Erin A. O'Hara and Larry E. Ribstein
- Published in print:
- 2009
- Published Online:
- May 2009
- ISBN:
- 9780195312898
- eISBN:
- 9780199871025
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780195312898.003.0003
- Subject:
- Political Science, American Politics
This chapter focuses on the legal treatment of choice of law to illustrate one important function of choice-of-law clauses: predictability. Without these clauses, the parties must rely on a morass of ...
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This chapter focuses on the legal treatment of choice of law to illustrate one important function of choice-of-law clauses: predictability. Without these clauses, the parties must rely on a morass of legal rules that give them at best vague ideas about what rules apply to their relationships. This chapter describes the choice-of-law theories that scholars have developed and courts have applied over the last century, with an emphasis on the current choice-of-law rules for contracts. The current system is unsatisfying because it leaves parties with little ability to know at the time of entering into their contract what law will govern their relationships and transactions and facilitates the passage and maintenance of bad laws. Unfortunately, Congress, the state legislatures, and the Supreme Court have consistently failed to help contracting parties escape from the confusing common law choice-of-law rules. The chapter concludes by demonstrating that enforcement of choice-of-law clauses is the best hope for enabling contracting parties to obtain predictability and the best-fitting governing law.Less
This chapter focuses on the legal treatment of choice of law to illustrate one important function of choice-of-law clauses: predictability. Without these clauses, the parties must rely on a morass of legal rules that give them at best vague ideas about what rules apply to their relationships. This chapter describes the choice-of-law theories that scholars have developed and courts have applied over the last century, with an emphasis on the current choice-of-law rules for contracts. The current system is unsatisfying because it leaves parties with little ability to know at the time of entering into their contract what law will govern their relationships and transactions and facilitates the passage and maintenance of bad laws. Unfortunately, Congress, the state legislatures, and the Supreme Court have consistently failed to help contracting parties escape from the confusing common law choice-of-law rules. The chapter concludes by demonstrating that enforcement of choice-of-law clauses is the best hope for enabling contracting parties to obtain predictability and the best-fitting governing law.
Erin A. O'Hara and Larry E. Ribstein
- Published in print:
- 2009
- Published Online:
- May 2009
- ISBN:
- 9780195312898
- eISBN:
- 9780199871025
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780195312898.003.00010
- Subject:
- Political Science, American Politics
This chapter proposes a way to preserve the benefits of the law market while eliminating some of the impediments to its efficient operation: a federal statute that compels states to enforce ...
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This chapter proposes a way to preserve the benefits of the law market while eliminating some of the impediments to its efficient operation: a federal statute that compels states to enforce choice-of-law clauses. The proposed statute is crafted to both promote enforcement of contractual choice of law and enable states to retain their power to enact “super-mandatory” rules that trump choice-of-law clauses. The proposal and analysis therefore attempt to balance state regulatory concerns with the benefits of jurisdictional competition. The chapter begins by showing why the proposed solution needs to be initiated by Congress rather than the state governments, why state uniform laws do not provide a solution to the problems addressed by choice of law, and why a statute is necessary to provide needed clarity and predictability for contracting parties.Less
This chapter proposes a way to preserve the benefits of the law market while eliminating some of the impediments to its efficient operation: a federal statute that compels states to enforce choice-of-law clauses. The proposed statute is crafted to both promote enforcement of contractual choice of law and enable states to retain their power to enact “super-mandatory” rules that trump choice-of-law clauses. The proposal and analysis therefore attempt to balance state regulatory concerns with the benefits of jurisdictional competition. The chapter begins by showing why the proposed solution needs to be initiated by Congress rather than the state governments, why state uniform laws do not provide a solution to the problems addressed by choice of law, and why a statute is necessary to provide needed clarity and predictability for contracting parties.
Kirsty Gover
- Published in print:
- 2010
- Published Online:
- January 2011
- ISBN:
- 9780199587094
- eISBN:
- 9780191595363
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199587094.003.0004
- Subject:
- Law, Constitutional and Administrative Law
In the United States, the modern period of tribal constitutionalism began in the 1930s. This chapter illustrates the ways in which tribes have altered their membership governance to maintain and ...
