Showing papers on "Judicial opinion published in 2018"

Judicial decisions of the European Court of Human Rights: looking into the crystall ball

Abstract: When courts started publishing judgements, big data analysis (i.e. large-scale statistical analysis and machine learning) within the legal domain became possible. By taking data from the European Court of Human Rights as an example, we investigate how Natural Language Processing tools can be used to analyse texts of the court proceedings in order to automatically predict (future) judicial decisions. With an average accuracy of 75% in predicting the violation of 9 articles of the European Convention on Human Rights our (relatively simple) approach highlights the potential of machine learning approaches in the legal domain.

Judge v Robot?: Artificial intelligence and judicial decision-making

Abstract: As technology continues to change the way in which we work and function, there are predictions that many aspects of human activity will be replaced or supported by newer technologies. Whilst many human activities have changed over time as a result of human advances, more recent shifts in the context of technological change are likely to have a broader impact on some human functions that have previously been largely undisturbed. In this regard, technology is already changing the practice of law and may for example, reshape the process of judging by either replacing, supporting or supplementing the judicial role. Such changes may limit the extent to which humans are engaged in judging with an increasing emphasis on artificial intelligence to deal with smaller civil disputes and the more routine use of related technologies in more complex disputes.

The theory and reality of the sources of international law

Abstract: The classic starting point for identifying the sources of international law is Article 38 of the Statute of the International Court of Justice. Article 38 famously refers to three sources: treaties, customary international law, and general principles of law; as well as two subsidiary means for determining rules of law, namely judicial decisions and the teachings of publicists. However, Article 38 does not adequately reflect how the doctrine of sources operates in practice because it omits important sources of international law while misrepresenting the nature and weight of others. To appreciate how the doctrine of sources operates in practice, international lawyers need to understand how international law is created through a dialogue among states, state-empowered entities and non-state actors. States are important actors in this process, but they are not the only actors. It is only by understanding this process of dialogue that one can develop a full understanding of the theory – and reality – of the sources of international law.

Bending the law: geometric tools for quantifying influence in the multinetwork of legal opinions

Abstract: Legal reasoning requires identification through search of authoritative legal texts (such as statutes, constitutions, or prior judicial opinions) that apply to a given legal question. In this paper, using a network representation of US Supreme Court opinions that integrates citation connectivity and topical similarity, we model the activity of law search as an organizing principle in the evolution of the corpus of legal texts. The network model and (parametrized) probabilistic search behavior generates a Pagerank-style ranking of the texts that in turn gives rise to a natural geometry of the opinion corpus. This enables us to then measure the ways in which new judicial opinions affect the topography of the network and its future evolution. While we deploy it here on the US Supreme Court opinion corpus, there are obvious extensions to large evolving bodies of legal text (or text corpora in general). The model is a proxy for the way in which new opinions influence the search behavior of litigants and judges and thus affect the law. This type of “legal search effect” is a new legal consequence of research practice that has not been previously identified in jurisprudential thought and has never before been subject to empirical analysis. We quantitatively estimate the extent of this effect and find significant relationships between search-related network structures and propensity of future citation. This finding indicates that “search influence” is a pathway through which judicial opinions can affect future legal development.

Predicting Judicial Decisions of Criminal Cases from Thai Supreme Court Using Bi-directional GRU with Attention Mechanism

Abstract: Predicting court judgement has gained growing attention over the past years. Prior attempts used traditional prediction techniques based on Bag of words (BoW), where the order of words is discarded, resulting in low accuracy. In this paper, we propose a prediction model of criminal cases from Thai Supreme Court using End-to-End Deep Learning Neural Networks. Our model imitates a process of legal interpretation, whereby recurrent neural networks read the fact from an input case and compare them against relevant legal provisions with the attention mechanism. The model's output shows if a person is guilty of a crime according to the fact and laws. After the performance test, we find that our model could yield the higher F1 than traditional text classification techniques including Naive Bayes and SVM. In addition, we innovate the open dataset called “Thai Supreme Court Cases (TSCC)” that was compiled from many decades of Thai Supreme Court criminal judgements. It features the text of fact expertly extracted from each judgement, textual provisions from Thai Criminal Code, and binary-format labels following the theoretical criminal law structure. This dataset is useful for achieving judgement predicting task together with emulating actual criminal case trial.

