Part IV Practice and Process, Ch.20 Judicial Reasoning

2018 ◽  
Author(s):  
Stone Adrienne
Keyword(s):  
United States ◽  
Constitutional Law ◽  
Common Law ◽  
The United States ◽  
Methods And Techniques ◽  
The Subject ◽  
Judicial Reasoning

This chapter identifies the methods and techniques that characterize judicial reasoning about constitutional law in Australia, as well as significant points of agreement and disagreement thereof. Here, ‘constitutional reasoning’ refers to the explanation and justification given to the application of constitutional principles to specific circumstances. In common law systems, constitutional reasoning is most commonly understood as ‘judicial reasoning’. In Australia, its focus is usually the Constitution of the Commonwealth. However, not all constitutional reasoning takes this form. In particular, the chapter focuses only on the narrower conception of constitutional reasoning as judicial reasoning. This focus is justified partly by central tenets of Australian constitutionalism itself. Unlike the in the United States, the courts' power to interpret and enforce the Constitution has never been the subject of serious controversy.

scholarly journals Oceans Apart?: The Rule of Lenity in Australia and the United States

2020 ◽  
Vol 9 (2) ◽  
pp. 233-260
Author(s):  
Julian R Murphy
Keyword(s):  
United States ◽  
Separation Of Powers ◽  
Common Law ◽  
The United States ◽  
Global Trend ◽  
The World ◽  
The Subject ◽  
Federal Structure

AbstractOccasionally traced back to Byzantine times, the rule that penal statutes are to be interpreted strictly in favor of the subject, also known as the rule of lenity, now finds expression in common law countries across the world. This Article compares the origins and evolution of the rule in Australia and the United States. The comparison is timely because of the current uncertainty in both jurisdictions about the rule's rationale and scope and because of an emerging global trend towards the “constitutionalization” of common law rules of interpretation. In the course of the analysis, various facets of the rule are discussed, including its common law origins; jurisprudential development; purported constitutional foundations; and modifications by state and federal statutes. Tracing the rule's development in each country reveals significant commonalities, but also important differences, in the respective approaches to the interpretation of criminal statutes. Most importantly, despite similarities in the two countries’ constitutional structures, the rule has assumed constitutional significance in the United States but not in Australia. Identification of this marked difference provides an opportunity to reflect on the separation of powers, and the federal structure, of each country.

scholarly journals Contracting-out at Arbitration

2014 ◽  
Vol 18 (2) ◽  
pp. 162-196
Author(s):  
Pierre Verge
Keyword(s):  
United States ◽  
Comparative Study ◽  
Common Law ◽  
The United States ◽  
Bargaining Unit ◽  
Contracting Out ◽  
Labour Relations ◽  
Collective Agreements ◽  
The Subject

A comparative study of arbitral decisions rendered in the United States, the Canadian Common Law Provinces and Quebec over grievances arising in the contest of collective agreements that contain no specific provision on the subject out of Management's action of arranging with an outside firm to have it perform work hitherto done by members of the bargaining unit. The possible effect of new section 10a of the Quebec Labour Relations Act on this practice of contracting out will also be considered.

Freedom of Proof and the Reform of Criminal Evidence

1997 ◽  
Vol 31 (1-3) ◽  
pp. 439-463 ◽  
Author(s):  
William Twining
Keyword(s):  
United States ◽  
New Zealand ◽  
Common Law ◽  
The United States ◽  
The Subject ◽  
Legislative Changes ◽  
Evidence And Proof ◽  
Law Of Evidence ◽  
New Evidence ◽  
Historical Origins

In recent years reform of the Law of Evidence has been the subject of renewed interest in many common law countries. Since the adoption of the Federal Rules, debate about wholesale reform has been relatively muted in the United States. But this is exceptional. Major reports have been produced in Australia, New Zealand, Canada, Scotland, and England. With the exception of Canada, most of these have led, or are likely to lead, to significant legislative changes. This period of reformist activity has coincided with a greatly increased interest in theoretical aspects of evidence and proof, sometimes referred to as “The New Evidence Scholarship”. The historical origins of these two movements are rather different, but their ways of talking and thinking about the subject are, of course, intimately connected.