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In the United States, the modern period of tribal constitutionalism began in the 1930s. This chapter illustrates the ways in which tribes have altered their membership governance to maintain and repair continuity during shifts in federal Indian policy and tribal demography. Tribes are increasingly likely to use lineal descent and blood quantum rules after 1970, in place of apparently ethnically-neutral rules, such as parental enrolment or residence. Tribes also increasingly prefer tribe-specific measures of blood quantum, in contrast to the pan-tribal concept of Indian blood quantum used in federal law and policy. Together these changes suggest that tribes are becoming more ‘genealogical’ in their approach to membership governance, favouring descent rules over racial measures.Less
In the United States, the modern period of tribal constitutionalism began in the 1930s. This chapter illustrates the ways in which tribes have altered their membership governance to maintain and repair continuity during shifts in federal Indian policy and tribal demography. Tribes are increasingly likely to use lineal descent and blood quantum rules after 1970, in place of apparently ethnically-neutral rules, such as parental enrolment or residence. Tribes also increasingly prefer tribe-specific measures of blood quantum, in contrast to the pan-tribal concept of Indian blood quantum used in federal law and policy. Together these changes suggest that tribes are becoming more ‘genealogical’ in their approach to membership governance, favouring descent rules over racial measures.
Erin A. O'Hara and Larry E. Ribstein
- Published in print:
- 2009
- Published Online:
- May 2009
- ISBN:
- 9780195312898
- eISBN:
- 9780199871025
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780195312898.003.0011
- Subject:
- Political Science, American Politics
The final chapter includes thoughts on some of the broader implications of the book. The law market can change one's view of regulation. What really matters to whether regulations are binding is not ...
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The final chapter includes thoughts on some of the broader implications of the book. The law market can change one's view of regulation. What really matters to whether regulations are binding is not whether a rule is mandatory, but whether it is “super-mandatory” in the sense of withstanding parties' ability to contract for more permissive laws. The law market also has implications for the future of the law of subordinate jurisdictions in larger, often federal, systems. The globalization of business has profoundly undermined the territorial basis of lawmaking. The law market replaces territory with contract, thereby breathing new life into lawmaking by the subordinate jurisdictions. Finally, although the book has tended to emphasize the market for law within the United States, it closes by emphasizing that the analysis applies equally to international law markets.Less
The final chapter includes thoughts on some of the broader implications of the book. The law market can change one's view of regulation. What really matters to whether regulations are binding is not whether a rule is mandatory, but whether it is “super-mandatory” in the sense of withstanding parties' ability to contract for more permissive laws. The law market also has implications for the future of the law of subordinate jurisdictions in larger, often federal, systems. The globalization of business has profoundly undermined the territorial basis of lawmaking. The law market replaces territory with contract, thereby breathing new life into lawmaking by the subordinate jurisdictions. Finally, although the book has tended to emphasize the market for law within the United States, it closes by emphasizing that the analysis applies equally to international law markets.
Randy E. Barnett
- Published in print:
- 2013
- Published Online:
- October 2017
- ISBN:
- 9780691159737
- eISBN:
- 9781400848133
- Item type:
- chapter
- Publisher:
- Princeton University Press
- DOI:
- 10.23943/princeton/9780691159737.003.0008
- Subject:
- Law, Constitutional and Administrative Law
This chapter examines whether the Necessary and Proper Clause of the Constitution precludes or invites the exercise of judicial review of a federal law to see if it lies within the powers of Congress ...
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This chapter examines whether the Necessary and Proper Clause of the Constitution precludes or invites the exercise of judicial review of a federal law to see if it lies within the powers of Congress to enact. Evaluating whether a federal law is constitutional must begin with whether Congress has acted within the powers it is granted in the Constitution. The chapter first provides an overview of the origins of the Necessary and Proper Clause before discussing the meaning of the term “proper.” It then examines the merits of applying the presumption of constitutionality to federal laws. In particular, it considers the original meaning of the constitutional provision giving Congress the power “to make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.”Less
This chapter examines whether the Necessary and Proper Clause of the Constitution precludes or invites the exercise of judicial review of a federal law to see if it lies within the powers of Congress to enact. Evaluating whether a federal law is constitutional must begin with whether Congress has acted within the powers it is granted in the Constitution. The chapter first provides an overview of the origins of the Necessary and Proper Clause before discussing the meaning of the term “proper.” It then examines the merits of applying the presumption of constitutionality to federal laws. In particular, it considers the original meaning of the constitutional provision giving Congress the power “to make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.”
Randy E. Barnett
- Published in print:
- 2013
- Published Online:
- October 2017
- ISBN:
- 9780691159737
- eISBN:
- 9781400848133
- Item type:
- chapter
- Publisher:
- Princeton University Press
- DOI:
- 10.23943/princeton/9780691159737.003.0012
- Subject:
- Law, Constitutional and Administrative Law
This chapter examines the propriety of federal laws under the power most often invoked to justify restrictions on liberty: the power to regulate commerce among the several states. Courts are not ...