A Test Collection for Evaluating Legal Case Law Search

Abstract: Test collection based evaluation represents the standard of evalua- tion for information retrieval systems. Legal IR, more speci cally case law retrieval, has no such standard test collection for evalua- tion. In this paper, we present a test collection for use in evaluating case law search, being the retrieval of judicial decisions relevant to a particular legal question. The collection is made available at ielab.io/caselaw.

Contribution of constitutional courts to the democratic quality of elections in Sub-Saharan Africa: a comparative case study of Madagascar and Senegal

Abstract: This thesis is the first comparative study on the role of African constitutional courts in elections. Approximately 20 African countries have introduced such courts during the course of the third wave of democratisation. While it is a widespread scholarly assumption that constitutional courts are beneficial for democracy, studies on the actual democratic repercussions of these courts are rare. Moreover, we know little at present about the nature of African constitutional courts and their role in processes of democratisation. This thesis takes specifically the field of electoral disputes as an example by which to examine the influence of constitutional courts on democracy. Elections are a core feature of democracy, and therefore particularly pertinent for studying constitutional courts’ repercussions on it. This approach is furthermore innovative because scholars of electoral integrity have recognised the importance of courts for democratic elections. Yet, theoretical and empirical works that examine this relationship in more detail are currently only pending. To begin to answer the question of how constitutional courts contribute to the democratic quality of elections in African electoral democracies, the constitutional courts of Madagascar and Senegal are examined in a structured, focused comparison. For this purpose, the study develops a novel theoretical framework that captures how constitutional court behaviour is linked, through their functional, ambiguous or dysfunctional interventions, to the democratic quality of elections. As a theoretical innovation, the thesis combines the concept of the “democratic quality of elections” with that of the “electoral cycle” in disentangling how the three democratic qualities of elections – participation, competition and legitimacy – are at stake throughout the six steps of the electoral cycle. For this thesis, an original dataset of 274 constitutional court interventions was compiled during field research stays in Madagascar and in Senegal. The analysis of these interventions was embedded in data from 78 interviews conducted with constitutional court judges, legal experts and politicians, as well as from secondary sources such as legal comments and election observation reports. The analysis revealed that in both countries all three qualities of democratic elections were subject to constraints during the periods of observation. Focusing on the courts’ major decisions, it was observed that both courts responded to the existing constraints on competition and legitimacy with predominantly dysfunctional interventions. The interventions of the Madagascan High Constitutional Court had, however, more serious repercussions on the democratic quality of elections, which was reflected in the 2009 breakdown of the democratic regime. The discussion of the results against the backdrop of prominent theories of court behaviour shows that the appointment rules and practices in place hampered in both countries the emergence of independent constitutional courts. Furthermore, both courts lacked public support and did not strategically build up a support base – which made them more vulnerable to political pressure. Moreover, the study showed that the relationship between the rule of law and elections is inextricable intertwined. However, this inextricability ultimately leads to a stagnating process in which courts impede electoral integrity and whereby contentious elections undermine assertive judicial decision making.

Using Twitter to Study Public Discourse in the Wake of Judicial Decisions: Public Reactions to the Supreme Court’s Same-Sex-Marriage Cases

Abstract: At the intersection of behavioral and institutional studies of policy making lie a series of questions about how elite choices affect mass public opinion. Scholars have considered how judic...

The Use of Amicus Briefs

Abstract: Judicial decisions play an important role in shaping public policy. Recognizing this, interest groups and other entities lobby judges in an attempt to translate their policy preferences into law. O...

