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 collection of essays by leading commentators on civil justice is an attempt to assess the present state of civil procedure in the UK and the possible impact of proposals recently put forward by Lord Woolf. In addition, the essays deal with the fundamental problems that are encountered today in the administration of civil justice everywhere. The contributors are distinguished practitioners and academics who have extensively contributed to the subject in the past. This book is intended for practising lawyers, judges, and academics concerned with civil justice, the legal system, access to justice, and court procedures campaign groups LAG, CPAG etc.

Public Interest Litigation in South Africa offers a collection of grounded accounts - by leaders in the field - of the campaigns, cases, and causes that have defined key areas of public interest litigation in the country since the constitutional transition. The authors share their perspectives on the struggles led by people, communities, activists, and civil society organisations to realise the vision of the Constitution. This volume captures the legal narratives of those particular struggles in the hope that this will contribute to the broader, ongoing struggle for social justice. Part One of the book considers general themes relating to public interest litigation. These include its history, the development of the public interest sector and the impact and value of public interest litigation; the role of international law in public interest litigation; the ethics and politics of public interest litigation; and constitutional procedure. Part Two addresses public interest litigation in ten key areas of law: property rights, gender, basic services, health care, LGBTI equality, children's rights, basic education, freedom of expression, access to information, and prisoners' rights. Public Interest Litigation in South Africa seeks to share some of what has been achieved in the courts, beyond the well-trodden landmark appellate decisions, as a contribution to informed and critical engagement with litigation as a tool for social change.

This innovative collection presents original theoretical analyses and previously unpublished empirical research on criminal victimisation. Following an overview of the development and deficiencies of victimology,subsequent chapters present more detailed challenges to stereotypical conceptions of victimisation through their focus on: male victims of domestic violence; victims of male-on-male rape; corporate victims; and the 'victim-offenders' who are the recipients of IRA punishment beatings. The second half of the book considers criminal justice responses to victimisation, focusing in particular on the potential of, and limits to, restorative justice, the social (and gendered) construction of the victim within contested trials and the exclusionary nature of current 'victim-centred' initiatives. This important book will further the debate on how we conceptualise victims as well as their appropriate role within the criminal justice system. New Visions of Crime Victims will be of interest to academics, students, criminal justice practitioners and policy-makers. It has particular implications for scholarship in the fields of victimology, restorative justice and feminist approaches to criminology and criminal justice. The integration of work by established criminologists, such as Carolyn Hoyle, Paul Rock, Andrew Sanders and Richard Young with that of young, previously unpublished scholars, makes for an interesting and stimulating book. As well as being a valuable addition to the literature, it can be used to support undergraduate and postgraduate courses in criminal justice and criminology.

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.

Judicial errors, deliberate or otherwise, often cause damage to litigants. Sometimes the damage suffered by the litigant is irreversible. In England and many other common law countries the injured person will normally have no redress because of the privilege of immunity from suit enjoyed by judges. This result also normally follows when the complaint is against the actions of someone acting in a quasi-judicial capacity. The situation then raises a number of questions, including questions about civil rights, the redress of wrongs, and the whole foundation of judicial independence. As more people resort to the courts and other judicial tribunals for the resolution of their disputes the question of the proper approach to injurious judicial errors becomes more important, especially since every participant in judicial proceedings is a potential victim. This book presents an in-depth study of the substantive, procedural and theoretical issues that arise when a judge is to be sued. The material is drawn mainly from English and American Federal case law. The study however also incorporates some Canadian, Australian, and New Zealand case law.

