A Historically Grounded Analysis and Defense of the Judiciary's Power to Override Legislation "The modern assailants of judicial power will find little comfort in this volume. It consists mainly in a clear and able presentation of convincing evidence that the power of the courts to override laws repugnant to the spirit of the Constitution was directly contemplated by the framers of that instrument. (...) He does not rest his case here, but proceeds with a discussion of other evidence in support of his position. (...) It is to be hoped that this volume will find a large audience and thereby perform a great public service in tending to limit the effect of many ill-considered statements bearing upon the power given to the judiciary by the Constitution of the United States."P.R.B., Yale Law Journal 22 (1912-13) 67-68 J. Hampden Dougherty was a prominent New York City lawyer whose practice focused on tax issues and land and water use. He graduated from Columbia Law School in 1874 and was the author of numerous titles including Electoral System of the United States (1906) and Constitutional History of New York State (2nd ed. 1915).

This book challenges certain differences between contract, tort and equity in relation to the measure (in a broad sense) of damages. Damages are defined as the monetary award made by a court in consequence of a breach of contract, a tort or an equitable wrong. In all these causes of action, damages usually aim to put the claimant into the position the claimant would be in without the wrong. Even though the main objective of damages is thus the same for each cause of action, their measure is not. While some aspects of the measure of damages are more or less harmonised between contract, tort and equity (e.g. causation in fact and mitigation), significant differences exist in relation to (1) remoteness of damage, which is the question of whether, when and to which degree damage needs to be foreseeable to be recoverable; (2) the compensability of non-pecuniary loss such as pain and suffering, distress and loss of reputation; (3) the effect of contributory negligence, which is the victim's contribution to the occurrence of the wrong or the ensuing loss through unreasonable conduct prior to the wrong; (4) the circumstances under which victims of wrongs can claim the gain the wrongdoer has made from the wrong; and (5) the availability and scope of exemplary (or punitive) damages. For each of the five topics, this book examines the present position in contract, tort and equity and establishes the differences between the three areas. It goes on to scrutinise the arguments in defence of existing differences. The conclusion on each topic is that the present differences between contract, tort and equity cannot be justified on merits and should be removed through a harmonisation of the relevant principles.

This book explores some of the most glaring misunderstandings about the U.S. Supreme Court-and makes a strong case for why our Supreme Court Justices should not be entrusted with decisions that affect every American citizen. Supreme Myths: Why the Supreme Court is Not a Court and its Justices are Not Judges presents a detailed discussion of the Court's most important and controversial constitutional cases that demonstrates why it doesn't justify being labeled "a court of law." Eric Segall, professor of law at Georgia State University College of Law for two decades, explains why this third branch of the national government is an institution that makes important judgments about fundamental questions based on the Justices' ideological preferences, not the law. A complete understanding of the true nature of the Court's decision-making process is necessary, he argues, before an intelligent debate over who should serve on the Court-and how they should resolve cases-can be held. Addressing front-page areas of constitutional law such as health care, abortion, affirmative action, gun control, and freedom of religion, this book offers a frank description of how the Supreme Court truly operates, a critique of life tenure of its Justices, and a set of proposals aimed at making the Court function more transparently to further the goals of our representative democracy.

An authoritative guide designed for Illinois criminal trial attorneys, appellate practitioners, and judges. This book provides an in-depth review of the new Illinois Rules of Evidence along with the authors' commentaries and a compilation of the most recent Illinois decisions, statutes, and Supreme Court Rules. In addition to the new rules, the book addresses complementary Illinois common law evidence rules and provides a thorough constitutional analysis of evidence law. This comprehensive guide explains everything you need to know about the new Illinois Rules of Evidence and their impact on your daily criminal litigation practice. Ralph Ruebner is a Professor of Law and the Associate Dean for Academic Affairs at The John Marshall Law School. He has taught evidence, criminal procedure, and international human rights law. He previously served as the Executive Director of the John Marshall Law School Criminal Justice Clinic and as the Deputy State Appellate Defender in both the First and Second Appellate Districts in Illinois. He is a 1969 graduate of the American University Washington College of Law. Katarina Durcova is a Staff Attorney at the Criminal Division of the Circuit Court of Cook County. She is a 2011 graduate of The John Marshall Law School and was a John Marshall Law School Library Research Fellow. She previously worked as a judicial extern for Justice Margaret O'Mara Frossard (ret.) at the First District of the Illinois Appellate Court and as a summer law clerk in the Pre-Trial Chamber of the International Criminal Tribunal for the former Yugoslavia in the Hague, the Netherlands.

