Showing papers on "Judicial opinion published in 2019"

Bias and Judging

Abstract: How do we know whether judges of different backgrounds are biased? We review the substantial political science literature on judicial decision making, paying close attention to how judges' demograp...

Federal Judge Ideology: A New Measure of Ex Ante Litigation Risk

Abstract: Drawing on the political theory of judicial decision making, our paper proposes a new and parsimonious ex ante litigation risk measure: federal judge ideology. We find that judge ideology complements existing measures of litigation risk based on industry membership and firm characteristics. Firms in liberal circuits (the third quartile in ideology) are 33.5% more likely to be sued in securities class action lawsuits than those in conservative circuits (the first quartile in ideology). This result is stronger after the U.S. Supreme Court's ruling in the Tellabs case. We next show that the effect of judge ideology on litigation risk is greater for firms with more sophisticated shareholders and with higher expected litigation costs. Furthermore, judicial appointments affect litigation risk and the value of firms in the circuit, highlighting the economic consequences of political appointments of judges. Finally, using our new measure, we document that litigation risk deters managers from providing long‐term earnings guidance, a result that existing measures of litigation risk cannot show.

Legal Principles Under Criminal Law in Indonesia Dan Thailand

Abstract: The principle of legality is known in modern criminal law emerge from the scope of sociological Enlightenment doctrine that exalts the protection of people from abuse of power. Before coming Age of Enlightenment, the power to punish even without any regulations first. At that time, tastes kekuasaanlah most right to determine whether an act to be punished or not. To combat that, exists the principle of legality which is an important instrument of the protection of individual liberties in the face of the country. Thus, what is called the action that can be put into a regulatory authority, not power. According to legal experts, the roots of the idea of the principle of legality is derived from the provisions of Article 39 of the Magna Carta (1215) in the United Kingdom which ensure the protection of people from arrest, detention, seizure, disposal, and release of a person from the protection of the law / legislation, unless there is a judicial decision legitimate. This provision is followed Habeas Corpus Act (1679) in the UK that requires someone who is arrested is checked in a short time. This idea inspired the emergence of one of the provisions in the Declaration of Independence (1776) in the United States that says, no one should be prosecuted or arrested in addition to, and because of the actions set out in, legislation. Keywords: Principle of Legality; Criminal law; Indonesia; Thailand.

Reconstructing Rights: Courts, Parties, and Equality Rights in India, South Africa, and the United States

Abstract: Judges often behave in surprising ways when they re-interpret laws and constitutions. Contrary to existing expectations, judges regularly abandon their own established interpretations in favor of new understandings. In Reconstructing Rights, Stephan Stohler offers a new theory of judicial behavior which demonstrates that judges do not act alone. Instead, Stohler shows that judges work in a deliberative fashion with aligned partisans in the elected branches to articulate evolving interpretations of major statutes and constitutions. Reconstructing Rights draws on legislative debates, legal briefs, and hundreds of judicial opinions issued from high courts in India, South Africa, and the United States in the area of discrimination and affirmative action. These materials demonstrate judges' willingness to provide interpretative leadership. But they also demonstrate how judges relinquish their leadership roles when their aligned counterparts disagree. This pattern of behavior indicates that judges do not exercise exclusive authority over constitutional interpretation. Rather, that task is subject to greater democratic influence than is often acknowledged.

Maritime Delimitation as a Judicial Process

Abstract: Maritime Delimitation as a Judicial Process is the first comprehensive analysis of judicial decisions, state practice and academic opinions on maritime boundary delimitation. For ease of reading and clarity, it follows this three-stage approach in its structure. Massimo Lando analyses the interaction between international tribunals and states in the development of the delimitation process, in order to explain rationally how a judicially-created approach to delimit maritime boundaries has been accepted by states. Pursuing a practical approach, this book identifies disputed points in maritime delimitation and proposes solutions which could be applied in future judicial disputes. In addition, the book engages with the underlying theories of maritime delimitation, including the relationship between delimitation and delineation, the effect of third states' rights on delimitation, and the manner in which each stage of the process influences the other stages.

Deportation Decisions: Judicial Decision-Making in an American Immigration Court:

Abstract: Drawing on ethnographic observations and informal conversations with judges in Dallas Immigration Court, as well as archival documents, this article describes two approaches through which judges in...

Racial bias in legal language

Abstract: Although racial bias in the law is widely recognized, it remains unclear how these biases are in entrenched in the language of the law, judicial opinions. In this article, we build on recent resear...

