27
votes
Accepted
What are the formal requirements to cite the Universal Declaration of Human Rights in U.S. courts?
The Universal Declaration of Human Rights is not self-executing and may not be applied in U.S. courts as binding law. See, e.g., Barbara Macgrady, Note, Resort to International Human Rights Law in ...
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27
votes
What are the formal requirements to cite the Universal Declaration of Human Rights in U.S. courts?
While ohwilleke gave a good answer on the limits of citing treaties in US courts, there's a more fundamental issue: the UDHR is not a treaty. It's a resolution of the UN General Assembly, and like ...
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14
votes
Is there any judicial precedent regarding US governors' power (or lack thereof) to limit church attendance in an emergency?
The main relevant bit of constitutional law is Employment Division v. Smith, 494 U.S. 872, where it was held that a general law against use of peyote does not violate the Free Exercise clause, though ...
- 206k
13
votes
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Is there ever any consultation between judiciary and legislative draftspeople?
For the same reason you can’t ask the parties to a contract what they meant
Legislation, once enacted, stands on its own independent of the people who drafted it, introduced it to Parliament and voted ...
- 192k
10
votes
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Article 3 of the Protocol to the Convention for the Protection of Human Rights and Fundamental Freedoms of ECHR, has it ever been used?
Yes, this has come before the Court.
Some prominent examples are -
Mathieu-Mohin and Clerfayt v Belgium (1987), the first time Article 3 was before the European Court of Human Rights, on the complex ...
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9
votes
Is there ever any consultation between judiciary and legislative draftspeople?
A judge could not ask a legislator to get a clearer idea of the legislative because the latter is the product of a majority consensus among the former. A single legislator can speak for their own ...
- 2,022
8
votes
Does the maxim "Expressio Unius Est Exclusio Alterius" apply to the rules for dating my teenage daughter?
Your lawyer friend is misguided
Casual conversation and writing are not subject to any maxims of interpretation - the words mean what the speaker/writer says and what the listener/reader understands ...
- 192k
8
votes
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Can law.SE activity decisively influence future case law?
The future prospects are negligible, and the present status of such influence is non-existent. In a few cases, you may find an appellate decision citing some statement from a reputable law review. ...
- 206k
7
votes
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Is it error of law to judge on less relevant case law when there is much more relevant one?
On an issue of pure law, an appellate court decides if the trial judge got it right or wrong from scratch, and if there is a case that is a better match than the one that the judge used that leads to ...
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7
votes
What determines the time factor in a court reaching a decision?
Generally speaking, courts take whatever time they need to write their decision and then release it close to immediately. In cases where a judge believes she has the information she needs, she may ...
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7
votes
Is there any judicial precedent regarding US governors' power (or lack thereof) to limit church attendance in an emergency?
In the geographic domain overseen by 5th Circuit Court of Appeals the answer is (likely) yes. They have just temporarily upheld the abortion provisions of the Texas Governor's COVID order (In re ...
- 857
6
votes
How deterministic are modern legal systems?
How deterministic is the legal system? It depends. And less than we might wish.
It depends on the case. How complex is the fact pattern? How strong is the evidence? How clear is the law? How ...
- 9,806
6
votes
How do I interpret a court judgement? What does it mean?
Congratulations, intrepid legal enthusiast or learner!
What you'll need
A legal dictionary, especially if you're just getting started.
If you don't own one, you can try Black's Law Dictionary
A ...
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6
votes
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Could attempting to codify case law that was decided many years ago open up the legal question again?
Congress cannot be sued for enacting a law. Period. The courts do not have the power to punish Congress for passing a law, they cannot forbid Congress from passing a law, they have no say over what ...
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5
votes
Accepted
Does statute take precedence over case law (in the US)?
This would establish a new precedent (I assume)
You assume correctly. However, a precedent is only binding on lower courts and persuasive on courts at the same level so a trial judge precedent is not ...
- 192k
5
votes
Accepted
Can case law never appealed in a higher court be appealed and overturned?
Any precedent can be overturned by any court at the same or higher level in the hierarchy
So, for your example of a High Court precedent, it can be overturned at Supreme Court, Court of Appeal or High ...
- 192k
5
votes
Accepted
The parties in an appealed criminal case
"Regina" or "R" or "The Crown" or "The Queen" is the respondent. These are different ways of expressing the same concept.
However, it is not typical to name &...
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5
votes
Is there ever any consultation between judiciary and legislative draftspeople?
I would say there are two issues here:
1) What is legislative intent?
It's not immediately clear what is legislative intent. Do all legislators in the House of Commons or US Congress have the same ...
4
votes
Accepted
Do courts in a common law system ever make decisions about law without a presented case?
Yes. In some common law jurisdictions, such as Canada, the United Kingdom and even some U.S. states, the government may under some circumstances refer a legal question to the appropriate Supreme Court ...
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4
votes
Accepted
What case was Justice Breyer referring to in the argument for Trevino v Thaler
A blog post tracked this to Fiore v. White, a 1999 case in which Breyer wrote an opinion certifying a question to the Pennsylvania Supreme Court, after which SCOTUS reversed the Third Circuit per ...
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4
votes
How do I interpret a court judgement? What does it mean?
Let's roll back a couple of conceptual steps: before deciding how to interpret a judgement you should know what a judgement is.
What is law?
I quote from Australian Business Law 2002:
The law is ...
- 192k
4
votes
Accepted
What is the significance of dissenting opinions in appellate court decisions?
The decision of a court consists of several things:
The orders made
A summary of the evidence
The judge's reasoning from the evidence to their conclusions of what the facts of the case are
The judge'...
- 192k
4
votes
Is it error of law to judge on less relevant case law when there is much more relevant one?
Probably not
The judge is required to decide the case on the basis of the law the parties argue. If neither party draws the judge’s attention to a relevant case it would not be an error of law for ...
- 192k
4
votes
Are legal precedents or tests ever created outside of a traditional trial?
All precedents are made in court judgements
Courts exist in a hierarchy which means there are two kinds of precedent: binding and persuasive. A binding precedent is one set in the same hierarchy by a ...
- 192k
4
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Is there any judicial precedent regarding US governors' power (or lack thereof) to limit church attendance in an emergency?
Well, there was another recent case:
In Maryville Baptist Church, Inc. v. Beshear, (WD KY, April 18, 2020), a Kentucky federal district court refused a request by a church and its pastor to issue a ...
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4
votes
Accepted
US case law where riling up someone and then telling them to go to a specific location constituted incitement?
The Brandenburg Test
This is not a "general test" - it's the test that applies. The prosecution must prove beyond reasonable doubt that:
The speech is “directed to inciting or producing ...
- 192k
4
votes
Does the maxim "Expressio Unius Est Exclusio Alterius" apply to the rules for dating my teenage daughter?
"Expressio Unius Est Exclusio Alterius" is the Latin version of a general rule of communicative interpretation to the effect that when people give a list of things, the list is presumed to ...
- 206k
4
votes
Accepted
How can one find a comprehensive enumeration of all the precedent setting cases that pertain to a particular issue or rulings on a given statute?
new-zealand
The Law Society provides this research service where specially trained people scour through all relevant databases and return to you what they have found. Though this service is only ...
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Only top scored, non community-wiki answers of a minimum length are eligible