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This chapter examines the propriety of federal laws under the power most often invoked to justify restrictions on liberty: the power to regulate commerce among the several states. Courts are not empowered to disregard powers that are expressly enumerated in the Constitution, even those that violate the rights of the people. They are authorized only to interpret the meaning of these powers, and where this meaning is underdeterminate, to construe them in a manner that is consistent with original meaning and that would render their exercise as legitimate as possible. The chapter analyzes the federal power to regulate commerce by explaining what the Commerce Clause means. It also considers judicial interpretations of commerce during the period 1824–1935 and shows that the term “among the states” independently limits federal power with respect to commerce. Finally, it reviews John Marshall's arguments in Gibbons v. Ogden.Less
This chapter examines the propriety of federal laws under the power most often invoked to justify restrictions on liberty: the power to regulate commerce among the several states. Courts are not empowered to disregard powers that are expressly enumerated in the Constitution, even those that violate the rights of the people. They are authorized only to interpret the meaning of these powers, and where this meaning is underdeterminate, to construe them in a manner that is consistent with original meaning and that would render their exercise as legitimate as possible. The chapter analyzes the federal power to regulate commerce by explaining what the Commerce Clause means. It also considers judicial interpretations of commerce during the period 1824–1935 and shows that the term “among the states” independently limits federal power with respect to commerce. Finally, it reviews John Marshall's arguments in Gibbons v. Ogden.
Annelise Riles
- Published in print:
- 2009
- Published Online:
- February 2010
- ISBN:
- 9780199580910
- eISBN:
- 9780191723025
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199580910.003.0004
- Subject:
- Law, Comparative Law
It is no secret that there is widespread dissatisfaction with the prevailing doctrinal approaches to conflict of laws in the United States. The ‘methodologies’ for resolving conflicts problems that ...
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It is no secret that there is widespread dissatisfaction with the prevailing doctrinal approaches to conflict of laws in the United States. The ‘methodologies’ for resolving conflicts problems that compete for judicial attention in the United States coexist uneasily in the Second Restatement, since none has managed to garner sufficient support, and each has been the subject of extensive scholarly and judicial criticism. This chapter suggests that the general dissatisfaction with conflicts as a field in the United States, and its failure to live up to its larger promise, may stem in part from the fact that doctrines and theories fail to address what our moral intuition tells us that conflict problems are about. It takes as its primary example a case of cultural conflict between Native American legal norms and US state and federal law. The conflict between Native American and settler culture is foundational to the political and legal system of which US conflicts is a part, and is arguably the silent background against which questions of the politics of cultural recognition are entertained, defined, or rejected in US cultural, political, and legal life.Less
It is no secret that there is widespread dissatisfaction with the prevailing doctrinal approaches to conflict of laws in the United States. The ‘methodologies’ for resolving conflicts problems that compete for judicial attention in the United States coexist uneasily in the Second Restatement, since none has managed to garner sufficient support, and each has been the subject of extensive scholarly and judicial criticism. This chapter suggests that the general dissatisfaction with conflicts as a field in the United States, and its failure to live up to its larger promise, may stem in part from the fact that doctrines and theories fail to address what our moral intuition tells us that conflict problems are about. It takes as its primary example a case of cultural conflict between Native American legal norms and US state and federal law. The conflict between Native American and settler culture is foundational to the political and legal system of which US conflicts is a part, and is arguably the silent background against which questions of the politics of cultural recognition are entertained, defined, or rejected in US cultural, political, and legal life.
Stefanie A. Lindquist and Frank B. Cross
- Published in print:
- 2009
- Published Online:
- May 2009
- ISBN:
- 9780195370850
- eISBN:
- 9780199870790
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780195370850.003.0003
- Subject:
- Law, Comparative Law
This chapter measures the justices' voting behavior in cases challenging the constitutionality of a federal statute, for the period 1954 to 2004 (the Warren, Burger, and Rehnquist Courts). First, the ...
