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How does the UK Supreme Court approach human rights law? This book provides the first comprehensive overview of human rights in the highest UK court, criticizing the failure of UK judges to develop the common law in sympathy with human rights.
In 2009 the new Supreme Court of the United Kingdom was opened by HM The Queen in a spectacularly refurbished building in Parliament Square, Westminster, at the very heart of the British state. This elegant and absorbing book charts the progress towards and realization of this significant event in the nation's history. Chapters by two of the most eminent British judges, Lady Hale and Lord Bingham, explore the evolution of the court and of its home. Further essays by distinguished art and architectural historians, together with dramatic specially commissioned photographs by Tim Imrie, reveal in compelling detail how the building was transformed into an inspiring public space - a vibrant incarnation of the essential value of justice and its power to enhance all our lives.
'A wonderful book ... a superb book and it's not just for people interested in law; it tells you a lot about Ireland' Vincent Browne, TV3 The judges, the decisions, the rifts and the rivalries - the gripping inside story of the institution that has shaped Ireland. 'Combines painstaking research with acute analysis and intelligence' Colm Tóibín, Irish Times' Books of the Year '[Mac Cormaic] has done something unprecedented and done it with a striking maturity, balance and adroitness. He creates the intimacy necessary but never loses sight of the wider contexts; this is not just a book about legal history; it is also about social, political and cultural history ... [the Supreme Court] has found a brilliant chronicler in Ruadhan Mac Cormaic' Diarmaid Ferriter, Professor of Modern Irish History, UCD 'Mac Cormaic quite brilliantly tells the story ... balanced, perceptive and fair ... a major contribution to public understanding' Donncha O'Connell, Professor of Law, NUIG, Dublin Review of Books 'Compelling ... a remarkable story, told with great style' Irish Times 'Authoritative, well-written and highly entertaining' Sunday Times The work of the Supreme Court is at the heart of the private and public life of the nation. Whether it's a father trying to overturn his child's adoption, a woman asserting her right to control her fertility, republicans fighting extradition, political activists demanding an equal hearing in the media, women looking to serve on juries, the state attempting to prevent a teenager ending her pregnancy, a couple challenging the tax laws, a gay man fighting his criminalization simply for being gay, a disabled young man and his mother seeking to vindicate his right to an education, the court's decisions can change lives. Now, having had unprecedented access to a vast number of sources, and conducted hundreds of interviews, including with key insiders, award-winning Irish Times journalist Ruadhan Mac Cormaic lifts the veil on the court's hidden world. The Supreme Court reveals new and surprising information about well-known cases. It exposes the sometimes fractious relationship between the court and the government. But above all it tells a story about people - those who brought the cases, those who argued in court, those who dealt with the fallout and, above all, those who took the decisions. Judges' backgrounds and relationships, their politics and temperaments, as well as the internal tensions between them, are vital to understanding how the court works and are explored here in fascinating detail. The Supreme Court is both a riveting read and an important and revealing account of one of the most powerful institutions of our state. Ruadhan Mac Cormaic is the former Legal Affairs Correspondent and Paris Correspondent of the Irish Times. He is now the paper's Foreign Affairs Correspondent.
""This book offers the first quantitative study of decision-making on the UK Supreme Court. Covering the court's first ten years, it examines all stages of the court's decision-making process -- from the permission to appeal stage to the decision on the final outcome. The analysis of these distinct stages shows that legal factors matter. The most important predictor of whether an appellant will succeed in the Supreme Court is whether they've been able to convince judges in lower courts. The most important predictor of whether a case will be heard *at all* is whether it has been written up in multiple weekly law reports. But ""legal factors mattering"" doesn't mean that judges on the court are simply identical expressions of the law. The nature of the UK's court system means that judges arrive on the court as specialists in one or more areas of law (such as commercial law, or family law), or even systems of law (the court's Scottish and Northern Irish judges). These specialisms markedly affect behaviour on the court. Specialists in an area of law are more likely to hear cases in that area, and are more likely to write the lead opinion in that area. Non-specialists are less likely to disagree with specialists, and so disagreement is more likely to emerge when multiple specialists end up on the panel. Although political divisions between the justices do exist, these differences are much less marked than the divisions between experts in different areas of the law. The best way of understanding the UK Supreme Court is therefore to see it as a court of specialists. ""--
How does the UK Supreme Court approach human rights law? This book presents the first comprehensive overview of the human rights jurisprudence of the Court, analysing the opinions expressed by the current Justices and their predecessors, both judicially and extra-judicially. It criticizes the judges for not developing the common law in a way which supplements the Human Rights Act, for not making imaginative enough use of that Act, and for adopting an attitude to Convention rights which is often out of step with the jurisprudence of the European Court of Human Rights in Strasbourg. After setting the scene by explaining the constraints which are placed on the Supreme Court Justices, the book considers how human rights are conceptualized by the Court in general and how in particular the procedural questions thrown up by the Human Rights Act have been dealt with so far. It then examines on a right-by-right basis the Justices' position on all the Convention rights and those additional international human rights standards which have been incorporated into UK law. Focusing on the views expressed by individual judges, the book details the many differences of opinion which have come to light and characterizes the prevailing positions, before attempting to predict what stance may be adopted in future on new issues. The book offers an invaluable resource for any practitioners bringing human rights cases before the Court, and its critical arguments on the state of UK human rights law will be essential reading for all academics working in European human rights law.
