Reconstructing Judicial Review

Author: Sarah Nason
Publisher: Bloomsbury Publishing
ISBN: 9781509904648
Release Date: 2016-12-01
Genre: Law

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 orequality duty, and constitutional allocation of powers, constitutional rights, or other complex constitution 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.

Legal Pragmatism

Author: Michael Sullivan
Publisher: Indiana University Press
ISBN: 9780253116987
Release Date: 2007-06-14
Genre: Philosophy

In Legal Pragmatism, Michael Sullivan looks closely at the place of the individual and community in democratic society. After mapping out a brief history of American legal thinking regarding rights, from communitarianism to liberalism, Sullivan gives a rich and nuanced account of how pragmatism worked to resolve conflicts of self-interest and community well-being. Sullivan's view of pragmatism provides a comprehensive framework for understanding democracy, as well as issues such as health care, education, gay marriage, and illegal immigration that will determine its character in the future. Legal Pragmatism is a bold, carefully argued book that presents a unique understanding of contemporary society, law, and politics.

Human Rights and Judicial Review in Australia and Canada

Author: Janina Boughey
Publisher: Bloomsbury Publishing
ISBN: 9781509907878
Release Date: 2017-06-15
Genre: Law

It is commonly asserted that bills of rights have had a 'righting' effect on the principles of judicial review of administrative action and have been a key driver of the modern expansion in judicial oversight of the executive arm of government. A number of commentators have pointed to Australian administrative law as evidence for this 'righting' hypothesis. They have suggested that the fact that Australia is an outlier among common law jurisdictions in having neither a statutory nor a constitutional framework to expressly protect human rights explains why Australia alone continues to take an apparently 'formalist', 'legalist' and 'conservative' approach to administrative law. Other commentators and judges, including a number in Canada, have argued the opposite: that bills of rights have the effect of stifling the development of the common law. However, for the most part, all these claims remain just that – there has been limited detailed analysis of the issue, and no detailed comparative analysis of the veracity of the claims. This book analyses in detail the interaction between administrative and human rights law in Australia and Canada, arguing that both jurisdictions have reached remarkably similar positions regarding the balance between judicial and executive power, and between broader fundamental principles including the rule of law, parliamentary sovereignty and the separation of powers. It will provide valuable reading for all those researching judicial review and human rights.

Reconstructing Reconstruction

Author: Pamela Brandwein
Publisher: Duke University Press
ISBN: 0822323168
Release Date: 1999
Genre: History

Was slavery over when slaves gained formal emancipation? Was it over when the social, economic, and political situation for African Americans no longer mimicked the conditions of slavery? If the Thirteenth Amendment abolished it in 1865, why did most of the disputed points during the Reconstruction debates of 1866-75 concern issues of slavery? In this book Pamela Brandwein examines the post-Civil War struggle between competing political and legal interpretations of slavery and Reconstruction to reveal how accepted historical truth was established. Offering a fresh approach to the subject of original intent, Reconstructing Reconstruction will interest legal historians and scholars of constitutional law, American history, race and ethnicity, political theory, and the sociology of law.

Packing the Court

Author: James Macgregor Burns
Publisher: Penguin
ISBN: 9781101081907
Release Date: 2009-06-25
Genre: Political Science

From renowned political theorist James MacGregor Burns, an incisive critique of the overreaching power of an ideological Supreme Court For decades, Pulitzer Prize-winner James MacGregor Burns has been one of the great masters of the study of power and leadership in America. In Packing the Court, he turns his eye to the U.S. Supreme Court, an institution that he believes has become more powerful, and more partisan, than the founding fathers ever intended. In a compelling and provocative narrative, Burns reveals how the Supreme Court has served as a reactionary force in American politics at critical moments throughout the nation's history, and concludes with a bold proposal to rein in the court's power.

Rethinking the Judicial Settlement of Reconstruction

Author: Pamela Brandwein
Publisher: Cambridge University Press
ISBN: 9781139496964
Release Date: 2011-02-21
Genre: Political Science

American constitutional lawyers and legal historians routinely assert that the Supreme Court's state action doctrine halted Reconstruction in its tracks. But it didn't. Rethinking the Judicial Settlement of Reconstruction demolishes the conventional wisdom - and puts a constructive alternative in its place. Pamela Brandwein unveils a lost jurisprudence of rights that provided expansive possibilities for protecting blacks' physical safety and electoral participation, even as it left public accommodation rights undefended. She shows that the Supreme Court supported a Republican coalition and left open ample room for executive and legislative action. Blacks were abandoned, but by the president and Congress, not the Court. Brandwein unites close legal reading of judicial opinions (some hitherto unknown), sustained historical work, the study of political institutions, and the sociology of knowledge. This book explodes tired old debates and will provoke new ones.

