The Court of Justice of the European Union has often been characterised both as a motor of integration and a judicial law-maker. To what extent is this a fair description of the Court's jurisprudence over more than half a century? The book is divided into two parts. Part one develops a new heuristic theory of legal reasoning which argues that legal uncertainty is a pervasive and inescapable feature of primary legal material and judicial reasoning alike, which has its origin in a combination of linguistic vagueness, value pluralism and rule instability associated with precedent. Part two examines the jurisprudence of the Court of Justice of the EU against this theoretical framework. The author demonstrates that the ECJ's interpretative reasoning is best understood in terms of a tripartite approach whereby the Court justifies its decisions in terms of the cumulative weight of purposive, systemic and literal arguments. That approach is more in line with orthodox legal reasoning in other legal systems than is commonly acknowledged and differs from the approach of other higher, especially constitutional courts, more in degree than in kind. It nevertheless leaves the Court considerable discretion in determining the relative weight and ranking of the various interpretative criteria from one case to another. The Court's exercise of its discretion is best understood in terms of the constraints imposed by the accepted justificatory discourse and certain extra-legal steadying factors of legal reasoning, which include a range of political factors such as sensitivity to Member States' interests, political fashion and deference to the 'EU legislator'. In conclusion, the Court of Justice of the EU has used the flexibility inherent in its interpretative approach and the choice it usually enjoys in determining the relative weight and order of the interpretative criteria at its disposal, to resolve legal uncertainty in the EU primary legal materials in a broadly communautaire fashion subject, however, to i) regard to the political, constitutional and budgetary sensitivities of Member States, ii) depending on the constraints and extent of interpretative manoeuvre afforded by the degree of linguistic vagueness of the provisions in question, the relative status of and degree of potential conflict between the applicable norms, and the range and clarity of the interpretative topoi available to resolve first-order legal uncertainty, and, finally, iii) bearing in mind the largely unpredictable personal element in all adjudication. Only in exceptional cases which the Court perceives to go to the heart of the integration process and threaten its acquis communautaire, is the Court of Justice likely not to feel constrained by either the wording of the norms in issue or by the ordinary conventions of interpretative argumentation, and to adopt a strongly communautaire position, if need be in disregard of what the written laws says but subject to the proviso that the Court is assured of the express or tacit approval or acquiescence of national governments and courts.

The study of language and law has seen explosive growth in the past twenty-five years. Research on police interrogations, trial examination, jury deliberation, plea bargains, same sex marriage, to name a few, has shown the central role of written and oral forms of language in the construction of legal meaning. However, there is another side of language that has rarely been analyzed in legal settings: the role of gesture and how it integrates with language in the law. This is the first book-length investigation of language and multimodal conduct in the law. Using audio-video tapes from a famous rape trial, Matoesian and Gilbert examine legal identity and impression management in the sociocultural performance of precedent, expert testimony, closing argument, exhibits, reported speech and trial examination. Drawing on insights from Jakobson and Silverstein, the authors show how the poetic function inheres not only in language but multimodal conduct generally. Their analysis opens up new empirical territory for both forensic linguistics and gesture studies.

Despite the fact that the case-law of the European Court of Justice on employment related issues has become increasingly erratic of late,there is no denying the centrality of the Court's role in the development of EC employment law. Though concentration on the work of the Court of Justice may no longer be in vogue, this book examines its contribution in the employment law field in its political and economic context, as well as with reference to the juridical structures within which the Community's judicial arm is obliged to operate. The objective is not simply to critique the employment jurisprudence of the Court but also to examine the procedural, operational and structural context in which the Court of Justice is obliged to work and to reflect on how this context may affect the jurisprudential outcome. The book focuses, in particular, on the shortcomings of the preliminary reference procedure. When the Court of Justice hands down decisions in the employment law field, Article 234 EC dictates a particular type of judicial dialogue between it and the national referring courts. It is contended that the dual dispute resolution/public interest nature of the Court's role in the preliminary reference procedure goes some way to explaining why its answers are often regarded as unsatisfactory from the perspective of the referring court and "users" of EC law generally. The book further outlines the developing Community policy on employment and reflects on the effect which this nascent policy may have on the balancing exercises which the Court is inevitably called upon to perform in a variety of social policy contexts. Finally, part two of the book examines specific substantive areas of EC employment law. The policy considerations at play in the case-law of the Court are discussed in detail, as is the coherence of this case-law with the Community's political stance on employment.