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This chapter measures the justices' voting behavior in cases challenging the constitutionality of a federal statute, for the period 1954 to 2004 (the Warren, Burger, and Rehnquist Courts). First, the chapter describes the pattern of the Court's overall decision making in connection with constitutional review of federal enactments. Because these cases raise the possibility of the Supreme Court's invalidating the actions of a co-equal branch of government, they are among the most important elements of any analysis of judicial activism. The statistical evaluation of the justices' voting behavior these cases reflect substantial disparities between the justices in terms of their willingness to vote to invalidate federal laws, with several justices demonstrating high levels of both institutional activism and ideological activism, including Justices Douglas, Marshall, Brennan, Thomas, and Scalia.Less
This chapter measures the justices' voting behavior in cases challenging the constitutionality of a federal statute, for the period 1954 to 2004 (the Warren, Burger, and Rehnquist Courts). First, the chapter describes the pattern of the Court's overall decision making in connection with constitutional review of federal enactments. Because these cases raise the possibility of the Supreme Court's invalidating the actions of a co-equal branch of government, they are among the most important elements of any analysis of judicial activism. The statistical evaluation of the justices' voting behavior these cases reflect substantial disparities between the justices in terms of their willingness to vote to invalidate federal laws, with several justices demonstrating high levels of both institutional activism and ideological activism, including Justices Douglas, Marshall, Brennan, Thomas, and Scalia.
Robert F. Williams
- Published in print:
- 2009
- Published Online:
- February 2010
- ISBN:
- 9780195343083
- eISBN:
- 9780199866960
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780195343083.003.0004
- Subject:
- Law, Constitutional and Administrative Law
This chapter analyzes the various ways in which state constitutions are limited by the federal Constitution and federal law, which are the supreme law of the land. Provisions in state constitutions ...
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This chapter analyzes the various ways in which state constitutions are limited by the federal Constitution and federal law, which are the supreme law of the land. Provisions in state constitutions can violate not only the federal Constitution itself, but also federal statutory law, administrative regulations, federal common law, and even treaties and interstate compacts. In addition, enabling acts passed by Congress to facilitate the admission of new states can have continuing, limiting effect on states' constitutions to the extent that such federal provisions are based on ongoing congressional power (not just the power to admit new states). In some contexts federal law can preempt the provisions of state constitutions. All of these ways in which federal law limits the content of state constitutions are enforceable by the courts.Less
This chapter analyzes the various ways in which state constitutions are limited by the federal Constitution and federal law, which are the supreme law of the land. Provisions in state constitutions can violate not only the federal Constitution itself, but also federal statutory law, administrative regulations, federal common law, and even treaties and interstate compacts. In addition, enabling acts passed by Congress to facilitate the admission of new states can have continuing, limiting effect on states' constitutions to the extent that such federal provisions are based on ongoing congressional power (not just the power to admit new states). In some contexts federal law can preempt the provisions of state constitutions. All of these ways in which federal law limits the content of state constitutions are enforceable by the courts.
Giovanni Biaggini
- Published in print:
- 2020
- Published Online:
- August 2020
- ISBN:
- 9780198726418
- eISBN:
- 9780191890222
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/oso/9780198726418.003.0015
- Subject:
- Law, Public International Law, EU Law
This chapter considers how constitutional adjudication is conducted in Switzerland. It debunks the notion that the Swiss constitutional system is underdeveloped with regard to constitutional ...
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This chapter considers how constitutional adjudication is conducted in Switzerland. It debunks the notion that the Swiss constitutional system is underdeveloped with regard to constitutional adjudication. The chapter contends that Switzerland has a thoroughly respectable system of constitutional adjudication, albeit with certain idiosyncratic flaws. In particular, this applies to cantonal state authority: the cantons are subject to comprehensive constitutional adjudication. This does not exclude the results of direct democratic decision processes. The Federal Supreme Court (Bundesgericht; Tribunal federal, Tribunale federale) has—and makes use of—the power to review cantonal laws and to revoke them if necessary. Constitutional case law in relation to the cantons is the basis on which the Federal Supreme Court developed an extraordinarily creative jurisprudence in the twentieth century; this jurisprudence has led, inter alia, to the recognition and use of several unwritten federal fundamental rights. In addition, the chapter argues that federal laws have ceased being completely immune against any kind of constitutional review. Finally, Switzerland played an important pioneering role in the development and testing of the public law appeal (Staatsrechtliche Beschwerde).Less
This chapter considers how constitutional adjudication is conducted in Switzerland. It debunks the notion that the Swiss constitutional system is underdeveloped with regard to constitutional adjudication. The chapter contends that Switzerland has a thoroughly respectable system of constitutional adjudication, albeit with certain idiosyncratic flaws. In particular, this applies to cantonal state authority: the cantons are subject to comprehensive constitutional adjudication. This does not exclude the results of direct democratic decision processes. The Federal Supreme Court (Bundesgericht; Tribunal federal, Tribunale federale) has—and makes use of—the power to review cantonal laws and to revoke them if necessary. Constitutional case law in relation to the cantons is the basis on which the Federal Supreme Court developed an extraordinarily creative jurisprudence in the twentieth century; this jurisprudence has led, inter alia, to the recognition and use of several unwritten federal fundamental rights. In addition, the chapter argues that federal laws have ceased being completely immune against any kind of constitutional review. Finally, Switzerland played an important pioneering role in the development and testing of the public law appeal (Staatsrechtliche Beschwerde).
