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.

Constitutional Domains: Democracy, Community, Management

Abstract: Acknowledgments Introduction: The Social Domains of Constitutional Law I. Community and Human Dignity Theories of Constitutional Interpretation The Social Foundations of Privacy: Community and Self in the Common Law Tort Cultural Heterogeneity and Law: Pornography, Blasphemy, and the First Amendment II. Democracy and Human Freedom The Constitutional Concept of Public Discourse: Outrageous Opinion, Democratic Deliberation, and Hustler Magazine v. Falwell Between Democracy and Community: The Legal Constitution of Social Form III. Management and Instrumental Reason Between Governance and Management: The History and Theory of the Public Forum Meiklejohn's Mistake: Individual Autonomy and the Reform of Public Discourse Reprise: The Racist Speech Problem Notes Sources Index

The New Dispute Settlers : (Half) Truths and Consequences

Abstract: I. INTRODUCTION Not long ago, at a conference not unlike this one on "The Proliferation of International Judicial Bodies" at New York University, it was suggested that the "enormous expansion and transformation of the international judiciary" at the end of the twentieth century would be regarded by future international lawyers as "the single most important development of the post-Cold War age."1 This conclusion is plausible. After all, in the decade between 1989 and 1999, almost a dozen international judicial bodies have become active or have been extensively reformed (including dispute settlement mechanisms in the then General Agreement on Tariffs and Trade (GATT) and in a newly designed European Court of Human Rights). Indeed, the chart released at that conference identified seventeen international judicial bodies in existence and an additional thirty-seven quasi-judicial bodies, involving some 200 individuals in permanent bodies who could now be described as the kind of beings that did not exist a mere 100 years ago, namely "international judges."2 That conference also made much of the fact that of the international judicial bodies in existence, those granting standing to non-state entities far outnumbered those whose jurisdiction was limited to disputes between states. This development was touted as a singular transformation of the nature of international dispute settlement and a testament to the expanding competence and power of the international judiciary.3 That conference advanced the view that there was now a new discipline devoted to the study of international judicial law and organization that supplanted the well-worn topic of the "peaceful settlement of disputes."4 Accordingly, conference participants engaged the new discipline by discussing such cutting-edge issues as the potential threat posed to international law by conflicting judicial decisions; the prospects for the constitutionalization of the international legal order, including the potential for forms of judicial review within and perhaps even between international organizations; the growing phenomenon of "transjudicial communication," not only between the various international courts, but also between those tribunals and national courts; and the dilemmas posed by forum shopping among litigants.5 These topics suggest why judicialization remains a popular topic with international lawyers. The recent proliferation of international tribunals permits us to address questions that we once (enviously) had to leave to our domestic colleagues. Now we too can focus on real law-real cases decided by real judges. No longer do public international lawyers have to be content with parsing arcane, rare, and rather dull boundary dispute decisions issued by the International Court of justice (ICJ) that all too often involved "equitable" demarcations (as with respect to maritime boundaries) that appeared to be based on notions of fairness and not hard rules.6 Finally, international law professors can start doing their share of the heavy lifting of the law school enterprise. Like our constitutional colleagues, we too can talk about the democratic legitimacy or accountability of our judges (or alternatively bemoan their "politicization"). We too can write learned tomes on the merits of reliance on original intent versus teleological interpretation of founding texts, from the WTO-covered agreements to the UN Charter. Like our colleagues in administrative law, we can expound on the intricacies of improper delegation to unelected judges or the level of deference (Chevron or otherwise) that such judges owe either organs of international organizations or executive determinations made within national legal systems.7 Those of us within common law systems now see the day when we too can discuss the rise of de facto stare decisis (despite troublesome hurdles like Article 59 of the ICJ Statute)8 or the impact international precedents have on other actors, from national courts to negotiators at the next WTO round. …

Third Party Funding: Law, Economics and Policy

Abstract: In Third Party Funding, Gian Marco Solas, for the first time, describes third party funding (TPF) as stand-alone practice within the wider litigation and legal services' markets. The book reports on legal issues related to TPF in both common law and civil law jurisdictions, and in the international context. It then discusses the incentives and economics of TPF transactions in different legal contexts while explaining how the practice emerged and how it is likely to develop. In addition, the book offers practical insights into TPF transactions and analyzes a number of regulatory proposals that could affect its use and desirability. This work should be read by scholars, practitioners, policymakers, and anyone else interested in how TPF is changing the practice of law.

Resisting the march towards 50/50 shared residence: rights, welfare and equality in post-separation families

Abstract: In recent years, a normative model of equal shared parenting post-separation has become firmly entrenched in the minds of some policy makers and legal practitioners. This has been due, in no small part, to the high-profile campaign of fathers' rights groups. In attacking what they perceive as the gender bias inherent within the family justice system, fathers' rights groups have argued vociferously for a presumption in favour of shared residence post-separation, with the child's time being split on a roughly equal 50/50 basis between the mother and the father unless the child's welfare dictates otherwise. Although the Labour government resisted calls to introduce such a presumption into the Children Act 1989, the recent case law of the Court of Appeal on the use of shared residence orders risks pushing us towards a position in which 50/50 shared residence will indeed become entrenched as the normative model for organizing post-separation family life. This article warns strongly against any such shift in po...