scholarly journals Justices as “Sacred Symbols”: Antonin Scalia and the Cultural Life of the Law

2017 ◽  
Vol 6 (1) ◽  
pp. 7-23
Author(s):  
Brian Christopher Jones ◽  
Austin Sarat
Keyword(s):  
Supreme Court ◽  
Common Law ◽  
Public Life ◽  
Political Legitimacy ◽  
Cultural Relevance ◽  
Supreme Court Justice ◽  
Strict Adherence ◽  
Cultural Life ◽  
Single Judge ◽  
The Law

Abstract Perhaps no single judge in recent years has embodied the intricacies and difficulties of the cultural life of the law as much as American Supreme Court Justice Antonin Scalia. While common law judges have traditionally acquired status—and cultural relevance—from the significance, eloquence and forcefulness of their judicial opinions, Justice Scalia took an altogether different route. Both on and off the bench, he pushed the limits of legal and political legitimacy. He did this through a strict adherence to what we call a “judicial mandate,” flamboyant but engaging writing, biting humor and widespread marketing of his originalist and textualist interpretative theories. This article chronicles these features of Scalia’s jurisprudence and public life more generally, ultimately characterising the late justice as a “sacred symbol” in American legal and political circles, and beyond.

A Curious Decision by Zambia’s Highest Court: Six Years Imprisonment for Civil Contempt?

2019 ◽  
Vol 12 (2) ◽  
pp. 115-138
Author(s):  
Christopher Phiri
Keyword(s):  
Supreme Court ◽  
Common Law ◽  
Judicial Power ◽  
Judicial Decisions ◽  
The Supreme Court ◽  
The Common ◽  
The Law

Abstract On 23 November 2018, the Supreme Court of Zambia delivered a judgement which suggests that Zambian judges have virtually unbridled power to move on their own motion to punish for contempt of court anyone who criticises their judicial decisions. This article considers that judgement. It argues that whilst justice might well have been done in the case in question, it was certainly not seen to be done. Two main reasons are given for this argument. First, the judges appeared to have acted both as prosecutors and adjudicators in their own cause when it was neither urgent nor imperative to act immediately on their own motion. Second, the classification by the Court of the contempt in question as civil contempt rather than criminal contempt is alien to the common law world. The article culminates in a clarion call for the Zambian legislature to intervene and clarify the law of contempt of court to avert capricious and unbridled invocation of the judicial power to punish for contempt.

Contracts for the Benefit of Third Parties: Hong Kong

2018 ◽  
Author(s):  
Lee Mason
Keyword(s):  
Hong Kong ◽  
Common Law ◽  
Third Parties ◽  
Third Party ◽  
Strict Adherence ◽  
The Third ◽  
English Law ◽  
The Law ◽  
The Third Party ◽  
Contractual Rights

This chapter analyses the law on third party beneficiaries in Hong Kong long characterized by strict adherence to the traditional common law doctrine of privity. The law relating to third party rights was only reformed by way of Ordinance in 2016, along the lines of the statutory reform of English law in 1999. A small number of specifically enumerated types of contract are excluded from the scope of the Ordinance; other contracts may be concluded to confer enforceable contractual rights on third parties. Whether a third party may enforce a term of a contract depends on the interpretation of the contract: if the third party right was not expressly conferred there is a presumption that the conferral was intended; but this can be rebutted if the parties made it clear that they did not intend it to be enforceable. The third party must be identified by name, as a member of a class, or answering a particular description and may claim the same remedies for breach as a party to the contract.

15. Illegality

2018 ◽  
Author(s):  
Elizabeth Macdonald ◽  
Ruth Atkins ◽  
Jens Krebs
Keyword(s):  
Common Law ◽  
Public Life ◽  
Case Law ◽  
Final Report ◽  
Sports Management ◽  
Administration Of Justice ◽  
The Law ◽  
Sexual Immorality ◽  
Restraint Of Trade ◽  
Law Commission

This chapter explores the illegality of contracts. Contracts which may fall within the scope of the restraint of trade doctrine are considered, including the Court of Appeal’s approach in Proactive Sports Management Ltd v Rooney. The chapter also looks at other reasons why a contract may be declared illegal or void at common law, such as grounds of public policy. Policy factors and the illegality defence are explored in light of recent case law and the Law Commission Final Report ‘The Illegality Defence’. Useful case law illustrations demonstrate how the courts have dealt with the issues surrounding illegality in a range of contexts, such as contracts to commit an unlawful act, contracts promoting sexual immorality, contracts prejudicial to the interests of the state, contracts prejudicial to the administration of justice and contracts promoting corruption in public life. The consequences and effects of impropriety and illegality are also looked at. The landmark case of Patel v Mirza [2016] UKSC 42, and its impact on the law, is also explored in this chapter.

