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Author: Ben Juratowitch Publisher: Bloomsbury Publishing ISBN: 1847314104 Category : Law Languages : en Pages : 270
Book Description
This book analyses the common law's approach to retroactivity. The central claim is that when a court considers whether to develop or change a common law rule the retroactive effect of doing so should explicitly be considered and, informed by the common law's approach to statutory construction, presumptively be resisted. As a platform for this claim a definition of 'retroactivity' is established and a review of the history of retroactivity in the common law is provided. It is then argued that certainty, particularly in the form of an ability to rely on the law, and a conception of negative liberty, constitute rationales for a general presumption against retroactivity at a level of abstraction applicable both to the construction of statutes and to developing or changing common law rules. The presumption against retroactivity in the construction of statutes is analysed, and one conclusion reached is that the presumption is a principle of the common law independent of legislative intent. Across private, public and criminal law, the retroactive effect of judicial decisions that develop or change common law rules is then considered in detail. 'Prospective overruling' is examined as a potential means to control the retroactive effect of some judicial decisions, but it is argued that prospective overruling should be regarded as constitutionally impermissible. The book is primarily concerned with English and Australian law, although cases from other common law jurisdictions, particularly Canada and New Zealand, are also discussed. The conclusion is that in statutory construction and the adjudication of common law rules there should be a consistently strong presumption against retroactivity, motivated by the common law's concern for certainty and liberty, and defeasible only to strong reasons. 'Ben Juratowitch not only gives an account of the operation of the presumption, but also teases out the policies which underlie the different rules. This is particularly welcome. Lawyers and judges often seem less than sure-footed when confronted by questions in this field. By giving us an insight into the policies, the author provides a basis for more satisfactory decision-making in the future. ...The author not only discusses the recent cases but examines the question in the light of authority in other Commonwealth jurisdictions and with due regard to the more theoretical literature. This is a valuable contribution to what is an important current debate in the law. Happily, Ben Juratowitch has succeeded in making his study not only useful, but interesting and enjoyable.' From the Foreword by Lord Rodger of Earlsferry
Author: Ben Juratowitch Publisher: Bloomsbury Publishing ISBN: 1847314104 Category : Law Languages : en Pages : 270
Book Description
This book analyses the common law's approach to retroactivity. The central claim is that when a court considers whether to develop or change a common law rule the retroactive effect of doing so should explicitly be considered and, informed by the common law's approach to statutory construction, presumptively be resisted. As a platform for this claim a definition of 'retroactivity' is established and a review of the history of retroactivity in the common law is provided. It is then argued that certainty, particularly in the form of an ability to rely on the law, and a conception of negative liberty, constitute rationales for a general presumption against retroactivity at a level of abstraction applicable both to the construction of statutes and to developing or changing common law rules. The presumption against retroactivity in the construction of statutes is analysed, and one conclusion reached is that the presumption is a principle of the common law independent of legislative intent. Across private, public and criminal law, the retroactive effect of judicial decisions that develop or change common law rules is then considered in detail. 'Prospective overruling' is examined as a potential means to control the retroactive effect of some judicial decisions, but it is argued that prospective overruling should be regarded as constitutionally impermissible. The book is primarily concerned with English and Australian law, although cases from other common law jurisdictions, particularly Canada and New Zealand, are also discussed. The conclusion is that in statutory construction and the adjudication of common law rules there should be a consistently strong presumption against retroactivity, motivated by the common law's concern for certainty and liberty, and defeasible only to strong reasons. 'Ben Juratowitch not only gives an account of the operation of the presumption, but also teases out the policies which underlie the different rules. This is particularly welcome. Lawyers and judges often seem less than sure-footed when confronted by questions in this field. By giving us an insight into the policies, the author provides a basis for more satisfactory decision-making in the future. ...The author not only discusses the recent cases but examines the question in the light of authority in other Commonwealth jurisdictions and with due regard to the more theoretical literature. This is a valuable contribution to what is an important current debate in the law. Happily, Ben Juratowitch has succeeded in making his study not only useful, but interesting and enjoyable.' From the Foreword by Lord Rodger of Earlsferry
Author: Daniel E. Troy Publisher: American Enterprise Institute ISBN: 9780844740232 Category : Law Languages : en Pages : 148
Book Description
The principle in law that the rules are not changed in the middle of game, is embodied in the notion that legislation should apply prospectively. This study analyzes the legal constraints on retroactive legislation and the presumption of prospectivity and constitutional limits on such lawmaking.
Author: Daniel Shaviro Publisher: University of Chicago Press ISBN: 9780226751146 Category : Business & Economics Languages : en Pages : 292
Book Description
Suppose Congress were to change Social Security just before you retired? Or repeal income tax deductions for homeowners? Or institute a flat tax? Should those changes be retroactive? Or should you retain the gains or accept the losses resulting from the new enactments? What kinds of policies might governments adopt in order to mitigate the transitional effects of changing legal rules? Daniel Shaviro tackles these tough questions, bringing legal, economic, and political perspectives to bear on a persistent problem not often given serious attention. When Rules Change: An Economic and Political Analysis of Transition Relief and Retroactivity focuses on tax law changes to develop an in-depth understanding of the transitional issues inherent in any substantive rule change and also to advance a set of normative policy guidelines applicable to any such circumstance. Shaviro reframes traditional approaches to the problem of retroactivity and offers new insights into both the theory and policy of legislative transitions.
