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1	The legacy of Anglo-American textualism Magyar, John James January 2018 (has links) Textualism is the doctrine of statutory interpretation propounded by a small group of US federal court judges, including the late Justice Antonin Scalia. Whilst the doctrine has attracted a great deal of scholarly attention, few have considered its historical development. In this dissertation, textualism is analysed in order to uncover the core principles and sets of rules from which it is comprised. Then, the development of these principles and sets of rules is traced back through the treatises on statutory interpretation published in England and America in the Victorian era, which were well-known to and frequently cited by Justice Scalia. Textualism is revealed to be an Anglo-American doctrine that emerged over the course of the nineteenth century; and it was made explicit in the treatises on statutory interpretation, which developed via a transatlantic scholarly dialogue. The doctrine fell out of favour in the US as the nineteenth century drew to a close; and around the same time, the rule prohibiting recourse to legislative history, a core feature of textualism, became subject to significant judicial challenge in England. The matter was resolved by a landmark decision in 1906, after which time the doctrine became firmly entrenched in England until approximately the 1980s. Textualism's long tenure in England demonstrates how a doctrinal common law theory typical of the late Victorian era persisted for more than a century despite variations in judicial application of the rules from which the doctrine is comprised, criticism from within the legal community, and significant social change over time. The modern US revival of this doctrine is further testament to textualism's tenacity. Whilst many scholars have found the doctrine to be problematic, it has remained attractive to common law judges from the time of its emergence in the middle of the nineteenth century through to the present. This is so because textualism was developed and refined through doctrinal legal scholarship, and as a result, it is consistent with traditional common law modes of reasoning, and it is tailor-made to meet the needs of judges deciding cases.
2	PERFORMANCE PEDAGOGY: UTILIZING ALTERNATIVE METHODS IN THE CLASSROOM Paez, Alexander 01 January 2018 (has links) Teaching methods and styles at the collegiate level have not changed all that much: Professors still generally give lectures from the lectern or stand in the front of the class, while writing on the board or pointing to a slide projected on a screen. Some questions and answers can occur with the occasional group activity; however, the focus seems always to come back to the text. Students read the required textbook, listen to a lecture and take tests. There are however alternative methods that engage the students as well as the professor in the learning process. Active learning is one such method that is rooted in anything course-related that all students in a class session are asked to do other than simply watching, listening and taking notes. Active learning focuses on involving students in the learning process more directly compared to traditional methods. Another method which infuses both a performative background with an academic footing called performance pedagogy, emphasizes on the students bringing their ideologies, cultures, belief systems, and backgrounds into the classroom while incorporating their physical and metaphorical selves into the classroom space. The idea is that when students are exposed to these methods in a classroom setting, they can apply the subject content more effectively outside of the classroom, receive more frequent and immediate feedback, and provide students an opportunity to think about, talk about, and process course material. To demonstrate these methodologies, this teacher’s supplement has been created containing class activities for an undergraduate intercultural communication course using a standard sixteen-week semester. Active Exercises Learning Pedagogy Performance Textualism Communication
