...functioning government was John Marshall. Overall, Marshall influenced the American government in many ways but he is particularly famous for giving the judicial branch its power. Marshall was born on September twenty fourth, 1755 in Fauquier county, Virginia to Thomas Marshall and Mary Rudolph...
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...Northwestern University – School of Law Public law & Legal Theory Research Paper Series Paper No. 09-12 ~and~ University of San Diego – School of Law Legal Studies Research Paper Series Paper No. 09-008 Reconciling Originalism and Precedent John O. McGinnis Northwestern University – School of Law Michael B. Rappaport University of San Diego – School of Law Northwestern University Law Review, Vol. 103, No. 2, 2009 Copyright 2009 by Northwestern University School of Law Northwestern University Law Review Printed in U.S.A. Vol. 103, No. 2 RECONCILING ORIGINALISM AND PRECEDENT John O. McGinnis∗ & Michael B. Rappaport** INTRODUCTION ....................................................................................................................... 1 I. PRECEDENT, ORIGINALISM, AND THE CONSTITUTION ................................................... 4 A. B. C. II. A. B. C. D. E. F. The Supposed Conflict Between Originalism and Precedent ............................ 5 A Short History of Precedent ............................................................................... 7 The Consistency of Originalism and Precedent ............................................... 21 The Supermajoritarian Theory of Constitutional Originalism........................ 28 The Relative Benefits of Original Meaning and Precedent ............................. 29 Precedent Rules .................................................................................................. 34 Factors...
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...Dr. Seana Sugrue Judicial Review: The Balancing Act of the Constitutional Conscience “It is emphatically the province and duty of the judicial department to say what the law is,” Chief Justice John Marshall declared in the landmark case Marbury v. Madison. The content of this statement as the outcome of the 1803 case marked a significant component of our governmental structure, affecting virtually every aspect of American life. The power of judicial review recognized the United States Supreme Court as the Constitutional conscience of our nation, having ability to judge actions at both the state and federal levels. The dispute about the historical legitimacy of this judicial ability remains today, but the relevant question we treat today pertains to its proper practice. In these regards, our founders prescribed that “the Judicial Power of the United States, shall be vested in one Supreme Court” (US Constitution, Art. III. Sec. 2), and that the "Constitution, and the Laws of the United States … shall be the supreme Law of the Land" (Art IV, Sec.2). As we understand it, judicial review must serve to guide the actions affecting the lives of citizens by the standard of the United States Constitution. Judicial review must be exercised with knowledge and prudence, finding a balance between defense of individual rights and national security, judicial restraint and judicial activism, state interests and national incentives. The danger of the grand power of judicial review exists with arbitrary...
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...the United States’ “War on Terror” many prisoners have been classified as combatants and as such have been placed into incarceration at the United States military base in Guantanamo Bay, Cuba. This has sparked many controversial cases to be directed to the U.S. District Courts of Appeal and the U.S. Supreme Court as many prisoners from Iraq and Afghanistan have been held at Guantanamo Bay without officially being charged with any crimes. In terms of habeas corpus, all combatant or illegal detainees deserve the right to have their case heard in federal court. When the colonists came over to the New World after leaving England, one of the things that they brought with them was copies of the Magna Carta. One of the activities given by King John in the Magna Carta was “‘No freeman shall be arrested or imprisoned or disseised or outlawed or exiled or in any way victimised, neither will we attack him or send anyone to attack him except by the lawful judgement of his peers or by the law of the land. To no-one will we refuse or delay right or justice.’” (Lord Philips, 2011). This is one of the reasons that the Magna Carta is so acknowledged and admired. The quote above was later embodied by the...
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...apply, and execute the laws…," Lawrence stated (Lupton). At that time, other justices also had the same thought; as a result, Myra Bradwell could not be allowed to be an attorney only because she was a woman. However, in 1981, according to "Sandra Day O'Connor," O'Connor became the first women to be on the United States Supreme Court in 191 years of history of the court. Her becoming a justice on the court encouraged other women to have a chance to proceed in male-dominant fields, and gave men a good look at what...
