The Judicial Role
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Author | : William D. Popkin |
Publisher | : |
Total Pages | : 0 |
Release | : 2013 |
Genre | : Judicial process |
ISBN | : 9781611634068 |
This book deals with the central question in statutory interpretation -- the role of the judge. It argues that it is both legitimate and desirable for the interpreter to take into account policy considerations when determining the meaning of a statute. The author calls this pragmatic judicial partnering. The pragmatic approach rejects two traditional views of the judicial role -- textualism and intentionalism -- which assume that the interpreter is nothing but a legislative agent. Part I of the book makes the case for pragmatic judicial partnering. My claim is that pragmatic interpretation is constitutional, that it provides the best description of statutory interpretation, and that it is the best normative conception of how judges should interpret legislation. It also argues that judicial opinions should reveal the indeterminacy that is inherent in determining the meaning of legislation and the creative role that judges play in shaping that meaning. Part II is a critique of the leading advocates of the view that judge should be legislative agents -- Justice Scalia and Professor Manning (both textualists); Professor Elhauge (an intentionalist); and Professor Vermeule (an institutional literalist). An Epilogue indentifies the fundamental issue as one of legal culture. It suggests that we may be entering a period where mistrust of judging leads to rejection of pragmatic judicial partnering in favor of the judge-as-legislative-agent.
Author | : Joe McIntyre |
Publisher | : Springer Nature |
Total Pages | : 304 |
Release | : 2019-09-16 |
Genre | : Law |
ISBN | : 981329115X |
Judicial systems are under increasing pressure: from rising litigation costs and decreased accessibility, from escalating accountability and performance evaluation expectations, from shifting burdens of case management and alternative dispute resolution roles, and from emerging technologies. For courts to survive and flourish in a rapidly changing society, it is vital to have a clear understanding of their contemporary role – and a willingness to defend it. This book presents a clear vision of what it is that courts do, how they do it, and how we can make sure that they perform that role well. It argues that courts remain a critical, relevant and supremely well-adjusted institution in the 21st century. The approach of this book is to weave together a range of discourses on surrounding judicial issues into a systemic and coherent whole. It begins by articulating the dual roles at the core of the judicial function: third-party merit-based dispute resolution and social (normative) governance. By expanding upon these discrete yet inter-related aspects, it develops a language and conceptual framework to understand the judicial role more fully. The subsequent chapters demonstrate the explanatory power of this function, examining the judicial decision-making method, reframing principles of judicial independence and impartiality, and re-conceiving systems of accountability and responsibility. The book argues that this function-driven conception provides a useful re-imagining of some familiar issues as part of a coherent framework of foundational, yet interwoven, principles. This approach not only adds clarity to the analysis of those concepts and the concrete mechanisms by which they are manifest, but helps make the case of why courts remain such vital social institutions. Ultimately, the book is an entreaty not to take courts for granted, nor to readily abandon the benefits they bring to society. Instead, by understanding the importance and legitimacy of the judicial role, and its multifaceted social benefits, this books challenge us to refresh our courts in a manner that best advances this underlying function.
Author | : Gabrielle Appleby |
Publisher | : Cambridge University Press |
Total Pages | : 341 |
Release | : 2021-04-29 |
Genre | : Law |
ISBN | : 1108494617 |
Revealing analysis of how judges work as individuals and collectively to uphold judicial values in the face of contemporary challenges.
Author | : Robert Schertzer |
Publisher | : University of Toronto Press |
Total Pages | : 349 |
Release | : 2016-01-01 |
Genre | : History |
ISBN | : 1487500289 |
In The Judicial Role in a Diverse Federation, Robert Schertzer uses the example of the Supreme Court of Canada to examine how apex courts manage diversity and conflict in federal states. Schertzer argues that in a diverse federation where the nature of the federal system is contested the courts should facilitate negotiation between conflicting parties, rather than impose their own vision of the federal system. Drawing on a comprehensive review of the Supreme Court federalism jurisprudence between 1980 and 2010, he demonstrates that the court has increasingly adopted this approach of facilitating negotiation by acknowledging the legitimacy of different understandings of the Canadian federation. This book will be required reading both for those interested in Canada's Supreme Court and for those engaged in broader debates about the use of federalism in multinational states.