Technology has had a prevalent impact on nearly all social domains, one being the judicial system. Advancements such as computer-generated demonstrations and electronic filing can enhance presentations and give a clearer, well-organized case.""E-Justice: Using Information Communication Technologies in the Court System"" presents the most relevant experiences and best practices concerning the use and impact of ICTs in the courtroom. This groundbreaking title draws upon the leading academic and practicing perspectives from around the globe to provide academics and professionals throughout the legal system with the most comprehensive overview of present developments in e-justice.

The central argument of this book explores the disillusionment that Australians feel with regard to the way politics is conducted. The book explores causes of that disillusionment, and argues that because these are ultimately traceable to defects in the constitution, it is only through constitutional reform that government can be improved. This book argues that the current approach to constitutional debate suffers from the flaw of being anti-theoretical, in the sense that it is not grounded in any set of values, and is afflicted by a tendency to consider practical objections to reform before considering the moral case for it. This book argues that instead of accepting the constitution as it is, it is time we began to discuss how it ought to be, taking human dignity as the fundamental value upon which a constitution should be based. It then puts the case for change in a number of areas, including reform of the electoral system, enhanced parliamentary scrutiny of the executive, the inclusion in the constitution of a full bill of rights, the abolition of the federal system, realisation of the rights of Indigenous people, codification of constitutional conventions either in conjunction with or separately from an Australian republic, reform of the rules of standing in constitutional matters and, finally, the need to improve civics education. This book is designed to be provocative in the way that it directly challenges current academic orthodoxy. This book also outlines a proposed draft new constitution. This book will be of interest to anyone who is concerned about how Australia is governed and why it has been so difficult to achieve constitutional reform.

How do judges sentence? In particular, how important is judicial discretion in sentencing? Sentencing guidelines are often said to promote consistency, but is consistency in sentencing achievable or even desirable? Whilst the passing of a sentence is arguably the most public stage of the criminal justice process, there have been few attempts to examine judicial perceptions of, and attitudes towards, the sentencing process. Through interviews with Scottish judges and by presenting a comprehensive review and analysis of recent scholarship on sentencing - including a comparative study of UK, Irish and Commonwealth sentencing jurisprudence - this book explores these issues to present a systematic theory of sentencing. Through an integration of the concept of equity as particularised justice, the Aristotelian concept of phronesis (or 'practical wisdom'), the concept of value pluralism, and the focus of appellate courts throughout the Commonwealth on sentencing by way of 'instinctive synthesis', it is argued that judicial sentencing methodology is best viewed in terms of a phronetic synthesis of the relevant facts and circumstances of the particular case. The author concludes that sentencing is best conceptualised as a form of case-orientated, concrete and intuitive decision making; one that seeks individualisation through judicial recognition of the profoundly contextualised nature of the process.

This Short Introduction looks at judging and reasoning from three perspectives: what legal reasoning has been; what legal reasoning is from the view of judges and jurists; and what legal reasoning is from the view of a social scientist epistemologist or humanities specialist. Geoffrey Samuel begins by identifying the main institutional focal points of legal reasoning (ius, regulae iuris, Interpretatio, utilitas and actiones). While examining legal reasoning from both an internal and external viewpoint, the book simultaneously incorporates theory and scholarship from a range of other disciplines including social science and film studies. The author also includes a discussion of fiction theory, schemes of intelligibility, and other epistemological issues as well as standard reasoning devices such as induction, deduction and analogy. Combining cases and materials with original text, this unique, concise format is designed to be accessible for students who are starting out on their law programs, as well as providing insights for students and researchers who would like to examine judging and legal reasoning in more depth.

Smith introduces a new concept, "critical judicial nominations," to advance scholars' understanding of the consequences of the federal nomination process for the Supreme Court and the American political system. The study suggests that specific events related to the judicial branch, namely "critical judicial nominations," have significant unanticipated consequences for the Supreme Court's role in the political system, as well as for electoral politics. This is demonstrated in illustrative historical examples which, most importantly, include an in-depth case study of the Clarence Thomas nomination and its subsequent ramifications.