The Handbook of Mediation gathers leading experts across fields related to peace, justice, human rights, and conflict resolution to explore ways that mediation can be applied to a range of spectrums, including new age settings, relationships, organizations, institutions, communities, environmental conflicts, and intercultural and international conflicts. The text is informed by cogent theory, state-of-the-art research, and best practices to provide the reader with a well-rounded understanding of mediation practice in contemporary times. Based on four signature themes-contexts; skills and competencies; applications; and recommendations-the handbook provides theoretical, applicable, and practical insight into a variety of key approaches to mediation. Authors consider modern conflict on a local and global scale, emphasizing the importance of identifying effective strategies, foundations, and methods to shape the nature of a mediation mindfully and effectively. With a variety of interdisciplinary perspectives, the text complements the development of the reader's competencies and understanding of mediation in order to contribute to the advancement of the mediation field. With a conversational tone that will welcome readers, this comprehensive book is essential reading for students and professionals wanting to learn a wide range of potential interventions for conflict.

Through studies of beheaded Irish traitors, smugglers hung in chains on the English coast, suicides subjected to the surgeon's knife in Dresden and the burial of executed Nazi war criminals, this volume provides a fresh perspective on the history of capital punishment. The chapters 'Introduction: A Global History of Execution and the Criminal Corpse' and 'The Gibbet in the Landscape: Locating the Criminal Corpse in Mid-Eighteenth-Century England' are open access under a CC BY 4.0 license.

Could you really:

-Handle your own divorce?
-Find a better way to deal with business creditor and debtor disputes?
-Get City Hall and the County Prosecutor to make some sense of the justice system?

"Dispute Management" knowledge and skills will guide you to more successful and satisfying resolution of these and other disputes and conflicts. Let Trial Judge, Trial Lawyer and award-winning mediator and arbitrator David Strawn show you how!

Although international arbitration has emerged as a credible means of resolution of transnational disputes involving parties from diverse cultures, the effects of culture on the accuracy, efficiency, fairness, and legitimacy of international arbitration is a surprisingly neglected topic within the existing literature. The Culture of International Arbitration fills that gap by providing an in-depth study of the role of culture in modern day arbitral proceedings. It contains a detailed analysis of how cultural miscommunication affects the accuracy, efficiency, fairness, and legitimacy in both commercial and investment arbitration when the arbitrators and the parties, their counsel and witnesses come from diverse legal traditions and cultures. The book provides a comprehensive definition of culture, and methodically documents and examines the epistemology of determining facts in various legal traditions and how the mixing of traditions influences the outcome. By so doing, the book demonstrates the acute need for increasing cultural diversity among arbitrators and counsel while securing appropriate levels of cultural competence. To provide an accurate picture, Kidane conducted interviews with leading international jurists from diverse legal traditions with first-hand experience of the complicating effects of culture in legal proceedings. Given the insights and information on the rules and expectations of the various legal traditions and their convergence in modern day international arbitration practice, this book challenges assumptions and can offer a unique and useful perspective to all practitioners, academics, policy makers, students of international arbitration.

Since the fall of the Soviet Union, the methods of dispute resolution in Central and Eastern Europe have changed dramatically. No longer intended to serve a monolithic state, courts and arbitration institutions have adapted to permit the resolution of commercial disputes that now arise. This volume offers a view of the function of courts and arbitration in these regions. Using the resources of the International Bar Association, the text provides separate reports on litigation and arbitration by experts in Russia, Hungary, Poland, and the Czech Republic, plus additional chapters on Slovakia, Slovenia, and Estonia. The practical text sets out the relevant material in a straightforward manner and also provides comparisons. Numerous appendices should aid its usefulness as a resource.

This volume of essays celebrates the first 50 years in the life of the New Zealand Court of Appeal. The move, in 1958, to a Court of Appeal comprising permanent appellate judges was an important landmark in the development of New Zealand law. The chapters highlight areas where the Court of Appeal has made a significant contribution to New Zealand and wider Commonwealth law, showing how the Court's jurisprudence has both reflected and contributed to resolving some of the pressing issues of the times.They are a critical reflection on the changing work and achievements of the permanent Court over the past half-century. In addition to recording the perspectives of a former President on the Court's achievements, the essays in this volume deal with such varied topics as: the role and use of precedent by the Court of Appeal; the Court's contribution to Commonwealth administrative law; criminal appeals; relationship property; accident compensation and tort litigation; company law; equity in commercial dealings; and the rights of Maori, the indigenous people of New Zealand.

