Democratic Law and the Erosion of Common Law

2021 ◽  
pp. 65-89
Author(s):  
Seana Valentine Shiffrin
Keyword(s):  
Supreme Court ◽  
Common Law ◽  
Good Faith ◽  
Narrow Focus ◽  
The Us ◽  
Us Supreme Court ◽  
Democratic Character ◽  
The Common ◽  
Customary Practices

This chapter explores the democratic character of the common law by examining the implied contractual duty of good faith and its dismissive treatment by the US Supreme Court in Northwest v. Ginsberg, a 2014 preemption decision. The decision was mistaken because it failed to recognize law’s morally indispensable role of publicly articulating and interpreting our shared moral commitments, treating law instead as a mere means of resolving disputes. The chapter also celebrates the democratic character of common law, which, although articulated by judges, responds to reasons and problems emerging from the citizenry and attends to moral expectations embodied in customary practices. The chapter underscores the importance of common law (and the doctrine of good faith) in publicly articulating reasons and drawing on the underlying values that law serves, democratic functions that are lost when litigation is replaced by private arbitration and overlooked by a narrow focus on elections.

9. Habeas corpus today

2021 ◽  
pp. 92-121
Author(s):  
Amanda L. Tyler
Keyword(s):  
Great Britain ◽  
Supreme Court ◽  
Common Law ◽  
Armed Conflicts ◽  
Habeas Corpus ◽  
War On Terrorism ◽  
The Us ◽  
Us Supreme Court ◽  
The Common ◽  
Suspension Model

This chapter takes the story of habeas corpus forward to present day, giving special attention to how the writ serves as a vehicle for courts to evaluate a range of immigration matters as well as the legality of the detention of prisoners in modern armed conflicts, including most prominently the war on terrorism. As the chapter reveals, studying how habeas functions in these contexts underscores both the writ’s potential as well as its limitations. The chapter explores in depth how the US Supreme Court has both protected a role for the writ in immigration cases but more recently moved to limiting such a role. It continues by exploring the intersection of terrorism and habeas corpus in both Great Britain and the US, highlighting the continuing influence of the common law writ of habeas corpus and the ever diminishing influence of the English Habeas Corpus Act and suspension model.

scholarly journals The Contractual Principle of Good Faith and the Duty of Honesty in Bhasin v. Hrynew

2015 ◽  
Author(s):  
Shannon O'Byrne ◽  
Ronnie Cohen
Keyword(s):  
Supreme Court ◽  
Common Law ◽  
Good Faith ◽  
Contracting Out ◽  
Commercial Code ◽  
The Supreme Court ◽  
American Law ◽  
The Common

This article explores the Supreme Court of Canada’s 2014 decision in Bhasin v. Hrynew. This includes an assessment of the new duty of honesty in contractual performance and the newly identified organizing principle of good faith. The authors also discuss contracting out of the duty of honesty — which Bhasin itself raises as a possibility — by assessing both Canadian and American law on point, including the Uniform Commercial Code. The article concludes that Bhasin’s largest and most lasting contribution is likely in how it expressly legitimates and defends the role of good faith in the common law of contract.

The Fourth Amendment's Exclusionary Rule: Blurring the Line Between Rule and Exception

2012 ◽  
Vol 9 (2) ◽  
Author(s):  
Liz Heffernan
Keyword(s):  
United States ◽  
Supreme Court ◽  
Common Law ◽  
The United States ◽  
Deterrent Effect ◽  
Criminal Proceedings ◽  
Exclusionary Rule ◽  
The Supreme Court ◽  
The Us ◽  
Us Supreme Court

The admissibility of unlawfully obtained evidence in criminal proceedings has generated controversy throughout the common law world. In the United States, there has been renewed debate in recent years over the propriety of the judicially-created exclusionary rule as a remedy for violations of the Fourth Amendment guarantee against unreasonable searches and seizures. When defining the scope and purpose of the rule, the US Supreme Court has placed ever increasing emphasis on the likely deterrent effect which suppressing evidence will exert on law enforcement. This article explores the consequent restriction of the exclusionary rule evinced in the contemporary case law including United States v Herring in which the Supreme Court expanded the scope of the so-called "good faith" exception. In conclusion it offers reflection from the perspective of another common law country, Ireland, where the exclusion of unconstitutionally obtained evidence has been the subject of debate.

The Role of Emotional Language in Briefs before the US Supreme Court

2016 ◽  
Vol 4 (2) ◽  
pp. 377-407 ◽  
Author(s):  
Ryan C. Black ◽  
Matthew E. K. Hall ◽  
Ryan J. Owens ◽  
Eve M. Ringsmuth
Keyword(s):  
Supreme Court ◽  
Emotional Language ◽  
The Us ◽  
Us Supreme Court

Should We Elect the US Supreme Court?

