The Courts and Legislation: Anglo-American Contrasts (original) (raw)
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SSRN Electronic Journal, 2021
This essay is an invited response to “Advisory Opinions and the Problem of Legal Authority,” Vanderbilt Law Review, vol. 74, by Christian R. Burset. The essay explores the relationship between English legal education in the 18th century and the crisis affecting the common law. English legal education lacked a formal institutional basis after the decline of the Inns of Court, and this affected the acculturation of English lawyers and their maintenance of a shared sensibility or "common erudition." The evidence suggests that American legal education faced similar challenges. As a result, lawyers and legal writers embraced a view of the law that emphasized elements that narrowed the discretion of judges: precedent and a doctrine of stare decisis; the law as a system; lengthy, written judicial opinions; and legal decision-making as deductive. The development of a doctrine of justiciability and the decline of advisory opinions was related to these developments.
Edward Elgar Publishing eBooks, 2012
The role of law in the United States Understanding US law is impossible without first understanding the role law plays both in its political system and in the consciousness of its citizens. Law is ubiquitous in general culture: literature, cinema, television (Raynaud and Zoller, 2001). On first impression, its status appears paradoxical. On the one hand, there is an almost mystical faith in the power of law to transcend all conflicts: the rule of law (as opposed to the rule of men) was the American formula for a just society, in opposition to the absolutist European government of the time. The US Constitution was the founding document for the nation, and law has ever since had a defining character for the country and its self-perception as a beacon of democracy and individual freedom. While there are struggles within the law, the rule of law and the Constitution themselves seem beyond discussion: they provide an almost unquestioned framework for debates (Levinson, 1988). On the other hand, and for similar reasons, the distinction between law and politics is much less clear than in European countries. It is acknowledged-sometimes cynically, sometimes approvingly-that law incorporates and serves the political ends of those who shape it. The traditional American distrust of government encompasses distrust of any claims of neutral, objective, natural law. Public reactions to the US Supreme Court decision in Bush v. Gore (2000) demonstrate both these aspects. When a majority of five Republican-appointed Justices held for Republican presidential candidate Bush, and four less conservative Justices held against him, there were widespread complaints about the politicized judiciary, and the court's split along partisan lines. Yet hardly anybody seriously questioned the binding nature of the decision, which in effect determined the presidency. The political character of law also explains why law, and in particular litigation, is often seen as a tool for proactive social change, not just for the retrospective resolution of individual disputes. Supreme Court decisions like Brown v. Board of Education (1954), which abolished school segregation and implemented civil rights, and Roe v. Wade (1973), which established a constitutional right to abortion, were not only mileposts in legal development, they are also part of the country's cultural identity, familiar * See also: Accident compensation; Constitutional law; Statutory interpretation.
The Cambridge History of Law in America
2008
This publication is in copyright. Subject to statutoty ex~eption and to the provisions of relevant collective licensing agreements. no reproduction of any part may take place without the written permission of Cambridge University Press.
Law, Culture, and the Morality of Judicial Choice
Cumb. L. Rev., 1997
Schoolof Law (Boalt Hall), 1984. I would like to thank Dean Barry Currier for his kind invitation to participate in the 1998 Rushton Lecture Program and for all his assistance in making my visit to Birmingham possible. I would also like to thank Marilyn Currier, Virginia Loftin, Thomas Berg, and William Ross for their gracious hospitality and support.
Law and History Review, 2010
There is an interesting section on the transition to the job-the heavy learning curve, the problems of getting an office running, and the remarkable variety of cases federal judges confront. The chapter on the nature of the job holds few surprises. Most judges like the job with its broad range of subjects and conflicts, although there are complaints about the isolation. It is, though, disturbing to see such distinguished judges and ex-judges as Abner Mikva, Robert Bork, and James Buckley agreeing, at least on their notable Court of Appeals (D.C. Cir.), that after the conference on a case, the judge will go back and likely never speak again in person with his colleagues about it. When coupled with the "revelation" in another chapter that the law clerks are chiefly responsible for opinions (183), one cannot help wondering what creative, thoughtful, and analytical work federal judges are actually doing. A chapter partially named "Getting Along with Others" encompasses Alfred Goodwin's (9th Cir.) discussion of political trials. There is an interesting, though troubling, discussion of past tensions on the Seventh Circuit Court of Appeals and two pages allotted to Andrew Hauk's (C.D. Cal.) oral history demonstrating his "outrageous rudeness." Finally, Joyce Hens Green sums up what makes a good judge: "A judge has to have courage and express the way it is in her opinions, whether oral or written, not just to ride with the waves of the time, economically, politically, emotionally" (212). Both specialists and nonspecialists will learn from Domnarski's book. Nonspecialists will receive a painless introduction to the lives of federal judges and the conditions under which they work. The scholar will pick up a variety of interesting tidbits with a reminder of what a valuable resource for research on the courts oral histories can be.
Choice of Law in the American Courts in 2014: Twenty-Eighth Annual Survey
Brill | Nijhoff eBooks, 2020
Hereinafter, these Surveys are referred to only by the author's name and the survey year. \\jciprod01\productn\C\COM\63-2\COM203.txt unknown Seq: 3 4-AUG-15 14:18 2015] CHOICE OF LAW IN THE AMERICAN COURTS IN 2. This Survey does not reflect the views of the Association of American Law Schools or its Section on Conflict of Laws. 3. Because a sizable portion of the readership consists of foreign scholars who may be less familiar with certain aspects of American law, this Survey attempts to provide background information and explanations that normally would be unnecessary for the core readership of American conflicts scholars. 4. These cases were identified by searching Westlaw's 2014 "All states," "CTA," and "SCT" databases with various queries, as well as with all the key numbers that Westlaw uses in placing cases into its "Conflict of Laws" database. 5. This number includes all decisions of the federal district courts and specialized lower federal courts, as well as a very small number of trial court decisions posted on Westlaw. 6. See infra Part I. 7. See infra Part II.B. \\jciprod01\productn\C\COM\63-2\COM203.txt unknown Seq: 4 4-AUG-15 14:18