Ideological influences on governance and regulation: The comparative case of supreme courts

Abstract: A key influence on governance and regulation is the ideology of individual decisionmakers. However, certain branches of government – such as courts – while wielding wide ranging regulatory powers, are expected to do so with no attitudinal influence. We posit a dynamic response model to investigate attitudinal behavior in different national courts. Our ideological scores are estimated based on probability models that formalize the assumption that judicial decisions consist of ideological, strategic, and jurisprudential components. The Dynamic Comparative Attitudinal Measure estimates the attitudinal decisionmaking on the institution as a whole. Additionally, we estimate Ideological Ideal Point Preference for individual justices. Empirical results with original data for political and religious rights rulings in the Supreme Courts of the United States, Canada, India, the Philippines, and Israel corroborate the measures' validity. Future studies can utilize Ideological Ideal Point Preference and the Dynamic Comparative Attitudinal Measure to cover additional courts, legal spheres, and time frames, and to estimate government deference.

Case Law Analysis with Machine Learning in Brazilian Court

Abstract: This paper aims the application of the knowledge discovering process in a judicial decisions database with the goal of unveiling the tendency of opinion Brazilian courts have, in relation to the favored party, employee or employer. Supervised machine learning techniques were used to classify documents. Such predictive model reached scores of more than 90% of ranking decision accuracy resulting in solid information about the tendency of each judge. Thus, this project contributes with a software that allows law firms to obtain information in a fast visual and exploratory way enabling them to focus and make more efforts in finding more effective legal strategies, than in jurisprudential research.

Judging religion and judges' religions

Abstract: In liberal democracies with religiously diverse populations, it would be surprising and troubling if a judge relied on a religious text or precept to resolve a legal dispute. It would deeply offend principles of religious freedom if individuals were bound by judicial pronouncement to obey the dictates of a faith they do not share. However, some commentators have long claimed that a person's cultural worldview has an impact on the way they interpret laws and facts, and there is some empirical support for this claim. There is thus reason to expect that judges’ worldviews have some effect on their decision-making. I argue that when judges deliberately avoid engaging with their own moral perspectives, they may mask to themselves the impact that such perspectives have on their decisions. The alternative of explicit reference to religious sources in judicial decisions, however, is too problematic for the religious freedom of legal subjects. I argue that judges should instead endeavor to be conscious of the influence their backgrounds have on their decision-making, but suggest that judicial institutions may be resistant to adopting practices that would support such an approach. The article draws on Canadian and American case law to demonstrate its argument but has wider applicability to liberal states.

European court suggests relaxed gene-editing rules

Abstract: Judicial opinion says restrictive regulations may not apply to plants and animals bred using CRISPR technique. Judicial opinion says restrictive regulations may not apply to plants and animals bred using CRISPR technique.

Informal networks and judicial decisions: Insights from the Supreme Court of the Philippines, 1986–2015:

Abstract: To what extent do informal networks shape the decisions of the Supreme Court of the Philippines? Though often raised in the Philippines, this question has never been studied empirically. To answer ...

Judicial Elections, Public Opinion, and Decisions on Lower‐Salience Issues

Abstract: Scholarship finds that in states with judicial elections, public opinion affects judges’ decisions on hot‐button campaign issues such as the death penalty or marijuana legalization. Yet the literature leaves open the question of how public opinion affects judicial decisions on less salient issues, which not only dominate the dockets of state supreme courts but also encompass areas of major legal and policy significance. We consider one such issue that infrequently emerges in judicial campaigns, environmental law. Specifically, we collect an original dataset of over 5,000 judicial votes on nearly 1,000 cases heard in 40 state supreme courts from 1990–2014. We find that for the dataset as a whole, there is not a significant effect of public opinion on judicial decisions in any of the major judicial selection systems. However, in the few states in which environmental issues have been the subject of campaign attack ads, we find evidence of such a relationship during the years following the ads. These results contribute to a growing literature that suggests elections can reduce judicial independence from public opinion.

Who are Judicial Decisions Meant For? The 'Global Community of Law' in Southern Africa

Abstract: Rationalist models of judicial decision-making expect courts to defend their institutional integrity in politically sensitive cases. This article presents two African case studies of courts not doi...