2009 ◽  
Vol 7 (4) ◽  
pp. 785-803 ◽  
Author(s):  
Mariah Zeisberg
Keyword(s):  
Supreme Court ◽  
Science Research ◽  
Judicial Selection ◽  
Judicial Elections ◽  
The People ◽  
Theoretical Inquiry ◽  
The Us ◽  
Us Supreme Court ◽  
Legal Meaning

Extensive political science research reveals that the decisions of the US Supreme Court are deeply political. And both advocates and critics of judicial elections concede that partisan elections are a democratic method of judicial selection. Does the value of democratic representation mean that US Supreme Court Justices should be selected through partisan elections? I argue not. Partisan judicial elections are actually far poorer institutional mechanisms for capturing the judgment of the people on legal matters than has been recognized. The role of parties in structuring a campaign distorts the deliberative environment surrounding judicial elections, creating significant barriers to voters expressing a judgment on matters of legal meaning. The kind of distortion is best understood through reference to aprocessualcriterion of deliberative democracy, which provides a fitting normative template to ground theoretical inquiry into the reason-giving possibilities of existing democratic institutions and practices. Hence, answering why the US Supreme Court should not be elected on democratic grounds also reveals new insights about the role of parties in sustaining (or subverting) deliberative democratic ideals.

scholarly journals The Principle of Good Faith in Contractual Performance: A Scottish-Canadian Comparison

2019 ◽  
Vol 23 (3) ◽  
pp. 301-331
Author(s):  
Hector MacQueen ◽  
Shannon O'Byrne
Keyword(s):  
Supreme Court ◽  
Common Law ◽  
Good Faith ◽  
Supreme Court Of Canada ◽  
The Supreme Court ◽  
The Subject ◽  
The Common

In 2014 the Supreme Court of Canada in Bhasin v Hrynew formally but cautiously acknowledged good faith as a general organising principle of contractual performance at common law and that the principle largely manifests by way of implied terms and through the new duty of honesty. Rejecting English recalcitrance on the subject, the SCC concluded that recognising a good faith principle makes the common law less unsettled and piecemeal, more coherent and just. The article suggests that the limitations placed on the good faith principle by the SCC make its potential adoption in Scotland offer more opportunity than risk, especially in relation to the exercise of contractual discretions and contractual remedies.

scholarly journals "The Common Law is … not what it used to be"*: Revisiting Recognition of a Constitutionally-Inspired Implied Duty of Fair Dealing in the Common Law Contract of Employment (Part 2)

2018 ◽  
Vol 21 ◽  
pp. 1-20
Author(s):  
Andre Louw
Keyword(s):  
Common Law ◽  
Good Faith ◽  
Employment Contract ◽  
Fair Dealing ◽  
General Law ◽  
Contract Of Employment ◽  
The Common ◽  
Labour Legislation ◽  
Court Of Appeal

This piece, which is in three parts, will revisit the importation of fairness into the employment contract (outside and independent of the fairness-based provisions of our labour legislation) by a line of Supreme Court of Appeal (SCA) judgments during the 2000s. This process culminated in the recognition of an "implied duty of fair dealing" in the common-law employment contract. This piece will discuss such developments, will argue that such an implied duty still forms part of our law (despite the apparent consensus in the literature that the SCA turned its back on such earlier judgments), will critically examine some of the arguments for and against the recognition of such a duty, and will then consider the issue within the broader context of the role of good faith and fairness in our general law of contract.    

The principle of good faith in the performance of contractual obligations under the common law of Canada and the law of Quebec

2018 ◽  
pp. 86-93
Author(s):  
D. S. Alyakin
Keyword(s):  
Common Law ◽  
Civil Law ◽  
Good Faith ◽  
Supreme Court Of Canada ◽  
Legal Analysis ◽  
Legal Method ◽  
The Common ◽  
The Law ◽  
Contractual Obligations

Introduction. In the paper, the author analyzes the principle of good faith in contractual performance under the common law of Canada and carry out a legal analysis of one of the key judicial precedents that is in relation to the designated area and that was adopted by the Supreme Court of Canada in 2014, i.e. Bhasin v. Hrynew case. The study is focused on the principle of good faith contractual performance under the law of the Canadian province of Quebec as well.Materials and methods. The material for the study consists of the judicial precedents of Canadian courts as well as the papers of foreign and Russian researchers in the field of civil law. The methodological basis of research comprises general scientific methods of cognition (analysis, synthesis, analogy) as well as specific ones, i.e. the comparative legal method, the formal logical method, the systematic method, methods of structure and function and the method of interpretation.Results. The author conducts a detailed analysis of Bhasin v. Hrynew case and determines the role of this precedent in the common law of Canada as well as the criteria for identifying the principle and a duty of good faith contractual performance. The author also analyzes the principle of good faith under the law of Quebec, i.e. the relevant jurisprudence and the codification of this principle in the legislation of Quebec.Discussion and conclusion. The distinction of the principle of good faith in the performance of contractual obligations as a freestanding principle of Canada’s common law is justified. The Bhasin v. Hrynew case is a vivid illustration of the growing role of the principle of good faith in the countries of the common law tradition. Furthermore, the convergence of Canada’s common law and the law of the province of Quebec, the only one among ten provinces and three territories of Canada that clearly adheres to civil law tradition, is an impact on this precedent.

Terrorism, Emergency Powers, and the Role of the US Supreme Court: An Interview with Neal K. Katyal

Ratio Juris ◽  
2007 ◽  
Vol 20 (4) ◽  
pp. 443-455
Author(s):  
NEAL K. KATYAL ◽  
GIORGIO BONGIOVANNI ◽  
CHIARA VALENTINI
Keyword(s):  
Supreme Court ◽  
Emergency Powers ◽  
The Us ◽  
Us Supreme Court
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