Showing papers on "Judicial opinion published in 2017"

The New Dispute Settlers : (Half) Truths and Consequences

Abstract: I. INTRODUCTION Not long ago, at a conference not unlike this one on "The Proliferation of International Judicial Bodies" at New York University, it was suggested that the "enormous expansion and transformation of the international judiciary" at the end of the twentieth century would be regarded by future international lawyers as "the single most important development of the post-Cold War age."1 This conclusion is plausible. After all, in the decade between 1989 and 1999, almost a dozen international judicial bodies have become active or have been extensively reformed (including dispute settlement mechanisms in the then General Agreement on Tariffs and Trade (GATT) and in a newly designed European Court of Human Rights). Indeed, the chart released at that conference identified seventeen international judicial bodies in existence and an additional thirty-seven quasi-judicial bodies, involving some 200 individuals in permanent bodies who could now be described as the kind of beings that did not exist a mere 100 years ago, namely "international judges."2 That conference also made much of the fact that of the international judicial bodies in existence, those granting standing to non-state entities far outnumbered those whose jurisdiction was limited to disputes between states. This development was touted as a singular transformation of the nature of international dispute settlement and a testament to the expanding competence and power of the international judiciary.3 That conference advanced the view that there was now a new discipline devoted to the study of international judicial law and organization that supplanted the well-worn topic of the "peaceful settlement of disputes."4 Accordingly, conference participants engaged the new discipline by discussing such cutting-edge issues as the potential threat posed to international law by conflicting judicial decisions; the prospects for the constitutionalization of the international legal order, including the potential for forms of judicial review within and perhaps even between international organizations; the growing phenomenon of "transjudicial communication," not only between the various international courts, but also between those tribunals and national courts; and the dilemmas posed by forum shopping among litigants.5 These topics suggest why judicialization remains a popular topic with international lawyers. The recent proliferation of international tribunals permits us to address questions that we once (enviously) had to leave to our domestic colleagues. Now we too can focus on real law-real cases decided by real judges. No longer do public international lawyers have to be content with parsing arcane, rare, and rather dull boundary dispute decisions issued by the International Court of justice (ICJ) that all too often involved "equitable" demarcations (as with respect to maritime boundaries) that appeared to be based on notions of fairness and not hard rules.6 Finally, international law professors can start doing their share of the heavy lifting of the law school enterprise. Like our constitutional colleagues, we too can talk about the democratic legitimacy or accountability of our judges (or alternatively bemoan their "politicization"). We too can write learned tomes on the merits of reliance on original intent versus teleological interpretation of founding texts, from the WTO-covered agreements to the UN Charter. Like our colleagues in administrative law, we can expound on the intricacies of improper delegation to unelected judges or the level of deference (Chevron or otherwise) that such judges owe either organs of international organizations or executive determinations made within national legal systems.7 Those of us within common law systems now see the day when we too can discuss the rise of de facto stare decisis (despite troublesome hurdles like Article 59 of the ICJ Statute)8 or the impact international precedents have on other actors, from national courts to negotiators at the next WTO round. …

The Grotian Tradition in International Law

Abstract: The tercentenary of the death of Grotius—he died on 29 August 1645—passed almost unnoticed in the literature of international law. This chapter attempts to supply that perspective through an estimate of his teaching in the light of the enduring problems of international law. The standing of De Jure Belli ac Pacis as an authority relied upon in judicial decisions, national and international, has been higher and more persistent than that of any other of the founders of international law. International law proper forms merely a part—though the most important part—of a wider system. The law of nations proper—jus gentium voluntarium—is, of course, the product of consent as manifested in the practice of states. Grotius's jus gentium thus conceived is not synonymous with public international law. International law, in the three centuries which followed De Jure Belli ac Pacis, rejected the distinction between just and unjust wars.

