scholarly journals Kivalina at the Supreme Court: A Lost Opportunity for Federal Common Law

2014 ◽  
Vol 8 (2) ◽  
Author(s):  
Peter Manus
Keyword(s):  
Supreme Court ◽  
Common Law ◽  
Current Approach ◽  
Federal Courts ◽  
Transboundary Pollution ◽  
Regulatory Regime ◽  
The Status ◽  
Regulatory Approach ◽  
Federal Statute ◽  
And Function

This article discusses the status of federal common law in the wake of the Supreme Court's May, 2013 denial of petitioners' writ of certiorari in Native Village of Kivalina v. Exxonmobil.  A close reading of Supreme Court and recent appellate decisions on federal common law as applied to transboundary pollution reveals three views on the availability and function of federal common law where a federal statute addresses a category of environmental harms: presumptive displacement of federal common law when a federal statute creates a regulatory approach, presumptive coexistence of federal statutory and common law where a federal statute does not provide relief for injuries alleged under common law, and case-by-case balancing of the interfering effect of federal common law against the injuries left unaddressed by federal statutory law.  The Court’s current approach resides somewhere between presumptive displacement and case-by-case balancing, and although the Court offers various rationales for this approach in its latest federal common law opinion, the most convincing of these is that cases involving transboundary pollution, particularly those alleging global warming-induced injury, are cumbersome for federal courts to handle as common law matters.  Allocation of judicial resources is within the Supreme Court's discretion to consider in rejecting a case, but it is a far more pragmatic than principled rationale, and thus less than satisfying as a court’s primary reason for denying relief.  A more principled approach, advocated by Justices Stevens and Blackmun in dissents to two key federal common law cases, is that the displacement analysis should begin with the premise that the judicial system aims, first and foremost, to compensate the injured, and that a federal common law claim should be displaced only where the legislative-regulatory regime covering the subject of a common law claim directly addresses the injury alleged under common law.

Common law environmental protection: the future of private nuisance, Part II

2014 ◽  
Vol 6 (1/2) ◽  
pp. 106-128
Author(s):  
Robert Charles Palmer
Keyword(s):  
Supreme Court ◽  
Environmental Protection ◽  
Common Law ◽  
Strict Liability ◽  
Regulatory Regime ◽  
Research Approach ◽  
Content Type ◽  
The Supreme Court ◽  
Nuisance Law

Purpose – This article continues to assess the role of private nuisance as a common law tool for environmental protection, independent of the wider regulatory controls. It evaluates the decision in Cambridge Water and asks the question whether it would stand as good law before the Supreme Court. It concludes with illustrating the enduring role of the injunction in environmental protection and its capacity to coerce restorative environmental justice. The paper aims to discuss these issues. Design/methodology/approach – The paper is predominately a classic doctrinal article as it is principally library-based analysing both primary sources (that both pre- and post-date the modern law reporting system) and secondary sources whilst engaging in leading academic commentary. Findings – Nuisance developed to a point in the nineteenth-century where a simple form of the tort was visible. At that juncture, it had an “unchanged” essence that emanated from a strict liability reciprocal identity. Recent judicial activity has visibly adulterated that identity: this article casts doubts on juridical restrictions that assess the conduct of defendants to assess liability. It is suggested that it may not withstand the scrutiny of the Supreme Court if, and when, they are tested. In light of that analysis and considering the potency of injunctions, it is argued that nuisance law potentially has a positive future in environmental protection. Research limitations/implications – Owing to the elected research approach, the scope of the article has been necessarily concentrated on succinct areas of a broader subject and viewed in a manner that works alongside the regulatory regime. Originality/value – This paper recognises that nuisance law has a positive future in environmental protection especially if the courts are willing to embrace the historical paradigm which has served the common law in this field broadly well for hundreds of years.

Kazakstan's Political Transformation since 1991

1998 ◽  
Vol 26 (3) ◽  
pp. 545-555 ◽  
Author(s):  
Zhanylzhan Dzhunusova
Keyword(s):  
Supreme Court ◽  
Constitutional Court ◽  
Political Transformation ◽  
Human Beings ◽  
Legislative Body ◽  
Head Of State ◽  
The Supreme Court ◽  
The Status ◽  
The Republic ◽  
And Function

According to the 1993 Constitution, the Republic of Kazakstan was proclaimed as a democratic, secular, and unitary state. Human beings, their life, freedom, and inherent rights were granted the status of supreme value. A presidential republic as a form of government arose from the functions of the head of state and executive. The supreme legislative body, a one-chamber parliament (Supreme Soviet), preserved remnants of the old Soviet state system in name and function, denying the principle of the division of power. The Supreme Soviet was the only legislative and higher representative body that did not correspond to its legislative function, since that implied a hierarchical power structure. As the only legislative body, parliament could not have subordinate structures. According to the Constitution, the Supreme Soviet issued laws, controlled the observance of laws, and made formal interpretations of laws. This contradicted the power-division principle, according to which it should be the legislative body only. Judicial power in the republic in accordance with the 1993 Constitution belonged to the Constitutional Court, the Supreme Court, and the Supreme Court of Arbitration, which was to be elected by the Supreme Soviet. But this also contradicted the power-division principle.