This book presents a general method that lawyers, prosecutors and judges can follows to assess the quality and scientific content of technical work done for an accident and crime scene reconstruction. Using multilevel sequence of events analysis allows all key events to be fully identified, which in turn assists judicial bodies in identifying where to assign specific criminal liability. Created from a concept long sought by the two authors (an engineer and an attorney), the method allows readers without any technical background to progress from an examination of evidence gathered at the scene of a complex accident and to reconstruct "beyond reasonable doubt" the events that took place. Once created and scientifically verified by the sequence of events analysis, the chain of key events serves as a reference source for various levels of complex organizations and inter-organization structures in cases involving complex criminal responsibilities.

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"This thoughtful book will appeal to readers across the political spectrum."
--"Harvard Law Review"

"An invaluable source . . . for anyone interested in navigating the judiciary's politics."
--"National Journal"

"The Myth of the Imperial Judiciary makes a formidable argument that conservatives indeed have an unrealistic conception of the Supreme Court."
--"Austin American Statesman"

"Kozlowski marshals history to show that not only was a strong and active judiciary intended by the Founding Fathers, but also that it has served the nation extremely well."
--"Chicago Sun-Times"

"Kozlowski effectively demonstrates that courts have far less power to operate as free agents than many believe."
--"Law and Politics Book Review"

"Kozlowski marshals history to show that not only was a strong and active judiciary intended by the Founding Fathers, it has served the nation extremely well. . . . A fine piece of scholarship."
--"Washington Post"

"How many minds his book will change on a subject so charged with emotion remainds dubious, but the points Mr. Kozlowski makes so expertly cannot in fairness be ignored."
--"New York Law Journal"

Few institutions have become as ferociously fought over in democratic politics as the courts. While political criticism of judges in this country goes back to its inception, today's intensely ideological assault is nearly unprecedented.

Spend any amount of time among the writings of contemporary right-wing critics of judicial power, and you are virtually assured of seeing repeated complaints about the "imperial judiciary." American conservatives contend not onlythat judicial power has expanded dangerously in recent decades, but that liberal judges now willfully write their policy preferences into law. They raise alarms that American courts possess a degree of power incompatible with the functioning of a democratic polity.

The Myth of the Imperial Judiciary explores the anti-judicial ideological trend of the American right, refuting these claims and taking a realistic look at the role of courts in our democracy to show that conservatives have a highly "unrealistic" conception of their power. Kozlowski first assesses the validity of the conservative view of the Founders' intent, arguing that courts have played an assertive role in our politics since their establishment. He then considers contemporary judicial powers to show that conservatives have greatly overstated the extent to which the expansion of rights which has occurred has worked solely to the benefit of liberals.

Kozlowski reveals the ways in which the claims of those on the right are often either unsupported or simply wrong. He concludes that American courts, far from imperiling our democracy or our moral fabric, stand as a bulwark against the abuse of legislative power, acting forcefully, as they have always done, to give meaning to constitutional promises.

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.

Lord Slynn of Hadley is one of the outstanding judges of his time. He has served as a High Court Judge, as an Advocate General and Owa Judge of the European Court of Justice, and he has been a Lord of Appeal for ten years. This Liber Amicorum bears testimony to the international reputation that he has achieved for his judgments and for his scholarship. In the many distinguished contributions, judges from international courts and from Supreme Courts and Constitutional Courts, together with academics from leading universities around the world, have taken the opportunity to celebrate the accomplishments of Lord Slynn's legal career thus far, and also to discuss areas of law where Lord Slynn can be expected to give important impulses to further development. The thirty years of the legal life of Lord Slynn of Hadley (Gordon Slynn as he is known to his friends) have seen remarkable developments and changes in the legal scenery, both domestic (British), and international. This book, by his friends, extends widely. Recollect that there is a separate volume covering the European Court of Justice, and yet there is enough in this publication to celebrate several separate careers. The reader will note that there are contributions from justices of eight Supreme Courts, plus the German Constitutional Court, the Conseil Constitutionel and the European Court of Human Rights, from ten universities, many of them multiple, together with famous institutions and individuals in many different fields. Even Lord Slynn's young lecturer interest in Air Law is reflected by a professional paper on the Law of Space. Many, if not most, of the contributions bear, appropriately, on the question of the role of courts in reviewing actions of the legislature and the executive, but there are also articles to attract other diverse specialists, several, no doubt to Lord Slynn's pleasure, provocative and forward-looking. Lord Slynn is happily still in office, so this is really a "Festschrift" of celebration.

