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The Legal Boundary Between the Garden and the Wilderness: Legislation or the Free Exercise Clause?

Catharine Cookson

in Regulating Religion: The Courts and the Free Exercise Clause

Examines the various legal standards, rules, or tests that have been used by the U.S. Supreme Court to resolve free exercise cases, and places these tests within the full factual and legal contexts ... More

Examines the various legal standards, rules, or tests that have been used by the U.S. Supreme Court to resolve free exercise cases, and places these tests within the full factual and legal contexts of the cases. Particular attention is paid to the no‐exception test adopted in 1879 in the Reynolds case, the tests used in the important string of Jehovah's Witnesses cases of the 1940's, the more recent compelling state interest test as used in an Amish case involving compulsory formal education of children up to the age of 16, and finally the neutrality standard of the 1990 Smith case that reinvigorated the no‐exception test of 1879. A careful, detailed review of the particulars of the cases shows that the underlying analytical process used is excruciatingly influential to the ultimate decision: Justices in factually similar cases purportedly using the same abstract legal test reach different conclusions based upon the analytical process they use.Less

Introduction

Joseph Raz

in Between Authority and Interpretation: On the Theory of Law and Practical Reason

This introductory chapter begins with a discussion of theories of law. It argues that it is essential that the law recognizes that its use of power is answerable to moral standards and claims to have ... More

This introductory chapter begins with a discussion of theories of law. It argues that it is essential that the law recognizes that its use of power is answerable to moral standards and claims to have reconciled power and morality. An overview of the three parts of the book is presented.Less

The Project of International Legal Order

Brad R. Roth

in Sovereign Equality and Moral Disagreement

This chapter introduces the peculiarities of the ethical questions facing those proposing reforms to the international legal order; those responsible for interpreting international legal standards; ... More

This chapter introduces the peculiarities of the ethical questions facing those proposing reforms to the international legal order; those responsible for interpreting international legal standards; and those having to decide whether moral imperatives justify breaching existing legal standards in a given instance. A drafter of legal reforms must aim to construct a framework for peaceful and respectful cooperation that can be accepted as legitimate, if not by all, at least by all seriously potent elements of an existing political community. In order to satisfy the objective need for accommodation, bearers of diverse interests and values must be prevailed upon to accept outcomes that systematically fall short of fully realizing not only their preferences but also their principles.Less

Defeasibility and Legality: A Survey *

Jordi Ferrer Beltrán and Giovanni Battista Ratti

in The Logic of Legal Requirements: Essays on Defeasibility

This chapter analyzes recent trends in legal logic and legal theory and provides a general reconstruction of the debate on legal defeasibility. The chapter is organized as follows. The chapter first ... More

This chapter analyzes recent trends in legal logic and legal theory and provides a general reconstruction of the debate on legal defeasibility. The chapter is organized as follows. The chapter first gives a brief characterization of the concept of ‘defeasibility’ in general and of ‘legal defeasibility’ in particular. The chapter is then looks to a substantive analysis of the defeasibility of legal standards. It then provides an overview on the question of whether it is meaningful to assert that the criteria of identification of a legal order are defeasible and, if so, what the repercussions on the validity of legal standards are and their possible relations to the applicability of legal standards. The next section of the chapter elaborates on the distinction between validity and applicability of legal norms in light of defeasibility, and proposes a novel distinction between internal and external defeasibility of legal standards, based on the difference between the defeat of the normative content of a legal standard and the defeat of its applicability or validity. The final section briefly presents some possible future applications of the analytical tools proposed in the chapter.Less

Legal Reasoning and Legal Theory

Neil MacCormick

in Legal Reasoning and Legal Theory

A theory of legal reasoning requires and is required by a theory of law. It also recognizes that Dworkin's critique of positivists for having concentrated to excess on one type of legal standards, ... More

A theory of legal reasoning requires and is required by a theory of law. It also recognizes that Dworkin's critique of positivists for having concentrated to excess on one type of legal standards, legal rules, makes a very palpable hit. The principles interact with the rules, underpin them, hedge them in, qualify them, justify the enunciation of new rulings as tested out by consequentialist arguments, and so on. The theory presented has been that the judicial duty to do justice according to law is a highly complex one. The theory of legal reasoning provides full weight to the operation of principles and other standards in the legal process, and it shows that judges never have more than a limited discretion in hard – or any other – cases. It may be thought that the theory follows Dworkin's in assuming that principles are of necessity concerned with rights rather than with ‘collective goals’ or anything else.Less