The (not-so-surprising) non-partisanship of the Irish Supreme Court

Abstract: There is a growing literature which argues that courts are effectively legislators. As a result, political leaders have an incentive to control judicial decisions by appointing justices whose policy preferences are as close to their own as possible. For this reason, in many countries judicial appointments to the highest courts have become highly politicised. This can be for a number of reasons. One is the ideology of the Justices, the other is their strategic incentives. Irish parties display small ideological differences, but deep partisan ones. We could expect partisan heritage to have an impact on judicial decisions. We test this expectation on Ireland, a common-law country with, it has been argued, one of the most activist judiciaries in the world, and a highly politicised and partisan appointments’ process. Ireland is therefore a country in which we would expect partisan heritage to be reflected in judicial decisions. We analyse over 5,000 decisions of the Irish Supreme Court and despite rigo...

The undue influence of "non-Australian" undue influence law on Australian undue influence law: farewell Johnson v Buttress? Part II

Abstract: The judgments of the plurality and Gordon J in the recent High Court decision of Thorne v Kennedy have undoubtedly altered the prior law relating to undue influence in Australia. But the most significant alterations, which are twofold, are both unacknowledged and unsupported by justificatory reasons. First, undue influence is presented as a single concept not having different forms, or involving different principles, across the traditional categories or ‘classes’ of undue influence. Accompanying that is surreptitious abandonment of the ‘fiduciary’ explanation for the second, ‘relational’ category of undue influence, prominent in antecedent authorities such as Johnson v Buttress. This is demonstrated, in particular, by the unacknowledged and unexplained evaporation of the ‘prophylactic’ function and content of the traditional ‘presumption’ of undue influence. But nowhere do their Honours openly address and credibly respond to the conventional rationale – the generic policy foundations – that originally motivated the strict fiduciary regulatory regime in those cases where the presumption traditionally operated. Second, as a single concept, undue influence is, in stark contrast to unconscionable dealing, rationalised as a ‘plaintiff-sided’, ‘impaired-consent’ ground of relief. Although prior dicta existed to support such an outlook on undue influence, those dicta, themselves of dubious lineage, were accepted in Thorne without pause or explanation, and certainly without acknowledgment of a strong current of senior judicial opinion to the contrary, both domestically and abroad. We are left, then, in the wake of Thorne, with an unexplained disjunctive rationalisation of two equitable exculpatory doctrines that are nevertheless acknowledged to be ‘closely related’. This does not augur well for the logical taxonomisation of those sibling doctrines, both as between themselves and relative to other exculpatory categories that equally function to discipline the abuse of unofficial power-vulnerability relationships or encounters in connection with bilateral transactions.

Historical Institutionalism and Judicial Decision-Making: Ideas, Institutions, and Actors in French High Court Hate Speech Rulings

Abstract: This article integrates insights from different veins of historical institutionalism to offer an analytical framework that specifies how ideas, institutions, and actors account for key aspects of judicial decision-making, including change over time. To the extent that ideas are widely distributed, highly salient, and stable among actors in the judicial field, they can affect patterns of rulings in a particular issue area. The distribution, salience, and stability of norms, however, may change over time for reasons embedded in the institutional structures themselves. Existing policies, laws, or treaties create the potential for new actors to enter the judicial field through processes that theorists of institutional change have identified as intercurrence, displacement, conversion, layering, and drift. New actors can shift the relative salience of ideas already rooted in the judicial field. This ideational salience amplification can alter patterns of judicial decision-making without the fundamental and often costly battles involved in wholesale paradigm change. French high court hate speech decisions provide the context for the development of this framework and serve to illustrate the dynamic. The author uses evidence from an original dataset of every ruling by the French Court of Cassation regarding racist hate speech from 1972 through 2012 to explain the varying propensity of the high court to restrict speech that targets majorities compared to minorities.

International Perspectives on Child-responsive Courts

Abstract: Child friendly justice and access to justice for children are explicit concerns for the European Union, the Committee on the Rights of the Child, the Council of Europe and the Child Rights International Network. This study examines court systems as child-responsive by eliciting the views of judicial decision makers on child protection cases (n = 1,479) in four legal systems (England, Finland, Norway and the USA (represented by California)), based on an online survey. In this paper, we asked judicial officials who have the authority to make care order decisions how they view the child-friendliness of the courts. We presented them with six statements representing standard features of child responsive courts. Findings show that there is considerable room for improving both structure and practice of the court proceedings, for example the use of child friendly language and child-sensitive time frames. There were variations across states, and some variation across type of decision maker. Implications for the development of education and training about the opportunities for children’s engagement are considered.