Author: Ibrahim Moustafa Publisher: Humanoids, Inc. ISBN: 1643376330 Category : Comics & Graphic Novels Languages : en Pages : 138
Book Description
An agent working for the U.S. Bureau of Temporal Affairs sets out to discover the source of several anomalies in the timeline—only to become imprisoned in an inescapable time loop.
Author: Micah Edwards Publisher: ISBN: 9781796404326 Category : Languages : en Pages : 417
Book Description
In a world full of Augments, individuals with powerful abilities, we see a portrait of two men: - Foresight, a shining superhero with the ability to choose from all possible futures. - Mat Roche, a government functionary simply trying to do his best for his country. The story begins on a scene of carnage, and slowly unfolds to reveal what brought these two into conflict. For though Foresight is a superhero here, with an infinity of possibilities available to him, who knows what else might have been?
Author: Werner Haslehner Publisher: Kluwer Law International B.V. ISBN: 9403501642 Category : Law Languages : en Pages : 328
Book Description
Time is a crucial dimension in the application of any law. In tax law, however, where an environment characterized by rapid change on the national, European, and international levels complicates the provision of accurate legal advice, timing is particularly sensitive. This book is the first to analyse the relationship between time and three key areas of tax: treaties, EU law, and constitutional law issues, such as legal certainty and individual rights. Among the numerous timing issues arising out of applying tax rules, the book addresses the following: – time limits within which relief must be requested; – statutes of limitation for claiming a tax refund; – transitional issues relating to changes in tax treaties; – attribution of profits and expenses to a moving or closed-down business; – effect of tax-related CJEU decisions and EU directives; – compliance of exit tax regimes with free movement; – limits of retroactivity under principles protected by the EU Charter and the ECHR; and – conflict between efficiency of taxation and individual rights. Derived from a recent conference organized by the prestigious ATOZ Chair for European and International Taxation at the University of Luxembourg, the book brings together contributions from leading tax experts from various areas of tax practice, academia, and the judiciary. Among other issues, the book notably expands on how economic theory can inform a constitutional analysis of the timing of taxation. There is no other work that concentrates so usefully on the difficulties associated with applying tax rules – whether arising from treaties, jurisprudence, or policy – to changing circumstances over time. This book will quickly prove itself to be an indispensable resource for European tax lawyers, policymakers, company counsels, and academics.
Author: Jan Laitos Publisher: Aspen Publishers Online ISBN: 0735501521 Category : Law Languages : en Pages : 1317
Book Description
The on-going battle between government's desire to regulate private property use and property owners' equally powerful desire to avoid economically damaging or unreasonable limitations on their property is one of the most emotionally charged and fiercely contested issues in contemporary law. An enormous amount of litigation at every level of government has stemmed from questions surrounding the timing and amount of government compensation to an owner of regulated property. The relevant law has undergone a complete transformation over the past decade, so count on the Law of Property Rights Protection to bring you completely up to date. Organized according to the major elements of a property rights case, the book: Analyzes the case law and identifies which challenges were successful, what fact patterns proved compelling, and what tactics have failed. Offers advice on how best to handle common situations Covers the full range of property, drawing on recent cases involving contract rights, lease hold rights, an unpatented mining claim, the possibility of reverter, the right of entry, the use of water power, and the right to exclude members of the public from a shopping center. Using Laitos' strategic approach will help you formulate your own arguments and handle taking cases with confidence.
Author: United States. Congress. Senate. Committee on the Judiciary. Subcommittee on the Constitution Publisher: ISBN: Category : Law Languages : en Pages : 86
Author: Sofia Ranchordás Publisher: Bloomsbury Publishing ISBN: 1509930957 Category : Law Languages : en Pages : 320
Book Description
Offering a unique perspective on an overlooked subject – the relationship between time, change, and lawmaking – this edited collection brings together world-leading experts to consider how time considerations and social, political and technological change affect the legislative process, the interpretation of laws, the definition of the powers of the government and the ability of legal orders to promote innovation. Divided into four parts, each part considers a different form of interaction between time and law, and change. The first part offers legal, theoretical and historical perspectives on the relationship between time and law, and how time shaped law and influences legal interpretation and constitutional change. The second part offers the reader an analysis of the different ways in which courts approach the impact of time on law, as well as theoretical and empirical reflections upon the meaning of the principle of legal certainty, legitimate expectations and the influence of law over time. The third part of the book analyses how legislation and the legislative process addresses time and change, and the various challenges they create to the legal order. The fourth and final part addresses the complex relationship between fast-paced technological change and the regulation of innovations.
Author: Ben Juratowitch
Author: Ben Juratowitch
Author: Daniel E. Troy
Author: Daniel Shaviro
Author: Ibrahim Moustafa
Author: Micah Edwards
Author: Werner Haslehner
Author: Jan Laitos
Author: United States. Congress. Senate. Committee on the Judiciary. Subcommittee on the Constitution
Author: United States Sentencing Commission
Author: Sofia Ranchordás