"The Pursuit of Justice" is a realistic yet hopeful analysis of how the law works in practice rather than in theory. The multi-chapter discussion recognizes that decision makers in the law -- judges, lawyers, juries, police, forensic experts and more -- respond systematically to the incentive structures with which they are confronted. In turn, incentives are a function of economic and institutional design. While these chapters shed light on how perverse incentives result in adverse outcomes, each chapter also suggests institutional reforms that would create better incentives within the legal system.

George W. Niven was a lawyer and con-man who cheated his victims, all incarcerated prostitutes, pickpockets and other petty criminals, by promising legal help and taking their meager property in exchange. Since it involved a corrupt lawyer, criminals and venal jailors, his trial was a perfect subject for a trial report, one of the most popular genres of antebellum literature. This trial, frequently cited in later histories of American law, is equally important as an early source for the history of legal malpractice litigation in the U.S. and its description of the practice of a lawyer at the margins of the profession. The affidavits of Niven's victims also provides a great deal of vital information about the daily lives of prisoners in the early decades of the Republic. William Sampson 1764-1836] was an Irish rights activist whose part in the Uprising of 1798 led to his relocation to New York, where he engaged in a successful law career.

This book on the EU Private Damages Directive (PDD) offers an in-depth discussion of selected issues of interpretation of the PDD. The Directive sets out certain rules necessary to ensure that anyone who has suffered harm caused by an infringement of competition law by an undertaking or by an association of undertakings, can effectively claim full compensation for that harm from that undertaking or association.Each section corresponds with a chapter of the PDD and commences with a description of the general context within which the specific questions must be placed and understood. The outcome of the actual discussion is then provided in a Q&A format. The chapters are the result of a Closed Workshop organised on 21 May 2015 in Brussels, Belgium and which was attended by a group of competition law specialists from the majority of the EU Member States.

Solimine and Walker provide a comprehensive examination of all the major issues revolving around judicial federalism- the sharing of judicial power between the 50 states and the federal government. They make the case that the existence and operation of this system is healthy for the development of law and the protection of liberty.

This theme is developed through a discussion of the major issues in the literature of judicial federalism: federalism and rights, the parity of the state and federal courts, the civil litigation system, state court interpretations of their own constitutions, and the relationship of ideology to judicial federalism. Recognizing that there are and always have been serious shortcomings in this system, the author points out that these problem areas can be remedied; the start of this remedial process necessitates a respect for the judicial institutions of the state. Solimine and Walker envision the beginning of a dialogue among practitioners, academics, and concerned citizens on how best to improve the current system in order to halt the threats to diversity posed by increasing federal domination of the judicial system.

John Appleton was a prominent American lawyer who practiced in and around Bangor, Maine, beginning in the early 1820s and earned a national reputation as Chief Justice of Maine's supreme court. Through a study of Appleton's life and thought, Gold shows how the commitment to individual liberty and personal responsibility helped shape nineteenth-century American law. By tracing Appleton's life and law practice, the book addresses an aspect of early American culture that has received little attention--the nature of American individualism as embodied in the law. The book contributes to American legal historiography in other ways. It is one of just a handful of serious studies of state judges. It adds to the current revisionist interpretation of laissez-faire constitutionalism. Finally, it sheds light on some little studied areas of legal history, in particular the history of the law of evidence. Recently some historians have recognized that law in the nineteenth century incorporated broadly held social values or world-views, and a few have written on the relationship between law and individualism. Gold contends these scholars have associated American individualism with self-reliance in the nineteenth century and nonconformity in the twentieth. Gold shows there is another side to individualism with self-reliance in the nineteenth century and nonconformity in the twentieth. Americans lived in society, therefore, their relations with one another had to be ordered. While they believed in freedom of action, they also believed that individuals had to be responsible for the effects of their actions on others. The book is ideal reading for all students of American legal history in particular and American history in general.

