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Constitutional Equity and the Innovative Tradition
CONSTITUTIONAL EQUITY AND THE INNOVATIVE TRADITION WILLIAM T. QUILLEN* I INTRODUCTION Lazard Freres & Company ("Lazard") and Dillon Read & Company, Inc. ("Dillon"), the investment bank advisers to the special committee of the board of directors of RJR Nabisco, Inc. ("RJR"), 1 moved to intervene in the recent Nabisco shareholder litigation in the Delaware Court of Chancery.2 The motion presented the court with the stuff of lawyers-personal jurisdiction, subject matter jurisdiction, mandatory counterclaims, mandatory and permissive intervention, declaratory judgments, collateral estoppel-in short, a feast for those of our craft who are determined that the elimination of common law pleading and antiquated bills in equity shall not spoil all the fun.3 The motion to intervene was presented to Chancellor William T. Allen, Chief Judge of the Delaware Court of Chancery. What is striking about the portion of the opinion dealing with subject matter jurisdiction is not its example of a now-rare breed of legal issues (that is, is the declaratory judgment counterclaim, being a strictly legal matter designed to negate liability for negligence, cognizable in a separate court of equity?), nor even the overall issues of the modern uniqueness of the Delaware bifurcated Copyright © 1993 by William T. Quillen * Delaware Secretary of State; Distinguished Visiting Professor of Law, Widener University School of Law, Wilmington, Delaware; former Chancellor, Delaware Court of Chancery; retired Justice, Delaware Supreme Court. This article is largely taken from a longer work. See William T. Quillen, A Historical Sketch of the Equity Jurisdiction in Delaware (1982) (unpublished LL.M. thesis, University of Virginia) [hereinafter Quillen, Historical Sketch]. -
THE LEGACY of the MAGNA CARTA MAGNA CARTA 1215 the Magna Carta Controlled the Power Government Ruled with the Consent of Eventually Spreading Around the Globe
THE LEGACY OF THE MAGNA CARTA MAGNA CARTA 1215 The Magna Carta controlled the power government ruled with the consent of eventually spreading around the globe. of the King for the first time in English the people. The Magna Carta was only Reissues of the Magna Carta reminded history. It began the tradition of respect valid for three months before it was people of the rights and freedoms it gave for the law, limits on government annulled, but the tradition it began them. Its inclusion in the statute books power, and a social contract where the has lived on in English law and society, meant every British lawyer studied it. PETITION OF RIGHT 1628 Sir Edward Coke drafted a document King Charles I was not persuaded by By creating the Petition of Right which harked back to the Magna Carta the Petition and continued to abuse Parliament worked together to and aimed to prevent royal interference his power. This led to a civil war, and challenge the King. The English Bill with individual rights and freedoms. the King ultimately lost power, and his of Rights and the Constitution of the Though passed by the Parliament, head! United States were influenced by it. HABEAS CORPUS ACT 1679 The writ of Habeas Corpus gives imprisonment. In 1697 the House of Habeas Corpus is a writ that exists in a person who is imprisoned the Lords passed the Habeas Corpus Act. It many countries with common law opportunity to go before a court now applies to everyone everywhere in legal systems. and challenge the lawfulness of their the United Kingdom. -
The Original Meaning of the Habeas Corpus Suspension Clause, the Right of Natural Liberty, and Executive Discretion