Richard W. Painter
- Published in print:
- 2009
- Published Online:
- May 2009
- ISBN:
- 9780195378719
- eISBN:
- 9780199869619
- Item type:
- book
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780195378719.001.0001
- Subject:
- Law, Constitutional and Administrative Law
In order to be effective, federal ethics law must address sources of systematic corruption rather than simply address motives that individual government employees might have to betray the public ...
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In order to be effective, federal ethics law must address sources of systematic corruption rather than simply address motives that individual government employees might have to betray the public trust, such as personal financial holdings or family relationships. This book articulates a general approach to combating systemic corruption as well as some specific proposals for doing so. Federal ethics law is relatively unknown in legal academia and elsewhere outside of Washington, D.C., but it is binding on over one million federal employees. Lobbyists, federal contractors, lawyers, and others who interact with the federal government are also deeply interested in federal ethics law and represent a surprisingly large market for a little-studied area of the law. The book argues that the existing ethics regime is in need of substantial reform since federal ethics laws fail to curtail conduct that undermines the integrity of government, such as political activity by federal employees and their interaction with lobbyists and interest groups. It also contends that in some other areas, such as personal financial conflicts of interest, there is too much complexity in regulatory and reporting requirements, and rules need to be simplified. The book's solution includes strengthening the enforcement of ethics rules, reforming the lobbying industry, and changing a system of campaign finance that impedes meaningful government ethics reform.Less
In order to be effective, federal ethics law must address sources of systematic corruption rather than simply address motives that individual government employees might have to betray the public trust, such as personal financial holdings or family relationships. This book articulates a general approach to combating systemic corruption as well as some specific proposals for doing so. Federal ethics law is relatively unknown in legal academia and elsewhere outside of Washington, D.C., but it is binding on over one million federal employees. Lobbyists, federal contractors, lawyers, and others who interact with the federal government are also deeply interested in federal ethics law and represent a surprisingly large market for a little-studied area of the law. The book argues that the existing ethics regime is in need of substantial reform since federal ethics laws fail to curtail conduct that undermines the integrity of government, such as political activity by federal employees and their interaction with lobbyists and interest groups. It also contends that in some other areas, such as personal financial conflicts of interest, there is too much complexity in regulatory and reporting requirements, and rules need to be simplified. The book's solution includes strengthening the enforcement of ethics rules, reforming the lobbying industry, and changing a system of campaign finance that impedes meaningful government ethics reform.
Catherine M Donnelly
- Published in print:
- 2007
- Published Online:
- January 2009
- ISBN:
- 9780199298242
- eISBN:
- 9780191711626
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199298242.003.0004
- Subject:
- Law, Constitutional and Administrative Law
A central issue in the discussion of delegation of governmental power to private actors is the extent to which governmental actors enjoy a capacity to delegate their power in the first instance. This ...
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A central issue in the discussion of delegation of governmental power to private actors is the extent to which governmental actors enjoy a capacity to delegate their power in the first instance. This chapter examines the role of constitutional law in limiting this delegation capacity. The experiences of the three jurisdictions are examined according to three factors: first, the constitutional source of restraint; second, control technique; and third, judicial attitudes to the appropriateness of intervening in governance choices that may be perceived to be taken more appropriately by the legislature or executive. Close scrutiny is given to the US federal non-delegation doctrine; equivalent robust state non-delegation doctrines, and in particular, the non-delegation doctrine developed by the Texas Supreme Court in the Boll Weevil case; the limitations of the UK's unwritten constitution in this context; and the ECJ's seminal case on delegation, Meroni v High Authority.Less
A central issue in the discussion of delegation of governmental power to private actors is the extent to which governmental actors enjoy a capacity to delegate their power in the first instance. This chapter examines the role of constitutional law in limiting this delegation capacity. The experiences of the three jurisdictions are examined according to three factors: first, the constitutional source of restraint; second, control technique; and third, judicial attitudes to the appropriateness of intervening in governance choices that may be perceived to be taken more appropriately by the legislature or executive. Close scrutiny is given to the US federal non-delegation doctrine; equivalent robust state non-delegation doctrines, and in particular, the non-delegation doctrine developed by the Texas Supreme Court in the Boll Weevil case; the limitations of the UK's unwritten constitution in this context; and the ECJ's seminal case on delegation, Meroni v High Authority.