Koshner explores the increase in interest group participation before the U.S. Supreme Court. Since 1953, when less than 13 percent of the Court's full opinion cases were accompanied by friend of the court briefs, there has been a steady increase in interest group litigation. By the 1993 term, interest groups participated in 92 percent of the cases brought before the Supreme Court. While asking whether the rise in interest group activity in this supposedly independent arena should concern us, Koshner attempts to solve the fascinating political puzzle of this tremendous growth. He begins with the growth of interest group participation and asks, quite simply, why? In answering this question, Koshner draws on a series of studies that focus primarily on individual groups and their litigation decisions. He then uses them to explore the macro-level trends that pervade the relationship between the Supreme Court and interest groups. In particular, Koshner studies the roles of four important groups: the Court, Congress, the executive branch, and the interest groups themselves. Within each, he finds a series of changes or shifts in policy that begins to answer the puzzle, and examines his conclusions within the context of First Amendment church-state cases. Students, scholars, and other researchers dealing with contemporary public law issues will find this work of particular value.

An in-depth examination of the U.S. Supreme Court under the 11-year reign of Chief Justice Edward Douglass White. The White Court: Justices, Rulings, and Legacy examines the workings and legacies of the Supreme Court during the tenure of Chief Justice Edward Douglass White. Through detailed discussions of landmark cases, this reference work explores the role the Court played in steering the country through an era of economic growth, racial discrimination, and international warfare. The White Court reveals how the Court established its greatest legacy, the "rule of reason," in antitrust cases against the American Tobacco Company and Standard Oil, and how it resolved controversies concerning the expansion of executive power during wartime. Individual profiles of the 13 White Court justices describe their rise to prominence and controversies surrounding their nominations, their work on the Court, judicial philosophies, important decisions, and overall impact. A-Z entries on key people, laws, cases, events, and concepts such as Oliver Wendell Holmes, Hipolite Egg Co. v. United States, and Standard Oil of New Jersey v. United States Appendix with excerpts from primary documents of key cases decided during the White Court tenure

A valuable analysis of the political environment, judicial records, and implications of rulings during the era of the Burger Court. The Burger Court delivered significant decisions in cases involving the separation of powers, equal protection, free speech, and civil liberties. The Burger Court guaranteed in Roe v. Wade a woman's right to an abortion, demonstrating that this court definitely had a mind of its own. This handbook is as suitable for the preparation of term papers and debates as it is for ready reference and more involved research. Includes extensive reference materials such as further reading and bibliographical sections directing users to primary sources and Court documents Covers key people such as Archibald Cox and Gerald Ford, laws such as the Equal Rights Amendment and the Voting Rights Act, and events such as the Iranian Hostage Crisis and the Watergate Scandal

This is the first in-depth analysis of the Rehnquist Court viewed as a functional entity. Well known for his work in constitutional law, Stanley Friedelbaum analyzes leading cases and rigorously examines the Court's full opinions. He reviews the interaction between the Justices and points to the patterns of the Court as a new centralist coalition comes to control critical policymaking relating to abortion, the right to die, affirmative action, reverse discrimination, and privacy interests. A table of important cases and a bibliography enhance this short study for general readers and for students in introductory constitutional law courses and in advanced courses in judicial politics and American government.

