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A major statement from one of the foremost legal theorists of our day, this book offers a penetrating look into the political nature of legal, and especially judicial, decision making. It is also the first sustained attempt to integrate the American approach to law, an uneasy balance of deep commitment and intense skepticism, with the Continental tradition in social theory, philosophy, and psychology. At the center of this work is the question of how politics affects judicial activity-and how, in turn, lawmaking by judges affects American politics. Duncan Kennedy considers opposing views about whether law is political in character and, if so, how. He puts forward an original, distinctive, and remarkably lucid theory of adjudication that includes accounts of both judicial rhetoric and the experience of judging. With an eye to the current state of theory, legal or otherwise, he also includes a provocative discussion of postmodernism. Ultimately concerned with the practical consequences of ideas about the law, A Critique of Adjudication explores the aspects and implications of adjudication as few books have in this century. As a comprehensive and powerfully argued statement of a critical position in modern American legal thought, it will be essential to any balanced picture of the legal, political, and cultural life of our nation.
The Model Rules of Professional Conduct provides an up-to-date resource for information on legal ethics. Federal, state and local courts in all jurisdictions look to the Rules for guidance in solving lawyer malpractice cases, disciplinary actions, disqualification issues, sanctions questions and much more. In this volume, black-letter Rules of Professional Conduct are followed by numbered Comments that explain each Rule's purpose and provide suggestions for its practical application. The Rules will help you identify proper conduct in a variety of given situations, review those instances where discretionary action is possible, and define the nature of the relationship between you and your clients, colleagues and the courts.
An historical and comparative explanation of some puzzling differences between the administrative law of England, the USA and Australia.
The post-Cold War proliferation of international adjudicatory bodies and increase in litigation has greatly affected international law and politics. A growing number of international courts and tribunals, exercising jurisdiction over international crimes and sundry international disputes, have become, in some respects, the lynchpin of the international legal system. The Oxford Handbook of International Adjudication charts the transformations in international adjudication that took place astride the twentieth and twenty-first century, bringing together the insight of 47 prominent legal, philosophical, ethical, political, and social science scholars. Overall, the 40 contributions in this Handbook provide an original and comprehensive understanding of the various contemporary forms of international adjudication. The Handbook is divided into six parts. Part I provides an overview of the origins and evolution of international adjudicatory bodies, from the nineteenth century to the present, highlighting the dynamics driving the multiplication of international adjudicative bodies and their uneven expansion. Part II analyses the main families of international adjudicative bodies, providing a detailed study of state-to-state, criminal, human rights, regional economic, and administrative courts and tribunals, as well as arbitral tribunals and international compensation bodies. Part III lays out the theoretical approaches to international adjudication, including those of law, political science, sociology, and philosophy. Part IV examines some contemporary issues in international adjudication, including the behavior, role, and effectiveness of international judges and the political constraints that restrict their function, as well as the making of international law by international courts and tribunals, the relationship between international and domestic adjudicators, the election and selection of judges, the development of judicial ethical standards, and the financing of international courts. Part V examines key actors in international adjudication, including international judges, legal counsel, international prosecutors, and registrars. Finally, Part VI overviews select legal and procedural issues facing international adjudication, such as evidence, fact-finding and experts, jurisdiction and admissibility, the role of third parties, inherent powers, and remedies. The Handbook is an invaluable and thought-provoking resource for scholars and students of international law and political science, as well as for legal practitioners at international courts and tribunals.
Judging Positivism is a critical exploration of the method and substance of legal positivism. Margaret Martin is primarily concerned with the manner in which theorists who adopt the dominant positivist paradigm ask a limited set of questions and offer an equally limited set of answers, artificially circumscribing the field of legal philosophy in the process. The book focuses primarily but not exclusively on the writings of prominent legal positivist, Joseph Raz. Martin argues that Raz's theory has changed over time and that these changes have led to deep inconsistencies and incoherencies in his account. One re-occurring theme in the book is that Razian positivism collapses from within. In the process of defending his own position, Raz is led to support the views of many of his main rivals, namely, Ronald Dworkin, the legal realists and the normative positivists. The internal collapse of Razian positivism proves to be instructive. Promising paths of inquiry come into view and questions that have been suppressed or marginalised by positivists re-emerge ready for curious minds to reflect on anew. The broader vision of jurisprudential inquiry defended in this book re-connects philosophy with the work of practitioners and the worries of law's subjects, bringing into focus the relevance of legal philosophy for lawyers and laymen alike.
Providing a unique and clearly structured tool, this book presents an authoritative collection of carefully selected global case studies. Some of these are considered global due to their internationally relevant subject matter, whilst others demonstrate the blurring of traditional legal categories in an age of accelerated cross-border movement. The study of the selected cases in their political, cultural, social and economic contexts sheds light on the contemporary transformation of law through its encounter with conflicting forms of normativity and the multiplication of potential fora.
Drawing on a wide range of interdisciplinary resources, this scholarly work provides an in-depth and thorough analysis of the socio-economic rights jurisprudence of the newly democratic South Africa. The book explores how the judicial interpretation and enforcement of socio-economic rights can be more responsive to the conditions of systemic poverty and inequality characterising South African society. Based on meticulous research, the work marries legal analysis with perspectives from political philosophy and democratic theory.
The first analysis of decisions at all four levels of the asylum adjudication process : the Department of Homeland Security, the immigration courts, the Board of Immigration Appeals, and the United States Courts of Appeals. The data reveal tremendous disparities in asylum approval rates, even when different adjudicators in the same office each considered large numbers of applications from nationals of the same country. After providing a thorough empirical analysis, the authors make recommendations for future reform. From publisher description.
The World Trade Organization (WTO) oversees the negotiation and enforcement of formal rules governing international trade. Why do countries choose to adjudicate their trade disputes in the WTO rather than settling their differences on their own? In Why Adjudicate?, Christina Davis investigates the domestic politics behind the filing of WTO complaints and reveals why formal dispute settlement creates better outcomes for governments and their citizens. Davis demonstrates that industry lobbying, legislative demands, and international politics influence which countries and cases appear before the WTO. Democratic checks and balances bias the trade policy process toward public lawsuits and away from informal settlements. Trade officials use legal complaints to manage domestic politics and defend trade interests. WTO dispute settlement enables states and domestic groups to signal resolve more effectively, thereby enhancing the information available to policymakers and reducing the risk of a trade war. Davis establishes her argument with data on trade disputes and landmark cases, including the Boeing-Airbus controversy over aircraft subsidies, disagreement over Chinese intellectual property rights, and Japan's repeated challenges of U.S. steel industry protection. In her analysis of foreign trade barriers against U.S. exports, Davis explains why the United States gains better outcomes for cases taken to formal dispute settlement than for those negotiated. Case studies of Peru and Vietnam show that legal action can also benefit developing countries.