Since the first edition of this popular text was published in 1984, the Charter of Rights and Freedoms has transformed the role of the courts in Canadian politics. Newly revised and updated, Law, Politics, and the Judicial Process in Canada, 4th Edition provides an introduction to the issues raised by the changing political role of Canadian judges. It includes over 40 new readings, including two all-new chapters on the Harper Conservatives and Aboriginal Law. Addressing current controversies, including the Canadian Judicial Council's investigations into Justice Robin Camp and Lori Douglas and the Trudeau Government's re-introduction of the Court Challenges Program, this book strives for competing perspectives, with many readings juxtaposed to foster debate. Taking a critical approach to the Charter of Rights and Freedoms and the growth of judicial power, editors F.L. Morton and Dave Snow provide an even-handed examination of current and ongoing issues. Law, Politics, and the Judicial Process in Canada, 4th Edition is the leading source for students interested in the Charter of Rights and Freedoms and the growth of judicial power in Canada.

Meet Thaddeus Sikorski, a herculean third-generation American, courageous, persevering, and surprisingly steadfast father of this tragic odyssey to love and protect his angel children. After losing his first love, 18-year-old Thad enlist, and goes on to become a Vietnam War combatant, a San Francisco progressive street revolutionary, a graduate business student, an Internet-related technology visionary, husband, and a global business leader. In between entrepreneurial misadventures, he manages to save the life of an American President, struggles with a psychopathy attorney and murderer, discovers the truth about Silicon Valley's justice system, experiences the economic hollowing out brought on by the outsourcing of Silicon Valley technologies, and survives the emotions of remaining true to his love for his children. This extraordinary journey travels through three decades of the American technology and cultural landscape. Author Richard Kusiolek paid much attention to the details of everyday life of an entrepreneur in Silicon Valley. Angels in the Silicon encapsulates the experience of living in Silicon Valley for three decades of rapid technology progress, economic change, and a politically correct progressive judiciary. The novel, "Angels in the Silicon," has a powerful American story to tell. You will learn the naked truth of living in Northern California's Silicon Valley.

'Reforming Justice' calls for justice to be repositioned more centrally in evolving notions of equitable development. Justice is fundamental to human well being and essential to development. Over the past fifty years, however, overseas development assistance - foreign aid - has grappled with the challenge of improving 'the rule of law' with underwhelming and often dismal results around the world. Development agencies have supported legal and judicial reforms in order to improve economic growth and good governance, but are yet to address mounting concerns about equity and distribution. Building on new evidence from Asia, Livingston Armytage argues that it is now time to realign the approach to promote justice as fairness and equity.

This two-volume set investigates the concept, institutionalization, models and mechanism of mediation, an important form of alternative dispute resolution within China’s legal system. Grounded in traditional dispute resolution practices throughout Chinese history, mediation is born out of the Chinese legal tradition and considered to be “Eastern� in nature. Seeking to explore how mediation has developed in order to function in a modernized society, the first volume looks into the legal foundations of Chinese mediation as well as paths to the institutionalization and professionalization of mediation. The second volume examines the development of diversified dispute resolution via the elucidation of eight major types of mediation in China. By reviewing its history and enquiring into trends and prospects, the authors seek to establish a mediation system that incorporates diversified models, institutionalized and noninstitutionalized approaches, changing contexts, and a range of dimensions for society. This title will serve as a crucial reference for scholars, students and related professionals interested in alternative dispute resolution, civil litigation, and especially China’s dispute resolution policy, law, and practice.

Written for social scientists who study the judiciary, legal scholars, judges, and others who are interested in the workings of the federal courts, this volume offers a comprehensive examination of the role of U.S. magistrates--the relatively invisible subordinate judicial officers within the federal district courts. The study is unique in its use of an observation methodology: the author was able to study U.S. magistrates during all of their daily activities and observe their interactions with other actors in the federal judiciary. Particularly valuable are its insights into such functions as pretrial conferences, meetings with litigants, and other situations normally beyond the purview of scholars and the public. The author focuses throughout on both the development of the magistrates' varied roles and their consequences for the federal judicial system.

After examining magistrates' roles within several representative courts in detail, the author analyzes the factors which influence the development of these diverse roles and identifies the specific effects--both planned and unplanned--that the subordinate judicial officers have upon the court system. Smith refutes a commonly held view that district judges control the definition of magistrates' roles and concludes that in some cases, especially with regard to the coercion of litigants, the magistrate systeM's effects cannot be seen to be completely beneficial. In addition, the book contains an in-depth study of the appointment process for magistrates complete with a case history of the merit selection committee process. The author documents the influence of district judges over the merit selection process, adding concrete support to scholarly arguments about the inherently political nature of judicial selection.

