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The American Common Law Method

Author: Richard B. Cappalli
Publisher: Hotei Publishing
ISBN:
Size: 51.31 MB
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There have been many introductory texts on the common law over the years, but among the more recent Professor Cappalli's The American Common Law Method has been most widely praised. It focuses on the system of judicial precedent, recognized as one of the great achievements of Anglo-American genius, and especially on its development in American jurisprudence since Holmes and Cardozo. It comprehensively details both the theory underlying case law and the methodology and thinking employed by American judges in applying that theory to specific fact-patterns. Special classroom adoption prices are available. Published under the Transnational Publishers imprint.

Understanding Common Law Legislation

Author: F. A. R. Bennion
Publisher: OUP Oxford
ISBN: 0191024481
Size: 10.84 MB
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Many countries use and apply the common law. The common law world largely operates through statutes enacted by a country's democratic legislature. These statutes are drafted and interpreted according to a uniform system of rules, presumptions, principles and canons evolved over centuries by common law judges. In this book, Francis Bennion distills forty years of his prolific writings on statute law and statutory interpretation to provide valuable guidance on statutory interpretation applicable to all common law jurisdictions.

An Introduction To The American Legal System

Author: John M. Scheb
Publisher: Cengage Learning
ISBN: 9780766827592
Size: 16.44 MB
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"An Introduction to the American Legal System" is ideal for undergraduate students in legal studies, political science, criminal justice, pre-law, and sociology programs, paralegal programs, as well as for anyone with an interest in the historical and contemporary approaches to law in America.

A Matter Of Interpretation Federal Courts And The Law

Author: Antonin Scalia
Publisher: Princeton University Press
ISBN: 1400882958
Size: 75.46 MB
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We are all familiar with the image of the immensely clever judge who discerns the best rule of common law for the case at hand. According to U.S. Supreme Court Justice Antonin Scalia, a judge like this can maneuver through earlier cases to achieve the desired aim—"distinguishing one prior case on his left, straight-arming another one on his right, high-stepping away from another precedent about to tackle him from the rear, until (bravo!) he reaches the goal—good law." But is this common-law mindset, which is appropriate in its place, suitable also in statutory and constitutional interpretation? In a witty and trenchant essay, Justice Scalia answers this question with a resounding negative. In exploring the neglected art of statutory interpretation, Scalia urges that judges resist the temptation to use legislative intention and legislative history. In his view, it is incompatible with democratic government to allow the meaning of a statute to be determined by what the judges think the lawgivers meant rather than by what the legislature actually promulgated. Eschewing the judicial lawmaking that is the essence of common law, judges should interpret statutes and regulations by focusing on the text itself. Scalia then extends this principle to constitutional law. He proposes that we abandon the notion of an everchanging Constitution and pay attention to the Constitution's original meaning. Although not subscribing to the “strict constructionism” that would prevent applying the Constitution to modern circumstances, Scalia emphatically rejects the idea that judges can properly “smuggle” in new rights or deny old rights by using the Due Process Clause, for instance. In fact, such judicial discretion might lead to the destruction of the Bill of Rights if a majority of the judges ever wished to reach that most undesirable of goals. This essay is followed by four commentaries by Professors Gordon Wood, Laurence Tribe, Mary Ann Glendon, and Ronald Dworkin, who engage Justice Scalia’s ideas about judicial interpretation from varying standpoints. In the spirit of debate, Justice Scalia responds to these critics. Featuring a new foreword that discusses Scalia’s impact, jurisprudence, and legacy, this witty and trenchant exchange illuminates the brilliance of one of the most influential legal minds of our time.

Advanced Case Law Methods

Author: Richard B. Cappalli
Publisher: Brill - Nijhoff
ISBN:
Size: 44.13 MB
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This book, by the author of The American Common Law Method, is an excellent source of continuing judicial education for judges at all levels as well as an accessible teaching tool for the classroom. An opening section explains the basic principles of common law methods for creating and applying case law. Advanced Case Law Method then examines the methods used by appellate courts in four states to create case lines on distinct topics. After each case in each line, the author poses several questions concerning the court's performance as a creator and user of case law. For instance, one chapter traces the "at will" employment doctrine as developed by the New York Court of Appeals and subsequent efforts to create public policy exceptions to the rule. Another looks at the struggle of the appellate courts of Pennsylvania to limit the "intentional infliction of emotional distress" tort doctrine. The New Hampshire group of cases goes back to the mid-18th century and examines railroad liability issues, culminating in the 21st century with duties imposed on internet information providers when the buyer of information causes harm to the seller. The Texas cases treat the "spoliation" doctrine which penalizes a party responsible for causing key evidence to disappear. Following the questions raised by the examined cases, Advanced Case Law Methods includes the suggested responses. The text is then supplemented by a section intended to make the questions and suggested responses a springboard for discussion at seminars, conferences and even classrooms. Judges, therefore, won't have to worry about "doing homework" and getting wrong answers. Published under the Transnational Publishers imprint.

Failures Of American Methods Of Lawmaking In Historical And Comparative Perspectives

Author: James R. Maxeiner
Publisher: Cambridge University Press
ISBN: 1108195830
Size: 75.11 MB
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In this book, James R. Maxeiner takes on the challenge of demonstrating that historically American law makers did consider a statutory methodology as part of formulating laws. In the nineteenth century, when the people wanted laws they could understand, lawyers inflicted judge-made, statute-destroying, common law on them. Maxeiner offers the cure for common law, in the form of sensible statute law. Building on this historical evidence, Maxeiner shows how rule-making in civil law jurisdictions in other countries makes for a far more equitable legal system. Sensible statute laws fit together: one statute governs, as opposed to several laws that even lawyers have trouble disentangling. In a statute law system, lawmakers make laws for the common good in sensible procedures, and judges apply sensible laws and do not make them. This book shows how such a system works in Germany and would be a solution for the American legal system as well.

Common Law History And Democracy In America 1790 1900

Author: Kunal M. Parker
Publisher: Cambridge University Press
ISBN: 1139496360
Size: 62.45 MB
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This book argues for a change in our understanding of the relationships among law, politics and history. Since the turn of the nineteenth century, a certain anti-foundational conception of history has served to undermine law's foundations, such that we tend to think of law as nothing other than a species of politics. Thus viewed, the activity of unelected, common law judges appears to be an encroachment on the space of democracy. However, Kunal M. Parker shows that the world of the nineteenth century looked rather different. Democracy was itself constrained by a sense that history possessed a logic, meaning and direction that democracy could not contravene. In such a world, far from law being seen in opposition to democracy, it was possible to argue that law - specifically, the common law - did a better job than democracy of guiding America along history's path.

Dismantling American Common Law

Author: Kyle Scott
Publisher: Lexington Books
ISBN: 9780739123768
Size: 66.21 MB
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Dismantling American Common Law provides new insights into the political implications and philosophical origins of the American common law tradition, the importance of which has largely been ignored by the political science community.