Judicial Discretion and the Judicial Role

in H.L.A. Hart, Second Edition

In The Concept of Law, H. L. A. Hart reinstates the thesis that laws genuinely are rules, explicable as that special kind of social rules found in a 'union of primary and secondary rules'. He rejects ... More

In The Concept of Law, H. L. A. Hart reinstates the thesis that laws genuinely are rules, explicable as that special kind of social rules found in a 'union of primary and secondary rules'. He rejects the formalist view of legal rules and demonstrates that his own theory is essentially not a formalistic one. To this end, he explains how legal rules both do and should leave a considerable scope for the discretion of judges and other officials in dealing with particular cases. His goal is to emphasize the errors of formalism identified by the rule sceptics while correcting any radical form of rule scepticism itself. This chapter examines Hart's arguments about judicial discretion and judicial role. It first discusses the debate between proponents of legal realism and formalism before turning to assess the limits of discretion and the diversity of legal standards. The chapter concludes by looking at the common law and the controversy about rules.Less

International and European Standards in Relation to Victims and Survivors of Human Trafficking

Kirsty Thomson

in Human Trafficking: The Complexities of Exploitation

This chapter outlines the legal rights and responsibilities that relate to victims of human trafficking in Scotland and the legal landscape for their implementation. It looks at the legal context ... More

This chapter outlines the legal rights and responsibilities that relate to victims of human trafficking in Scotland and the legal landscape for their implementation. It looks at the legal context taking into account international, European and national law; the devolved system of government in Scotland and the interplay with reserved matters, in particular immigration; definitions and systems for identification and protection in Scotland [which are largely policy based and the impact this has in practice] and the rights and responsibilities of Scottish public authorities in relation to human trafficking.Less

Addressing Social Injustice In A Human Rights Context

Sofia Gruskin and Paula Braveman

in Social Injustice and Public Health

This chapter describes what needs to be done to address social injustice in a human rights context. It covers core concepts, human rights as legal standards and obligations of government, human ... More

This chapter describes what needs to be done to address social injustice in a human rights context. It covers core concepts, human rights as legal standards and obligations of government, human rights as a conceptual framework for analysis and advocacy, and human rights as guiding principles for designing and implementing policies and programs. The chapter concludes that human rights treaties and other agreements can provide important mechanisms to strengthen accountability of governments who are moving toward greater social justice in health. It further argues that health workers should be aware that human rights norms, standards, laws, and accountability mechanisms are highly relevant tools that can enhance efforts to achieve social justice in health, both globally and within countries.Less

The Many Faces of the Reasonable Person

John Gardner

in Torts and Other Wrongs

The reasonable person is the longest-established of ‘the select group of personalities who inhabit our legal village and are available to be called upon when a problem arises that needs to be solved ... More

The reasonable person is the longest-established of ‘the select group of personalities who inhabit our legal village and are available to be called upon when a problem arises that needs to be solved objectively’. These days, he has neighbours as diverse as the ordinary prudent man of business, the officious bystander, the reasonable juror properly directed, and the fair-minded and informed observer. In the minds of many, however, he is most closely associated with the law of torts, particularly the law of negligence. Because the reasonable person is used to set standards in so many corners of the law, it is natural to think that the standards he sets must be legal ones. This chapter seeks to convince the reader otherwise. It suggests that the services of the reasonable person are in such heavy demand in the law precisely because he sets extra-legal standards, and indeed extra-legal standards of a notably versatile kind.Less

Treaty Standards on Freedom of Movement within States

Chaloka Beyani

in Human Rights Standards and the Free Movement of People Within States

International legal standards for such concerns as the freedom of movement and choosing one's residence within States is given importance by both the Universal Declaration of Human Rights and in ... More