3	Comparing and Contrasting the Constitutional Approaches of Justice Scalia and Justice Breyer Through the Pending Supreme Court Case Schwarzenegger V Entertainment Merchants Association Moran, Katherine E., Ms. 01 January 2011 (has links) The aim of this thesis is to explore the differences and similarities between Justice Antonin Scalia’s textualist approach to interpreting the Constitution and Justice Stephen Breyer’s Living Constitution approach (also called the evolutionist approach) by applying these disparate legal theories to Schwarzenegger v Entertainment Merchants Association, a case currently pending before the Supreme Court whose resolution centers on the interpretation of the First Amendment. The textualist approach relies primarily on interpreting the original meaning of the text of the Constitution, and attempting to decide cases in a way that is faithful to an amendment’s words as written (Rossum et al. 4). The Living Constitution, or evolutionist approach to constitutional interpretation, contends that the meaning of the Constitution evolves with the standards of society, and the purpose or intent behind the Constitution or an amendment is as important, if not more so, than the literal language when interpreting a Constitutional amendment as it applies to actual cases as they arise (8). These two approaches are fundamentally oppositional, and Justices Scalia and Breyer are the very embodiment of these approaches on the Supreme Court today; each man avidly defends his respective approach in his opinions and other written works, and each exhibits the logic of these approaches in his decisions. The purpose of choosing a case that is undecided (at the time of this writing) is to explore and flesh out the actual decision-making process of both Justices and their constitutional theories, rather than merely critiquing their decisions and holdings in a case that has already been adjudicated. This exploration is particularly useful because it allows one to decipher how these approaches are similar and different in interpreting the Constitution. Justice Scalia Justice Breyer Textualism The Living Constitution Constitution Violence First Amendment Constitutional Law Courts
4	美國法律解釋方法研究－以立法目的主義與文本主義之爭論為中心 / An Inquiry into Statutory Interpretation in United States－Focusing on Purposivism and Textualism 謝坤龍, Hsieh, Kun Lung Unknown Date (has links) 本論文對當代美國的法律解釋發展做初步的探討。美國聯邦最高法院近30年來有意識地使用二種法律解釋方法來確認具歧義的法律條文的文義。第一種方法是立法目的主義，它主張法院可以使用各種立法史資料來探究立法者的原意與立法目的，以確認法律的本義。第二種方法是強硬文本主義，它主張法院只能通過法律制定當時的公民對法律的通常理解來發現法律的一般與客觀意義。在過去三十年，當處理不明確法律意義的問題時，這二種方法支配了美國聯邦最高法院的法律解釋論證。由這二種方法所引發的論爭不僅涉及法律解釋，還涉及立法學與權力分立，這是為什麼它們會成為過去30年間美國法學者間持續爭論不休的議題的原因。我在這篇論文將展示這段論爭，也就是關於聯邦最高法院的判決發展史中的法律解釋的種種爭論，以及它們與立法學和權力分立問題的關聯。本論文使用二種分析方法來釐清以上立法目的主義與文本主義的論爭，它們是聯邦最高法院的判決發展史分析以及法律解釋概念發展史分析。此外我在分析過程中還加入了當代最具爭議的Chevron U.S.A., Inc. v. NRDC案，使我的論證能夠將立法目的主義與文本主義的不同特性放大，並因而能清楚揭示它們之間的關聯。在本論文第一章，我將提出二個案例，以說明立法目的主義與文本主義對於法律解釋如此重要的理由。在第二章，我介紹1980年代的制定法解釋發展史。我在第三章說明Chevron案，以及圍繞著Chevron案進行的法律解釋論爭。在第四章，我根據先前的分析成果對法律當代法律解釋論爭提出批判。而在作為結論的第五章，我指出強硬文本主義和強硬立法目的主義無法自足地解釋不明確法律，而對於這二個基礎主義法學，我們都應該謹慎看待，不要懷著不切實際的信心。 / The thesis provides a preliminary inquiry for statutory interpretation in modern America. In recent decades in America, Supreme Court of the United States (SCOTUS) intentionally used two types of statutory interpretation to ascertain the meaning of the ambiguous text of a law. The first is moderate purposivism, which contends that the court could use several materials of legislative history to confine the intent or purpose of the legislature so as to ascertain the appropriate meaning of a law. The second is textualism, which argues that the court could only find the ordinary and legitimate meaning of law from the perspectives of citizens when the law enacted. These two approaches have dominated the arguments of statutory interpretation at SCOTUS when she dealt with the cases which involved law with ambiguous text for more than thirty years. The debates caused by these two approaches are not only on statutory interpretation but also legislation and separation of powers. This is the reason why they became the most controversial issues among the legal scholars of American for recently 30 years. In this thesis, I will present the debates of statutory interpretation at SCOTUS, and their connections with problems of legislation and separation of powers. The thesis uses two analytic approaches to clarify the debates of purposivism and textualism. These two approaches are the history of related decisions at SCOTUS and history of concepts of statutory interpretation. In addition, I add the most controversial case Chevron U.S.A., Inc. v. NRDC around the 1990s into the last analysis. Through Chevron, the thesis could amplify the different characters of purposivism and textualism, and hence to disclosure the correlations among them. Chapter I proposes two examples in Taiwan to explain why purposivism and textualism are so important to statutory interpretation. Chapter II mentions the history of statutory interpretation at the 1980s. Chapter III resorts to Chevron and the debates about statutory interpretation encompass Chevron. Chapter IV offers some critical comments on above achievements of analysis. In the conclusion, I argue the hard textualism and purposivism are not self-sufficient to interpret the ambiguous text of a law, and we must carefully consider any version of foundationalism and its impacts. 文本主義立法目的主義法律解釋基礎主義 Purposivism Textualism Statutory Interpretation Founationalism