Of the nearly five thousand cases presented to the Supreme Court each year, less than 5 percent are granted review. How the Court sets its agenda, therefore, is perhaps as important as how it decides cases. H. W. Perry, Jr., takes the first hard look at the internal workings of the Supreme Court, illuminating its agenda-setting policies, procedures, and priorities as never before. He conveys a wealth of new information in clear prose and integrates insights he gathered in unprecedented interviews with five justices. For this unique study Perry also interviewed four U.S. solicitors general, several deputy solicitors general, seven judges on the D.C. Circuit Court of Appeals, and sixty-four former Supreme Court law clerks. The clerks and justices spoke frankly with Perry, and his skillful analysis of their responses is the mainspring of this book. His engaging report demystifies the Court, bringing it vividly to life for general readers--as well as political scientists and a wide spectrum of readers throughout the legal profession. Perry not only provides previously unpublished information on how the Court operates but also gives us a new way of thinking about the institution. Among his contributions is a decision-making model that is more convincing and persuasive than the standard model for explaining judicial behavior.
When the first Supreme Court convened in 1790, it was so ill-esteemed that its justices frequently resigned in favor of other pursuits. John Rutledge stepped down as Associate Justice to become a state judge in South Carolina; John Jay resigned as Chief Justice to run for Governor of New York; and Alexander Hamilton declined to replace Jay, pursuing a private law practice instead. As Bernard Schwartz shows in this landmark history, the Supreme Court has indeed travelled a long and interesting journey to its current preeminent place in American life. In A History of the Supreme Court, Schwartz provides the finest, most comprehensive one-volume narrative ever published of our highest court. With impeccable scholarship and a clear, engaging style, he tells the story of the justices and their jurisprudence--and the influence the Court has had on American politics and society. With a keen ability to explain complex legal issues for the nonspecialist, he takes us through both the great and the undistinguished Courts of our nation's history. He provides insight into our foremost justices, such as John Marshall (who established judicial review in Marbury v. Madison, an outstanding display of political calculation as well as fine jurisprudence), Roger Taney (whose legacy has been overshadowed by Dred Scott v. Sanford), Oliver Wendell Holmes, Louis Brandeis, Benjamin Cardozo, and others. He draws on evidence such as personal letters and interviews to show how the court has worked, weaving narrative details into deft discussions of the developments in constitutional law. Schwartz also examines the operations of the court: until 1935, it met in a small room under the Senate--so cramped that the judges had to put on their robes in full view of the spectators. But when the new building was finally opened, one justice called it "almost bombastically pretentious," and another asked, "What are we supposed to do, ride in on nine elephants?" He includes fascinating asides, on the debate in the first Court, for instance, over the use of English-style wigs and gowns (the decision: gowns, no wigs); and on the day Oliver Wendell Holmes announced his resignation--the same day that Earl Warren, as a California District Attorney, argued his first case before the Court. The author brings the story right up to the present day, offering balanced analyses of the pivotal Warren Court and the Rehnquist Court through 1992 (including, of course, the arrival of Clarence Thomas). In addition, he includes four special chapters on watershed cases: Dred Scott v. Sanford, Lochner v. New York, Brown v. Board of Education, and Roe v. Wade. Schwartz not only analyzes the impact of each of these epoch-making cases, he takes us behind the scenes, drawing on all available evidence to show how the justices debated the cases and how they settled on their opinions. Bernard Schwartz is one of the most highly regarded scholars of the Supreme Court, author of dozens of books on the law, and winner of the American Bar Association's Silver Gavel Award. In this remarkable account, he provides the definitive one-volume account of our nation's highest court.