Private enforcement of corporate law: An empirical comparison of the UK and US

Abstract: IIt is often assumed that strong securities markets require good legal protection of minority shareholders. This implies both "good" law -- principally corporate and securities law -- and enforcement, yet there has been little empirical analysis of enforcement. We study private enforcement of corporate law in two common law jurisdictions with highly developed stock markets, the United Kingdom and the United States, examining how often directors of publicly traded companies are sued, and the nature and outcomes of those suits. We find, based a comprehensive search for filings over 2004-2006, that lawsuits against directors of public companies alleging breach of duty are nearly nonexistent in the UK. The US is more litigious, but we still find, based on a nationwide search of decisions between 2000-2007, that only a small percentage of public companies face a lawsuit against directors alleging a breach of duty that is sufficiently contentious to result in a reported judicial opinion, and a substantial fraction of these cases are dismissed.We examine possible substitutes in the UK for formal private enforcement of corporate law and find some evidence of substitutes, especially for takeover litigation. Nonetheless, our results suggest that formal private enforcement of corporate law is less central to strong securities markets than might be anticipated.

Speaking Law to Power: The Strategic Use of Precedent of the Court of Justice of the European Union:

Abstract: We argue that courts may increase their autonomy and effectiveness by persuading governmental actors, who have powers over the societal impact of judicial decisions, of the legal quality of their r ...

What is International Law and How Do We Tell It When We See It

Abstract: Treaties used to be the most readily identifiable element of international law A treaty had identifiable parties and, with rare and easily recognized exceptions, it created rights and obligations only upon those States parties, which had voluntarily subscribed to it by whatever mode, or modes, were provided The identification of custom used to be a comfortable and reasonably secure process Large and important areas of international customary law have thus become written law Article 38(c) of the Court's Statute, which refers to the general principles of law recognized by civilized nations, is enigmatic; and that is the last thing a source of law should be Certainly judicial decisions must become even more important in direct ratio with the quantity and contradictory nature of modern material evidences of law The transference of negotiating text into treaty text will be yet another moment of truth for the whole exercise

Embedded Courts: Judicial Decision-Making in China

Abstract: Embedded Courts is laden with tension. Chinese courts are organized as a singular and unified system yet grassroots courts in urban and rural regions differ greatly in the way they use the law and are as diverse as the populations they serve. Based on extensive fieldwork and in-depth interviews, this book offers a penetrating discussion of the operation of Chinese courts. It explains how Chinese judges rule and how the law is not the only script they follow - political, administrative, social and economic factors all influence verdicts. This landmark work will revise our understanding of the role of law in China - one that cannot be easily understood through the standard lens of judicial independence and separation of powers. Ng and He make clear the struggle facing frontline judges as they bridge the gap between a rule-based application of law and an instrumentalist view that prioritizes stability maintenance.

Learning in the Judicial Hierarchy

Abstract: I argue the Supreme Court learns to craft legal rules by relying on the Courts of Appeals as laboratories of law, observing their decisions and reviewing those that best inform legal development. I develop a model that shows how the Supreme Court leverages multiple Courts of Appeals decisions to identify which will be most informative to review, and what decision to make upon review. Because an unbiased judge only makes an extreme decision when there is an imbalance in the parties’ evidence, the Supreme Court is able to draw inferences from cases it chooses not to review. The results shed light on how hierarchy eases the inherent difficulty and uncertainty of crafting law and on how the Supreme Court learns to create doctrine.

Multi-Case Review of the Application of the Precautionary Principle in European Union Law and Case Law.

Abstract: The precautionary principle was formulated to provide a basis for political action to protect the environment from potentially severe or irreversible harm in circumstances of scientific uncertainty that prevent a full risk or cost-benefit analysis It underpins environmental law in the European Union and has been extended to include public health and consumer safety The aim of this study was to examine how the precautionary principle has been interpreted and subsequently applied in practice, whether these applications were consistent, and whether they followed the guidance from the Commission A review of the literature was used to develop a framework for analysis, based on three attributes: severity of potential harm, standard of evidence (or degree of uncertainty), and nature of the regulatory action This was used to examine 15 pieces of legislation or judicial decisions The decision whether or not to apply the precautionary principle appears to be poorly defined, with ambiguities inherent in determining what level of uncertainty and significance of hazard justifies invoking it The cases reviewed suggest that the Commission's guidance was not followed consistently in forming legislation, although judicial decisions tended to be more consistent and to follow the guidance by requiring plausible evidence of potential hazard in order to invoke precaution

