It seems to me that statutes can be either struck down after interpretation or continue to be enforced. If someone challenges the statute, it could travel all the way to the Supreme Court to be interpreted. The Supreme Court can provide a decision whether that statute is being applied in a constitutional manner. In the passage we read, the state tried Johnson with a statute that eventually was struck down because it was inconsistent with the translation of the First Amendment. So, statutes can be amended or changed if not acceptable.
Kedrick King Lesson 1 assignment 1-1 How does statutory law come into existence? How does it differ from the common law? If statutory law conflicts with the common law, which law will govern? Statutory law comes into existence when elected officials pass laws. Common law differs because it’s a law that is created by judges is based on past court decisions.
What Acme Fireworks should first be concerned about is where negligence falls into the picture. In conducting ordinary business through the sell and services of these goods, what is noticeable is the mix or hybrid contract which requires deciphering if it falls under the common law or the UCC law. Law is a sense of morality that is shaped by society; it’s not ethics, where one is suppose to follow. With the common law, it’s something where it continues to change or adjust through our federal and state courts to govern all laws. For example, the ever-changing law on how discrimination went from sanctioning segregation to dissolving segregation illustrates how adaptable common law is.
Judicial Activism vs. Judicial Restraint Judicial restraint is a doctrine which encourages the judiciary to adhere closely to the wording of the law, be mindful of precedent, and should defer to decisions made by legislatures. In other words, it is a doctrine that urges judges to refrain from incorporating their own philosophies or personal preferences into the law in order to avoid misconstruction of the law. This is based on the concept that judges are to apply the law rather than determine it. One example is Luther v. Borden (1849).
Factors for consideration a. law’s non-logical implications in interpretation what parties would’ve agreed to (ex. Haines: duration and scope of contract) - policy: at-will doctrine in employment: policy - would’ve agreed to terms had they anticipated situation - had in mind, but didn’t express it b. context - what is the objective of the contract? Is it ambiguous? Ex. Spaulding v. Morse (369): stop yearly payment to trust during time in armed services - enforce according to terms if unambiguous, consider context if terms are ambiguous - not only context at time of contract formation, but also what happened AFTER ⇨ changed circumstances - why look at context?
According to the Latin maxim “nemo dat quod non habet” set out in S21(1) of the Sale of goods Act 1979 the seller cannot pass to a buyer a better title to the goods than he himself possesses. This is an indication that English law generally opts to safeguard the rights of the true owner although there have been attempts to tip the scales in favour of the private purchaser. There are exceptions set out in the SGA, which protect the rights of third parties who have bought the goods from a non-owner without knowledge of the fraud. One of those exceptions is contained in S27(1) of the Hire Purchase Act 1964 which awards a good title to a private purchaser, who buys from a hirer a motor vehicle subject to a hire purchase or conditional sale agreement. According to S27(2) he must do so in good faith, without any notice of the hire purchase agreement.
“The Human Rights Act has revolutionised the way in which judges interpret statutes.” The Human Rights Act 1998 (HRA) was incorporated into the United Kingdom (UK) law in order to enforce the rights under the European Convention on Human Rights (ECHR) to which the UK is a party. The Human Rights Act or the 1998 Act is said to have a major impact in judicial interpretative practices (Gearey et al). The rules of statutory interpretation were found at common law but the HRA is said to have given new rules on interpretation. Before turning to HRA, the judicial practice of statutory interpretation and the impact of the membership of the European Union need to be considered. The politics of the common law (Gearey et al.)
Essay tittle:’Although the Human Right Acts 1998 has impacted on the Judicial understanding of precedent,the underlying features Of the doctrine remain unchanged.’ The doctrine of judicial precedent is based on one the concept that like cases must be treated alike.The doctrine is based on the notion of stare decisis et non quieta movere,meaning to stand by decisions and not disturb that which is settled.In a common law system a huge part of the laws are made up of decided cases ie judge made law or case law.These decisions by the judges carries a great weight therefore necessarily be binding on later judges to ensure certainty and fairness within the system.The precedent of stare decisis safeguards the notion that judges make arbitrary decision.In a common law system precedents is the very essence of what moulds the system and gives it unique character. The Human Rights Act 1998 was intended to protect human rights and civil liberties in domestic law. However, it should not be forgotten that the Act has also affected the general legal system.Perhaps most significantly, the Act creates new rules on the following of precedent, as s.2 of the Act states that the domestic courts must take into account the decisions of the European Court of Human Rights when determining any question involving any Convention right.The inclusion of s.2 in the Act thus begs the question whether the traditional principles of judicial precedent are now abandoned in place of a rule which compels the domestic courts to follow the decisions of the European Court of Human Rights.However, as Convention law was never intended to be supreme over member states' domestic law,and the European Court of Human Rights has always offered member
This thinking is also reflected in the Privy Council case of Air Jamaica v Charlton 1999, where Lord Millet said: “But [a resulting trust] arises whether or not the transferor intended to retain a beneficial interest - he almost always does not - since it responds to the absence of any intention on his part to pass a beneficial interest to the recipient.” This argument was put forward in the recent theses of Birks-Chambers that the the key to the resulting trust was not the intention to create a trust, but the intention of the donor not to benefit the recipient. The statement by Lord Browne-Wilkinson however shows a flawed approach at looking at intention by means of deducing a presumed intention. To presume an intention would be going against the fundamentals of trust. To create a trust the intention must be manifested or expressed and the the courts have placed increasing importance on the intention of the parties when determining whether there is a trust or not. The perceived artificiality of presumed intentions in the resulting trust doctrine has led courts to move away from it affirmed by the House of Lords in Stack v Dowden [2007] UKHL 17; [2007] A.C. 432.
Question 2 Although the doctrine of precedent allows some flexibility, it fundamentally requires judges to respect the hierarchy of the courts . Discuss The doctrine of binding precedent or stare decisis, lies at the heart of the English legal system. In essence the doctrine refers to facts that within the hierarchical structure of the English Court, a decision of the highest court will be binding on a court lower. When a court makes a decision in a case, any court which is of equal or lower status to that court must follow that previous decision if the case before them is similar to that earlier case. Moreover, the doctrine requires that like cases should be treated alike in the interests of consistency and certainty of the law as well as a fairly rigid hierarchy of courts.