5	Nos bastidores do Supremo Tribunal Federal: constituição, emoção, estratégia e espetáculo / The Brazilian Supreme Court behind the scene Patrícia Perrone Campos Mello 25 April 2014 (has links) A tese busca identificar os elementos jurídicos e extrajurídicos que interferem sobre o comportamento judicial do Supremo Tribunal Federal. A análise é desenvolvida com base nos seguintes modelos decisórios: o modelo legalista, o modelo ideológico, o modelo institucional e o modelo estratégico de comportamento judicial. Ao longo do trabalho, examina-se a influência do direito, da ideologia, das normas que regem o Judiciário, das regras que regem as decisões colegiadas, do Poder Executivo, do Poder Legislativo, da opinião pública e da imprensa no processo decisório do Supremo Tribunal Federal. / This work aims at identifying legal and non-legal factors that interfere with Brazilian Supreme Court decisions. The analysis is developed with basis on the legal model, on the attitudinal model, on the institutional model and on the strategic model of judicial decision-making. It examines the influence of constitutional law, ideology, collegial process, Executive Power, Legislative Power, public opinion and of the media on Brazilian Supreme Court attitudes. Supremo Tribunal Federal Comportamento judicial Modelo legalista Legalismo Formalismo Modelo ideológico Modelo institucional Modelo estratégico Textualismo Originalismo Stare decisis Interpretação filosófica Pragmatismo Elementos de interpretação das leis Operação com precedentes Ponderação de valores Processo colegiado de decisão Diálogo constitucional Interpretação constitucional Controle de constitucionalidade Política judiciária Brazilian Supreme Court Judicial decision-making Legal model Legalism Formalism Attitudinal model Institutional model Strategic model Textualism Originalism Stare decisis Philosophic interpretation Pragmatism Brazilian legal interpretation Due process of law Rationality Reasonability and proportionality Collegial decision-making Constitutional dialogue Judiciary and Executive relations Judiciary and Legislative relations Judiciary and public opinion relations Judiciary and media relations Judiciary and interest group relations Constitutional interpretation Constitutional jurisdiction Judicial politics DIREITO CONSTITUCIONAL
6	Nos bastidores do Supremo Tribunal Federal: constituição, emoção, estratégia e espetáculo / The Brazilian Supreme Court behind the scene Patrícia Perrone Campos Mello 25 April 2014 (has links) A tese busca identificar os elementos jurídicos e extrajurídicos que interferem sobre o comportamento judicial do Supremo Tribunal Federal. A análise é desenvolvida com base nos seguintes modelos decisórios: o modelo legalista, o modelo ideológico, o modelo institucional e o modelo estratégico de comportamento judicial. Ao longo do trabalho, examina-se a influência do direito, da ideologia, das normas que regem o Judiciário, das regras que regem as decisões colegiadas, do Poder Executivo, do Poder Legislativo, da opinião pública e da imprensa no processo decisório do Supremo Tribunal Federal. / This work aims at identifying legal and non-legal factors that interfere with Brazilian Supreme Court decisions. The analysis is developed with basis on the legal model, on the attitudinal model, on the institutional model and on the strategic model of judicial decision-making. It examines the influence of constitutional law, ideology, collegial process, Executive Power, Legislative Power, public opinion and of the media on Brazilian Supreme Court attitudes. Supremo Tribunal Federal Comportamento judicial Modelo legalista Legalismo Formalismo Modelo ideológico Modelo institucional Modelo estratégico Textualismo Originalismo Stare decisis Interpretação filosófica Pragmatismo Elementos de interpretação das leis Operação com precedentes Ponderação de valores Processo colegiado de decisão Diálogo constitucional Interpretação constitucional Controle de constitucionalidade Política judiciária Brazilian Supreme Court Judicial decision-making Legal model Legalism Formalism Attitudinal model Institutional model Strategic model Textualism Originalism Stare decisis Philosophic interpretation Pragmatism Brazilian legal interpretation Due process of law Rationality Reasonability and proportionality Collegial decision-making Constitutional dialogue Judiciary and Executive relations Judiciary and Legislative relations Judiciary and public opinion relations Judiciary and media relations Judiciary and interest group relations Constitutional interpretation Constitutional jurisdiction Judicial politics DIREITO CONSTITUCIONAL

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