International legal standards for such concerns as the freedom of movement and choosing one's residence within States is given importance by both the Universal Declaration of Human Rights and in various subsequent human rights treaties. Because such treaties are able to facilitate the strategic basis for the analysis of these issues through possessing binding capacities on particular parties and determining what legal standards should be pushed through with, this chapter attempts to identify these international standards. As these standards may be derived from the International Covenant on Civil and Political Rights, 1966, and certain regional human rights treaties, this chapter further investigates the content of such standards for looking into which freedom of residence and movement within States should be established and lawfully exercised.Less

8. The Cost of Cost Control

Lynn M. Lopucki and Joseph W. Doherty

in Professional Fees in Corporate Bankruptcies: Data, Analysis, and Evaluation

As elaborated in Chapter 7, the fee control system is necessary because those who hire professional firms are spending other people's money. Market incentives to control fees and expenses are either ... More

As elaborated in Chapter 7, the fee control system is necessary because those who hire professional firms are spending other people's money. Market incentives to control fees and expenses are either distorted or entirely lacking. The system's ultimate goal appears to be a maximization of the aggregate value of interests in the estates. The interests maximized should not, however, include those of the professionals. The reason for this difference in treatment is that in nearly all bankruptcies, the professionals are being paid in full while the other interest holders are not. The principle seems to be that all interest holders should be made whole before any receive more than is necessary to make them whole. This chapter shows that to accomplish the system's goals, the system must fix standards for the right amounts to be paid and prevent debtors from paying either more or less than those standards.Less

Mitigation Practice in Death Penalty Cases

José B. Ashford and Melissa Kupferberg

in Death Penalty Mitigation: A Handbook for Mitigation Specialists, Investigators, Social Scientists, and Lawyers

This chapter presents an introduction to current mitigation practice by examining some of the specific legal standards that have contributed to the development of this highly specialized area of ... More

This chapter presents an introduction to current mitigation practice by examining some of the specific legal standards that have contributed to the development of this highly specialized area of criminal law. It also presents a conceptualization of mitigation proffered by Justice Sandra Day O'Connor, which helped in the organization and the selection of the materials examined in this book. The chapter begins by addressing the question: What is mitigation? It then discusses the current limits on mitigation practice; investigation as the cornerstone of death penalty representation; mitigation themes; and challenging evidence of aggravation.Less

Why Courts and Not Congress Offer a Way Out of the Crisis

in The Patent Crisis and How the Courts Can Solve It

This chapter addresses the dangers of legislating industry-specific statutes. It also defends the proposition that courts, rather than Congress or the Patent and Trademark Office (PTO), are the right ... More

This chapter addresses the dangers of legislating industry-specific statutes. It also defends the proposition that courts, rather than Congress or the Patent and Trademark Office (PTO), are the right place to implement those policy levers. Congress has spent the last four years, from 2005 to 2008, in an ultimately futile effort to reform the patent system. The pharmaceutical and biotechnology industries opposed virtually all elements of patent reform directed at abuse. It suggests that, as a general principle, a flexible common-law approach of ongoing judicial oversight will best accommodate new and different technologies within the general framework of a patent statute. The legal standards for patentability have remained squarely with the court. The separation of functions in the patent context may yield the best of both institutions; the expertise of the agency tempered by the independence of judicial review.Less

Introduction

Marise Cremona and Claire Kilpatrick

in EU Legal Acts: Challenges and Transformations

By taking a transversal approach to the issues raised by a focus on EU legal acts, the Introduction suggests a number of useful keys through which to read the contributions. A first is to reflect on ... More

By taking a transversal approach to the issues raised by a focus on EU legal acts, the Introduction suggests a number of useful keys through which to read the contributions. A first is to reflect on how despite stability in the categories of legal acts in the EU legal order from the Treaty of Rome onwards—regulations, directives, decisions, and international agreements—the EU has proven remarkably able to adapt and expand its tools of governance. A second is to distinguish standard and non-standard EU legal acts and to focus on the issues and practices that complicate this seemingly straightforward distinction. A third is to stress the range of ways in which acts associated with the EU can cross the boundaries between EU and non-EU norms, and between law and non-law, and the challenges that this poses to EU constitutional structures and traditional forms of accountability.Less

The Possible Rebirth of “Hostility”

Thomas E. Carbonneau

in Toward a New Federal Law on Arbitration

The Court's decisional law on arbitration is not free of ambivalence. There is a small group of cases in which the Court itself may have engaged in judicial hostility toward arbitration. Wilko v. ... More

