Contents,
Acknowledgements;
Table of Cases;
Table of Legislation;
1 Introduction;
I. The Relevant Scenarios;
II. Definitional Difficulties;
III. The Original Legal Entrenchment of the Doctrine and the Underlying Rationale;
IV. The Possibility of General Principles and Interpretational Methodology;
V. The Purposive Nature of The Separation of Powers Doctrine;
VI. The Problem of Definition and the Formalist Approach;
VII. Core Branch Functions?;
2 Legislative Interference in the Pending Case Scenario: The Foundation of Principle and the Australian Position;
I. Introduction;
II. The Australian Constitutional Position and the Early Australian Constitutional Scholars;
III. Early Development of Principle by the High Court ;
IV. The Foundation of a Discrete Set of Principles Governing the Pending Case Scenario:Liyanage;
V. Consolidation of Principle Post-Liyanage;
VI. The Direction Principle at the Crossroads: Nicholas v The Queen;
VII. The Uncertain Status of the Direction Principle in Australia;
3 Legislative Interference with Judicial Functions: The Jurisprudence of the United States, Evaluation of Principle, and Towards Resolution;
I. Introduction;
II. The Emergence of the Changed Law Rule and the Direction Principle in the United States;
III. Klein and Its Uncertain Meaning;
lV. Hart's Thesis and the United States Foundation of the Direction Principle;
V. The Decline of the Direction Principle: The Robertson case;
VI. Robertson's Uncertain Legacy: Plaut v Spendthrift Farm Inc;
VII. Klein Qualified, Overruled or Misinterpreted? Miller v French;
VIII. The Schiavo Litigation;
IX. Further Confirmation of the Direction Principle;
X. General Conclusions on the Separation of Powers and the Pending Case Scenario;
XI. Towards a Resolution;
XII. A Reformulated Direction Principle;
XIII. Speculative Propositions;
XIV.Conclusion;
4 The Separation of Powers and Final Judgments: Defining the Principle Limiting Legislative Revision of Final Judgments;
I. Introduction and Definition of Final Judgment;
II. Reflections on Finality Where the Separation Doctrine is Not Entrenched;
III. A Middle Case: India;
IV. Early Australian Commentary on the Constitutional Protection of Final Judgments;
V. The Current Australian Position;
VI. Qualifications;
VII. A Reinforcement of Australian Jurisprudence: The Irish Position on Final Judgments;
VIII. The United States Supreme Court and Final Judgments;
IX. The Wheeling Bridge Qualification;
X. The Development and Consolidation of Principle by the United States Supreme Court;
XI. The Inviolability Principle Tested: Miller v French;
XII. Conclusion;
5 Qualifications to the Inviolability of Final Judgments and Final Summation;
I. Introduction;
II. The Wheeling Bridge Qualification, the Regulation of Public Rights and 'Conditional' Final Judgments;
III. The Waiver Qualification;
IV. Conclusions on the Final Case Scenario;
6 Protections Afforded Decisional Independence in Jurisdictions without an Entrenched Separation of Powers;
I. Introduction;
II. The United Kingdom and the Separation of Powers;
III. The European Convention on Human Rights;
IV. The United Kingdom, the ECHR and the Human Rights Act 1998;
V. Canons of Statutory Intepretation; 7.Conclusion;
7.Conclution;