Opportunity and Overrides: The Effect of Institutional Public Support on Congressional Overrides of Supreme Court Decisions:

Abstract: Existing theories of legislative-judicial relations emphasize the role of public support for the judiciary on the likelihood of legislative compliance Although Congress can strengthen or weaken the Supreme Court’s decisions after initial compliance, the role of public support for the judiciary on subsequent legislative action is unclear We develop a theory of legislative-judicial interactions, which suggests that Congress considers the court’s current level of public support when determining whether to override a Supreme Court decision We test our theory using data on congressional overrides of US Supreme Court decisions, finding that high levels of public support for the court shield the court from hostile congressional action The results underscore the vital role played by the public in interbranch relations, suggesting that public support plays a role in the legacy of a judicial decision beyond ensuring initial compliance

Impact: The Supreme Court in American Politics

Abstract: In this dissertation I seek to answer the question: when, how, and under what conditions does the Supreme Court make or influence policy and politics in the United States? In working to answer this question, I demonstrate that the Supreme Court has significantly more power and influence than scholars have typically given it credit for. I argue that the nature of the Court’s power is interpretive: it is the power to say what the law is. This power gives the Court the ability to make policy routinely, in every case that comes before it. Often the exercise of this policymaking power is mundane, but sometimes it is profound. By shifting focus away from compliance—the dominant focus in the empirical literature on Court power—and towards interpretation, I significantly extend the range of cases and the scope of outcomes of decisions covered by the theory of power. Finally, this theory of power allows me to develop a theory of judicial impact. I contend that judicial impact has two key sources: judicial power, and indirect judicial influence, by which I mean any action which is attributable to an exercise of judicial power, but which is not a direct outcome of any power relationship. For example, political elites respond to Court decisions, other institutions rationally anticipate Court action, and judicial decisions can incentivize or discourage activism, lobbying, legislation, litigation, and more. In short, this points to the utility of expanding the study of judicial impact to encompass all policy-relevant outcomes of judicial action, and the theory offered here provides an anchor for this approach as well as a framework for systematizing a wide range of different impacts. I go on to show that the Court’s indirect influence can be seen in that its decisions routinely affect media coverage of the issues on which it speaks, as well the policymaking agendas of the president and the political parties. In other words, I show that the Court indirectly influences policy in a number of ways, one of which is to alter the political agenda of the public and of other policymaking institutions in the United States. IMPACT: THE SUPREME COURT IN AMERICAN POLITICS by Logan Strother B.A., Missouri University of Science & Technology, 2010 M.A., Southern Illinois University, 2012 M.A., Syracuse University, 2013 Dissertation Submitted in partial fulfillment of the requirements for the degree of Doctor of Philosophy in Political Science Syracuse University June 2017 Copyright © Logan Strother 2017 All Rights Reserved

Judicial rotation as centripetal force: sentencing in the court communities of south carolina*

Abstract: Courts as communities theory emphasizes the sentencing differences that can arise between localities within a single state. The results of published studies have highlighted how local differences emerge based on informal sociological and political processes defined by the communities perspective. The findings from recent quantitative studies from South Carolina have revealed notably less county variation in sentencing than has been observed elsewhere. I use qualitative interviews with 13 South Carolina trial judges to investigate sentencing processes and to shed light on these findings. The interviews explore the state's legal structure and culture, including the practice of circuit rotation in which judges travel among counties holding court. The results suggest rotation serves as a centripetal force of sentencing culture, homogenizing what might otherwise be a more varied collection of county-specific norms. Rotation leads to increased uniformity through judge shopping and the cross-pollination of ideas and norms. Defendants can strategically judge shop and plead in front of a lenient judge—a process that gives rise to the term “plea judge,” which is a label for the most lenient judges who sentence a large number of defendants. Rotation also increases the interactions among judges and prosecutors, expanding networks and grapevines, and leading to cross-pollination and the sharing of ideas.