The Court's decisional law on arbitration is not free of ambivalence. There is a small group of cases in which the Court itself may have engaged in judicial hostility toward arbitration. Wilko v. Swan was the first decision in which the Court questioned the value of arbitration as an adjudicatory methodology. There, it allowed securities regulations to trump arbitral autonomy and depreciated the professional utility of arbitration. Alexander v. Gardner-Denver added civil rights to the list of possible limits on arbitrability, and Commonwealth Coatings required arbitrators to comply with legal standards regarding disclosures. When courts adjudged arbitrators partial, the award became an unenforceable nullity. Thereafter, Volt Information Sciences undermined federalization and Hall Street Associates removed the possibility of party control over vacatur. Finally, Stolt-Nielsen seemed to authorize judicial merits review of awards. Each of these decisions indicated that the Court was reconsidering its favorable position on arbitration.Less

From Repression to Prevention: The Uncertain Borders between Jurisdiction and Administration

Michele Pifferi

in Reinventing Punishment: A Comparative History of Criminology and Penology in the Nineteenth and Twentieth Centuries

The chapter explores how the shift from retributive to preventive justice affected the constitutional balance between judicial and administrative sentencing powers. After analysing the Spanish law ... More

The chapter explores how the shift from retributive to preventive justice affected the constitutional balance between judicial and administrative sentencing powers. After analysing the Spanish law framed by De Asúa on the dangerousness without crime, it compares the European solution of the measures of security with the US indeterminate sentence system, stressing the European attitude in favour of judicial sentencing jurisdiction. It examines the growth of penal administrative powers in the United States, focusing on the shift from legal rules to legal standards in sentencing discussed by Roscoe Pound, Felix Frankfurter, and Sheldon Glueck, and then describes the hybrid system of penal/administrative security measures provided for by the 1930 Italian Fascist Code. The chapter finally investigates the different positions on the powers of the judge in the sentencing phase debated at the Berlin Congress in 1930 and the ambiguities of the dual-track system.Less

Legal Themes in Case Law about Behavioural Conflict at Work II: Consistency in Applying Behaviour Rules

Lizzie Barmes

in Bullying and Behavioural Conflict at Work: The Duality of Individual Rights

This chapter documents the remarkably consistent approach found to working out the implications of substantive legal rules about workplace behaviour when jurisdictional problems allowed judges to get ... More

This chapter documents the remarkably consistent approach found to working out the implications of substantive legal rules about workplace behaviour when jurisdictional problems allowed judges to get to this point. Irrespective of the legal rule, the court, or timing, judges located two sets of boundaries and employed similar decision-making methods. First, there was the distinction between conduct at work which law required working people to accept and that was ‘beyond the pale’. Second, there was the connected line between acceptable and unacceptable employer responses, either to the occurrence of or to complaints about bad workplace behaviour. The chapter substantiates these findings regarding conduct itself, also tracing recurrent decision-making tropes discovered. This aspect of how courts handle individual labour and equality rights appears therefore to have wide-ranging emancipatory potential, but the question remains what all this endeavour ultimately delivers for individuals, organizations, and society at large.Less

Changing Conditions and Conflicts with Values

Kent Greenawalt

in Realms of Legal Interpretation: Core Elements and Critical Variations

This chapter focuses on two kinds of situations that go beyond discerning original meaning. One is when significant circumstances have changed since a legal standard was formulated; the other ... More

This chapter focuses on two kinds of situations that go beyond discerning original meaning. One is when significant circumstances have changed since a legal standard was formulated; the other concerns certain basic conflicts or tensions between articulated standards and basic values, such as fairness between contracting parties and, more generally, fundamental concepts of justice and social welfare. Although changes in ordinary conditions can make the application of a standard much less fair than it was when originally formulated, much more troublesome for some statutes and many constitutional provisions are basic changes in social values. These can be perceived in terms of general cultural norms or what judges understand as a correct evaluation. For example, at the time of the Bill of Rights, capital punishment was an authorized penalty for all sorts of crimes. It is now viewed as constitutionally foreclosed except for very serious crimes and for especially threatening offenses.Less