Canadian environmental law is a dynamic and exciting area that is playing an increasingly important role in furthering sustainable development policy. Environmental law has distinctive relevant principles, operating procedures, implications, and importance in comparison with other areas of law, and these distinctions must be appreciated both within the legal community and by all those who are concerned with the way that courts handle environmental cases. Environment in the Courtroom provides extensive insight into Canadian environmental law. Covering key environmental concepts and the unique nature of environmental damage, environmental prosecutions, sentencing and environmental offences, evidentiary issues in environmental processes and hearings, issues associated with site inspections, investigations, and enforcement, and more, this collection has the potential to make make a significant difference at the level of understanding and practice. Containing perspective and insight from experienced and prominence Canadian legal practitioners and scholars, Environment in the Courtroom addresses the Canadian provinces and territories and provides context by comparison to the United States and Australia. No other collection covers these topics so comprehensively. This is an essential reference for all those interested in Canadian environmental law.

He reviled the rich for their cupidity and they found his rhetoric repulsive. Plebians believed him their champion and patricians knew he was their bete noire, remarks Halford Ryan in his eloquent foreword to this definitive survey of Clarence DarroW's development as orator and unique American myth. As a writer, lecturer, debater, and trial lawyer Darrow spoke for the have-nots and cultivated an image of mythic proportions as the underdog's advocate. Many of the more than 2,000 trials in which he was active reflected the major social and philosophical issues of the last quarter of the nineteenth and first third of the twentieth centuries in America. Read today, DarroW's speeches still ring true both as political statements and as models of persuasive pleading and pathos--reason enough to study the work of this uncommon advocate who stood perpetually opposed to the great and powerful of the earth. Richard J. Jensen has written a clearsighted volume that documents how Darrow created and then enlarged his personal myth through speeches, writings, and actions. Each chapter focuses on particular segments of that creation. Half of the book consists of authoritative texts of several of DarroW's most influential and rhetorically brilliant speeches, and a speech chronology simplifies the work of researchers.

The study opens with a brief biography, an overview of DarroW's rhetoric, along with the forces that affected it, and some initial comments on the elements that make up the myth. The next chapter, Schoolmaster of the Courtroom, chronicles the origins of DarroW's image as a defender of the downtrodden and his early trials in defense of labor unions and their leaders. What is considered to be one of the most famous speeches in American legal history, that given by Darrow at the conclusion of the 1924 Leopold and Loeb trial, is the focus of Chapter Three. Chapter Four centers on the Scopes Trial, perhaps the most famous trial in recent American history, during which the dramatic confrontation with William Jennings Bryan occurred. The penultimate chapter explains the arguments Darrow used to defend the poor, radicals, Blacks, and other less fortunate members of society. Finally, DarroW's rhetoric as a writer and as an active speaker and debater on the lecture circuit is examined. Part II contains the authoritative texts of seven speeches including those given during the Leopold and Loeb Trial and the Scopes Trial, among others. The Chronology of Speeches, Bibliography, and Index close the volume. The speeches along with Jensen's intelligent, readable analysis and criticism will be an important resource for those teaching and studying Legal Rhetoric and the History of Public Address.

On the occasion of its tenth anniversary, the EFTA Court held a conference at which speakers were asked to reflect on the case law of the Court and its role in the European Economic Area (EEA). In the course of its work, the Court has acted as a driving force of integration under the EEA Agreement, by establishing general principles such as state liability and giving landmark judgments in several areas of European law. The essays in this volume, by leading experts and high-ranking representatives of national and European courts, cover areas such as the relationship between the principle of free movement and national or collective preferences on the EU/EEA and WTO levels, the relationship between the European courts and the Member States in European integration, homogeneity as a general principle of European integration, and the importance of judicial dialogue. In this regard, the sentence from President Skouris of the Court of Justice of the European Communities, who called the dialogue between the EFTA Court and the EC Court 'a shining example of judicial cooperation', could also serve as a motto for the present book.