William & Mary Bill of Rights Journal Volume 29 (2020-2021) Issue 3 The Presidency and Individual Rights Article 4 March 2021 The Original Meaning of the Habeas Corpus Suspension Clause, the Right of Natural Liberty, and Executive Discretion John Harrison Follow this and additional works at: https://scholarship.law.wm.edu/wmborj Part of the Constitutional Law Commons, Legal History Commons, President/Executive Department Commons, and the United States History Commons Repository Citation John Harrison, The Original Meaning of the Habeas Corpus Suspension Clause, the Right of Natural Liberty, and Executive Discretion, 29 Wm. & Mary Bill Rts. J. 649 (2021), https://scholarship.law.wm.edu/wmborj/vol29/iss3/4 Copyright c 2021 by the authors. This article is brought to you by the William & Mary Law School Scholarship Repository. https://scholarship.law.wm.edu/wmborj THE ORIGINAL MEANING OF THE HABEAS CORPUS SUSPENSION CLAUSE, THE RIGHT OF NATURAL LIBERTY, AND EXECUTIVE DISCRETION John Harrison* The Habeas Corpus Suspension Clause of Article I, Section 9, is primarily a limit on Congress’s authority to authorize detention by the executive. It is not mainly con- cerned with the remedial writ of habeas corpus, but rather with the primary right of natural liberty. Suspensions of the privilege of the writ of habeas corpus are statutes that vest very broad discretion in the executive to decide which individuals to hold in custody. Detention of combatants under the law of war need not rest on a valid suspen- sion, whether the combatant is an alien or a citizen of the United States. The Suspension Clause does not affirmatively require that the federal courts have any jurisdiction to issue the writ of habeas corpus, and so does not interfere with Congress’s general control over the jurisdiction of the federal courts. -
“The Execution of a Trust Shall Be Under the Control of the Court” : a Maxim in Modern Times
This is a repository copy of “The execution of a trust shall be under the control of the court” : A Maxim in Modern Times. White Rose Research Online URL for this paper: https://eprints.whiterose.ac.uk/88217/ Version: Published Version Article: Nolan, Richard orcid.org/0000-0002-7134-5124 (2016) “The execution of a trust shall be under the control of the court” : A Maxim in Modern Times. Canadian Journal of Comparative and Contemporary Law. pp. 469-496. ISSN 2368-4046 Reuse Items deposited in White Rose Research Online are protected by copyright, with all rights reserved unless indicated otherwise. They may be downloaded and/or printed for private study, or other acts as permitted by national copyright laws. The publisher or other rights holders may allow further reproduction and re-use of the full text version. This is indicated by the licence information on the White Rose Research Online record for the item. Takedown If you consider content in White Rose Research Online to be in breach of UK law, please notify us by emailing [email protected] including the URL of the record and the reason for the withdrawal request. [email protected] https://eprints.whiterose.ac.uk/ (2016) 2(2) CJCCL 469 “e execution of a trust shall be under the control of the court”: A Maxim in Modern Times Richard C Nolan* This article examines the ancient, well attested, but largely unexamined, inherent jurisdiction of the court to supervise, and if necessary administer and execute, any trust. It considers the modern and inventive use of this jurisdiction, and its vital role in the juridication of innovative trust practice. -
What If the Founders Had Not Constitutionalized the Privilege of the Writ of Habeas Corpus?
THE COUNTERFACTUAL THAT CAME TO PASS: WHAT IF THE FOUNDERS HAD NOT CONSTITUTIONALIZED THE PRIVILEGE OF THE WRIT OF HABEAS CORPUS? AMANDA L. TYLER* INTRODUCTION Unlike the other participants in this Symposium, my contribution explores a constitutional counterfactual that has actually come to pass. Or so I will argue it has. What if, this Essay asks, the Founding generation had not constitutionalized the privilege of the writ of habeas corpus? As is explored below, in many respects, the legal framework within which we are detaining suspected terrorists in this country today—particularly suspected terrorists who are citizens1—suggests that our current legal regime stands no differently than the English legal framework from which it sprang some two-hundred-plus years ago. That framework, by contrast to our own, does not enshrine the privilege of the writ of habeas corpus as a right enjoyed by reason of a binding and supreme constitution. Instead, English law views the privilege as a right that exists at the pleasure of Parliament and is, accordingly, subject