Aspects of Negligence in Israeli Criminal Law

1996 ◽  
Vol 30 (1-2) ◽  
pp. 126-139
Author(s):  
Eliezer Lederman
Keyword(s):  
Supreme Court ◽  
Criminal Law ◽  
Common Law ◽  
Evolutionary Process ◽  
Court Decisions ◽  
Systematic Treatment ◽  
Penal Law ◽  
The Status ◽  
General Part ◽  
Mode Of Development

The Israel Penal Law, 1977, which is deeply rooted in English common law, contained, until recently, very few definitions of basic criminal concepts. Negligence was one of the definitions lacking. The law seldom used this term explicitly when defining specific offenses in the code. The newly enacted General Part of the Criminal Law, as part of its systematic treatment of essential criminal notions, is the first piece of Israeli legislation to cope with this term.The various aspects of negligence have been developed in Israeli criminal law since the early 50's, mainly through Supreme Court decisions, first and foremost with reference to negligent homicide. This mode of development of law has inherent limitations, since its shaping depends on occurrences of events and the consequent raising of relevant questions of law in the courtroom. However, in the Israeli case, this evolutionary process has not hindered the development of the status and importance of the said mode of fault.

The Irish Supreme Court

2019 ◽  
Author(s):  
Dickson Brice
Keyword(s):  
Northern Ireland ◽  
Supreme Court ◽  
Common Law ◽  
Administrative Law ◽  
European Convention ◽  
European Union Law ◽  
Supreme Courts ◽  
The Supreme Court ◽  
The Status ◽  
Court Of Appeal

This book examines the jurisprudence of the Supreme Court of Ireland since its creation in 1924. It sets out the origins of the Court, explains how it operated during the life of the Irish Free State (1922-1937), and considers how it has developed various fields of law under Ireland’s 1937 Constitution, especially after the ‘re-creation’ of the Court in 1961. As well as constitutional law, the book looks at the Court’s views on the status and legal system of Northern Ireland, administrative law, criminal justice and personal and family law. There are also chapters on the Supreme Court’s interaction with European Union law and with the European Convention on Human Rights. The argument throughout is that, while the Court has been well served by many of its judges, who on occasion have manifested a healthy degree of judicial activism, there are still several legal fields in which the Court has not developed its jurisprudence as clearly or as imaginatively as it might have done. It has often displayed undue conservatism and deference. For many years its performance was hampered by its extreme workload, generated by its inability to control the number of appeals brought to it. However, the creation of a new Court of Appeal in 2014 has freed up the Supreme Court to act in a manner more analogous to that adopted by supreme courts in other common law countries. The Court’s future looks bright.

scholarly journals A Common Law Perspective on the Supreme Court and its Functions

2019 ◽  
Vol 81 ◽  
pp. 15-43
Author(s):  
Richard Marcus
Keyword(s):  
Supreme Court ◽  
Common Law ◽  
Civil Law ◽  
Specific System ◽  
Law System ◽  
The Supreme Court ◽  
The Us ◽  
Us Supreme Court ◽  
Common Law System ◽  
And Function

The text presents different attributes of the Supreme Court in common law and civil law systems. The author claims that the question of design and function of a supreme court, while important, is no more significant than the issue of its institutional status and evolution, i.e. something one could refer to as “legal culture”. Neither the “common law camp”, nor the “civil law camp” turns out to be monolithic in this regard. The distinctive history of the US Supreme Court is presented through the perspective of its statutory and procedural supremacy, as well as its power of constitutional adjudication. The author indicates that the supremacy of the US Supreme Court depends on many factors. Arguably, the most important attribute of the US Supreme Court’s supremacy is linked with the latitude offered to judges in common law system to “make law”, which stands in contrast to a limited judicial function in many civil law countries. The author argues that being a court in a common law system carries with it much broader authority. A supreme court in such a system is, as a result, much more supreme. The author concludes his comparative remarks by saying that it is not possible to proclaim the superiority of one specific system because there are too many variables that come into play with regard to respective nations.

