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Construction, Originalist Interpretation And The Complete Constitution, Richard Kay

Richard Kay

In recent years, the literature of constitutional originalism has adopted a new concept, “constitutional construction.” This Essay critically examines that concept. Contrary to some claims, the difference between “interpretation” and “construction” is not well established in common law adjudication. Furthermore, contemporary descriptions of constitutional construction tend to leave some ill-defined discretion in the hands of constitutional decision-makers. Finally, the Essay disputes the claim that constitutional construction is indispensable because the constitutional text is incomplete, that failing to provide a decision-rule for many—indeed for most—constitutional disputes. The Constitution would indeed be incomplete if interpreted according to the “new” or “public …

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Retroactivity And Prospectivity Of Judgments In American Law, Richard Kay

Richard Kay

In every American jurisdiction, new rules of law announced by a court are presumed to have retrospective effect—that is, they are presumed to apply to events occurring before the date of judgment. There are, however, exceptions in certain cases where a court believes that such application of the new rule will upset serious and reasonable reliance on the prior state of the law. This essay, a substantially abridged version of the United States Report on the subject, submitted at the Nineteenth International Congress of Comparative Law, summarizes these exceptional cases. It shows that the proper occasions for issuing exclusively or …

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Judicial Policy - Making And The Peculiar Function Of Law, Richard Kay

Richard Kay

While the nature of legal systems is a perpetually contested question, it is fairly uncontroversial that each must contain certain essential characteristics. First, each must suppose some picture of the appropriate way for human beings subject to it to live together in society. Second, to secure that proper arrangement, each must employ, to a greater or lesser degree, the device of general rules of conduct. Finally, in all but the simplest systems, the effectiveness of those rules must be guaranteed by some process of adjudication. The relationships among these three factors – social values, legal rules and judging – comprise …

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Full-Text Articles in Law

Construction, Originalist Interpretation And The Complete Constitution, Richard Kay

Richard Kay

Retroactivity And Prospectivity Of Judgments In American Law, Richard Kay

Richard Kay

Judicial Policy - Making And The Peculiar Function Of Law, Richard Kay

Richard Kay