Native Title Tribunal, Justice Robert French (recently appointed to the High Court of Australia); a leader of the constitutional Bar, David Jackson QC. Others are well-known constitutional scholars: Leslie Zines, George Winterton, Geoffrey Lindell, Brian Opeskin, George Williams, Cheryl Saunders, John Waugh and Christos Mantziaris. The two exceptions are equally distinguished, but for other reasons. Professor John White is a leader of the Australian scientific community. Professor Thomas Fleiner is a leading international constitutional scholar and a former president of the International Association of Constitutional Law. One of the strengths of the book is the breadth and depth of knowledge of its authors. In reflecting on their collective experiences over at least the last two decades of the 20th century, it adds an important new layer to the foundation of constitutional experience on which the next generation of scholars and practitioners may build.

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: 7333

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.

Adultery

Author: Deborah L. Rhode

Publisher: Harvard University Press

ISBN: 0674969774

Category: Law

Page: 270

View: 8811

Despite declining prohibitions on sexual relationships, Americans are nearly unanimous in condemning marital infidelity. Deborah Rhode explores why. She exposes the harms that criminalizing adultery inflicts—including civil lawsuits, job termination, and loss of child custody—and makes a case for repealing laws against adultery and polygamy.

Thinking about Statutes

Interpretation, Interaction, Improvement

Author: Andrew Burrows

Publisher: Cambridge University Press

ISBN: 1108693075

Category: Law

Page: N.A

View: 2816

We are in the age of statutes; and it is indisputable that statutes are swallowing up the common law. Yet the study of statutes as a coherent whole is rare. In these three lectures, given as the 2017 Hamlyn Lecture series, Professor Andrew Burrows takes on the challenge of thinking seriously and at a practical level about statutes in English law. In his characteristically lively and punchy style, he examines three central aspects which he labels interpretation, interaction and improvement. So how are statutes interpreted? Is statutory interpretation best understood as seeking to effect the intention of Parliament or is that an unhelpful fiction? Can the common law be developed by analogy to statutes? Do the judges have too much power in developing the common law and in interpreting statutes? How can our statutes be improved? These and many other questions are explored and answered in this accessible and thought-provoking analysis.

The Indigo Book

Author: Christopher Jon Sprigman

Publisher: Lulu.com

ISBN: 1892628023

Category: Citation of legal authorities

Page: 201

View: 6158

This public domain book is an open and compatible implementation of the Uniform System of Citation.

Principles of Equity

Author: Lord Henry Home Kames

Publisher: N.A

ISBN: N.A

Category: Equity

Page: 375

View: 9515