The Certainty of the Legal Status of Court Secretary and Court Clerk in Federal Courts

2020 ◽  
Vol 6 ◽  
pp. 26-34
Author(s):  
E. V. Gerasenko ◽  
Keyword(s):  
Russian Federation ◽  
Legal Status ◽  
System Analysis ◽  
Civil Service ◽  
Federal Courts ◽  
Scientific Methods ◽  
Level Of Education ◽  
Additional Qualification ◽  
The Status ◽  
The Russian Federation

Employees of the federal courts' apparatus, in accordance with the current regulations, are public civil servants. In practice and in existing scientific research there is an approach to determining the legal status of this category of public servants through their duties, without specifying the specific requirements for candidates for the position to be filled. The purpose of this study is to define additional qualification requirements to be imposed on the applicant for the position of State Civil Service «Court Secretary» in court, in addition to those contained in the Federal Law «On State Civil Service of the Russian Federation» and orders of the Judicial Department of the Supreme Court of the Russian Federation. The tasks of this work are to study the theoretical foundations of the concept of «status of a State civil servant », to compare federal legislation, decrees of the President of the Russian Federation, decisions and other acts of ministries and departments in the field of the State civil service in the apparatus of federal courts; Justification for the need to include in the status of a public servant serving in the court apparatus additional requirements for the level of education. The methodological basis of the present study was the general scientific methods such as analogy, derivation, system analysis, as well as the private scientific methods: formal-logical, technical-legal and comparativelegal in their various combinations. The study concluded that it was necessary to distinguish the status of federal court staff according to the level of education required to replace a public civil service post, in particular the «Registrar of the Court».

Unresolved Business: Federal Corporate Governance Enhancements

2018 ◽  
Author(s):  
Marc I. Steinberg
Keyword(s):  
Corporate Governance ◽  
Insider Trading ◽  
Securities And Exchange Commission ◽  
Federal Courts ◽  
Professional Conduct ◽  
State Law ◽  
Federal Law ◽  
Tender Offers ◽  
Federal Level ◽  
Federal Statute

This chapter analyzes and recommends federal corporate governance enhancements that should be implemented. These enhancements, which should be adopted in a measured and directed manner, are necessary to remediate certain deficiencies that currently exist. Consistent therewith, this chapter focuses on several important matters that merit attention, including the undue deference by federal courts to state law, the appropriate application of federal law to tactics undertaken in tender offers, the need for a federal statute encompassing insider trading, and the propriety of more vigorous oversight by the Securities and Exchange Commission (such as with respect to the “current” disclosure regime, the SEC’s Standards of Professional Conduct for Attorneys, and the Commission’s neglecting at times to invoke its statutory resources). Thus, the analysis set forth in this chapter identifies significant deficiencies that currently exist and recommends measures that should be implemented on the federal level to enhance corporate governance standards.

Current situation and development direction of sports industry in colleges and universities based on euclidean algorithm

2021 ◽  
pp. 1-7
Author(s):  
Shunjiang Ma ◽  
Gaicheng Liu ◽  
Zhiwu Huang
Keyword(s):  
Computer Technology ◽  
Colleges And Universities ◽  
Status Quo ◽  
Euclidean Algorithm ◽  
Test Results ◽  
Sports Industry ◽  
Development Direction ◽  
The Status ◽  
Traditional Sports ◽  
And Function

With the development of sports in colleges and universities, the research on innovation reform of sports industry has been deepened. Therefore, based on the above situation, a study of the status quo and development direction of sports industry in colleges and universities based on the Euclid algorithm is proposed. In the research here, according to the traditional sports industry concept to sum up, and then according to the advantages of computer technology to deal with the relevant data. In order to realize good overlap between data, an application of Euclidean algorithm is proposed. In the test of Euclidean algorithm, the efficiency and function of the algorithm are tested comprehensively, and the test results show that the research is feasible.

Concession Agreements and Nationalization

1958 ◽  
Vol 52 (2) ◽  
pp. 260-279 ◽  
Author(s):  
Kenneth S. Carlston
Keyword(s):  
International Law ◽  
Clear Understanding ◽  
Legal Rules ◽  
Social Facts ◽  
The Social ◽  
The Status ◽  
And Function ◽  
International Economies

It is the purpose of this article to investigate the status of concession agreements in the light of the rules of international law bearing on the power of a state to nationalize property. It is a continuation of an earlier article which explored the nature and function of the concession agreement in the national and international economies. The first article rested on the assumption that legal rules could not be fully understood or evaluated without a fairly clear understanding of the social facts which they were designed to regulate.

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