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The dominance of legislatures and statutory law has put an impossible burden on the courts. Guido Calabresi thinks it is time for this country seriously to consider returning to a traditional American judicial-legislative balance in which courts would enlarge the common law and would also decide when a rule of law has seen its day and should be revised. Table of Contents: 1. Choking on Statutes 2. The Flight to the Constitution and to Equal Protection Clauses 3. The Passive Virtues 4. Interpretation 5. The New Deal Response: Administrative Agencies 6. Legislative Responses 7. Structural Responses 8. A New Approach: Antecedents and Roots 9. The Doctrine: A Question of Legitimacy 10. The Doctrine: Limits and Guidelines 11. The Doctrine: Techniques and Feasibility 12. The Role of Courts in an Age of Statutes 13. The Dangers of the Doctrine 14. The Uses and Abuses of Subterfuge 15. The Choice for Candor Notes Works Cited Table of Cases Index Reviews of this book: This is a genuinely original and thoughtful book, one of the few in the jurisprudential genre that is both dearly written and devoid of cliché. It addresses current social and legal issues from an engagingly fresh, nonpolemical, and erudite perspective. --American Bar Association Journal Reviews of this book: Calabresi has brought his ample juristic talents to bear on a foundational problem of the legal and democratic process...in its quality, timeliness and provocativeness [this book] is likely to stand alongside the seminal works of Ronald Dworkin and Grant Gilmore. --Columbia Law Review
This topical book provides an insightful analysis of the increasing prominance of the statute in AustraliaoÂeÂ(tm)s inherited common law system. It examines the integration of the two sources of law, with specific reference to the operation of claims for damages under the two sources of law and the concept of the equity of the statute. The author addresses how the common law can develop in the current environment and discusses the modern relationship between legislation and judge-made law. Two interlinked themes are presented. First, as most new law is sourced from statute, an understanding of the law of obligations is incomplete without a consideration of how statute is affecting traditional legal obligations. The example of damages under the Australian Consumer Law is analysed in detail. The statutory regime has the potential to render irrelevant significant parts of the traditional law of contract, tort and equity, which traditionally have had detailed remedial schemes. This potential will be examined in the book. The second theme is an investigation of the unification of private and public law and the important role that the Equity of the Statute (via statutory interpretation and analogical reasoning) can play in this development. This book will be of particular relevance to legal practitioners, courts and anyone faced with managing legal matters in the current legal environment, for whom a deep knowledge of the interrelationship of the two sources can inform their approach to private law remedies. It will also engage researchers, legal theorists, scholars and anyone interested in the modern operation of the Australian legal system. Features oÂeo Accessible treatment of complex structure of AustraliaoÂeÂ(tm)s modern legal system oÂeo Highlights the role of statutory interpretation in the common law system oÂeo Offers guidance as to assessment of appropriate remedies Related Title Pearce & Geddes, Statutory Interpretation in Australia, 8th ed, 2014
Interpreting Statutes was cited 4 times by the High Court in Momcilovic v The Queen [2011] HCA 34 (8 September 2011)Interpreting Statutes has been written for lawyers and judges who must interpret statutes on a daily basis, as well as for students and scholars who have their own responsibility for the future. This book takes a new approach to statutory interpretation. The authors consider the fundamental importance of context in statutory interpretation across various fields of regulation and explore the problems, which arise from the frequent disjunction between regulatory design and subsequent statutory interpretation. As a result, they bring to the fore fundamental theoretical questions underlying interpretive choice and expand our appreciation of how critical interpretive issues are to the proper functioning of our legal system. The book is divided into two parts. The first covers several areas dealing with fundamental theoretical issues. The second deals with particular areas of the law, such as criminal law or corporate law, addressing the utility and functionality of the general theories from different legal perspectives and illustrating the fact that different interpretive principles may take precedence in different areas of the law. It reveals the complexity of statutory interpretation when applied to actual practice in a particular area of law. Despite this complexity and the unique problems of statutory interpretation within each area of law, some major themes emerge including: the strong influence of constitutional interpretation; tension between common law rights and statutory innovation; questions about the interaction of domestic law with international law; tension between settled judicial principles of interpretation and principles embedded in legislation; issues concerning the interpretation of delegated legislation; and questions about gap filling and discretion in the interpretation of statutes and codes.