Redemption of Security Interests under Israel Law

1975 ◽  
Vol 10 (1) ◽  
pp. 81-101 ◽  
Author(s):  
Joshua Weisman
Keyword(s):  
Supreme Court ◽  
The Body ◽  
Supreme Court Justice ◽  
Secured Transactions ◽  
English Law ◽  
The Law ◽  
The Right ◽  
The Way

The English “Equity of Redemption” was applied by the courts in Israel long before the enactment of the Security Interests Law, 1967. The courts did not hesitate to transplant this doctrine of English law into the body of Ottoman law which was then applicable in Israel in the field of secured transactions. Yet, the extent to which this symbiosis succeeded had still to be examined, and many questions relating to the right of redemption were still unanswered when the decision was taken to prepare the new Security Interests Law. In the new Law the right of redemption was expressly recognized. The influence of English law on this subject was so marked that on one occasion a Supreme Court Justice characterized the right of redemption provided by sec. 13(a) of the Law, as “actually only legislating the equity of redemption of English law”. It is the purpose of this article to examine the way in which Israel law formulated its “equity of redemption”, to analyze it, to point out its main features and expose its shortcomings.

scholarly journals The Eve Decision — A Common Law Perspective

2019 ◽  
Vol 18 (3) ◽  
pp. 657-675 ◽  
Author(s):  
Edward W. Keyserlingk
Keyword(s):  
Supreme Court ◽  
Prince Edward Island ◽  
Common Law ◽  
Medical Procedures ◽  
Supreme Court Of Canada ◽  
Mentally Disabled ◽  
The Supreme Court ◽  
Parens Patriae ◽  
The Law ◽  
Do So

By its decision in the Eve case, the Supreme Court of Canada clarified and settled the law in at least two important respects. From now on, provincial statutes can only be used to authorize guardians to permit involuntary contraceptive sterilizations if their wording clearly and explicitly so provides. The Prince Edward Island statute in question did not do so. Secondly, though the Court's parens patriae jurisdiction is of unlimited scope and does extend to cases involving medical procedures, it cannot serve as the basis for authorizing non-therapeutic sterilizations. By ruling out the applicability of parens patriae, and by insisting that judges are not able to deal adequately with such cases, the Supreme Court may have strengthened the case for new legislation in this area. The writer argues that such legislation should provide for access to contraceptive sterilization for the mentally disabled, and the needed safeguards to protect those unable to consent or refuse from the imposition of sterilization in the interests of parties other than themselves.

scholarly journals Jacob v Shultz-Jacob, 923 A 2d 473, 2007 Pa Super Lexis 957 (Pa Super 2007)

2012 ◽  
Vol 20 (1) ◽  
pp. 197-210
Author(s):  
Robert E Rains
Keyword(s):  
United States ◽  
Supreme Court ◽  
United States Supreme Court ◽  
Parental Rights ◽  
United States Supreme ◽  
Same Sex ◽  
Supreme Court Justice ◽  
Same Sex Couples ◽  
Normal Number ◽  
The Law

THREE PARENTS?United States Supreme Court Justice Antonin Scalia once famously opined that, “. . . law, like nature itself, makes no provision for dual fatherhood.”  Of course, we know that many children today are being raised in households where their primary paternal figure is a stepfather, and their natural father, who is their legal father, may or may not exercise some quantum of visitation/access.2  Moreover, many American jurisdictions today allow same-sex couples to adopt, so that a child has either two mothers or two fathers.3  But the situation which Justice Scalia was addressing involved a child whose mother was married at the time of conception, who apparently was the product of her mother’s affair with another man, and where the mother’s husband had forgiven all and accepted the child as his own.4  Justice Scalia could not imagine that the law, or nature, would permit a child to have three parents, in that case a mother and two fathers.  Indeed, in the typical same-sex adoption case, either there is no known father because one of the lesbian partners was inseminated by an anonymous donor,5 or a known donor has agreed to terminate his parental rights.6  In either of those scenarios, a child ends up with the normal number of parents:  two.

scholarly journals LEGAL REALISM AS DIRECTION OF SOCIOLOGICAL JURISPRUDENCE

2020 ◽  
Keyword(s):  
Judicial Process ◽  
Supreme Court Justice ◽  
Legal Realism ◽  
Strict Adherence ◽  
Psychological Study ◽  
Sociological Jurisprudence ◽  
Formal Principle ◽  
Administration Of Justice ◽  
The Law ◽  
Legal Concepts

The article is devoted to the disclosure of features of legal realism as a special direction of sociological jurisprudence. The historical prerequisites for the formation of American legal realism are considered. It was emphasized that legal realism emerged as a reaction to the formal principle of adjudication, which insisted on the need for strict adherence to case law. The leader of American legal formalism, K. Langdell, viewed law as a combination of legal concepts derived by inductively generalizing previous court decisions. It has been proven that one of the first to disagree with this approach was judges of U.S. Supreme Court Justice O. Holmes and B. Cardozo. A comparative analysis of the views of K. Llewellyn and J. Frank, who are recognized leaders of the movement of legal realism, was done. It was established that K. Llewellyn considered that law is not only the judge decide but also any other persons with powers over the disputes. He paid particular attention to the study of the activities of the High Courts and emphasized the need to use the so-called Grand-style in the judicial decision-making process, which allows the law to be adapted to the real circumstances of the case and to contemporary social change. In contrast, J. Frank insisted that the judge was the creator of the law, and that the courts of first instance played a major role in the administration of justice. In his opinion, one of the decisive factors in the administration of justice is the personality of the judge, his individual and psychological qualities. It has been found that despite the lack of unity of positions of the supporters of legal realism, they are united by the underestimation of positive law as a factor of certainty and stability of legal relations, an instrumental approach to law and excessive psychologization of the judicial process. It is concluded that despite the significant shortcomings inherent in legal realism, this line of legal thought has made a significant impact on the general theory and philosophy of law through the combination of methods of sociological and psychological study of legal reality and the disclosure of internal mechanisms of formation judicial decisions.

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