The Japanese legal system is at a crossroads. The contributors to this book explore the most important features of the adversary process as it works in the Japanese criminal justice system. Topics include the right to remain silent, wire tapping, the role of defense counsel, plea bargaining, the power of prosecutors, juvenile justice and judicial independence. Many of the essays seek comparison with practices in Anglo-American countries.

This is the first book to offer an extensive cosmopolitan, cross-cultural insight into the perennial controversy over the use of improperly obtained evidence in criminal trials. It challenges the conventional view that exclusionary rules are idiosyncratic of Anglo-American law, and highlights the 'constitutionalisation' and 'internationalisation' of criminal evidence and procedure as a cause of rapprochement (or divergence) beyond the Anglo-American and Continental law divide. Analysis focuses on confessional evidence and evidence obtained by search and seizure, telephone interceptions and other means of electronic surveillance. The laws of England and Wales, France, Greece and the United States are systematically compared and contrasted throughout this study, but, where appropriate, analysis extends to other Anglo-American and Continental legal systems. The book reviews exclusionary rules vis-a-vis the operation of judicial discretion, and explores the normative justifications that underpin them. It attempts to reinvigorate the idea of excluding evidence to protect constitutional or human rights (the rights thesis), arguing that there is significant scope for Anglo-American and Continental legal systems to place a renewed emphasis on it, particularly in relation to confessional evidence obtained in violation of custodial interrogation rights; we can locate an emerging rapprochement, and unique potential for European Court of Human Rights jurisprudence to build consensus in this respect. In marked contrast, remaining divergence with regard to evidence obtained by privacy violations means there is little momentum to adopt a reinvigorated rights thesis more widely. Longlisted for the Inner Temple Book Prize 2022.

This book, one of the very first monographs on the Hungarian Constitutional Court available in English, is a unique study of the birth of a new legal system after the collapse of communism in Central and Eastern Europe. It shows that the genesis of the new legal order was determined by massive Western involvement and an unprecedented movement of export/import of law. Anchored in a detailed comparative study of German and Hungarian constitutional case law on human dignity, this book argues that law importation was a deliberate strategy carried out by the Hungarian Court in the early years of its operation. It explains how the circumstances of the transition and the background of the importers determined the choice of German case law as a model and how the Court used it to construct its own version of the right to human dignity. It highlights the Hungarian Court's instrumentalization of imported law in order to lay the foundations of a new conception of fundamental rights. While focusing on the Hungarian experience, this book engages with international debates and provides an original theoretical framework for approaching the movement of law from the importers' perspective.

While it is easy to assume that the system of criminal justice in nineteenth-century England was not unlike the modern one, in many ways it was very different, particularly before the series of Victorian reforms that gradually codified a system dependent on judge-made precedent. In the first half of the century capital cases often tried almost summarily, with the accused not being adequately represented and without a system of appeal. There were also fundamental differences in procedure and in the rules of evidence, as indeed there were in attitudes towards crime and criminals. David Bentley has provided an account of the nineteenth-century criminal justice system as a whole, from the crimes committed and the classification of offences to the different courts and their procedure. He describes the stages of criminal prosecution -- committal, indictment, trial, verdict and punishment -- and the judges, lawyers and juries, highlighting significant changes in the rules of evidence during the century. He looks at the reform of the old system and assesses how far it was brought about by lawyers themselves and how far by external forces. Finally, he considers the fairness of the system, both as seen by contemporaries and in modern terms.

This book identifies institutional mechanisms that can be used to promote consumer confidence in direct online sales with businesses (B2C e-commerce). It argues that enhancing the access to justice in a multidimensional sense can potentially offer an effective means of boosting consumer confidence. It introduces a conceptual framework for a multidimensional approach to access to justice in the context of consumer protection, describing the various reasonable criteria needed to satisfy consumer demands in B2C e-commerce. The framework, which reflects all essential aspects of consumers' expectations when they engage in online transactions, provides a benchmark for the evaluation of various consumer protection mechanisms. Based on an analysis of different mechanisms and using the framework's criteria, the practice of private ordering, which does not rely on the creation of rules of law but rather on the use of technology as a solution, appears to offer a meaningful way to enhance access to justice in B2C e-commerce. However, though private ordering holds considerable potential, certain weaknesses still need to be eliminated. This book demonstrates how private ordering can be successfully implemented with the help of an intermediary, a neutral third party that plays an integral part in the collaborative task of facilitating various aspects of private ordering, thus helping to limit the risks of failure and ensuring a fairer market setting. In order to move forward, it argues that the state, with its wealth of material resources and incentive options, is the institution best suited to acting as an intermediary in facilitating private ordering. This promising proposal can improve consumer protection, which will in turn boost consumer confidence.