Stephen Zamora, José RamlÓN CossÍO, Lenone Pereznieto, José Roldá n-Xopa, and David Lopez
- Published in print:
- 2005
- Published Online:
- March 2012
- ISBN:
- 9780199288489
- eISBN:
- 9780191700514
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199288489.003.0011
- Subject:
- Law, Constitutional and Administrative Law
This chapter focuses on criminal law and procedure in Mexico. It begins by examining the historical background and sources of criminal law, and this is followed by a discussion on judicial precedent ...
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This chapter focuses on criminal law and procedure in Mexico. It begins by examining the historical background and sources of criminal law, and this is followed by a discussion on judicial precedent in criminal matters and the scope of federal criminal Law. It then provides an overview of criminal offences, and describes criminal punishment as well as termination of criminal liability. Finally, it discusses federal criminal procedure, which has served as the model for criminal procedure in most of the states.Less
This chapter focuses on criminal law and procedure in Mexico. It begins by examining the historical background and sources of criminal law, and this is followed by a discussion on judicial precedent in criminal matters and the scope of federal criminal Law. It then provides an overview of criminal offences, and describes criminal punishment as well as termination of criminal liability. Finally, it discusses federal criminal procedure, which has served as the model for criminal procedure in most of the states.
Kathleen Gutman
- Published in print:
- 2014
- Published Online:
- March 2015
- ISBN:
- 9780199698301
- eISBN:
- 9780191748882
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199698301.003.0004
- Subject:
- Law, EU Law, Constitutional and Administrative Law
Chapter 3 examines four main strands of the American contract law framework: American ‘federal common law’, uniform and model laws promulgated by the National Conference of Commissioners on Uniform ...
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Chapter 3 examines four main strands of the American contract law framework: American ‘federal common law’, uniform and model laws promulgated by the National Conference of Commissioners on Uniform State Laws (NCCUSL), Restatements published by the American Law Institute (ALI), and the Uniform Commercial Code (UCC), which is a joint product of these two organizations. This is done with a view to elucidating their meanings, the problems associated with their usage, and the extent to which they are related to the prospect of federalization of contract law in the US. For each strand, a general overview, its origins, and certain underlying tensions are presented.Less
Chapter 3 examines four main strands of the American contract law framework: American ‘federal common law’, uniform and model laws promulgated by the National Conference of Commissioners on Uniform State Laws (NCCUSL), Restatements published by the American Law Institute (ALI), and the Uniform Commercial Code (UCC), which is a joint product of these two organizations. This is done with a view to elucidating their meanings, the problems associated with their usage, and the extent to which they are related to the prospect of federalization of contract law in the US. For each strand, a general overview, its origins, and certain underlying tensions are presented.
Robert J. Chandler
- Published in print:
- 2003
- Published Online:
- March 2012
- ISBN:
- 9780520234116
- eISBN:
- 9780520936485
- Item type:
- chapter
- Publisher:
- University of California Press
- DOI:
- 10.1525/california/9780520234116.003.0009
- Subject:
- History, American History: 19th Century
This chapter states that federal involvement was vital in certain arenas; chief among them was the creation of California's transportation system, including the railroads. After the war, the federal ...
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This chapter states that federal involvement was vital in certain arenas; chief among them was the creation of California's transportation system, including the railroads. After the war, the federal government began to exceed some state and private efforts in economic affairs and assert more influence over politics, but the same imprecision existed. Federal assistance, including by the armed services, was vital in building California's transportation system. Complicating the federal role in Indian policy, intense conflict erupted in California after 1846. The Civil War ended Indian-settler conflict in California. General federal land law for California became more troublesome than that governing mineral lands. As the twentieth century approached, new economic and environmental areas caused federal government concern. Conservation, land use and water rights, and abuses by huge monopolies such as the government-spawned Southern Pacific Railroad, would bring regulation. The new century would give the national government the dominant role.Less
This chapter states that federal involvement was vital in certain arenas; chief among them was the creation of California's transportation system, including the railroads. After the war, the federal government began to exceed some state and private efforts in economic affairs and assert more influence over politics, but the same imprecision existed. Federal assistance, including by the armed services, was vital in building California's transportation system. Complicating the federal role in Indian policy, intense conflict erupted in California after 1846. The Civil War ended Indian-settler conflict in California. General federal land law for California became more troublesome than that governing mineral lands. As the twentieth century approached, new economic and environmental areas caused federal government concern. Conservation, land use and water rights, and abuses by huge monopolies such as the government-spawned Southern Pacific Railroad, would bring regulation. The new century would give the national government the dominant role.