to legislative override. As is also shown below, a comparative inquiry into the existing state of detention law in this country and in the United Kingdom reveals a notable contrast—namely, notwithstanding their lack of a constitutionally- based right to the privilege, British citizens detained in the United Kingdom without formal charges on suspicion of terrorist activities enjoy the benefit of far more legal protections than their counterparts in this country. The Essay proceeds as follows: Part I offers an overview of key aspects of the development of the privilege and the concept of suspension, both in England and the American Colonies, in the period leading up to ratification of the Suspension Clause as part of the United States Constitution. -
S Inherent Jurisdiction to Sit Outside Its Home Territory
A Court’s Inherent Jurisdiction to Sit Outside its Home Territory Another step in the evolution of the common law on this issue has been taken by the Court of Appeal for Ontario in Parsons v Ontario, 2015 ONCA 158 (available here). The court disagrees in some respects with the earlier decision, on the same issue, of the British Columbia Court of Appeal in Endean v British Columbia, 2014 BCCA 61 (available here) (discussed by me over a year ago here). It may be that in light of this conflict the Supreme Court of Canada will end up hearing appeals of either or both decisions. People infected with the Hepatitis C virus by the Canadian blood supply between 1986 and 1990 initiated class actions in each of Ontario, Quebec and British Columbia. These actions were settled under an agreement which provided for ongoing administration of the compensation process by a designated judge in each of the three provinces. In 2012 the issue arose as to whether the period for advancing a claim to compensation could be extended. Rather than having three separate motions in each of the provinces before each judge to address that issue, counsel for the class proposed a single hearing before the three judges, to take place in Alberta where all of them would happen to be on other judicial business. In the face of objections to that process, motions were brought in each province to determine whether such an approach was possible. The initial decision in each province was that a court could sit outside its home province. -
The Rule of Law, the Separation of Powers and Judicial Independence in Canada
Chapter 48 The Rule of Law, the Separation of Powers and Judicial Independence in Canada Warren J. Newman* The Constitution of Canada was modelled on the British tradition of unwritten principles and conventions governing the exercise of legal power to produce a constitutional mon- archy, parliamentary democracy, and responsible government, as well as the American paradigm of constitutional supremacy embodied in written provisions, required in turn by the federal rather than unitary structure of the state. This hybrid model is reflected in the Canadian understanding of the rule of law, which is embodied implicitly in the preamble to the Constitution Act, 1867— Canada was to enjoy ‘a Constitution simi- lar in Principle to that of the United Kingdom’—and explicitly in the preamble to the Canadian Charter of Rights and Freedoms (itself a part of the Constitution Act, 1982)— ‘Whereas Canada is founded upon principles which recognize the supremacy of God and the rule of law’. The idea of the rule of law is also intrinsic to provisions such as section 7 of the Charter, guaranteeing the right to life, liberty, and security of the per- son and the right not to be deprived thereof ‘except in accordance with the principles of fundamental justice’; section 15, protecting and expanding upon Dicey’s1 understanding * BA, BCL, LL.B (McGill), LL.M (Osgoode), Ad E; of the Bars of Quebec and Ontario; Senior General Counsel, Constitutional, Administrative and International Law Section, Department of Justice of Canada. The views expressed in this chapter do not bind the Department. 1 Albert Venn Dicey, Introduction to the Study of the Law of the Constitution, 10th ed. -
Habeas Corpus Act 1679