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...Course Description This course introduces the concepts, tools, and first principles of strategy formulation and competitive analysis. It is concerned with managerial decisions and actions that materially affect the success and survival of business enterprises. The course focuses on the information, analyses, organizational processes, skills, and business judgment managers must use to design strategies, position their businesses and assets, and define firm boundaries, to maximize long-term profits in the face of uncertainty and competition. Strategic Management (BUAD 497) is an integrative and interdisciplinary course in two important respects: 1. The course assumes a broad view of the environment that includes competitors, buyers/consumers, suppliers, technology, economics, capital markets, and government both locally and globally. It assumes that the external environment is dynamic and characterized by uncertain changes. In studying strategy, this course draws together and builds on all the ideas, concepts, and theories from your functional courses such as Accounting, Economics, Finance, Marketing, Organizational Behavior, and Statistics. However, it is much more than a mere integration of the functional specialties within a firm. 2. The course takes a general management perspective. It views the firm as a whole, and examines how policies in each functional area are integrated into an overall competitive strategy. We designed this course to develop...
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...[Please do not circulate or cite without permission] Written Constitutions and Unwritten Constitutionalism Mark D. Walters Faculty of Law Queen’s University February 2007 To Be Published In: Grant Huscroft (ed.), Expounding the Constitution: Essays in Constitutional Theory (Cambridge University Press, forthcoming) I. Introduction Defending the idea of ‘unwritten law’ has never been easy. Jeremy Bentham thought the very expression to be a ‘paradoxical and unmeaning epithet’.[1] In his view, social reform required ‘fixed and accurate’ laws—laws that ‘[w]e see, we hear, we touch; in short we handle…’[2] This empirical concept of law follows from the ideal of law as something produced by conscious acts of sovereign will. Central to this concept are, to use H.L.A. Hart’s expression, ‘rules of change’ that permit societies to escape the confines of ‘primitive’ custom.[3] The progressive march of legal theory, it may be said, has been away from medieval notions of law as customs practiced time out of mind or as the immutable dictates of natural law, away from the fiction that judges discover rather than make law, and towards modern notions of law as creative political acts recorded in writing. In terms of constitutional law, this march leads to the idea of written constitutionalism, a destination that the rebelling American colonists are often said to have reached first.[4] It was a task especially ‘reserved’ to the American people, wrote...
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...; ♥ But more importantly: background information about some of the critical ways in which the American legal system is unique, and differs from legal systems elsewhere in the world. This is hard: often you will find that your professors or fellow‐students will make assumptions or presuppose certain ways of doing things that aren’t explained in class. A large goal of this course is to explain those assumptions, and make them explicit. >> UNIQUENESS OF AMERICAN LEGAL SYSTEMS Briefly, there are four aspects of the American legal system that set it apart: 1) Inherited common law, existing out of three components: (a) judicial power; (b) civil jury trial; (c) law‐equity ; 2) Written Constitution and Bill of Rights; judicial...
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...DEVELOPMENT OF CONCEPTS OF CAPITAL AND INCOME IN FINANCIAL REPORTING IN THE NINETEENTH CENTURY Calculation, Context and Consequence THOMAS REGINALD (Tom) ROWLES B.Ec (Hons), Dip.Ed (Monash) A THESIS SUBMITED FOR THE DEGREE OF DOCTOR OF PHILOSOPHY IN THE SCHOOL OF ACCOUNTING AND LAW OF RMIT UNIVERSITY, MELBOURNE, VICTORIA, AUSTRALIA ii DECLARATION I certify that: Except where due acknowledgement has been made, this thesis is mine alone; and The work has not been submitted previously, in whole or part, to qualify for any other academic award; and The content of the thesis is the result of work that has been carried out since the official commencement date of the approved research programme. THOMAS R. ROWLES iii TABLE OF CONTENTS Chapter Introduction 1.1 1.2 1.3 1.4 1.5 1.6 1.7 1.8 1.9 Introduction Purpose of the Study Sombart’s Hypothesis An Alternative Model; Entrepreneurial Decision-making Context: The Industrial Revolution and ‘Profit’ The Changing Nature of ‘Investment’ The Great Depression of 1873-96 Intellectual Introspection Irving Fisher and the Conception of Capital and Income 17 17 17 23 25 26 30 32 34 34 35 36 38 38 38 39 43 46 49 50 51 54 55 1.10 Research Issues Identified 1.11 Summary Derivation of Research Issues 2.1 2.2 Introduction Evidence from Extant Accounts 2.2.1 Fixed Assets in Mercantile Accounting 2.2.2 The East India Company 2.2.3 Fixed Assets and Early Industrial Accounting 2.2.4 Capital Asset Accounting After 1870...