Missing in action: practice, paralegality, and the nature of immigration enforcement

Abstract: U.S. immigration control is typically understood in terms of enforcement practices undertaken by federal officers guided by legislation and court decisions. While legislation and court opinions are important components of the immigration control apparatus, they do not adequately account for immigration control ‘on the ground.’ To explore this problem, we advance the concept of paralegality, the practices and operations that constitute a dynamic system of actions and relationships that are not simply linear applications of legislation or judicial decisions but may in fact extend or counter these texts. We illustrate the importance of paralegality by reconstructing the evolution of the §287(g) and Secure Communities programs, both of which have shape-shifted dramatically since their inception. Our account of immigration control highlights the problem practice poses for law, proposes a theoretical alternative to textual-law-centric research on immigration and law enforcement, and contributes to schol...

Issue Divisions and US Supreme Court Decision Making

Abstract: Majority opinions are the most important output of the US Supreme Court, not only disposing the instant case but also providing guidance for other institutions, lower courts, and litigants as to the state of the law. The authoring of dissenting opinions, though, is frequently regarded as deleterious to the Court’s institutional legitimacy and the efficacy of the majority opinion. Leveraging the content of all Court opinions between 1979 and 2009, I argue dissenting justices use dissenting opinions to strategically alter the issue dimensions addressed in the majority opinion. An examination of the effect of separate opinion content on majority opinions indicates dissenting opinions yield majority opinions addressing a greater number of topics, and I provide evidence that the dynamic is driven by the strategic behavior of dissenting justices seeking to realign the Court.

So me specific issues about arbitrability in Spain: Back to the past?

Abstract: The object of this paper on arbitrability in the Spanish legal system, is to explore whether the general rule on objective arbitrability, based upon the free disposition of the rights which under the Spanish Arbitration Law translates a general principle pro arbitration and arbitrability, is threatened by doctrinal interpretations, legal rules or recent judicial decisions, where arbitrability has been constrained. This is particularly the case in the field of regulated sectors, where the arbitrability of disputes is quite controversial and complex, and the key institutions meet: arbitration, state justice, and decision-making powers attributed to a regulatory body, in the case of Spain, the National Commission on Markets and Competition (CNMC).

On getting inside the judge’s mind

Abstract: According to the scales of justice, the judge, in an unbiased way and directed by law, attends to all of the available information in a case, weighs it according to its significance, and integrates it to make a decision. By contrast, research suggests that judicial decision-making departs from the cognitive balancing act depicted by the scales of justice. Nevertheless, the research is often dismissed as irrelevant, and the judiciary, legal policy-makers and the public remain largely unconvinced that the status quo needs improving. One potential rebuttal to the scientific findings is that they lack validity because researchers did not study judges making decisions on real cases. Another potential argument is that researchers have not pinpointed the psychological processes of any specific judge because they analyzed data over judges and/or used statistical models lacking in psychological plausibility. We review these two grounds for appeal against the scientific research on judicial decision-making, and note that it appears researchers’ choices of data collection methods and analytic techniques may, indeed, be inappropriate for understanding the phenomena. We offer two remedies from the sphere of decision-making research: collecting data on judicial decision-making using representative design, and analyzing judicial decision data using more psychologically plausible models. Used together, we believe these solutions can help researchers better understand and improve legal decision-making.