Reconstructing Early Christian Worship

Author: Paul F. Bradshaw
Publisher: Liturgical Press
ISBN: 9780814662458
Release Date: 2010
Genre: Religion

Paul Bradshaw attempts to drill down at several key points beneath the surface impression of early Christian worship that has been accepted in most studies of the primary sources. Each chapter begins from the conventional depiction of its topic. The author then subjects the sources to an assessment from the perspective of the methodology set out in his earlier work, Reconstructing Early Christian Worship, which then leads to new conclusions. Important aspects of the Eucharist, baptism, and daily prayer are each explored in turn and new understandings of those rites opened up. The resulting change in perception not only affects how we reconstruct our vision of the past but also how we use the past as precedent for worship practice today. Each chapter ends with a comment on the possible modern application of these new discoveries.

Judicial Reconstruction and the Rule of Law

Author: Angeline Lewis
Publisher: Martinus Nijhoff Publishers
ISBN: 9789004228115
Release Date: 2012-08-28
Genre: Law

Challenging the dominant rhetoric of international rule of law operations, this work reasserts the centrality of the community in building its own relationship with law, counselling military interveners to refocus exclusively on restoring security using their extraordinary powers under international law.

The Politics of Judicial Interpretation

Author: Robert J. Kaczorowski
Publisher: Fordham Univ Press
ISBN: 0823223825
Release Date: 2005
Genre: History

This landmark work of Constitutional and legal history is the leading account of the ways in which federal judges, attorneys, and other law officers defined a new era of civil and political rights in the South and implemented the revolutionary 13th, 14th, and 15th Amendments during Reconstruction. Should be required reading . . . for all historians, jurists, lawyers, political scientists, and government officials who in one way or another are responsible for understanding and interpreting our civil rights past.-Harold M. Hyman, Journal of Southern HistoryImportant, richly researched. . . . the fullest account now available.-American Journal of Legal History

Rethinking the Judicial Settlement of Reconstruction

Author: Pamela Brandwein
Publisher: Cambridge University Press
ISBN: 9781139496964
Release Date: 2011-02-21
Genre: Political Science

American constitutional lawyers and legal historians routinely assert that the Supreme Court's state action doctrine halted Reconstruction in its tracks. But it didn't. Rethinking the Judicial Settlement of Reconstruction demolishes the conventional wisdom - and puts a constructive alternative in its place. Pamela Brandwein unveils a lost jurisprudence of rights that provided expansive possibilities for protecting blacks' physical safety and electoral participation, even as it left public accommodation rights undefended. She shows that the Supreme Court supported a Republican coalition and left open ample room for executive and legislative action. Blacks were abandoned, but by the president and Congress, not the Court. Brandwein unites close legal reading of judicial opinions (some hitherto unknown), sustained historical work, the study of political institutions, and the sociology of knowledge. This book explodes tired old debates and will provoke new ones.

Political Foundations of Judicial Supremacy

Author: Keith E. Whittington
Publisher: Princeton University Press
ISBN: 0691096406
Release Date: 2007
Genre: Law

In this sweeping political history of judicial supremacy in America, Whittington shows that presidents and political leaders of all stripes have worked to put the Court on a pedestal and have encouraged its justices to accept the role of ultimate interpreters of the Constitution.

Law s Abnegation

Author: Adrian Vermeule
Publisher: Harvard University Press
ISBN: 9780674974715
Release Date: 2016-11-14
Genre: Law

Adrian Vermeule argues that the arc of law has bent steadily toward deference to the administrative state, which has greater democratic legitimacy and technical competence to confront issues such as climate change, terrorism, and biotechnology. The state did not shove lawyers and judges out of the way; they moved freely to the margins of power.

Reconstructing the Household

Author: Peter W. Bardaglio
Publisher: Univ of North Carolina Press
ISBN: 0807847127
Release Date: 1998-03-01
Genre: Social Science

In Reconstructing the Household, Peter Bardaglio examines the connections between race, gender, sexuality, and the law in the nineteenth-century South. He focuses on miscegenation, rape, incest, child custody, and adoption laws to show how southerners struggled with the conflicts and stresses that surfaced within their households and in the larger society during the tumultuous Civil War era. Slavery, war, emancipation, and Reconstruction not only shaped relations between blacks and whites but also between women and men, parents and children, and rich and poor. Based on literary as well as legal sources, Bardaglio's analysis reveals how legal contests involving these groups led to a rethinking of families, sexuality, and the social order.