The criminal trial is under attack. Traditional principles have been challenged or eroded; in England and Wales the right to trial by jury has been restricted and rules concerning bad character evidence, double jeopardy and the right to silence have been substantially altered to "rebalance" the system in favour of victims. In the pursuit of security, particularly from terrorism, the right to a fair trial has been denied to some altogether. In fact trials have for a long time been an infrequent occurrence, most criminal convictions being the consequence of a guilty plea. Moreover, while this very public struggle over the future of the criminal trial is conducted, there is also a less publicly observed controversy about the significance of trials in modern society. Trials are under normative attack, their value being doubted by those who seek different kinds of process - conciliatory or restorative - to address the needs of victims and move away from the imposition of state power through trials and punishments. This book seeks to develop a normative theory of the criminal trial as a way of defending the importance of trials in our criminal justice system. The trial, it is suggested, calls defendants to answer a charge and, if they are criminally responsible, to account for their conduct. The trial is seen as a communicative process through which the defendant can challenge claims of wrongdoing made against him, including the norms in the light of which those claims are made. The book develops this communicative theory by first making a careful study of the history of trials, before moving on to outline the theory, which is then developed through chapters looking at the practices and principles of trials, alternative regulatory models, the roles of participants, the relationship between investigation and trial and trials as public fora.

This book offers a new interpretation of judicial review in England and Wales as being concerned with the advancement of justice and good governance, as opposed to being concerned primarily with ultra vires or common law constitutionalism. It is developed both from examining the functions and values that ought to be served by judicial review, and from analysis of empirical 'social' facts about judicial review primarily as experienced in the Administrative Court. Based on ground-up case law analysis it constructs a new taxonomy on the grounds of judicial review: mistake, procedural impropriety, ordinary common law statutory interpretation, discretionary impropriety, relevant/irrelevant considerations, breach of an ECHR protected right or equality duty, and constitutional allocation of powers, constitutional rights, or other complex constitutional principles. It explains each of these grounds, what academic and judicial support there might be for them outside case law analysis, and their similarities and differences when viewed against popular existing taxonomies. It concludes that Administrative Court judges are engaged in ordinary common law statutory interpretation in approximately half of all cases, and that where discretionary judgement is involved on the part of the initial decision-maker, judges do indeed consider their task to be one of determining whether the challenged decision was justified by reasoning of adequate quality. It finds that judges apply ordinary common law principles of statutory interpretation with historical pedigrees, including assessing the initial decision-maker's reasoning with reference to statutory purpose, and sifting relevant from irrelevant considerations, including moral considerations. The result is a ground-breaking reassessment of the grounds of judicial review in England and Wales and the practice of the Administrative Court.

There are more than 600 Federal district judges serving today, and they decide some 230,000 civil cases each year. About 90% of the decisions they reach are final. Lyles argues that these lower court judges not only influence the flow of information to the judicial hierarchy, but they formulate questions that influence how higher courts, including the Supreme Court, respond. As such they are key elements in the formulation and implementation of public policy. To cite a few examples, they desegregate school districts, run mental institutions and prisons, break up monopolies, and reapportion legislatures. Lyles begins by examining the structure and function of federal courts and detailing the history, operation, and purpose of the district courts. He then turns to the selection, nomination, and appointment of district judges. Lyles then analyzes the extent to which presidents might advance policy objectives through their judicial appointments to the district courts. After examining how African-American, Latino, and white judges, male and female, view their roles as policy actors, Lyles concludes with a discussion of the implications of the study. Important for students and scholars of contemporary public policy and the court system.

The first full-scale historical account of the rise and growth of the jury system in England. The American edition adds a number of notes, as well as making several corrections to American references.

