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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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TL;DR: The idea that what the Warren Court was doing was somehow not really law: that the important Warren Court decisions cannot be justified by reference to conventional legal materials as discussed by the authors has been disproved.
Abstract: The Warren Court's most important decisions -- on school segregation, reapportionment, free speech, and criminal procedure -- are firmly entrenched in the law. But the idea persists, even among those who were sympathetic to the results that Warren Court reached, that what the Warren Court was doing was somehow not really law: that the Warren Court "made it up," and that the important Warren Court decisions cannot be justified by reference to conventional legal materials. It is true that the Warren Court's most important decisions cannot be easily justified on the basis of the text of the Constitution or the original understandings. But in its major constitutional decisions, the Warren Court was, in a deep sense, a common law court. The decisions in Brown v. Board of Education, Gideon v. Wainwright, Miranda v. Arizona, and even the reapportionment cases, all can be justified as common law decisions. The Warren Court's decisions in these areas resemble the paradigm examples of innovation in the common law, such as Cardozo's decision in MacPherson v. Buick Motor Co. In all of those areas, the Warren Court, although it was innovating, did so in a way that was justified by lessons drawn from precedents. And the Warren Court's decisions were consistent with the presuppositions of a common law system -- that judges should build on previous decisions rather than claiming superior insight, and that innovation should be justified on the basis of what has gone before.

130 citations

Book
20 Apr 2015
TL;DR: In this paper, Madden, Madden, Joseph L. Sax, William H. Roberts, and Anne C. Llewellyn discuss the history of the United States Supreme Court.
Abstract: Recommended Citation J. Warren Madden, Joseph L. Sax, William H. Roberts & Marie C. Klinkhamer, THE COMMON LAW TRADITION – DECIDING APPEALS. Karl N. Llewellyn. – LEGACY OF SUPPRESSION. Leonard W. Levy. – THE LEGAL CONSCIENCE: SELECTED PAPERS OF FELIX S. COHEN. Edited by Lucy Kramer Cohen. Foreword by Felix Frankfurter. – THE SUPREME COURT REVIEW. 1960. Edited by Philip Kurland., 10 Cath. U. L. Rev. 100 (1961). Available at: https://scholarship.law.edu/lawreview/vol10/iss2/6

128 citations

Book
19 Jan 2012
TL;DR: In this article, the authors consider the extent to which a coherent body of common evidentiary standards is being developed in both domestic and international jurisprudence, with particular reference to the right to a fair trial that has emerged from the European Court of Human Rights and to the attempts in the new international criminal tribunals to fashion agreed approaches towards the regulation of evidence.
Abstract: Although there are many texts on the law of evidence, surprisingly few are devoted specifically to the comparative and international aspects of the subject. The traditional view that the law of evidence belongs within the common law tradition has obscured the reality that a genuinely cosmopolitan law of evidence is being developed in criminal cases across the common law and civil law traditions. By considering the extent to which a coherent body of common evidentiary standards is being developed in both domestic and international jurisprudence, John Jackson and Sarah Summers chart this development with particular reference to the jurisprudence on the right to a fair trial that has emerged from the European Court of Human Rights and to the attempts in the new international criminal tribunals to fashion agreed approaches towards the regulation of evidence.

127 citations

Book
01 Jan 2005
TL;DR: In this article, an expert who both teaches and practises in the field of international law focuses on what the law is, how it is created, and how it can be applied to solve day-to-day problems.
Abstract: To the new student of international law, the subject can appear extremely complex: a system of laws created by states, international courts and tribunals operating at the national and global level. A clear guide to the subject is essential to ensure understanding. This handbook provides exactly that: written by an expert who both teaches and practises in the field, it focuses on what the law is; how it is created; and how it is applied to solve day-to-day problems. It offers a practical approach to the subject, giving it relevance and immediacy. The new edition retains a concise, user-friendly format allowing central principles such as jurisdiction and the law of treaties to be understood. In addition, it explores more specialised topics such as human rights, terrorism and the environment. This handbook is the ideal introduction for students new to international law.

127 citations

Book
05 Oct 2006
TL;DR: In this paper, Dyzenhaus explores the idea that there is an unwritten constitution of law, exemplified in the common law constitution of Commonwealth countries, and argues that even in the absence of an entrenched bill of rights, the law provides a moral resource that can inform a rule-of-law project capable of responding to situations which place legal and political order under great stress.
Abstract: Dyzenhaus deals with the urgent question of how governments should respond to emergencies and terrorism by exploring the idea that there is an unwritten constitution of law, exemplified in the common law constitution of Commonwealth countries. He looks mainly to cases decided in the United Kingdom, Australia and Canada to demonstrate that even in the absence of an entrenched bill of rights, the law provides a moral resource that can inform a rule-of-law project capable of responding to situations which place legal and political order under great stress. Those cases are discussed against a backdrop of recent writing and judicial decisions in the United States of America in order to show that the issues are not confined to the Commonwealth. The author argues that the rule-of-law project is one in which judges play an important role, but which also requires the participation of the legislature and the executive.

126 citations


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