Judicial Supremacy, Judicial Power, and the Finality of Constitutional Rulings

Abstract: It is widely assumed that the Supreme Court of the United States has established supremacy over contested constitutional questions, with the power to make final determinations of constitutional meaning. Since the 1960s, most scholars have assumed that legislatures and courts are engaged in a power struggle in which countermajoritarian courts can assert their will over majoritarian legislatures. More recently, a new generation of scholarship has demonstrated that judicial power often expands as a result of the willful empowerment of the judiciary by actors in other branches. Most scholars working with the latter framework, however, do not dispute that the United States has a regime of judicial supremacy—they simply see the political empowerment of courts as an explanation for why judicial supremacy has emerged despite the initially weak position of the judiciary. I argue that the insights of the political empowerment literature should be pressed further. It makes little sense to use the general label “judicial supremacy” for a system in which judicial power remains dependent on choices made by other political actors. Examining several cases that are generally seen as canonical examples of assertions of judicial supremacy, I find that courts were unable to settle constitutional debates, and in addition often either were unable to achieve their policy aims or did not actually require other political actors to do anything. The logic of new empirical findings about the sources of judicial power should compel scholars to question whether aggressive assertions of supremacy in judicial opinions are in fact accurate descriptions of how judicial power functions in the United States.

The regulation of surrogacy in the United Kingdom: the case for reform

Abstract: This article considers the legal regulation of surrogacy in the United Kingdom and examines legislative changes and case law that have emerged over the past three decades. We illustrate how the legal requirements to obtain parental orders (which give parenthood to the intended parents after the birth and extinguish the parental status of the surrogate) are overly restrictive and anachronistic. The legal requirements needed to obtain such orders have resulted in clear anomalies and left children in a state of legal-limbo. In practice some of the legal requirements are often bypassed and this alone is a compelling argument for legal reform. Other requirements, such as parental orders only being available to couples, are discriminatory and violate the individual’s right to respect for theirprivate and family life. The regulation of surrogacy is also incoherent and inconsistent when compared with other aspects of ‘becoming’ a parent via other assisted reproductive technologies. This paper argues that the anomalies that judicial decisions have generated in this domain have intensified the case for reform. We argue that the time is opportune for a new statute governing this contentious area and make the following three proposals for reform: (i) a pre-conception regulatory framework (ii) permitting moderate payment (iii) widening access to parenthood and moving away from the two-parent model.

You are in Charge: Experimentally Testing the Motivating Power of Holding a Judicial Office

Abstract: Judicial decisions are constitutionally protected from governmental interference. In many legal orders judges are appointed for life. In terms of principal agent theory, one should therefore expect a severe moral hazard problem. Judicial practice seems to reject this prediction. A rich literature in law and political science has tried to dissolve this 'puzzle of judicial behavior'. This literature mainly uses two strategies: it interprets the institutional arrangement in which judicial choice is embedded as a set of constraints. Or it claims that the legal system succeeds in selecting individuals who are particularly conscientious. We design an experiment that excludes both explanations. We give selfishness its best chance. Specifically we run a linear public good experiment with an additional participant randomly singled out as authority. The authority alone is able to punish free-riders. Yet for the authority, punishment is costly. We find a strong motive to fulfill the expectations that go with the office. Authorities do not save the money for punishment. They do not use punishment either to be spiteful. Yet the way how they interpret this task is influenced by their social value orientation. Personality moderates the willingness to assume the assigned office.

Leaders and Followers: Examining State Court–Ordered Education Finance Reform

Abstract: Much of the state court literature assumes that decisions reached by state courts of last resort are independent of other state courts of last resort. Each state court has its own ideology as well as a particular set of institutional constraints and confronts different governors, publics, and state legislatures in rendering decisions. Scholarly research and its assumption of the independence of state-level judicial decision making and policy impact stands in marked contrast to much of literature on the state-level adoption of policy. This diffusion literature has shown that states learn from and emulate similarly situated states that have previously adopted the policy under consideration. These national or state legislatures look to other nations and states for leadership in particular policy domains. In this manuscript, we apply the concept of diffusion to state courts. We do so through the examination of three waves of court-ordered state education finance reform. Using a dyadic dataset covering the period from 1974 until 2002, we find that state courts do emulate other state courts but that emulation is different from legislative emulation and different for each wave of reform. This article is protected by copyright. All rights reserved.

Truth in Evidence: The Construction of Video Evidence in Judicial Decisions.