'The role of the European judiciary in the process of European integration cannot be overestimated. The achievements of European integration after the second world war are usually analyzed from the perspective of political decisions that were made, initially, by the Founding Fathers and, subsequently, by the political leaders of the European countries. However, in the public debate we very often forget how much we owe to the two supreme jurisdictions of Europe, that is the Court of Justice of the European Union and the European Court of Human Rights. The continuing extension of the competences of the European Union, especially in the field of economic and monetary policy, calls for a new assessment of the nature of the decision-making process at the European level.'-- From the foreword by Prof. Maciej Szpunar, Advocate General at the Court of Justice of the European Union'The European judiciary i.e. the Court of Justice of the European Union (CJEU), the European Court of Human Rights (ECtHR) and national courts interpreting and applying European law sensu largo have shaped [the process of European integration] actively, alongside the Founding Fathers, European nations, European states and their citizens. The involvement of the judiciary raises its own wide range of questions concerning the very nature of democracy. Much ink has already been spilled over issues such as democratic legitimacy, subsidiarity and accountability, the rule of law or judicial activism.[...] seventeen scholars from across Europe [...] share their views on the European judiciary as a challenge for democracy. The various contributions to the present volume are split into two parts. The first provides ten chapters on the judicial systems of the European Union (EU), discussing, inter alia, recognition of democratic principles in the case law of the CJEU, contribution thereof to the democratisation of the Union and reception of EU law in the Member States. The second part discusses the judicial means to protect human rights in Europe, consisting of three chapters devoted to the promise of advisory opinions of the ECtHR as well as to democratic standards for voting and for fair trial.'-- From the preface by the Editors'[...] the editors, authors and the publisher of this volume decided to take a closer look at the relation between democracy and activities of something that might be called ''European judicial systems''. And what is intriguing these systems are perceived here as a challenge for democracy.[...] This book does not exhaust all problems and issues for European judicial systems confronted with the very notion of democracy; there are simply too many of them. But it comes with a fresh look on perhaps the most pertinent ones, like the issue of the legal creativity of judges in both Luxembourg and Strasbourg. It was worth waiting for this volume.'-- Prof. Dr. Paul De Hert, Free University Brussels and Tilburg University

International arbitration has become the favored method of resolving disputes between business partners in almost every aspect of international trade, commerce, and investment. The resolution of a dispute by means of international arbitration provides the parties with an opportunity to resolve their disputes in a private, confidential, cost and time efficient manner before a neutral tribunal of their choice. However, challenges to arbitral jurisdiction have become a common practice in the field. Resolution of such challenges may significantly delay the resolution of the parties' primary substantive dispute, increase overall dispute resolution costs and even whittle down the benefits of the parties' bargain to arbitrate. Accordingly, adopting a proper approach to the resolution of such disputes becomes crucial to the efficacy of international arbitration as a system of dispute resolution. The present book provides a comparative analysis of the practice of three carefully selected legal orders: the English, German and Swiss and outlines possible ways forward. As the work strikes a balance between theory and practice, it will appeal to practitioners, researchers, but also students looking to develop their understanding of the international arbitration field.

This remarkably original and vital work argues that the problems are rooted in a disjunction between prevailing values and the prevailing doctrinal regime in constitutional law. Dripps asserts that the Fourteenth Amendment's more general standards of due process and equal protection encompass the values that ought to govern the criminal process.

Why does the American criminal justice system punish too many innocent people, failing to punish so many guilty parties and imposing a disproportionate burden on blacks? This remarkably original and vital work argues that the problems are rooted in a disjunction between prevailing values and the prevailing doctrinal regime in constitutional law. Dripps asserts that the Fourteenth Amendment's more general standards of due process and equal protection encompass the values that ought to govern the criminal process.