Legal Techniques for Rationalizing Biased Judicial Decisions: Evidence from Experiments with Real Judges

Abstract: Judges rarely reveal their real reasoning in their opinions when they are influenced by factors that they know they should not consider. The natural next question is how, when a judge is improperly influenced, he or she reasons to justify a biased decision. In a set of experiments using incumbent Chinese judges, we first replicated the findings of previous studies that showed judges can be influenced by extra‐legal factors. More importantly, we showed that judges may employ a range of legal techniques to rationalize decision biases: they interpret legal standards and legal concepts strategically, finesse the applicability of law, infer or deny causation and foreseeability, and draw different conclusions from facts. Our findings provide a more realistic understanding of how judges behave, and cast doubt on reasoned elaboration as a guarantee of judicial transparency and trustworthiness.

The Family and the Elderly in Spanish Society: The Exercise of Testamentary Freedom When the Testator Reaches the Age of Eighty

Abstract: The rules that in the civil legal systems regulate the succession upon death, highlight the conception that every legal text has about individual freedom, and also about the family. The variety of Spanish civil laws includes very different systems on the compulsory portion. And this shows up (because of that), that variety of conceptions. This paper analyzes the disinheritance as an exercise of the testamentary freedom to deprive the compulsory portion to certain relatives. The research aim is to show the differences and the common points between Spanish civil laws and to propose some legal reforms. The research method used consists on the analysis of the most relevant statistics about the Spanish population and on the most frequent decisions of the elderly regarding their descendant’s inheritance. Also, last year main judicial decisions and the authors’ opinions have been analyzed.

A new role of causation theory towards achieving economic contractual equilibrium: monitoring the economic equilibrium of the contract

Abstract: The phrase “who says contractual, says justice” “qui dit contractuel dit juste” does not fully express the truth of our present reality, where the phrase itself falls into doubt, since the contract does not always result in fair obligations, as the contract is an expression of often unequal wills. In this regard, the French judiciary realized that the absence of justice in the contract might arise as a result of the contractual freedom afforded to the contracting parties and, thus, they developed the idea of Commutative Justice in the contract, such as the Piller’s decision, which is considered one of its most important applications. However, the causation theory in the Palestinian Civil Code Draft and the Indonesian Civil Code was limited to monitoring the matter of the existence of the corresponding obligation whatever it was. In this context, this paper seeks to prove that the provisions of the causation theory in the Palestinian Civil Code Draft and the Indonesian Civil Code can be used as a means of monitoring the economic contractual equilibrium of the contract. To do so, the legal provisions of the causation theory should be analysed in a comparative analytical approach with the French judicial decisions to illustrate the Palestinian and Indonesian legislative deficiencies and the need for adopting the French judicial approach.

Harmonization of the protection against misleading commercial practices: ongoing divergences in Central European countries

Abstract: Research background: Modern European integration focuses on competition in the internal single market, embracing both competitiveness and consumer protection, and it aims at full harmonization in this arena. The hallmark, the Unfair Commercial Practices Directive from 2005, aims to overcome diverse social, political, legal and economic traditions. Is the implied protection against misleading practices an opportunity or a threat for Central European Regions? Purpose of the article: The primary purpose is to comparatively describe and critically assess the transposed legal frameworks. The secondary purpose is to study and evaluate their coherence in the light of the case law and their impact in Central Europe, in particular whether it represents an opportunity or a threat for the smart, sustainable and inclusive growth, i.e. boosting competitiveness and innovation along with consumer welfare. Methods: The cross-disciplinary and multi-jurisdictional nature of this paper, and its dual purposes, implies the use of Meta-Analysis, of various interpretation techniques suitable for legal texts and judicial decisions, of the critical comparison and of a holistic assessment of approaches and impacts. Legislation and case law are explored and the yielded knowledge and data are confronted with a field search and case studies. The dominating qualitative research and data are complemented by the quantitative research and data. Findings & Value added: For over one decade, the Unfair Commercial Practices Directive has required full harmonization of the protection against, among other items, misleading commercial practices, by legislatures and judges in the EU. The exploration pursuant to the two purposes suggests that this ambitious legislative and case law project entails a number of transposition approaches with varying levels of coherence, importance and impacts on the competitiveness and innovation of business and consumer welfare in Central Europe. Therefore, full harmonization should be either readjusted or relaxed.

Expertise Fails to Attenuate Gendered Biases in Judicial Decision-Making:

Abstract: Although the influence of gender ideology on lay decision-making has been established, it is not known to what extent expertise may mitigate gendered biases and improve decision-making quality. In ...

Expert medico-legal reports: The relationship between levels of consistency and judicial outcomes in asylum seekers in the Netherlands.

