Contents

Volume 35 Number 3 2006
ISSN: 1473-7795  eISSN: 1740-5556

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An Accident of History: Why the Decisions of Sports Governing Bodies are not Amenable to Judicial Review
Jack Anderson      173

ABSTRACT

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CLWR 35 (2006) 173

An Accident of History: Why the Decisions of Sports Governing Bodies are not Amenable to Judicial Review
Jack Anderson

The English courts have held that the boundaries of public law should not extend to include judicial review of the competency of sports bodies. The justification for the continuing treatment of the administrative authority of sports bodies as being domestic in nature is that the required level of governmental involvement and/or linkage to a scheme of statutory regulation cannot be identified. Given the contractual relationship between the parties involved, the English courts have long preferred to decide sporting disputes on a private law basis upon which effective actions for a declaration, an injunction or damages can be based without resort to judicial review. The apparent firmness of the English courts on this point is at odds with a number of other comparable jurisdictions. Moreover, and in line with recent developments in the general area of public law, consideration is given as to whether the decisions of sports bodies might be exposed to judicial review on the basis that it is sufficiently within the 'public interest' that they are held accountable in this fashion. This argument is predicated on a court being convinced that certain sports bodies are necessarily governmental in operation because: they have power over a not unsubstantial area of economic activity, they have private power that affects the livelihoods of many individuals, and they receive significant levels of public funding. In conclusion, the practical implications of a finding that sports bodies are hybrid public authorities pursuant to section 6 of the Human Rights Act 1998 are examined.

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Occupiers' Liability in England and Canada
R.A. Buckley      197

ABSTRACT

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CLWR 35 (2006) 197

Occupiers' Liability in England and Canada
R.A. Buckley

This paper compares the legislative developments in England and Canada in the area of occupiers' liability, against the background of recent appellate decisions. The differing approaches adopted in the various statutes are analysed, with particular reference to the position of trespassers. The conclusion is reached that occupiers still enjoy advantages in the law of tort which are not accorded to other defendants.

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The Supreme Court in a Common Law Tradition: The Democratic Legitimacy of Judicial Review in Light of American Legal Realism
Shu-Perng Hwang      216

ABSTRACT

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CLWR 35 (2006) 216

The Supreme Court in a Common Law Tradition: The Democratic Legitimacy of Judicial Review in Light of American Legal Realism
Shu-Perng Hwang

The democratic legitimacy of judicial review, especially the proper role of the Supreme Court in a democratic system, is a constantly debated issue in American constitutional law. While many theories or arguments focus their attention on the so-called countermajoritarian difficulty of judicial review, the viewpoint of American Legal Realism deserves special attention, since it conceives of democracy not merely as majority rule, but rather as government based on what the people really want, which then must be investigated not only in legislation, but in judicial process. Therefore, it strongly argues for the connection between judicial decisions and concrete social experience and in consequence focuses its attention particularly on the Supreme Court's investigation of empirical social science, which it believes will improve that court's legal reasoning on democratic grounds and in this way reinforce the democratic legitimacy of the court's decision. Thus conceived, Legal Realism regards common law as a specific way to realize democracy, and accordingly provides a framework for the proper role of the Supreme Court. In this view, Legal Realism plays an important role in the American constitutional history not only because it methodologically stands against Formalism, but because it provides a different model for explaining and supporting the democratic legitimacy of judicial review of the US Supreme Court within its common law background.

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Links to other issues

Volume 30 (2001) :   1   2   3   4

Volume 31 (2002) :   1   2   3   4

Volume 32 (2003) :   1   2   3   4

Volume 33 (2004) :   1   2   3   4

Volume 34 (2005) :   1   2   3   4

Volume 35 (2006) :   1   2   3   4

Volume 36 (2007) :   1   2   3   4

Volume 37 (2008) :   1   2   3   4

Volume 38 (2009) :   1   2   3   4

Volume 39 (2010) :   1   2   3   4

Volume 40 (2011) :   1   2   3   4

Volume 41 (2012) :   1   2   3   4

Volume 42 (2013) :   1   2   3   4

Volume 43 (2014) :   1   3

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