A C L Davies
- Published in print:
- 2008
- Published Online:
- January 2009
- ISBN:
- 9780199287390
- eISBN:
- 9780191713484
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199287390.003.0002
- Subject:
- Law, Constitutional and Administrative Law
This chapter introduces the regulatory regime for government contracts in English law, highlighting three key features of that regime. First, although government contracts are commonly thought of as ...
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This chapter introduces the regulatory regime for government contracts in English law, highlighting three key features of that regime. First, although government contracts are commonly thought of as a matter for private law, public law rules — both common law and statutory — play an important role in their regulation. Second, it is not possible to understand the formal legal regime without considering internal government guidance. Often, this is more important than common law or statute as a source of rules for officials. Third, it is essential to consider the interaction between ‘domestic’ law and EU law (and the Government Procurement Agreement at the international level) in regulating the procurement process in particular. The chapter also gives an overview of the way in which government contracts are regulated in two other jurisdictions, French law, and US federal law. Both jurisdictions offer important comparisons and contrasts with English law's approach.Less
This chapter introduces the regulatory regime for government contracts in English law, highlighting three key features of that regime. First, although government contracts are commonly thought of as a matter for private law, public law rules — both common law and statutory — play an important role in their regulation. Second, it is not possible to understand the formal legal regime without considering internal government guidance. Often, this is more important than common law or statute as a source of rules for officials. Third, it is essential to consider the interaction between ‘domestic’ law and EU law (and the Government Procurement Agreement at the international level) in regulating the procurement process in particular. The chapter also gives an overview of the way in which government contracts are regulated in two other jurisdictions, French law, and US federal law. Both jurisdictions offer important comparisons and contrasts with English law's approach.
Daniel A. Crane
- Published in print:
- 2011
- Published Online:
- May 2011
- ISBN:
- 9780195372656
- eISBN:
- 9780199893287
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780195372656.003.0008
- Subject:
- Law, Competition Law
This chapter deals with a series of long-standing and sometimes difficult federalism issues in the United States. Modern federalism principles allow both races to the top and races to the bottom but ...
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This chapter deals with a series of long-standing and sometimes difficult federalism issues in the United States. Modern federalism principles allow both races to the top and races to the bottom but neither the top nor the bottom is likely to be the most favorable locus for antitrust policy. There is no doubt that federal law has the constitutional right to supremacy and it is up to Congress to retrieve this supremacy.Less
This chapter deals with a series of long-standing and sometimes difficult federalism issues in the United States. Modern federalism principles allow both races to the top and races to the bottom but neither the top nor the bottom is likely to be the most favorable locus for antitrust policy. There is no doubt that federal law has the constitutional right to supremacy and it is up to Congress to retrieve this supremacy.
William M. Richman and William L. Reynolds
- Published in print:
- 2012
- Published Online:
- May 2013
- ISBN:
- 9780195342079
- eISBN:
- 9780199332397
- Item type:
- book
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780195342079.001.0001
- Subject:
- Law, Constitutional and Administrative Law
The United States Circuit Courts of Appeals are among the most important governmental institutions in our society. However, because the Supreme Court can hear less than 150 cases per year, the ...