Abstract: Introduction If asylum applicants need to prove that they have been persecuted in their home country, expert judgment of the psychological and physical consequences of torture may support the judicial process. Expert medico-legal reports can be used to assess whether the medical complaints of the asylum seeker are consistent with their asylum account. It is unclear which factors influence medical expert judgement about the consistency between an asylum seeker's symptoms and story, and to what extent expert medico-legal reports are associated with judicial outcomes. Methods We analysed 97 medico-legal reports on traumatised asylum seekers in the Netherlands. First, we evaluated the impact of trauma-related and other variables on experts' judgments of the consistency of symptoms and story. Second, we evaluated the effect of experts' judgments of symptom-story consistency on subsequent judicial outcomes. Results Gender, receipt of mental health care and trauma-related variables were associated with symptom story consistency. Positive asylum decisions were predicted by expert judgments about the presence of physical signs and symptoms of torture, and ill-treatment and their consistency with the refugee's story, but not psychological symptoms. Conclusion These results suggest that standardised procedures for the documenting of medical evidence by independent experts can improve judicial decision quality and the need to improve psychological and psychiatric assessments.

The Role of Gender Norms in Judicial Decision-Making at the U.S. Supreme Court: The Case of Male and Female Justices:

Abstract: Although still a minority, the growing number of women on both the Bench and at the Bar of the U.S. Supreme Court has important implications for judicial decision-making and successful advocacy at ...

Research and Design on Cognitive Computing Framework for Predicting Judicial Decisions

Abstract: This paper aims to provide a cognitive computing framework to meet the challenges of semantic understanding, knowledge learning and judicial reasoning in the Chinese legal domain. In our framework, legal factors are first represented in a formal way; secondly, legal factors are extracted, and concepts and their relations are augmented with a combination of rule-based and deep learning methods; thirdly, a predication model is generated and trained to make judicial decisions. When a fact description is brought into the model, the probability of judicial decisions will be given automatically. Two elementary results are obtained: I. Our method can effectively predict the decisions for divorce cases with different expression styles, and offers better performance than traditional methods like Support Vector Machine (SVM); II. Our machine learning predicting results can be easily understood by general public as applied induction rules are given.

The impact of maleness on judicial decision making: masculinity, chivalry, and immigration appeals

Abstract: Evidence of gendered decision making by judges has been mixed at best. We argue that this is a result of a narrow focus on how female judges differ from male judges. This treats women as th...

Case selection and judicial decision-making: evidence from French labor courts

Abstract: Using a database on French labor courts between 1998 and 2012, we investigate case selection and judicial decision-making. In France, judges are elected at the labor court level on lists proposed by unions, and litigants can first try to settle their case before the judicial hearing. We show that the ideological composition of the court indirectly impacts the settlement behavior of the parties but has no influence on the decision made in court. In addition, parties have self-fulfilling behavior and adapt to institutional rules. When they anticipate long judicial procedures at court, they settle more frequently and only require judicial hearings for complex cases. The duration to decide these complex cases is longer, explaining why they observe (and build their anticipation on) long case duration. Our empirical strategy uses probit, ordered probit and triprobit estimations to control for case selection.

The German Federal Courts Dataset 1950–2019: From Paper Archives to Linked Open Data

Abstract: Various reasons explain why Europe lags behind the United States in empirical legal studies. One of them is a scarcity of available data on judicial decision making, even at the highest levels of adjudication. By institutional design, civil‐law judges have lower personal profiles than their common‐law counterparts. Hence very few empirical data are available on how courts are composed and how that composition changes over time. The present project remedies that by easing access to such data and lowering the threshold for empirical studies on judicial behavior. This paper introduces the German Federal Courts Dataset (GFCD) as a resource for empirical legal scholars, with the objective of inspiring more European lawyers to engage with empirical aspects of civil‐law adjudication. To that end, several thousand pages of German court documentation were digitized, transcribed into machine‐readable tables (ready to be imported into statistics software), and published online (www.richter-im-internet.de). To simultaneously explore innovative ways of sharing public‐domain datasets, the data were modeled as linked open data and imported into the Wikidata repository for use in any computational application.

The Institute of International Law's Resolution on State Succession and State Responsibility: Introduction, Text and Commentaries

Abstract: Marcelo Kohen and Patrick Dumberry explore in an article-by-article commentary the Resolution adopted in 2015 by the Institute of International Law, on state succession in matters of state responsibility. They analyse the content and scope of application of each provision based on a comprehensive survey of existing state practice and judicial decisions (both domestic and international), as well as taking into account the works of scholars and that of the ILC Special Rapporteur in his proposed Draft Articles on the same topic. This book explains the rationale and the reasons behind why the Institute adopted specific solutions to address particular problems of succession to responsibility for each provision, including the need to achieve a fair outcome given the specific circumstances and relevant factors for each case.