Abstract: This study focuses on the conceptualization of video evidence as constructed by judges in their written decisions in Canadian criminal courts and the impact this conceptualization has on understandings of truth. Recent years have seen substantial developments in video recording technology and in the cultural practices that support its use. Of particular interest to this study is the mobilization of video as a means of legitimizing truth claims. Using a qualitative content analysis of 52 recent (2005-2015) Canadian criminal court decisions, this study seeks to understand the way in which judges discuss video evidence in their decisions and the impact these discussions have on discourses of truth. The results of this analysis illustrate that the features typically associated with video evidence coincide closely with specific and longstanding discourses of objectivity, reliability, and credibility that are used to evaluate competing claims in criminal courts—discourses that have traditionally been developed with reference to evaluating testimony. Judges’ adoption of these particular criteria over any others results in video achieving an eminent position in the hierarchy of evidence before the courts. The way in which judges conceptualize video evidence both reflects the historic discourses that shape the current judicial approach to video evidence and (re)creates discourses that will be relied on in future. Given the influential role of courts as official arbiters of truth, the discourses adopted by judges have important implications both within and beyond the legal system.

Public Perceptions of Gender Bias in the Decisions of Female State Court Judges

Abstract: IntroductionDoes judge gender affect how the public responds to state court decisions? The judicial community has long identified the existence of gender bias in the legal system and has made some progress in understanding and addressing this issue, partially through the use of gender bias task forces in many states and federal circuits in the late twentieth century.1 Additionally, over the past two decades, state courts of all levels have seen increases in gender diversity.2 Multiple factors underlie the call for increasing gender representation of the judiciary. Enhancing descriptive representation3 on the bench, at the very least, suggests that judicial institutions are accessible to women seeking to hold office4 and "reflects a degree of openness in the political process."5 More broadly, the presence of a judiciary that reflects the composition of the population potentially aids in conferring legitimacy on court decisions and authority. As Professor Linda Maule states: "A court system that does not reflect the membership of society breeds increasingly higher levels of disaffection and disillusionment. Thus, as more women are placed on the bench, the democratic regime is strengthened."6Beyond descriptive representation, scholars and judges explain that women can provide a unique perspective, or "different voice," traditionally missing from state and federal judiciaries.7 Specifically, Professor Carol Gilligan suggests that differences in the way in which men and women conceptualize morality and navigate moral predicaments/dilemmas are seen as early as childhood, with women more likely to express an "ethic of care" reflecting values such as empathy, communication, and "connectedness."8 Building from Professor Gilligan's work, scholars have argued that female jurists, given differences in socialization, background, and experience, "will employ different legal reasoning, and will seek different results from the legal process."9 These differences can emerge in the legal reasoning and rationale used by women on the bench even when observable differences in the voting behavior of male and female jurists are not apparent.10Finally, depending on the content of their jurisprudence, the inclusion of female judges can also promote the substantive representation of women's interests11 and create a court more "receptive" to the concerns of women.12 In the legislative arena, this substantive representation can manifest through emphasis on issues such as education, childcare, maternity politics, and policies that promote pay and workplace equality.13 In the courtroom, scholars consider votes in favor of the "women's position"14 in sex discrimination cases, family law, and reproductive policies, along with more liberal votes in general, as indicative of some degree of substantive representation in the judicial arena.15Even though "perception of gender bias in a judge is more harmful to the legal system than its appearance in other participants,"16 we currently know very little regarding whether, or how, gender diversity of judges and judicial panels affects public opinion in the aftermath of state court rulings.17 Did this recognition by gender bias task forces mediate potential public perceptions of judicial decisions? Does the presence of more women on the bench provide court outcomes with greater legitimacy among the public as scholars suggest, or, given that women are generally considered "nontraditional" judges,18 is the public more likely to view the decisions of state female judges with greater uncertainty or scrutiny? In this Article, we examine how state judge gender affects the public's support of judicial outcomes and perceptions of judicial bias. Specifically, we explore whether respondents are more likely to perceive that gender and ideology influence the decisionmaking of female state judges (when compared to their male counterparts). Given gender stereotypes that can surround women in public office, and the act of judging specifically, we argue that the public is likely to perceive the decisions of male and female judges differently. …