Author | : Laura Pineschi |
Publisher | : Springer |
Total Pages | : 330 |
Release | : 2015-06-22 |
Genre | : Law |
ISBN | : 3319191802 |
This book examines the role played by domestic and international judges in the “flexibilization” of legal systems through general principles. It features revised papers that were presented at the Annual Conference of the European-American Consortium for Legal Education, held at the University of Parma, Italy, May 2014. This volume is organized in four sections, where the topic is mainly explored from a comparative perspective, and includes case studies. The first section covers theoretical issues. It offers an analysis of principles in shaping Dworkin’s theories about international law, a reflection on the role of procedural principles in defining the role of the judiciary, a view on the role of general principles in transnational judicial communication, a study on the recognition of international law from formal criteria to substantive principles, and an inquiry from the viewpoint of neo-constitutionalism. The second section contains studies on the role of general principles in selected legal systems, including International Law, European Union Law as well as Common Law systems. The third section features an analysis of select legal principles in a comparative perspective, with a particular focus on the comparison between European and American experiences. The fourth and last section explores selected principles in given areas of law, including the misuse of the lex specialis principle in the relationship between international human rights law and international humanitarian law, the role of the judiciary in Poland as regards discrimination for sexual orientation, and the impact of the ECtHR case law on Italian criminal law with regard to the principle of legality. Overall, the book offers readers a thoughtful reflection on how the interpretation, application, and development of general principles of law by the judiciary contribute to the evolution of legal systems at both the domestic and international levels as well as further their reciprocal interactions.
Author | : Emmett Macfarlane |
Publisher | : UBC Press |
Total Pages | : 266 |
Release | : 2013 |
Genre | : History |
ISBN | : 077482350X |
In Governing from the Bench, Emmett Macfarlane draws on interviews with current and former justices, law clerks, and other staff members of the court to shed light on the institution’s internal environment and decision-making processes. He explores the complex role of the Supreme Court as an institution; exposes the rules, conventions, and norms that shape and constrain its justices’ behavior; and situates the court in its broader governmental and societal context, as it relates to the elected branches of government, the media, and the public.
Author | : American Bar Association |
Publisher | : |
Total Pages | : 424 |
Release | : 1974 |
Genre | : Judges |
ISBN | : |
Author | : Grant Huscroft |
Publisher | : Cambridge University Press |
Total Pages | : 332 |
Release | : 2008-04-21 |
Genre | : Law |
ISBN | : 9780521887410 |
What does it mean to interpret the constitution? Does constitutional interpretation involve moral reasoning, or is legal reasoning something different? What does it mean to say that a limit on a right is justified? How does judicial review fit into a democratic constitutional order? Are attempts to limit its scope incoherent? How should a jurist with misgivings about the legitimacy of judicial review approach the task of judicial review? Is there a principled basis for judicial deference? Do constitutional rights depend on the protection of a written constitution, or is there a common law constitution that is enforceable by the courts? How are constitutional rights and unwritten constitutional principles to be reconciled? In this book, these and other questions are debated by some of the world's leading constitutional theorists and legal philosophers. Their essays are essential reading for anyone concerned with constitutional rights and legal theory.
Author | : American Bar Association |
Publisher | : American Bar Association |
Total Pages | : 212 |
Release | : 2007 |
Genre | : Law |
ISBN | : 9781590318393 |
Author | : Aziz Z. Huq |
Publisher | : Oxford University Press |
Total Pages | : 193 |
Release | : 2021 |
Genre | : LAW |
ISBN | : 0197556817 |
"This book describes and explains the failure of the federal courts of the United States to act and to provide remedies to individuals whose constitutional rights have been violated by illegal state coercion and violence. This remedial vacuum must be understood in light of the original design and historical development of the federal courts. At its conception, the federal judiciary was assumed to be independent thanks to an apolitical appointment process, a limited supply of adequately trained lawyers (which would prevent cherry-picking), and the constraining effect of laws and constitutional provision. Each of these checks quickly failed. As a result, the early federal judicial system was highly dependent on Congress. Not until the last quarter of the nineteenth century did a robust federal judiciary start to emerge, and not until the first quarter of the twentieth century did it take anything like its present form. The book then charts how the pressure from Congress and the White House has continued to shape courts behaviour-first eliciting a mid-twentieth-century explosion in individual remedies, and then driving a five-decade long collapse. Judges themselves have not avidly resisted this decline, in part because of ideological reasons and in part out of institutional worries about a ballooning docket. Today, as a result of these trends, the courts are stingy with individual remedies, but aggressively enforce the so-called "structural" constitution of the separation of powers and federalism. This cocktail has highly regressive effects, and is in urgent need of reform"--