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This book explains the forms of reasoning judges use when deciding how the law applies in particular cases.
ISBN | 978-1-55077-082-7 |
Edition | First |
Year | 1997 |
Page Count | 240 |
$ 29.95
"The hungry judges soon the sentence sign And wretches hang that jurymen may dine."— Alexander Pope, Rape of the Lock; Canto III, L1. 21-22
This acidic observation is the cynical answer to what remains one of the great mysteries of the law: how do judges arrive at their decisions? The impression of many is that the courts do whatever they wish to do with cases that come before them.
Some criticize "judicial imperialism," "government by the judiciary," and even judicial "dictatorship." Judges have certainly been given additional powers by our new Charter of Rights and Freedoms, but is the legal system out of control? This book explains the forms of reasoning judges use when deciding how the law applies in particular cases.
Preface / Forewords: The Honourable John Sopinka / Honourable Mr. Justice Allen M. Linden
SECTION 1: THE JUDICIAL MANDATE
Judicial Tyranny of Endangered Institution
The Cynical View
Going Beyond the Words and Case Law
Inevitable Judicial Choice
The Judiciary's Achilles Heel
Undermining the Judiciary
Usurping Legislative Powers
Rules of Application
Structure and Nature of Judicial Arguments
Secondary Rules of Application
Argument Validation
Argument Verification
Argument Weight
Role of Secondary Rules of Application
Controlled Judgment
Controversial Applications of Law
Discretion v. Controlled Judgment
Disputed Grounds for a Decision
Disputed Conclusions
Disputed Rules for Decision Making
Case Study: Riggs v. Palmer
Overview of the Arguments
Majority Arguments
Dissenting Arguments
Commentary
Rival Accounts
Dworkin's Account
Coval and Smith's Account
The Actual Opinions
Justice Earl
Justice Gray
Case Study: Davis v. Johnson
Background
Overview of the Arguments
The Rejection Position
The Modification Position
The Received Position
Commentary
Court of Appeal Opinions
Master of the Rolls Lord Denning
Sir George Baker
Lord Justice Goff
Lord Justice Shaw
Lord Justice Cumming-Bruce
House of Lords Opinions
Lord Diplock
Lord Salmon
Selected Judicial Opinions
Reasoning from Interpretive Guidelines
Royal College of Nursing: Court of Appeal Decision
Royal College of Nursing: House of Lords Decision
Reasoning from Prior Cases
Donoghue v. Stevenson
Reasoning from Principle
Morgentaler v. The Queen