共查询到20条相似文献,搜索用时 0 毫秒
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Charles Anthony Smith 《Law & society review》2008,42(1):75-110
Conventional wisdom holds that the role of the U.S. federal judiciary was underspecified and undefined until the era of Chief Justice John Marshall. In contrast, I argue that prior to the Marshall era, the Supreme Court had the specific institutional role of providing an administrative remedy to aggrieved nations to deprive potentially hostile nations of any excuse for belligerence. Specifically, concern among the Framers about this nascent country's absence of dispute resolution mechanisms in the areas of trade and admiralty was critical in the institutional design of the judiciary. Original jurisdiction was designed primarily to remedy trade disputes. The independent judiciary made trade commitments more credible and self-help by the aggrieved less likely. By providing this administrative remedy and lowering the uncertainty associated with trading with revolutionaries, the Framers claimed a seat for the new country at the table of nations. Moreover, enhanced commercial credibility that the administrative avenue for redress provided was instrumental in the early economic development of the United States. 相似文献
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Sixty years before Carl Schmitt wrote his Political Theology, and more than a 100 years before President Bush announced a ‘war on terrorism’ the American Supreme Court grappled with the
difficult issue of emergency powers in connection with issues arising out of the American Civil War (1861–1865). The question
confronting the Court in a set of cases named the Prize Cases was whether President Lincoln’s decision to respond to acts of aggression by the secessionist Southern states with
measures of war was lawful. The legal problem was that Lincoln had made this decision unilaterally although the American Constitution
specifically allocates the power to declare war to Congress. The Court solved the dilemma by arguing that in cases where no
war has been declared, the decision whether the country is in a state of war is ultimately ‘a question to be decided by him [the President], and [the Supreme] Court must be governed by the decisions and acts of the political department of the Government
to which this power was entrusted’ (Prize, p. 669). The precedent, which the Court thereby laid down, has since played out as an important leverage for the Bush government’s
legal arguments in connection with the war on terrorism. This article engages the theoretical framework of Locke, Schmitt
and Agamben in order to come to a better understanding of this important set of cases. 相似文献
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2002年5月28日,美国最高法院就FESTO一案做出决定。此案涉及等同原则(Doctrine of Equivalents)和禁止反悔原则(Prosecution History Estoppel)。 一、案情简介 上诉人FESTO公司拥有两项工业设备专利,其中一个专利在审查过程中被美国专利商标局审查员基于美国《专利法》第112条驳回。申请人对其权利要求进行了进一步限定,即限定该设备含有两个单向密封环,其外套筒用可磁化材料制造。另一个专利在复审程序(Reexamination)中也进行了修改,加入了上述密封环限定。 相似文献
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Charles J. Russo 《Education & the Law》2008,20(3):289-297
In light of the dramatic increase in the presence of weapons, violence, drugs, and other contraband in schools, school officials in the United States and England face significant challenges as they seek to maintain safe and orderly learning environments. Almost twenty five years after the United States Supreme Court's 1985 ruling in New Jersey v. T.L.O. allowed educational officials to search student lockers and property in order to keep schools safe, the Justices addressed the more delicate matter of strip searches for contraband such as drugs. In Safford Unified School District No. 1 v. Redding (Redding), the Court invalidated the strip search of a student for drugs but left the door open for the possibility of allowing searches for weapons under some circumstances. In light of remaining unanswered questions after Redding, this article reviews the background on the Fourth Amendment, earlier cases on student searches in American public schools, Redding in detail, and reflects on unanswered questions in its wake in the hope of shedding light on the propriety of strip searches of students. 相似文献
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MARK GLOUBERMAN 《Ratio juris》2008,21(1):107-124
Abstract. In a recent 5‐to‐4 decision, the Supreme Court of Canada denied to Harvard University a patent on a genetically modified mouse. In their reasoning, the majority Justices, concerned obviously about the implications of granting the patent for the human case, argue that higher organisms (mammals) are not “compositions of matter” in the sense intended by the Canadian Patent Act. But if a mouse is not a composition of matter, what—indeed, what on earth—is it? As the minority Justices complain, the majority decision smacks of dubious metaphysics and theology. Appealing to a quite unlikely source, the Bible, I show that the distinction between mice and men can be defended without introducing problematic metaphysical and question‐begging theological materials. I also show, en route, that the biblical position on the special status of men and women is not inconsistent with evolutionary theory. Granting a patent on the mouse (as was done in the U.S.A.) is compatible with denying it to human organisms. 相似文献
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