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...The Penal Treatments of Offenders Prof. Dr. Ayman Elzeiny A:- The Ideology of Treatment : 'The abandonment of the word "punishment" in favor of "corrections" was a reflection of a trend favoring an approach to the offender much the same as would be made to the mentally ill, neglected, or underprivileged. It was based on a more humane ideology, a treatment model, in which criminal behavior is seen as a manifestation of pathology that can be handled by some form of therapeutic activity. However, although the criminal may be referred to as sick, a treatment ideology is not analogous to a medical approach. The justification for the comparison with physical and mental illness lies in the assumed need for the offender to recognize the danger and undesirability of his criminal behavior and make a significant effort to renounce it. The treatment model does not "remove" criminal behavior, as surgery might remove a malignancy or chemotherapy extinguish an infection; rather the "patient" or inmate is made to see the rewards of socially acceptable behavior and encouraged to adopt it as a mode of conduct for himself. (1) Contrary to some popular misconceptions, the treatment ideology does not mean that inmates are "coddled" and permitted to do as they please within an institution. ______________________________ (1) Sanford Bates, "The Establishment and Early Years of the Federal Probation System," Federal Probation 51 June 1987, p : 4-9. - National Advisory...
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... 2 Abstract This paper examines whether or not the Death Penalty is a deterrent to crime in general and more specific, it examines if the Death Penalty is a deterrent to the murder of Police Officers in the line of duty. It explores the history of the death penalty as our country moves through different periods in its history. Comparisons were made of regions throughout the country as to how the death penalty impacts crime in general and whether the fact that having the death penalty makes Police Officers safer with potential Cop killers knowing that the death penalty awaits them should they kill an Officer. This paper was compiled mainly by researching online periodicals, newspapers and books. This is a topic that evokes strong feelings, pro and con. These feelings and responses to certain crimes provide a virtual emotional roller coaster ride depending on circumstances. The killings of two Detroit Police Officers earlier this year proved to be no different. 3 Table of Contents Abstract ………..……………………………………………………………………..2 Table of Contents………………………………………………………………….....3 Introduction…………………………………………………………………………..4 Background and Significance…………………………………………………….....5 Michigan Connection………………………………………………………………...8 Literature Review…………………………………………………………………..12 Results/Summary.......................................................................................................25 Cited Works………………………………………………………………………...29 4 Introduction Capital punishment is the imposition...
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...Workplace Climate Study | | | 6/2/2014 Table of Contents Introduction 2 Literature Review 3 Hypothesis One 11 Hypothesis Two 12 Hypothesis Three 13 Data and Methods 13 Hypothesis One 14 Hypothesis Two 16 Hypothesis Three 17 Conclusions 28 Recommendations 29 Reference 30 Introduction The purpose to of this research is to understand and determine the morale of 20 employees in the Waikato regions that we have surveyed. In this study, we conducted 20 surveys in different areas of work. This survey was conducted in the Waikato region on different people from different organisations. In our research we found that most of our research was taken from a professional accountancy firm, restaurants and others such as customer service and assistance. We developed a questionnaire based on the organisational behaviour areas and literature reviews and conducted these surveys and have decided to have hypothesis about what we think that the outcome of these will be. These have been used as the focus of this report. The reason that we chose these candidates are they are different and diverse industries and we can compare the information given easily. We have also identified their role in the industry and we compared their roles against our research. We have also included the age, gender of the candidates we have chosen so that this can be compared with other factors. The articles that we have reviewed during this research are based on the topics of...