The use of Foreign Law by the High Court of Australia

Abstract: Justices of the High Court of Australia have a broad discretion to follow foreign judicial decisions based on whether they consider a decision to be persuasive. But it is difficult to assess what i...

Precedent in the Decision-Making Process. Point of Legal Theory and Judicial Practice

Abstract: This publication encompasses the presentation of precedent as a legal category in the context of practical (judicial) approach and in the light of the theory of law. After introducing the term “precedent”, which is both universal and relevant to the codified law order, the question of distinguishing its particular kinds is described, which appears in the Polish science of law, mainly in the theory and philosophy of law. In the practical part, precedent is treated as a part of judicial practice, which in case of the codified law order constitutes a qualified form of applying a prior judicial decision. The most significant features of this practice are covered within the framework of the legal reasoning (with regard to validation and interpretation), which occurs during the decisional process, as well as the quality of justification of the judicial decision as regards law enforcement.

Tort Law and Judicial Risk Regulation: Bipolar and Multipolar Risk Reasoning in Light of Tort Law’s Regulatory Effects

Abstract: Although judicial decisions in tort law primarily determine the (correlative) responsibilities and liabilities of the proceeding parties, they also have regulatory effects on non-litigants. In this contribution, these regulatory consequences of tort law will be analysed in light of a court’s quest when it decides a tort claim involving (uncertain) risks. It will be argued that decisions in tort law about uncertain risks involve the possible occurrence of a false positive (eg accepting liability for a non-existing risk) and a false negative (eg denying liability for a real risk). False positives and false negatives have adverse consequences for the parties to the proceedings but, bearing in mind the regulatory effects of tort adjudication, potentially also for non-litigants. While courts might want to avoid both, scientific uncertainties and complexities make it difficult for them to assess to what extent there is a chance of either a false positive or a false negative occurring. Therefore, they necessarily need to determine which party bears the risk of the involved errors. In addition, the question arises whether courts should also take the potential regulatory consequences of their rulings into account and, if yes, how? To that purpose, they can employ a bipolar reasoning style and a multipolar reasoning style. Although tort law is about determining the applicable rights and obligations between the plaintiff and defendant (bipolar reasoning), in light of the regulatory implications of tort law and developments in several tort systems, the relevance of considerations transcending this bipolar relationship (multipolar reasoning) is increasing. However, the possibilities for courts to engage in multipolar reasoning are restrained by the bipolar nature of tort law which gives rise to information and specialism deficits. This will be illustrated by referring to issues in relation to setting the standard of care and examining causation.

The Independence of Judges Reduced Legal Development in England, 1600-1800

Abstract: Conventional wisdom on English development confers iconic status on the clause of the Act of Settlement (1701) that mandated secure tenure for judges. Because the Act's effect on tenure was partial, the effect of tenure on judicial decisions can be identified. The paper estimates how the awarding of tenure changed the number of citations to judges' decisions, a measure of judicial quality. The empirics uses two new databases, one on judges' biographies and one recording citations in the English Reports to earlier decisions. Several strategies aid identification. A court-year panel permits difference-in-differences. Controls capture judges' human capital and the importance of litigation. Instrumental-variable estimates use judge life-expectancy and political vicissitudes as instruments. Tenure has a strong, significant, and deleterious effect on the quality of associate-judge decisions. Tenure has no effect for chief judges. The Act of Settlement reduces citations by 20% in the 18th century. The results are interpretable in terms of the incentives provided by a powerful legal profession that could protect vulnerable judges in a politically volatile era.

