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Disagreement and Dissent in Judicial Decision-making


ISBN13: 9780854901272
Published: October 2013
Publisher: Wildy, Simmonds and Hill Publishing
Country of Publication: UK
Format: Hardback
Price: £20.00



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Wildy's Book of the Month: November 2013

Frederic Reynold provides an engaging analysis of disagreement and dissent in judicial decision-making. He explores the root causes of disagreement in cases decided over the last 25 years or so in the House of Lords and the Supreme Court, and the light they throw on the character of judicial decision-making at this level.

Disagreement and Dissent in Judicial Decision-making seeks to provide answers to a number of topical questions:-

  • To what extent, if any, have judges observed the distinction between legal policy (a legitimate matter of concern to them) and public policy (which generally speaking is not)?
  • Can a non-lawyer be in a position to assess the merits of the competing views of the majority and the minority?
  • Can one talk in any meaningful sense of achieving “a balance” in the membership of the Supreme Court?
  • Is the UK Supreme Court, in terms of character and function, heading in the direction of the US Supreme Court?

Split decisions of the law lords and (since October 2009) justices of the Supreme Court have always exercised a particular fascination, and especially those decisions featuring a bare majority.

The analysis given here will throw light on a number of topical concerns, eg: the balance in the composition of, and the appointment of justices to, the Supreme Court; and the boundaries between judicial and political decision-making.

Subjects:
Tort Law, Jurisprudence, Wildy, Simmonds and Hill
Contents:
Preface

Introduction;

Part One What Exactly is Fair and Just?
(1) The impulse to do practical justice
(2) It is unrealistic to say there is only one right answer
(3) Succumbing to the attraction of a wholly illogical argument
(4) Justice for contract breakers as well as for the injured parties

Part Two Clashes of Principle and Competing Moral Judgments
(1) Is this really criminal conduct?
(2) Upholding a principle or pragmatically turning a blind eye
(3) Policy or legal principle
(4) Constitutional niceties and a matter of conscience
(5) Taking liberties with the will of Parliament

Part Three Problems with the Meaning of Ordinary Words
(1) Support for the old and infirm: the duty of councils
(2) Discriminating “on grounds of [her or his] sex” and “on racial grounds”
(3) Compensating the innocent
(4) A problem with the word “knowledge”

Part Four Differing Responses to Constitutional and Human Rights Issues
(1) Is the “right of abode” a fundamental right?
(2) Private Smith and the reach of Article 1
(3) Using a sledgehammer to crack a nut
(4) How sacrosanct is the constitutional right to pursue a private prosecution?
(5) Are there limits to the right to keep legal advice confidential?

Part Five What do these Disagreements Reveal about Judicial Decision-making in our Court of Last Resort
(1) Disagreements in the US Supreme Court
(2) Disagreement in our own court of last resort
(3) Concerns about accountability

Appendix List of Law Lords and Supreme Court Justices Whose Judgments are Discussed or Referred to in the Text, and Date of their Appointment