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...M A G A Z I N E FA L L 2 0 0 2 Volume 20 Number 2 SPANNING THE GLOBE Duke Leads the Way in International Law Teaching and Scholarship inside plus Duke admits smaller, exceptionally well-qualified class Duke’s Global Capital Markets Center to launch new Directors’ Education Institute from the dean Dear Alumni and Friends, It is not possible, these days, for a top law school to be anything other than an international one. At Duke Law, we no longer think of “international” as a separate category. Virtually everything we do has some international dimension, whether it concerns international treaties and protocols, commercial transactions across national borders, international child custody disputes, criminal behavior that violates international human rights law, international sports competitions, global environmental regulation, international terrorism, or any number of other topics. And, of course, there is little that we do at Duke that does not involve scholars and students from other countries, who are entirely integrated with U.S. scholars and students. Students enrolled in our joint JD/LLM program in international and comparative law receive an in-depth education in both the public and private aspects of international and comparative law, enriched by the ubiquitous presence of foreign students; likewise, the foreign lawyers who enroll in our one-year LLM program in American law enroll in the same courses, attend the same conferences...
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... 1 Factors determining citizenship: - Parents are citizens -Born within a county -Marriage to a citizen -Naturalization 2 History * 2.1 Polis citizenship * 2.2 Roman ideas of citizenship * 2.3 Middle Ages * 2.4 Renaissance * 2.5 Modern times 3 Different senses of citizenship -International citizenship -Commonwealth citizenship -European Union citizenship -Subnational citizenship Citizenship education * United Kingdom * Ireland citizenship in Bangladesh CITIZENSHIP: Citizenship laws are based upon the Bangladesh Citizenship Order dated 1972. Questions concerning persons born before March 26, 1971, should be directed to the Bangladesh Embassy. (UKC-Commonwealth Nation) BY BIRTH: Birth within the territory of Bangladesh does not automatically confer citizenship. Only persons born before March 26, 1971 would be deemed Bangladesh citizens by birth. BY DESCENT: Rules stated below apply to persons born after March 26, 1971. Child born of a Bangladesh father, regardless of the child's country of birth. Child whose grandfather was a citizen of Bangladesh, regardless of the child's country of birth. Child born of a Bangladesh mother and an unknown or stateless father, regardless of the child's country of birth. OTHER: Person who was a permanent resident of Bangladesh on March 26, 1971, is granted citizenship, unless disqualified by law at that time. BY NATURALIZATION: A person...
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...MANU/SC/0241/2007 Equivalent Citation: 2007(2)ALT1(SC), JT2007(2)SC1, (2007)3SCC184, [2007]1SCR317 IN THE SUPREME COURT OF INDIA Writ Petition (Civil) No. 1 of 2006, Transferred Case Nos. 82 to 90 of 2006 and Writ Petition (C) No. 129 of 2006 Decided On: 10.01.2007 Appellants: Raja Ram Pal Vs. Respondent: The Hon'ble Speaker, Lok Sabha and Ors. Parameter of judicial review in relation to exercise of parliamentary provisions Hon'ble Judges/Coram: Y.K. Sabharwal, C.J., K.G. Balakrishnan, C.K. Thakker, R.V. Raveendran and D.K. Jain, JJ. Counsels: For Appellant/Petitioner/Plaintiff: Ram Jethmalani, P.N. Lekihi, T.R. Andhyarujina, Sr. Advs., Krishan Singh Chauhan, Indra Pratap Singh, Gyan Mitra, Chand Kiran, P.K. Jayakrishnan, K.C. Lamba, Sudha Pal, V.K. Shukla, Nischal Kumar Neeraj, Ashish Tripathi, K.K. Mohan, Nawal Kishore Jha, M.P. Jha, Harshvardha Jha, Ram Ekbal Roy, Rani Jethmalani, Harish Pandey, Samar Bansal, Abhik Kumar, P.R. Mala, Rajiv Kumar Tiwari, Rajesh Kumar, Sanjai Tiwari, Lata Krishnamurthi, Sachin Jain, Mukesh Kumar Tripathi, Lokesh Kumar, M.K. Garg, Meenakshi Arora, S. K. Mehndiratta, Pranav Sen, S.W.A. Qadri, Mahra, R.M. Sharma, Sushma Suri, Advs., Gopal Subramanian, ASG., Dayan Krishnan, Gautam Narayan, Satyakam, T.S. Murthy, Raghenth Basant, Aman Ahluwalia, Arunav Patnaik, Abhishek Tiwari and D.S. Mahra, Advs. Subject: Constitution Acts/Rules/Orders: Constitution of India (Forty-fourth Amendment) Act, 1978 - Section 15, Constitution of India (Forty-fourth Amendment)...
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