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The United States Circuit Courts of Appeals are among the most important governmental institutions in our society. However, because the Supreme Court can hear less than 150 cases per year, the Circuit Courts (with a combined caseload of over 60,000) are, for practical purposes, the courts of last resort for all but a tiny fraction of federal court litigation. Thus, their significance, both for ultimate dispute resolution and for the formation and application of federal law, cannot be overstated. Yet, in the last forty years, a dramatic increase in caseload and a systemic resistance to an increased judgeship have led to a crisis. Signed published opinions form only a small percentage of dispositions; judges confer on fifty routine cases in an afternoon; and most litigants are denied oral argument completely. This book chronicles the transformation of the United States Circuit Courts; considers the merits and dangers of continued truncating procedures; catalogues and responds to the array of specious arguments against increasing the size of the judiciary; and considers several ways of reorganizing the circuit courts so that they can dispense traditional high quality appellate justice even as their caseloads and the number of appellate judgeships increase.Less
The United States Circuit Courts of Appeals are among the most important governmental institutions in our society. However, because the Supreme Court can hear less than 150 cases per year, the Circuit Courts (with a combined caseload of over 60,000) are, for practical purposes, the courts of last resort for all but a tiny fraction of federal court litigation. Thus, their significance, both for ultimate dispute resolution and for the formation and application of federal law, cannot be overstated. Yet, in the last forty years, a dramatic increase in caseload and a systemic resistance to an increased judgeship have led to a crisis. Signed published opinions form only a small percentage of dispositions; judges confer on fifty routine cases in an afternoon; and most litigants are denied oral argument completely. This book chronicles the transformation of the United States Circuit Courts; considers the merits and dangers of continued truncating procedures; catalogues and responds to the array of specious arguments against increasing the size of the judiciary; and considers several ways of reorganizing the circuit courts so that they can dispense traditional high quality appellate justice even as their caseloads and the number of appellate judgeships increase.
Curtis A. Bradley
- Published in print:
- 2015
- Published Online:
- April 2015
- ISBN:
- 9780190217761
- eISBN:
- 9780190217808
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780190217761.003.0005
- Subject:
- Law, Private International Law, Comparative Law
This chapter considers the status in the U.S. legal system of customary international law. After considering what the text of the Constitution suggests about this issue, the chapter discusses how ...
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This chapter considers the status in the U.S. legal system of customary international law. After considering what the text of the Constitution suggests about this issue, the chapter discusses how courts historically applied customary international law in cases in which it was relevant and how courts referred to it as “part of our law.” The chapter also explores the possibility that customary international law might have the status of modern “federal common law” and what such a status might mean for questions of jurisdiction, preemption of state law, and limitations on congressional and executive authority. It also discusses ways in which customary international law can be applied indirectly in the U.S. legal system, such as through application of the Charming Betsy canon of construction. The chapter concludes by discussing recent debates over the Supreme Court’s consideration of foreign and international law materials when interpreting the U.S. Constitution.Less
This chapter considers the status in the U.S. legal system of customary international law. After considering what the text of the Constitution suggests about this issue, the chapter discusses how courts historically applied customary international law in cases in which it was relevant and how courts referred to it as “part of our law.” The chapter also explores the possibility that customary international law might have the status of modern “federal common law” and what such a status might mean for questions of jurisdiction, preemption of state law, and limitations on congressional and executive authority. It also discusses ways in which customary international law can be applied indirectly in the U.S. legal system, such as through application of the Charming Betsy canon of construction. The chapter concludes by discussing recent debates over the Supreme Court’s consideration of foreign and international law materials when interpreting the U.S. Constitution.
Michael D. McNally
- Published in print:
- 2020
- Published Online:
- September 2020
- ISBN:
- 9780691190907
- eISBN:
- 9780691201511
- Item type:
- chapter
- Publisher:
- Princeton University Press
- DOI:
- 10.23943/princeton/9780691190907.003.0008
- Subject:
- Society and Culture, Native American Studies
This chapter concerns claims to the religious in federal Indian law as part of broader claims made in the register of sovereignty. It follows a number of crucial cases that concerned the shape of ...
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This chapter concerns claims to the religious in federal Indian law as part of broader claims made in the register of sovereignty. It follows a number of crucial cases that concerned the shape of treaty-protected rights to fishing, hunting, and gathering off-reservation, notably those in the Great Lakes region and the salmon cases in the Pacific Northwest, rulings that cleared the way for the Makah whale hunt. The chapter argues these cases are not simply about political sovereignty or about the economic value of the treaty rights. They are also about the religious and cultural importance of those sacred practices and how the practices themselves constitute peoplehood. It also signals where protecting religion as peoplehood, under international law and especially under federal Indian law, can have its limits, particularly in the short term.Less
This chapter concerns claims to the religious in federal Indian law as part of broader claims made in the register of sovereignty. It follows a number of crucial cases that concerned the shape of treaty-protected rights to fishing, hunting, and gathering off-reservation, notably those in the Great Lakes region and the salmon cases in the Pacific Northwest, rulings that cleared the way for the Makah whale hunt. The chapter argues these cases are not simply about political sovereignty or about the economic value of the treaty rights. They are also about the religious and cultural importance of those sacred practices and how the practices themselves constitute peoplehood. It also signals where protecting religion as peoplehood, under international law and especially under federal Indian law, can have its limits, particularly in the short term.