scholarly journals Secularism Confronts Islam

2009 ◽  
Vol 26 (2) ◽  
pp. 110-112
Author(s):  
David L. Johnston
Keyword(s):  
United States ◽  
Theoretical Analysis ◽  
Common Law ◽  
The United States ◽  
Political Islam ◽  
Harvard University ◽  
School Girls ◽  
The Subject ◽  
The Veil

This work by a leading French Islamicist is both an analysis of Islam, secularism,and society in Europe, as well as a prescription for its leaders on howto “correct” their wrongheaded policies with regard to their Muslim minoritiesbased on this analysis. This might seem unduly arrogant on OlivierRoy’s part, but his past landmark books do seem to commend the perspicacityof his views on the subject, and most of all, The Failure of Political Islam(Harvard University Press: 1994) and Globalized Islam: The Search for theNew Umma (Hurst: 2004).On one level, Roy is focused on France: how one might begin to mitigatethe polarization of the French elites in the wake of forbidding the veil in publicplaces and the violence of the 2005 riots in the poorest – mostly Muslim– suburbs of Paris. Indeed, the first chapter is devoted to the historical rootsof France’s virulent version of state-enforced secularism (laïcité). But onanother level, this is a work rich in theoretical analysis, widening its insightsto Britain and the United States and their “common law” version of laïcité, aswell as providing a new theory to the sociology of religion.The intensity of the French debate raises important questions. “The campaignof Islamophobia we are witnessing today is involved in the reshapingof the French political and intellectual landscape” (p. 2). How so? The ChristianRight and the Extreme Right’s suspicion of Islam is now shared by a sizableportion of the Left, which has reacted with fear to the French Muslimcommunity’s new and outspoken rhetoric. School girls want to wear the veilout of pride. And this new Islamic discourse has been promoted both by the“bearded Salafist preacher” and the suave intellectual embodied by TariqRamadan ...

Liberal Internationalism from George W. Bush to Barack Obama

2017 ◽  
Author(s):  
Tony Smith
Keyword(s):  
United States ◽  
The United States ◽  
Barack Obama ◽  
Democratic Peace ◽  
War On Terrorism ◽  
Global War On Terrorism ◽  
Liberal Internationalism ◽  
Liberal Democratic ◽  
The Subject ◽  
Global War

This chapter examines the United States' liberal democratic internationalism from George W. Bush to Barack Obama. It first considers the Bush administration's self-ordained mission to win the “global war on terrorism” by reconstructing the Middle East and Afghanistan before discussing the two time-honored notions of Wilsonianism espoused by Democrats to make sure that the United States remained the leader in world affairs: multilateralism and nation-building. It then explores the liberal agenda under Obama, whose first months in office seemed to herald a break with neoliberalism, and his apparent disinterest in the rhetoric of democratic peace theory, along with his discourse on the subject of an American “responsibility to protect” through the promotion of democracy abroad. The chapter also analyzes the Obama administration's economic globalization and concludes by comparing the liberal internationalism of Bush and Obama.

The dimensions of the Moroccan position on the Gulf crisis 1990-1991

2019 ◽  
Vol 3 (11) ◽  
pp. 179
Author(s):  
Nazhan Hammoud Nassif Al Obeidi ◽  
Abdul Wahab Abdul Aziz Abu Khamra
Keyword(s):  
United States ◽  
United States Of America ◽  
New World ◽  
World Order ◽  
The United States ◽  
New World Order ◽  
Historical Events ◽  
Gulf Crisis ◽  
The Subject

The Gulf crisis 1990-1991 is one of the important historical events of the 1990s, which gave rise to the new world order by the sovereignty of the United States of America on this system. The Gulf crisis was an embodiment to clarify the features of this system. .     The crisis in the Gulf was an opportunity for the Moroccans to manage this complex event and to use it for the benefit of the Moroccan situation. Therefore, the bilateral position of the crisis came out as a rejection, a contradiction and a supporter of political and economic dimensions at the external and internal levels. On the Moroccan situation, and from these points came the choice of the subject of the study (the dimensions of the Moroccan position from the Gulf crisis 1990-1991), which shows the ingenuity of Moroccans in managing an external crisis and benefiting from it internally.