Status: Point in time view as at 02/04/2006. Changes to legislation: There are currently no known outstanding effects for the Habeas Corpus Act 1679. (See end of Document for details) Habeas Corpus Act 1679 1679 CHAPTER 2 31 Cha 2 An Act for the better secureing the Liberty of the Subject and for Prevention of Imprisonments beyond the Seas. X1Recital that Delays had been used by Sheriffs in making Returns of Writs of Habeas Corpus, &c. WHEREAS great Delayes have beene used by Sheriffes Goalers and other Officers to whose Custody any of the Kings Subjects have beene committed for criminall or supposed criminall Matters in makeing Returnes of Writts of Habeas Corpus to them directed by standing out an Alias and Pluries Habeas Corpus and sometimes more and by other shifts to avoid their yeilding Obedience to such Writts contrary to their Duty and the knowne Lawes of the Land whereby many of the Kings Subjects have beene and hereafter may be long detained in Prison in such Cases where by Law they are baylable to their great charge and vexation. Annotations: Editorial Information X1 Abbreviations or contractions in the original form of this Act have been expanded into modern lettering in the text set out above and below. Modifications etc. (not altering text) C1 Short title given by Short Titles Act 1896 (c. 14) [I.] Sheriff, &c. within Three Days after Service of Habeas Corpus, with the Exception of Treason and Felony, as and under the Regulations herein mentioned, to bring up the Body before the Court to which the Writ is returnable; and certify the true Causes of Imprisonment. -
Criminal Law Act 1967 (C
Criminal Law Act 1967 (c. 58) 1 SCHEDULE 4 – Repeals (Obsolete Crimes) Document Generated: 2021-04-04 Status: This version of this schedule contains provisions that are prospective. Changes to legislation: There are currently no known outstanding effects for the Criminal Law Act 1967, SCHEDULE 4. (See end of Document for details) SCHEDULES SCHEDULE 4 Section 13. REPEALS (OBSOLETE CRIMES) Modifications etc. (not altering text) C1 The text of S. 10(2), S. 13(2), Sch. 2 paras. 3, 4, 6, 10, 12(2), 13(1)(a)(c)(d), 14, Sch. 3 and Sch. 4 is in the form in which it was originally enacted: it was not reproduced in Statutes in Force and does not reflect any amendments or repeals which may have been made prior to 1.2.1991. PART I ACTS CREATING OFFENCES TO BE ABOLISHED Chapter Short Title Extent of Repeal 3 Edw. 1. The Statute of Westminster Chapter 25. the First. (Statutes of uncertain date — Statutum de Conspiratoribus. The whole Act. 20 Edw. 1). 28 Edw. 1. c. 11. (Champerty). The whole Chapter. 1 Edw. 3. Stat. 2 c. 14. (Maintenance). The whole Chapter. 1 Ric. 2. c. 4. (Maintenance) The whole Chapter. 16 Ric. 2. c. 5. The Statute of Praemunire The whole Chapter (this repeal extending to Northern Ireland). 24 Hen. 8. c. 12. The Ecclesiastical Appeals Section 2. Act 1532. Section 4, so far as unrepealed. 25 Hen. 8. c. 19. The Submission of the Clergy Section 5. Act 1533. The Appointment of Bishops Section 6. Act 1533. 25 Hen. 8. c. -
The Constitution of Canada and the Conflict of Laws
Osgoode Hall Law School of York University Osgoode Digital Commons PhD Dissertations Theses and Dissertations 2001 The onsC titution of Canada and the Conflict of Laws Janet Walker Osgoode Hall Law School of York University, [email protected] Follow this and additional works at: http://digitalcommons.osgoode.yorku.ca/phd Part of the Conflict of Laws Commons, and the Jurisdiction Commons Recommended Citation Walker, Janet, "The onC stitution of Canada and the Conflict of Laws" (2001). PhD Dissertations. 18. http://digitalcommons.osgoode.yorku.ca/phd/18 This Thesis is brought to you for free and open access by the Theses and Dissertations at Osgoode Digital Commons. It has been accepted for inclusion in PhD Dissertations by an authorized administrator of Osgoode Digital Commons. THE CONSTITUTION OF CANADA AND THE CONFLICT OF LAWS Janet Walker A thesis submitted in partial fulfilment of the requirements for the degree of Doctor of Philosophy Worcester College Trinity Term 2001 The Constitution of Canada and the Conflict of Laws Janet Walker, Worcester College Doctor of Philosophy Thesis, Trinity Term 2001 This thesis explains the constitutional