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Common law

About: Common law is a research topic. Over the lifetime, 30135 publications have been published within this topic receiving 280701 citations. The topic is also known as: judicial precedent & judge-made law.


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Journal ArticleDOI
TL;DR: In this paper, Manning argues that the English equity of the statute doctrine failed to survive the structural innovations that differentiated the U.S. Constitution from its English common law ancestry, and argues that while early American history is somewhat mixed, the faithful agent theory came to be the dominant federal interpretive theory quite early in the republic.
Abstract: Recent scholarship has sought to challenge textualist interpretive methods by reviving the ancient English doctrine of the equity of the statute-a doctrine that treated atexual, purposive interpretation as an inherent attribute of judicial authority. In particular, modern proponents contend that this common law doctrine, rather than the currently prevailing faithful agent theory, more accurately reflects the original understanding of "the judicial Power of the United States." In this Article, Professor Manning argues that the English equity of the statute doctrine failed to survive the structural innovations that differentiated the U.S. Constitution from its English common law ancestry. He further contends that while early American history is somewhat mixed, the faithful agent theory came to be the dominant federal interpretive theory quite early in the republic. Finally, Professor Manning argues that, contrary to the critics of textualism, current rejection of the equity of the statute will not lead to rigid and literal interpretive methods.

46 citations

Book ChapterDOI
01 Jul 1991
TL;DR: A new history centring on law and government, pervasive respect for common law, and an increasingly confident and aggressive House of Commons was proposed in the early 1640s as mentioned in this paper.
Abstract: A new history centring on law and government, pervasive respect for common law, and an increasingly confident and aggressive House of Commons – this congruence of elements nourished in Stuart England the doctrine of an ancient constitution. The authors of the new history were usually common lawyers with scholarly interests, often referred to as legal antiquaries, who interpreted the historical past from the standpoint of their own day. Assuming the antiquity of Englishmen's rights and liberties and their constant assertion through the centuries, they ransacked historical records for the requisite evidence and interpreted their findings in light of common law. Their list of rights and liberties, composing in toto the ancient constitution, proved surprisingly protean, ranging from freedom of speech in parliament to its regular meetings and, after civil war directed political thought into new channels, even legal rights concerned with parliamentary representation and the role of the House of Commons in law making – subjects little scrutinised in the pre-1642 political world. Whether the human source of these rights and liberties was the king or community became a leading question in Stuart political thought. According to the Jacobean House of Commons, reasoning from common law, the rights and liberties of the commons of England, enjoyed from time immemorial, were an inheritance from their ancestors, a statement making the community their human source. James I's rejoinder expressed impatience with ‘anti-monarchical’ words about ancient liberties unless it were added that he and his ancestors had granted them; but the king pledged, of his own will, to respect privileges enjoyed by long custom and lawful precedent.

46 citations

Journal ArticleDOI
TL;DR: A growing trend in international human rights law: the submission of petitions by aggrieved individuals to multiple human rights courts, tribunals, or treaty bodies, each of which is authorized to review the petition and to determine whether the individuals? rights have been violated.
Abstract: The article analyzes a growing trend in international human rights law: the submission of petitions by aggrieved individuals to multiple human rights courts, tribunals, or treaty bodies, each of which is authorized to review the petition and to determine whether the individuals? rights have been violated Most commentators have viewed this practice of "forum shopping for human rights" as a danger to be avoided This article questions that conventional wisdom and offers in its place a re-envisioning of the human rights petition system Although efficiency, finality and other concerns weigh against some varieties of duplicative review, this article argues that forum shopping, if properly regulated, will enhance the development of international human rights law Forum shopping is the only way that many aggrieved individuals can receive a complete review of the rights violations allegations in their petitions, and it serves the further salutary function of encouraging jurists on human rights tribunals to engage in a dialogue to harmonize the content of legal rules shared by more than one treaty The article first examines the haphazard approach to forum shopping that States have adopted in various human rights treaties, and it discusses two different strands of case law that together create incentives for individuals to forum shop for a favorable human rights ruling The article then critiques the established view that forum shopping is harmful to human rights law, and it identifies in a comprehensive way the theoretical justifications for and against the practice of forum shopping Building upon this theoretical analysis, the article then develops a comprehensive proposal for reforming the current approach to forum shopping and discusses alternative ways in which the proposal can be implemented into practice

46 citations

01 Dec 1987
TL;DR: Aboriginal rights are based on a set of basic common law principles that operate uniformly across Canada, except where modified by treaty or legislation as mentioned in this paper, and the recent entrenchment of these rights completes the process.
Abstract: The entrenchment of aboriginal rights in the Constitution Act, 1982 and the importance of aboriginal claims now reaching the courts highlight the need to understand these long-ignored rights. This article sets out a general theory of the subject, drawing on the leading cases and the complex history of relations between native peoples and the Crown. Aboriginal rights are based on a set of basic common law principles that operate uniformly across Canada, except where modified by treaty or legislation. Under those principles, native peoples presumptively hold full rights to lands in their possession, and retain their accustomed laws and political institutions, including a measure of internal autonomy. The Crown holds, a general fiduciary obligation to protect aboriginal peoples and their lands. Aboriginal rights have long enjoyed some constitutional protection under the Royal Proclamation of 1763 and the Constitution Act, 1867. The recent entrenchment of these rights completes the process.

46 citations

Journal ArticleDOI
TL;DR: In this article, it is argued that the ambiguity of many ECJ judgments is said to have two opposed effects: legal ambiguity enables national policy-makers to contain the impact of court rulings, i.e. to ignore potentially broader policy implications, and ambiguous case law provides opportunities for interested litigants to pressure national policy makers into (anticipatory) adjustments.
Abstract: The power of the European Court of Justice (ECJ) to promote European integration through law has been broadly acknowledged, but the court’s domestic impact has received less attention and remains contested. In particular, the ambiguity of many ECJ judgments is said to have two opposed effects: According to one logic, legal ambiguity enables national policy-makers to contain the impact of court rulings, i.e. to ignore potentially broader policy implications. According to another logic, ambiguous case law provides opportunities for interested litigants to pressure national policy-makers into (anticipatory) adjustments. Which of these two logics prevails, it is argued, depends on the distribution of legal uncertainty costs between supporters and challengers of the regulatory status quo. The argument is supported by two in-depth case studies on the domestic responses to series of ECJ rulings concerning the free movement of capital (golden shares) and services (posted workers).

46 citations


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Performance
Metrics
No. of papers in the topic in previous years
YearPapers
202358
2022195
2021460
2020774
2019920
2018981