U.S. Lower Court Practice

2013 ◽  
Author(s):  
Louis Kaplow
Keyword(s):  
Circumstantial Evidence ◽  
Lower Court ◽  
Conventional View ◽  
Legal Questions ◽  
Lower Courts ◽  
The Law ◽  
State Of Affairs ◽  
Court Practice

This chapter examines how the lower courts confront central legal questions that routinely arise in price-fixing and other horizontal-restraints cases in which the existence of an agreement is in dispute. In light of the discussion in the previous chapters, it is not surprising that the practice in lower courts is difficult to characterize—although some commentators nevertheless depict a substantially harmonious state of affairs. The problem begins with the frequent need to make inferences from circumstantial evidence, which all acknowledge to be necessary. As a consequence of the problem of defining agreement, it is difficult to know what one is trying to infer or how inferences can be made even when evidence of agreement appears to be fairly direct. Various seemingly clear rules, such as the demand for so-called plus factors, are unclear upon examination and cast serious doubt on the conventional view of the law.

scholarly journals Declarations of Invalidity in Superior Courts

2019 ◽  
Vol 28 (3) ◽  
Author(s):  
Mark Mancini
Keyword(s):  
Supreme Court ◽  
Criminal Code ◽  
Short Paper ◽  
Lower Court ◽  
Stare Decisis ◽  
Binding Effect ◽  
The Supreme Court ◽  
Lower Courts ◽  
The Law

Section 52(1) of the Constitution Act, 1982 empowers courts to declare unconstitutional laws that are inconsistent with the Constitution “to the extent of their inconsistency.”1 Section 52 is a powerful tool in the hands of judges. For example, a claimant need not be directly affected by an unconstitutional law to raise a challenge to that same law,2 and once a court declares a law invalid under section 52, the law is effectively removed from the statute books.3 A key question is whether such a declaration, issued by one judge of a multi-member lower court, binds another judge of that same court. This phenomenon can be broadly described as “horizontal stare decisis.”4 But the Supreme Court has only explored horizontal stare decisis in the context of revisiting its own decisions.5 It has never opined on whether there is something special about horizontal stare decisis in lower courts, especially involving constitutional declarations under section 52; specifically, whether one judge is bound by another judge’s declaration of invalidity. This issue was directly confronted in the McCaw case at the Ontario Superior Court.6 Faced with a previous section 52 declaration of invalidity issued against section 33.1 of the Criminal Code, Spies J found that she was bound by that declaration. Accordingly, she found section 33.1 unconstitutional. In this short paper, after reviewing the salient facts of McCaw, I argue that Spies J’s ruling is broadly consistent with Supreme Court constitutional remedies doctrine, which is basically formalist in nature and permits no discretion on the part of judges to depart from the binding effect of a s.52 remedy. I then deal with two objections to this position. Ultimately, while one can question the coherence of the Supreme Court’s doctrine, McCaw represents a defensible application of it.

The Africanisation Of South African Civil Procedure: The Way Forward

2020 ◽  
Vol 6 (1) ◽  
Author(s):  
Fawzia Cassim ◽  
Nomulelo Queen Mabeka
Keyword(s):  
Common Law ◽  
Civil Procedure ◽  
African Culture ◽  
Legal Proceedings ◽  
Seventeenth Amendment ◽  
Procedural Law ◽  
Lower Courts ◽  
The Law ◽  
Court Proceedings ◽  
The Impact

Civil procedure enforces the rules and provisions of civil law.  The law of civil procedure involves the issuing, service and filing of documents to initiate court proceedings in the superior courts and lower courts. Indeed, notice of legal proceedings is given to every person to ensure compliance with the audi alteram partem maxim (“hear the other side”). There are various rules and legislation that regulate these court proceedings such as inter alia, the Superior Courts Act, 2013, Uniform Rules of Court, Constitution Seventeenth Amendment Act, 2012 and the Magistrates’ Courts Act of 1944. The rules of court are binding on a court by virtue of their nature.  The purpose of these rules is to facilitate inexpensive and efficient legislation. However, civil procedure does not only depend on statutory provisions and the rules of court.  Common law also plays a role. Superior Courts are said to exercise inherent jurisdiction in that its jurisdiction is derived from common law.  It is noteworthy that whilst our rules of court and statutes are largely based on the English law, Roman-Dutch law also has an impact on our procedural law. The question thus arises, how can our law of civil procedure transform to accommodate elements of Africanisation as we are part and parcel of the African continent/diaspora? In this regard, the article examines the origins of Western-based civil procedure, our formal court systems, the impact of the Constitution on traditional civil procedure, the use of dispute resolution mechanisms in Western legal systems and African culture, an overview of the Traditional Courts Bill of 2012 and the advent of the Traditional Courts Bill of 2017. The article also examines how the contentious Traditional Courts Bills of 2012 and 2017 will transform or complement the law of civil procedure and apply in practice once it is passed into law.