Rediscovering Blackstone: wpływ Williama Blackstone’a na rozwój amerykańskiej nauki prawa w recepcji Alberta W. Alschulera

2017 ◽  
Vol 15 (2) ◽  
pp. 175-185
Author(s):  
Edyta Sokalska
Keyword(s):  
United States ◽  
18Th Century ◽  
Common Law ◽  
The United States ◽  
Law School ◽  
Large Measure ◽  
American Colonies ◽  
Late 18Th Century ◽  
American Law ◽  
The Common

The reception of common law in the United States was stimulated by a very popular and influential treatise Commentaries on the Laws of England by Sir William Blackstone, published in the late 18th century. The work of Blackstone strengthened the continued reception of the common law from the American colonies into the constituent states. Because of the large measure of sovereignty of the states, common law had not exactly developed in the same way in every state. Despite the fact that a single common law was originally exported from England to America, a great variety of factors had led to the development of different common law rules in different states. Albert W. Alschuler from University of Chicago Law School is one of the contemporary American professors of law. The part of his works can be assumed as academic historical-legal narrations, especially those concerning Blackstone: Rediscovering Blackstone and Sir William Blackstone and the Shaping of American Law. Alschuler argues that Blackstone’s Commentaries inspired the evolution of American and British law. He introduces not only the profile of William Blackstone, but also examines to which extent the concepts of Blackstone have become the basis for the development of the American legal thought.

Anne O. Krueger, Constantine Michalopoulos and Vernon W. Ruttan. Aid and Development. Baltimore: The Johns Hopkins University Press. 1989. xiv + 386 pp.Price: U.S. $ 52.00

1991 ◽  
Vol 30 (2) ◽  
pp. 213-217
Author(s):  
Mir Annice Mahmood
Keyword(s):  
United States ◽  
Economic Development ◽  
International Development ◽  
Western Europe ◽  
Development Assistance ◽  
The United States ◽  
Social Infrastructure ◽  
Low Literacy ◽  
The Subject ◽  
The Impact

Foreign aid has been the subject of much examination and research ever since it entered the economic armamentarium approximately 45 years ago. This was the time when the Second World War had successfully ended for the Allies in the defeat of Germany and Japan. However, a new enemy, the Soviet Union, had materialized at the end of the conflict. To counter the threat from the East, the United States undertook the implementation of the Marshal Plan, which was extremely successful in rebuilding and revitalizing a shattered Western Europe. Aid had made its impact. The book under review is by three well-known economists and is the outcome of a study sponsored by the Department of State and the United States Agency for International Development. The major objective of this study was to evaluate the impact of assistance, i.e., aid, on economic development. This evaluation however, was to be based on the existing literature on the subject. The book has five major parts: Part One deals with development thought and development assistance; Part Two looks at the relationship between donors and recipients; Part Three evaluates the use of aid by sector; Part Four presents country case-studies; and Part Five synthesizes the lessons from development assistance. Part One of the book is very informative in that it summarises very concisely the theoretical underpinnings of the aid process. In the beginning, aid was thought to be the answer to underdevelopment which could be achieved by a transfer of capital from the rich to the poor. This approach, however, did not succeed as it was simplistic. Capital transfers were not sufficient in themselves to bring about development, as research in this area came to reveal. The development process is a complicated one, with inputs from all sectors of the economy. Thus, it came to be recognized that factors such as low literacy rates, poor health facilities, and lack of social infrastructure are also responsible for economic backwardness. Part One of the book, therefore, sums up appropriately the various trends in development thought. This is important because the book deals primarily with the issue of the effectiveness of aid as a catalyst to further economic development.

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