Innovation and intellectual property rights law—an overview of the Indian law

Abstract: The present article provides an overview of the various laws dealing with innovation and intellectual property rights in India. In India, the many facets of intellectual property rights are dealt with in particular legislations enacted by the Parliament. These legislations operate within the overarching guarantee of the right to property provided by the Indian Constitution. While providing brief insights into the law of patents, copyrights, trademarks, designs, and remedies for violation of these rights, the article also covers questions relating to the inter-section of these rights in practice. Where appropriate, the article also refers to seminal judicial decisions on these areas of law.

Judicial Review of Questions of Law: A Comparative Perspective

Abstract: There is not surprisingly much commonality in the issues faced by legal systems. Thus, in administrative law they will have to elaborate tests for review of law, fact and discretion. Comparative law is valuable in enabling us to appreciate diverse approaches to the same issue, while being properly mindful of legal/cultural reasons for those differences. Comparative discourse invites moreover inquiry as to whether doctrinal variations across legal systems are relatively minor, such that the respective regimes in effect do the same thing in slightly different ways, or whether the doctrinal variants are reflective of deeper normative divergence. This chapter focuses on the test for judicial review of questions of law in the UK, USA, Canada and the EU. The topic is important within the schema of judicial review and fertile for comparative analysis. The ensuing analysis reveals the divergences between the legal systems, and the four principal judicial strategies that have been used: judicial substitution of judgment over jurisdictional legal issues; substitution of judgment by the reviewing court on all issues of law; substitution of judgment on certain legal issues, rationality review on others, the principal criterion for the divide being legislative clarity of meaning as to the disputed term; and substitution of judgment and rationality review where the criterion for the divide is a broader range of functional considerations. Exigencies of space preclude detailed treatment of the kind found in the relevant domestic literature. The comparative analysis, drawing on this literature, will, it is hoped, inform this debate and shed light on the normative differences between the systems, as well as the efficacy of the test for review of law enshrined in each regime.

The Power Logic of Justice in China

Abstract: This Article presents a unifying theory to explain judicial behavior in China. It argues that the configuration of the de jure and de facto power of the disputants and the court determines many of the actions of a Chinese judicial decision maker at the three stages of litigation: case filing, adjudication, and enforcement of court decisions. The theory offers a novel analytical tool to explain and predict, albeit in a highly stylized way, when Chinese courts follow the law, how they exercise discretion and what methods they prefer in handling lawsuits, as well as the functions the courts serve in the process. The theory contributes to the understanding of ongoing Chinese legal reforms and to the debate about judicial behavior in China as well as other countries without robust rule of law.

Playing the race card : racial bias in judicial decision-making

Abstract: ......................................................................................................................................... ii Lay Summary ............................................................................................................................... iii Preface ........................................................................................................................................... iv Table of

How to Measure the Strength of Judicial Decisions: A Methodological Framework

Abstract: Although over the last thirty years an increasing number of scientific articles and books with diverse approaches have been published on the practice of constitutional adjudication, several methodological problems still prevail. The main deficiency of the systematic empirical research on constitutional adjudication consist in an unsophisticated dichotomous approach that separates the merely positive and negative decisions of constitutional courts, i.e. decisions that concluded in declaring the constitutionality or unconstitutionality of a given legislative act. This approach has been deeply inconsistent with the worldwide practice of constitutional adjudication, since the latter shows a widespread differentiation of judicial decisions over the last thirty years. In this study, we have elaborated a more sophisticated methodology for systematically mapping the manifold reality of constitutional adjudication, and measuring the strength of judicial decisions. In order to fit the research to reality, we have elaborated a scale to measure the strength of judicial decisions. This scale seems to be an appropriate tool to answer the main descriptive research question of our project: to what extent have decisions of constitutional courts constrained the legislative's room for maneuver? The present methodological paper focuses on the problem how to measure the strength of judicial decisions vis-a-vis the legislation and shows, by means of the first results of a pilot project, how this new methodology might be applied.