Under the law: Masking reality

2021 ◽  
Vol 103 (3) ◽  
pp. 64-65
Author(s):  
Robert Kim
Keyword(s):  
School Districts ◽  
Disease Control ◽  
Vaccination Status ◽  
Legal Decisions ◽  
Legal Questions ◽  
The Law ◽  
Centers For Disease Control ◽  
K 12

The Centers for Disease Control and Prevention’s recommendation that students, staff, and visitors at K-12 schools wear masks indoors, regardless of their COVID-19 vaccination status, led numerous states to issue mask mandates for some or all K-12 schools. Most of the remaining states have decided to allow school districts to do whatever they want around masks, but a few banned local mask mandates. These developments invite a number of legal questions about the legality of mask mandates (and bans on those mandates). Robert Kim reviews the legal decisions issued thus far related to mask requirements.

scholarly journals INTERPRETATION AND RECTIFICATION IN AUSTRALIA

2017 ◽  
Vol 76 (3) ◽  
pp. 483-486 ◽  
Author(s):  
Paul S. Davies
Keyword(s):  
New South ◽  
Common Law ◽  
New South Wales ◽  
High Court ◽  
South Wales ◽  
Housing Corporation ◽  
Lower Courts ◽  
The Law ◽  
High Court Of Australia

Both interpretation and rectification continue to pose problems. Difficulties are compounded by blurring the boundary between the two. In Simic v New South Wales Land and Housing Corporation [2016] HCA 47, the High Court of Australia overturned the decisions of the lower courts which had held that performance bonds could be interpreted in a “loose” manner in order to correct a mistake. However, the documents could be rectified in order to reflect the actual intentions of the parties. This decision should be welcomed: the mistake was more appropriately corrected through the equitable jurisdiction than at common law. Significantly, the concurring judgments of French C.J. and Kiefel J. highlight that the law of rectification now seems to be different in Australia from the law in England. It is to be hoped that the English approach will soon be revisited (see further P. Davies, “Rectification versus Interpretation” [2016] C.L.J. 62).

scholarly journals Restriction of Constitutional Rights and Freedoms by the Law of the Constituent Entitity of the Russian Federation when Regulating the Sale of Non-Alcoholic Tonic Drinks

Lex Russica ◽  
2020 ◽  
pp. 33-41
Author(s):  
E. N. Doroshenko
Keyword(s):  
Russian Federation ◽  
Energy Drinks ◽  
Scientific Data ◽  
Retail Trade ◽  
Fundamental Rights ◽  
Federal Law ◽  
Rights Of The Child ◽  
The Russian Federation ◽  
The Law ◽  
Court Practice

A common practice of imposing various prohibitions and rules in the constituent entities of the Russian Federation, owing to the need to solve acute social problems and achieve constitutionally significant goals, draws attention to the problem of restricting by the law of the constituent entity of the Russian Federation fundamental rights and freedoms of the man and citizen. Using the regulation of retail sale of non-alcoholic toning drinks as a case-study, the paper discusses the relevant legislative work, court practice, conditions and content of imposed restrictions. The laws of the constituent entities of the Russian Federation provide for prohibitions imposed on the sale of non-alcoholic tonic drinks to minors, retail trade in educational and medical organizations, as well as in places holding activities with the participation of young people and the consumption of such drinks by minors in public places. Attempts have been made to adopt a federal law with similar content, but taking into account the negative attitude of the Government of the Russian Federation and arguments concerning the absence of unambiguous scientific data with regard to the harm caused by ”energy” drinks, the State Duma rejected four draft laws. The regional laws’ analysis is carried out in the context of delineation of jurisdictions and powers between federal bodies of state power, sectoral legislative regulation and provisions consolidated in Part 3 Article 55 of the Constitution of the Russian Federation. Restrictions on the sale of “energy” drinks are considered within the framework of the content of the legislation regulating the protection of rights of the child, civil legislation and other legal acts, as well as legal stances of the Constitutional Court of the Russian Federation. The paper has revealed uncertainty in the interpretation of the constitutional provision restricting human rights and freedoms by the federal law, which leads to contradictions in court practice.

Regulation of Compounding by the Food and Drug Administration

2010 ◽  
Vol 23 (5) ◽  
pp. 502-506 ◽  
Author(s):  
Karl G. Williams
Keyword(s):  
Drug Administration ◽  
Food And Drug Administration ◽  
Pharmacy Practice ◽  
Federal Regulation ◽  
Traditional Art ◽  
The Law ◽  
State Of Affairs

Federal regulation of the traditional art of pharmacy practice compounding is an unsettled area of the law and the profession. For many years, the Food and Drug Administration (FDA) was not interested in compounding. Attempts to regulate by FDA and Congress have caused difficulty within the profession, litigation with inconsistent results, and an unsettled state of affairs. There are a number of possible resolutions.