For decades it seemed clear that EC competition law was enforceable effectively at the national level, and ECJ case law has continued to bear this out. In recent years, however, the Commission has been proposing harmonization of national rules of procedure in competition cases, implying that procedural autonomy is insufficient on its own to produce an effective enforcement system in this area. As the authors of this book clearly demonstrate, this suggests a binary system governing the enforcement of EC Articles 81 and 82: namely, that led by the Commission through directives and eventual regulations, and that built on ECJ principles in areas not dealt with by such Community instruments. This book describes and analyzes not only the specific Commission recommendations, but also the manner and extent to which these recommendations are or may be implemented in civil procedure. In particular, the authors consider changes which may be required if these recommendations are incorporated into Dutch and English rules of civil procedure. Also addressed are elements of procedure not mentioned by the Commission but which might usefully be considered in the context of ECJ principles of effectiveness, equivalence and effective judicial protection of rights. At the heart of the study is a detailed analysis of the Commission White Paper on Damages Actions and the Commission Staff Working Paper, both issued early in 2009. The in-depth analysis ranges over procedural aspects of such elements as the following: - standing; - disclosure and access to evidence; - burden of proof; - fault/no fault; - costs of damages actions; - injunctions; - civil versus administrative enforcement; - limitations; - leniency programmes; - collective actions; - confidentiality; and - forms of compensation. Anticipating as it does a looming impasse in European competition law, this remarkable book sheds defining light on the real implications of EC competition law for parties to damages actions, not only in the national systems studied but for all Member States. For practitioners and jurists it offers a particularly useful approach to the handling of cases involving European competition law, and also serves as a guide to current trends and as a clarification of doctrine.

This book demonstrates the use of the personal computer as an integral component of legal decision making. Nagel begins with an overview of the use of microcomputers as a tool in the legal decision-making process. He reviews in detail the currently available decision-aiding software. Several important areas of decision-making are covered, including predicting the outcome of future cases in light of previous relevant cases and present facts; litigation choices such as whether to go to trial or to settle; allocating attorney resources; and negotiating and mediating. The book can help one's law practice more profitable, less time-consuming, and more competitive.

This book examines how alcohol intoxication impacts upon the memory of rape victims and provides recommendations for how best to investigate and prosecute such rape complaints. An estimated 75% of victims are under the influence of alcohol during a sexual assault and yet there is surprisingly little guidance on conducting interviews with complainants who were alcohol-intoxicated during the attack. This book will provide a distinctive, rigorous and important contribution to knowledge by reviewing the evidence base on the effects of alcohol on memory performance. The book brings together a range of academics from various disciplines, including psychology, law and criminology, and it discusses the implications for practice based on consultation with various criminal justice practitioners, including police officers, barristers who defend and prosecute rape cases and policy makers.

Judges don't just discover the law, they create it. A renowned and much-used analysis of the process of judicial decision-making, now in a library-quality cloth edition with modern formatting and presentation. Includes embedded page numbers from the original 1921 edition for continuity of citations and syllabi. Features a new, explanatory Foreword by Justice Cardozo's premier biographer, Andrew L. Kaufman, senior professor at Harvard Law School and author of "Cardozo" (Harvard Univ. Press, 1998).Justice Benjamin Nathan Cardozo (1870-1938) offered the world a candid and self-conscious study of how judges decide cases and the law - they are lawmakers and not just law-appliers, he knew - all drawn from his insights and experience on the bench in a way that no judge had done before. Asked the basic questions, "What is it that I do when I decide a case? To what sources of information do I appeal for guidance?," Cardozo answered them in his methodical, rich, and timeless prose, explaining the proper use of such decisional tools as logic and analogy to precedent; analysis of history and tradition; application of public policy, community mores, and sociology; and even the subconscious forces that drive judges' decisions. This book has impacted the introspective examination of the lawmaking process of the courts in a way no other book has had. It continues to be read today by lawyers and judges, law students and scholars, historians and political scientists, and philosophers - among others interested in how judges really think and the tools they employ.Judges are people, and lawmakers, too. "The great tides and currents which engulf the rest of men, do not turn aside in their course, and pass the judges by. We like to figure to ourselves the processes of justice as coldly objective and impersonal. The law, conceived of as a real existence, dwelling apart and alone, speaks, through the voices of priests and ministers, the words which they have no choice except to utter. ...It has a lofty sound; it is well and finely said; but it can never be more than partly true." Beyond precedential cases and tradition, judges make choices, using methods of analysis and biases that ought to be examined.Famous at the time for his trenchant and fluid opinions as a Justice on New York's highest court - he is still studied on questions of torts, contracts, and business law - and later a Justice of the U.S. Supreme Court, Cardozo filled the lecture hall at Yale when he finally answered the frank query into what judges do and how do they do it. The lectures became a landmark book and a source for all other studies of the ways of a judge. Brought to a new generation by Professor Kaufman, and presented as part of the properly formatted Legal Legends Series of Quid Pro Books, this edition is the understandable and usable rendition of a classic work of law and politics.