In the eighteenth century, the English common law courts laid the foundation that continues to support present-day Anglo-American law. Lord Mansfield, Chief Justice of the Court of King's Bench, 1756-1788, was the dominant judicial force behind these developments. In this abridgment of his two-volume book, The Mansfield Manuscripts and the Growth of English Law in the Eighteenth Century, James Oldham presents the fundamentals of the English common law during this period, with a detailed description of the operational features of the common law courts. This work includes revised and updated versions of the historical and analytical essays that introduced the case transcriptions in the original volumes, with each chapter focusing on a different aspect of the law. While considerable scholarship has been devoted to the eighteenth-century English criminal trial, little attention has been given to the civil side. This book helps to fill that gap, providing an understanding of the principal body of substantive law with which America's founding fathers would have been familiar. It is an invaluable reference for practicing lawyers, scholars, and students of Anglo-American legal history.
The study of the law of tort is generally preoccupied by case law, while the fundamental impact of legislation is often overlooked. At a jurisprudential level there is an unspoken view that legislation is generally piecemeal and at best self-contained and specific; at worst dependent on the whim of political views at a particular time. With a different starting point, this volume seeks to test such notions, illustrating, among other things, the widespread and lasting influence of legislation on the shape and principles of the law of tort; the variety of forms of legislation and the complex nature of political and policy concerns that may lie behind their enactment; the sometimes unexpected consequences of statutory reform; and the integration not only of statutory rules but also of legislative policy into the operation of tort law today. The apparently sharp distinction between judicially created private law principles, and democratically enacted legislative rules and policies, is therefore questioned, and it is argued that to describe the principles of the law of tort without referring to statute is potentially highly misleading. This book shows that legislation is important not only because of the way it varies or replaces case law, but because it also deeply influences the intrinsic character of that law, providing some of its most familiar characteristics. The book provides the first extended interpretation of legislative intervention in the law of tort. Each of the chapters, by leading tort scholars, deals with an aspect of the influence of legislation on the law of tort. While the nature, sources and extent of legislative influence in personal injury law is an essential feature of the collection, other significant areas of tort law are explored, including tort in the context of commercial law, labour law, regulation and the welfare state. Essays on the Compensation Act 2006 and Human Rights Act 1998 bring the current state of the interplay between tort, politics and legislation to the forefront. In all of these contexts, contributors explore the deeper lessons that can be learned about the nature of the law of tort and its changing role and functions over time. Cited with approval in the Singapore Court of Appeal by VK Rajah JA in See Toh Siew Kee vs Ho Ah Lam Ferrocement (Pte) Ltd and others, [2013] SGCA 29
of those problems in law which we inherit and/or retrieve in order to reconstruct and interpret in the light of legal semiotics, however defined. In addition to three main areas of underlying metaphysical assumptions there are also three main areas of possible editorial focus and these should be mentioned. The three areas of focus are: 1) the state-of-the-art of legal semiotics; 2) the dynamic, intense and exceptionally interactive quality of conference participation, and 3) the content of the papers presented which is the material of this volume. My choice of this triad of focal possibilities is to exclude the last since the papers speak for themselves and need but a brief reportorial caption. I also eliminate the second possible focus as the main focus since the discussion was not taped for editing into this volume and must remain for all those who participated a quality of scholarly meetings to be remembered, savored and hoped for. My main focus is on the "state-of-the-art" of legal semiotics. II At the conclusion of the First Round Table on Law and Semiotics (1987) it was noted that there were no working paradigms, in Kuhn's sense, that thus far emerged but rather that several problematic areas were disclosed which warrant attention. Therefore the first concern of Legal Semiotics should be to address the surface, i. e.
Does the seller of a house have to tell the buyer that the water is turned off twelve hours a day? Does the buyer of a great quantity of tobacco have to inform the seller that the military blockade of the local port, which had depressed tobacco sales and lowered prices, is about to end? Courts say yes in the first case, no in the second. How can we understand the difference in judgments? And what does it say about whether the psychiatrist should disclose to his patient's girlfriend that the patient wants to kill her? Kim Lane Scheppele answers the question, Which secrets are legal secrets and what makes them so? She challenges the economic theory of law, which argues that judges decide cases in ways that maximize efficiency, and she shows that judges use equality as an important principle in their decisions. In the course of thinking about secrets, Scheppele also explores broader questions about judicial reasoning—how judges find meaning in legal texts and how they infuse every fact summary with the values of their legal culture. Finally, the specific insights about secrecy are shown to be consistent with a general moral theory of law that indicates what the content of law should be if the law is to be legitimate, a theory that sees legal justification as the opportunity to attract consent. This is more than a book about secrets. It is also a book about the limits of an economic view of law. Ultimately, it is a work in constructive legal theory, one that draws on moral philosophy, sociology, economics, and political theory to develop a new view of legal interpretation and legal morality.

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