Criminal procedure ought to be about protecting the innocent, punishing the guilty, and doing equal justice. Modern legal doctrine, however, hinders these pursuits by concentrating on the specific procedural safeguards contained in the Bill of Rights. Dripps argues that a renewed focus on the Fourteenth Amendment would be more consistent than current law with both our values and with the legitimate sources of Constitutional law, and will promote the instrumental values the criminal process ought to serve. Legal and constitutional scholars will find his account of our criminal systeM's disarray compelling, and his argument as to how it may be reconstructed important and provoking.

This timely collection examines the record of current and recent justices in fashioning the Constitution and looks at the larger political context in which their work has occurred. The eight essays, written by distinguished scholars of the Supreme Court, review the achievements of current Justices O'Connor and Rehnquist as well as recent justices Douglas, Black, and Harlan. The essay on Justice O'Connor is one of the first overall assessments of her record to appear in print. Editor D. Grier Stephenson, Jr.'s introductory chapter presents an insightful overview of the Supreme Court's role in American government today. Collectively these chapters make a rich contribution to an understanding of constitutional government and render a complex subject both accessible to general readers and interesting to experts. Following editor Stephenson's cogent introduction, Henry AbrahaM's Can Presidents Really Pack the Supreme Court? focuses on the political and intellectual environments within which the Supreme Court functions and on the candidates selected by presidents to sit on the High Bench. In Chapter Three, former solicitor general Rex E. Lee zeroes on a central aspect of, and a key player in, the judicial process. Leadership and the relationships among the justices are the subject of Chapter Four. Harold J. Spaeth's essay on Justice Sandra Day O'Connor emphasizes personality as an element contributing to the Court's decisions. The legacy of Justice William O. Douglas and the impact of the Court's past on its present decisions are both examined by Walter Murphy. Similarly, the next chapter's study of Justice John Marshall Harlan shows the importance of the Constitutional legacy in understanding the Supreme Court. Affirmative Action and the Supreme Court reviews the responses of current members of the Court to one of the most divisive and significant policy questions of our time. The concluding essay surveys Chief Justice Rehnquist and the Future of the Supreme Court. This volume is important reading for students of law, history, and political science.

An extensive exploration of the major decisions and personalities of the Supreme Court during the 14-year tenure of Chief Justice Morrison Remick Waite. The Waite Court: Justices, Rulings, and Legacy presents a fresh interpretation of the Supreme Court under the tenure of Chief Justice Morrison Remick Waite (1874-1888). An in-depth analysis of key decisions demonstrates how the Waite Court confronted such profound issues as the post-Civil War rights of African Americans and state regulations intended to cope with rampant industrialization. Highlighting the Court's most famous decision, Munn v. Illinois, which upheld legislation regulating railroad and grain elevator rates, this careful analysis also reviews the Court's unique involvement in the 1876 presidential election electoral predicament. Profiles of the 15 justices who served on the Waite Court include extensive descriptions of the five that rank among the most outstanding justices ever to serve on the Supreme Court. A-Z entries on key people, laws, cases, events, and concepts that were relevant during the Waite Court era, including the growing volume of state economic regulations enacted to cope with industrial expansion and urban growth fueled by the Civil War and by a nationwide rail network for people and goods An appendix including a timeline of important events for the years 1865 through 1890, plus excerpts from other important source materials, such as landmark decisions of the Waite Court

This provocative book brings together twenty-plus contributors from the fields of law, economics, and international relations to look at whether the U.S. legal system is contributing to the country's long postwar decline. The book provides a comprehensive overview of the interactions between economics and the law - in such areas as corruption, business regulation, and federalism - and explains how our system works differently from the one in most countries, with contradictory and hard to understand business regulations, tort laws that vary from state to state, and surprising judicial interpretations of clearly written contracts. This imposes far heavier litigation costs on American companies and hampers economic growth.

Drawing on representative corpora of transcripts from over 100 English criminal jury trials, this stimulating new book explores the nature of 'legal-lay discourse', or the language used by legal professionals before lay juries. Careful analyses of genres such as witness examination and the judge's summing-up reveal a strategic tension between a desire to persuade the jury and the need to conform to legal constraints. The book also suggests ways of managing this tension linguistically to help, not hinder, the jury.