The Neo-Behavioral Approach to the Judicial Process: A Critique

1963 ◽  
Vol 57 (3) ◽  
pp. 593-603 ◽  
Author(s):  
Wallace Mendelson
Keyword(s):  
Legal System ◽  
The Other ◽  
Behavioral Approach ◽  
Lower Court ◽  
Judicial Process ◽  
Legal Rules ◽  
Court Judge ◽  
Good Medicine ◽  
The Law ◽  
The Times

A generation ago “legal realists” led by Jerome Frank and Karl Llewellyn dismissed law as a myth—a function of what judges had for breakfast. The important thing, they insisted, was what a court did, not what it said. No doubt this was good medicine for the times. Yet, however broad Frank's 1930 language, later on the bench he loyally acknowledged the compulsive force of legal rules. As a lower court judge, he decided cases in accordance with what he found the law to be—and on occasion he made clear in addenda what he thought it ought to be.Llewellyn, too, changed his mind. In 1934 he had said, “The theory that rules decide cases seems for a century to have fooled, not only library-ridden recluses, but judges.” Seventeen years later he confessed that his earlier behavioral descriptions of law contained “unhappy words when not more fully developed, and they are plainly at best a very partial statement of the whole truth.”In short, after their initial enthusiasm, these and other legal realists recognized that there is and must be law in the judicial process, as well as discretion. This was inevitable, for society can no more dispense with order and coherence than it can deny the demands of changing circumstance. We must have stability, yet we cannot stand still; and so the legal system inevitably has both static and dynamic qualities. Holmes put it in a thimble: “The … law is always approaching, and never reaching, consistency. It is forever adopting new principles from life at one end, and it always retains old ones from history at the other, which have not been absorbed or sloughed off. It will become entirely consistent only when it ceases to grow.”

scholarly journals Zbiorowe diagnozowanie polskiej rzeczywistości. O wywiadach Michała Sutowskiego

2017 ◽  
Vol 61 (4) ◽  
pp. 215-221
Author(s):  
Irena Pańków
Keyword(s):  
The State ◽  
Social Conditions ◽  
Decision Makers ◽  
Scholarly Research ◽  
Valuable Source ◽  
Public Debates ◽  
The Law ◽  
Law And Justice ◽  
State Of Affairs

This essay is a review based on material from nineteen published interviews that focused on a diagnosis of Polish conditions after a year of the Law and Justice [Prawo i Sprawiedliwość] party’s rule. The interviews were conducted with experts—academics and journalists—by Michał Sutowski, who published these interviews as a collection.  The author demonstrates that such a collective diagnosis has major advantages in Poland’s current, rapidly changing, social conditions. Such a method is quicker than the scholarly approach to describing and explaining the state of affairs. The collection of interviews could also be a valuable source of inspiration for public debates and scholarly research in many areas, and could contain guidelines for decision-makers.

Sovereign Outlaws: Shakespeare’s Second Tetralogy

2020 ◽  
pp. 55-79
Author(s):  
Conor McCarthy
Keyword(s):  
History Plays ◽  
Richard Ii ◽  
Henry V ◽  
Sovereign Immunity ◽  
Legal Questions ◽  
The Law ◽  
Second Tetralogy

This chapter asks whether the sovereign can (and perhaps must) act outside the law in a reading of the second tetralogy of Shakespeare’s history plays. The discussion opens with an examination of the notion of sovereign immunity, contrasted with a competing line of discourse against tyranny. It then argues that questions around the king’s status relative to the law constitute an important set of issues within Shakespeare’s Richard II,where both individuals (Richard and Bolingbroke) and events (Richard’s deposition) may be read as existing outside of the law in various senses. The chapter proceeds to consider the remaining plays in the tetralogy, arguing that Henry V, a sort of quasi-outlaw before gaining the throne, finds as king that he must act outside the law to defend the interests of his state. The discussion surveys a range of legal questions in Henry V, from his claim to the throne of France to his threats before Harfleur and his killing of prisoners at Agincourt. The chapter concludes with a brief glance at espionage in Elizabethan England, and the Elizabethan state’s recourse to methods of invisible power.

1. Introduction

2021 ◽  
pp. 1-26
Author(s):  
Andrew L-T Choo
Keyword(s):  
Human Rights ◽  
Direct Evidence ◽  
Circumstantial Evidence ◽  
Law Reform ◽  
Human Rights Act ◽  
Human Rights Act 1998 ◽  
Basic Concepts ◽  
The Law ◽  
Law Of Evidence

Chapter 1 examines a number of basic concepts and distinctions in the law of evidence. It covers facts in issue and collateral facts; relevance, admissibility, and weight; direct evidence and circumstantial evidence; testimonial evidence and real evidence; the allocation of responsibility; exclusionary rules and exclusionary discretions; free(r) proof; issues in criminal evidence; civil evidence and criminal evidence; the implications of trial by jury; summary trials; law reform; and the implications of the Human Rights Act 1998. This chapter also presents an overview of the subsequent chapters.

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