Winner of the Inner Temple book prize 2015 and the Socio-Legal Studies Association Book prize 2014/15 The House of Lords, for over 300 years the UK's highest court, was transformed in 2009 into the UK Supreme Court. This book provides a compelling and unrivalled view into the workings of the Court during its final decade, and into the formative years of the Supreme Court. Drawing on over 100 interviews, including more than 40 with Law Lords and Justices, and uniquely, some of their judicial notebooks, this is a landmark study of appellate judging 'from the inside' by an author whose earlier work on the House of Lords has provided a scholarly benchmark for over 30 years. The book demonstrates that appellate decision-making in the UK's final court remains a social and collective process, primarily because of the dialogues which take place between the judges and the key groups with which they interact when reaching their decisions. As the book shows, the forms of dialogue are now more varied, yet the most significant dialogues continue to be with their fellow Law Lords and Justices, and with counsel. To these, new dialogues have been added, namely those with foreign courts (especially Strasbourg) and with judicial assistants, which have subtly altered the tenor and import of their other dialogues. The research reveals that, unlike the English Court of Appeal, the House of Lords in its last decade was only intermittently collegial since Lord Bingham's philosophy of appellate judging left opinion writing, concurrences and dissents largely to individual preference. In the Supreme Court, however, there has been a marked shift to team working and collective decision-making bringing with it challenges and occasional tensions not seen in the final years of the House of Lords. The work shows that effectiveness in group-decision making in the final court turns in part on the stages when dialogues occur, in part on the geography of the court and in part on the task leadership and social leadership skills of the judges involved in particular cases. The passing of the Human Rights Act and the expansion in judicial review over the last 30 years have dramatically altered the two remaining dialogues - those with Parliament and with the Executive. With the former, the dialogue has grown more distant, with the latter, more problematic, than was the case 40 years ago. The last chapter rehearses where the changing dialogues have left the UK's final court. Ironically, despite the oft applauded commitment of the new Court to public visibility, the book concludes that even greater transparency in the dialogue with the public may be required. 'The way appellate judges at the highest level behave to each other, to counsel, with other branches of government and with other courts is brought under closer scrutiny in this book than ever before...The remarkable width and depth of his examination...has resulted in a work of real scholarship, which all those who are interested in how appellate courts work all over the common law world will find especially valuable.' From the foreword by Lord Hope of Craighead KT 'Alan Paterson's knowledge and interest in the Supreme Court, coupled with his expertise as a lawyer who understands the legal system and the judicial process, make him a perfect chronicler and assessor of what the Court's role is and what it should be, and how it functions and how it might improve.' Lord Neuberger, President of the Supreme Court
The last decade has seen radical changes in the way we are governed. Reforms such as the Human Rights Act and devolution have led to the replacement of one constitutional order by another. This book is the first to describe and analyse Britain's new constitution, asking why it was that the old system, seemingly hallowed by time, came under challenge, and why it is being replaced. The Human Rights Act and the devolution legislation have the character of fundamental law. They in practice limit the rights of Westminster as a sovereign parliament, and establish a constitution which is quasi-federal in nature. The old constitution emphasised the sovereignty of Parliament. The new constitution, by contrast, emphasises the separation of powers, both territorially and at the centre of government. The aim of constitutional reformers has been to improve the quality of government. But the main weakness of the new constitution is that it does little to secure more popular involvement in politics. We are in the process of becoming a constitutional state, but not a popular constitutional state. The next phase of constitutional reform, therefore, is likely to involve the creation of new forms of democratic engagement, so that our constitutional forms come to be more congruent with the social and political forces of the age. The end-point of this piecemeal process might well be a fully codified or written constitution which declares that power stems not from the Queen-in Parliament, but, instead, as in so many constitutions, from `We, the People'. The old British constitution was analysed by Bagehot and Dicey. In this book Vernon Bogdanor charts the significance of what is coming to replace it. The expenses scandal shows up grave defects in the British constitution. Vernon Bogdanor shows how the constitution can be reformed and the political system opened up in`The New British Constitution'.