foundations for the conflict of laws in Canada. It locates these constitutional foundations in the text of key constitutional documents and in the history and the traditions of the courts in Canada. It compares the features of the Canadian Constitution that provide the foundation for the conflict of laws with comparable features in the constitutions of other federal and regional systems, particularly of the Constitutions of the United States and of Australia. This comparison highlights the distinctive Canadian approach to judicial authority-one that is the product of an asymmetrical system of government in which the source of political authority is the Constitution Act and in which the source of judicial authority is the continuing local tradition of private law adjudication. -
Brief Amici Curiae of Legal Historians Listed Herein in Support of Respondent, I.N.S
Georgetown University Law Center Scholarship @ GEORGETOWN LAW 2001 Brief Amici Curiae of Legal Historians Listed Herein in Support of Respondent, I.N.S. v. St. Cyr, No. 00-767 (U.S. Mar. 27, 2001), . James Oldham Georgetown University Law Center Docket No. 00-767 This paper can be downloaded free of charge from: https://scholarship.law.georgetown.edu/scb/63 This open-access article is brought to you by the Georgetown Law Library. Posted with permission of the author. Follow this and additional works at: https://scholarship.law.georgetown.edu/scb Part of the Constitutional Law Commons, Immigration Law Commons, and the Legal History Commons United States Supreme Court Amicus Brief. IMMIGRATION AND NATURALIZATION SERVICE, Petitioner, v. Enrico ST. CYR, Respondent. No. 00-767. March 27, 2001. ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT BRIEF AMICI CURIAE OF LEGAL HISTORIANS LISTED HEREIN IN SUPPORT OF RESPONDENT Timothy G. Nelson Four Times Square New York, New York 10036 (212) 735-2193 Douglas W. Baruch Michael J. Anstett Consuelo J. Hitchcock David B. Wiseman Fried, Frank, Harris, Shriver & Jacobson 1001 Pennsylvania Avenue, N.W. Suite 800 Washington, D.C. 20004 (202) 639-7368 James Oldham Counsel of Record St. Thomas More Professor of Law & Legal History Georgetown University Law Center 600 New Jersey Avenue N.W. Washington, D.C. 20001 (202) 662-9000 Michael J. Wishnie 161 Avenue of the Americas New York, NY 10016 (212) 998-6430 AMICI Affiliations listed for identification purposes only. J.H. Baker Downing Professor of the Laws of England St. -
Yan Campagnolo* 2018 Canliidocs 332
McGill Law Journal — Revue de droit de McGill CABINET IMMUNITY IN CANADA: THE LEGAL BLACK HOLE Yan Campagnolo* 2018 CanLIIDocs 332 Fifteen years ago, in Babcock v. Canada (A.G.), the Il y a quinze ans, dans Babcock c. Canada (Procureur Supreme Court of Canada held that section 39 of the Cana- général), la Cour suprême du Canada a conclu que da Evidence Act, which deprives judges of the power to in- l’article 39 de la Loi sur la preuve au Canada, qui prive les spect and order the production of Cabinet confidences in lit- juges du pouvoir d’examiner les renseignements confiden- igation, did not offend the rule of law and the provisions of tiels du Cabinet et d’en ordonner la production dans le the Constitution. The aim of this article is to revisit this cadre d’un litige, ne constituait pas une atteinte à la pri- controversial ruling and challenge the Supreme Court’s mauté du droit ni aux dispositions de la Constitution. Cet reasoning. The first part seeks to demonstrate that the Su- article a pour but de reconsidérer cette décision controver- preme Court adopted a very thin conception of the rule of sée et de contester le raisonnement de la Cour suprême. La law in its jurisprudence, a conception which is of limited première partie cherche à démontrer que la Cour suprême use as a normative framework to assess the legality of stat- a adopté une conception très étroite de la primauté du droit utory provisions. To that end, the author turns to the thick- dans sa jurisprudence, une conception ayant une portée fort er theory of law as justification which insists upon the re- limitée comme cadre normatif pour évaluer la légalité des quirements of fairness, transparency, and accountability.