Arbitration and public policy in brazil: a study based on ‘lula case’

Abstract: This work examines the subject of jurisdiction and arbitrability of issues related to energy and natural resources in the world, in order to enhance the arbitration institute in Brazil The study is based on a recent case pending in Brazilian courts, named “Lula case”, which refer to a dispute between the State and concessionaires that grant the right to explore and produce oil and gas in a determined area The presence of arbitration clauses in the concession contracts for exploration and production of oil and gas in Brazil raises questions related to the disposability of the rights concerned It is paramount to set benchmarks on arbitral tribunals’ power to decide on these matters and to define to what extent arbitral awards may defy public policy, national sovereignty over natural resources and national courts’ jurisdiction to render decisions in this regard Otherwise, the randomness of judicial decisions makes the arbitration clause ineffective Moreover, the Lula case arises substantive issues related to the necessity to protect investors in the oil and gas industry, since acts arguably connect to the State policy power may cause damages to the private parties The work critically examines the decision given by national courts so far and proposes an international approach to face situations involving the State and the necessity to protect investors in the oil and gas industry DOI: http://dxdoiorg/1017768/pbla4n5-6p223

Judicial activism or self-restraint : some insight into the indonesian constitutional court

Abstract: The Constitutional Court of Republic of Indonesia is centralized judicial review institution which implements a posteriori and abstract control. Constitutional court decision often politically sensitive and involve important issues. On the one hand handing down strong decisions that uphold important constitutional principles can bring great benefits to citizens and can strengthen support for democracy but on the other hand, strong role of the court in judicial review tends to encroach increasingly on the territory of the law making institution. This article examines the decision of constitutional court in the framework of a tension between constitutionalism and democracy, especially from theoretical or conceptual approach. As result of examining its decisions, Indonesian Constitutional Court may reflect two characters; judicial activism as characterized by acting as law-maker and using policy in judicial decisions and/ or judicial self-restraint. Recent Indonesian experience shows that judicial review of legislation is not a simply of judicial control over law-making institution, as it brings tension in the context of power relations in the scheme of separation of power. Relationship between the court and legislature, in respective of judicial review, will culminate in the philosophy of the judiciary. However, as constitutionalism and democracy are virtue, decisions of the Constitutional Court in judicial review should create mode of self-limitation within the framework of the principle of separation of powers.

Why Judicial Formalism is Incompatible with the Rule of Law

Abstract: Judicial formalism is perceived as fully compliant with the requirements of the rule of law. With its reliance on plain meaning and its reluctance to apply historical, purposive and functional interpretative premises, it seems an ideal tool for constraining discretionary judicial powers and securing the predictability of law’s application, which latter is one of the main tenets of the rule of law. In this paper, I argue that judicial formalism is based on a misguided model of language, and as such cannot deliver what it promises. In fact, judicial decisions based on formalistic reasoning are surprising to their addressees and instead of promoting predictability, they undermine it. A judicial strategy fully compliant with the rule of law requires a different vision of language than that proposed by judicial formalism, and as a consequence, a different, moderately non-formalistic conception of legal interpretation.

Integration of Judicial Decisions in Multiple Proceedings before the WTO and RTAS: the Potential Relevance of Article 32 of the VCLT

Abstract: In the last several decades there has been an exponential growth in the number of Regional Trade Agreements (RTAs). In addition to creating a wide overlap of substantive rights and obligations with the World Trade Organisation, many RTAs are also equipped with legalized dispute settlement mechanisms, which operate independently from the compulsory, automatic and exclusive system of WTO dispute settlement. This parallel of substantive commitments and legalised mechanisms may potentially result in conflicts of jurisdiction where a single dispute is submitted simultaneously or consecutively to both fora. It has been well addressed in various studies that if such conflicts arise, there is currently no legal rule that can satisfactorily determine which forum should have jurisdiction. As a result, multiple proceedings appear unavoidable. This article seeks to offer a new way to look into the jurisdictional tension between the WTO and RTAs. It will be argued that in the absence of effective rules to determine jurisdictional priority, Article 32 of the Vienna Convention on the Law of Treaties may provide a practical and useful technique to minimise the negative consequences of multiple proceedings, i.e. inconsistent interpretations and findings over essentially the same disputes.