Children’s and parents’ involvement in care order proceedings: a cross-national comparison of judicial decision-makers’ views and experiences

Abstract: This paper presents the views of judicial decision-makers (n = 1794) in four child protection jurisdictions (England, Finland, Norway, and the USA (California)), about whether parents and children

The Judges’ Academic Background as Determinant of the Quality of Judicial Decisions in Latin American Supreme Courts

Abstract: This article shows that the academic background of judges will determine the quality of their judicial decisions. Through ordinary least squares models, this research demonstrates that judges with better academic skills are more likely to produce qualitatively better judicial decisions. Contrary to what one would intuitively expect, salaries, workload, type of legal training, and courts specialization do not have a significant influence on the quality of judicial decisions. This research and its results are the first steps to building a comprehensive theory to evaluate the quality of judicial decisions in high courts.

An Introduction to Jewish Law

Abstract: Jewish law is a singular legal system that has been evolving for generations. Often conflated with Biblical law or Israeli law, Jewish law needs to be studied in its own right. An Introduction to Jewish Law expounds the general structure of Jewish law and presents the cardinal principles of this religious legal system. An introduction to modern Jewish law as it applies to the daily life of Jews around the world, this volume presents Jewish law in a way that answers all the questions that a student of comparative law would ask when encountering an unfamiliar legal system. Sources of Jewish law such as revelation, rabbinical and communal legislation, judicial decisions, and legal reasoning are defined and analyzed, and the authority of who decides what Jewish law is and why their decisions are binding is investigated.

Exceptional, After All and After Oil States: Judicial Review and the Patent System

Abstract: The U.S. Supreme Court’s seminal 2018 decision in Oil States Energy Servs., LLC v. Greene’s Energy Group, LLC appears to mark the end of “patent exceptionalism”—that is, the notion that patent law and administration (should) remain at variance with the precepts of general administrative law. The petitioners contended that invention patents are “private rights” that, under the Constitution, can be canceled only by Article III courts, not administratively. The Court’s unequivocal rejection of that position removed a lingering constitutional cloud over the Patent and Trademark Office’s administrative patent review and reexamination procedures under the 2011 America Invents Act. However, the statutory judicial review regime of the Patent Act still departs from general administrative law. Parallel to an APA-conforming provision for appellate judicial review, the Patent Act permits disappointed patent applicants to contest adverse administrative decisions by way of an original, de novo action in U.S. district court. The relevant provision, Section 145 of the Patent Act, is wholly incompatible with administrative-law precepts of appellate (deferential, on-the-record) judicial review. Dating all the way back to the 1836 Patent Act, it is a statutory remnant of Marbury’s near-forgotten world of private rights and separated powers. This Article chronicles the strange survival of Section 145 and explores its present-day, post-Oil States implications. As a practical matter, the rarely used Section 145 may offer a means of “gold-plating” patents: an administrative revocation of a “Section 145” patent would amount to a constitutionally prohibited executive revision of a final judicial decision. As a doctrinal matter, the Supreme Court has clearly recognized the “exceptional” nature of Section 145. The Oil States decision, read on its own but especially in the context of the Supreme Court’s broader administrative and patent law jurisprudence, affirms that position. Patent law will remain exceptional after all—just not for reasons grounded in property law and theory, but in a statutory and administrative-law sense.

“The Long and Winding Road”: A Comparative Policy Analysis of Multilevel Judicial Implementation of Work‒Life Balance in Spain

Abstract: This article studies how processes of policy implementation and the impact of a multilevel European legal order shape social policies. By using an interdisciplinary approach to comparative policy analysis that investigates policy implementation through the critical study of judicial litigation, the article analyses the case of Garcia Mateos on work‒life balance in its different stages before Spanish and supranational courts. It shows that the implementation of work‒life balance policy through litigation in Spain is a “long and winding road” paved with discursive and material opportunities and obstacles. While multiple pressures, actors, and framings at different governmental levels contributed to a favourable judicial decision on gender equality, norms about the gendered division of labour limited its transformative potential.

Кримінальна відповідальність за постановлення суддею неправосудного судового рішення: міжнародні стандарти, законодавство України та інших держав Європи

Abstract: The article examines the problem of bringing Ukrainian judges to criminal liability for their so-called unlawful court decisions, the grounds for such liability compared with the grounds of criminal liability of judges for any acts related to their performance of their official powers. The paper analyzes international standards on criminal liability of judges and judges’ immunity, as well as a court decision. It is determined that, in accordance with international standards, judicial immunity must be functional, that is extend exclusively to acts related to the passing of judicial decisions and execution of other official duties; judicial immunity should not apply to cases of unjust benefits received by judges, although this occurs in connection with the performance of their official duties, and for any crimes not related to the performance of their official duties; making an unlawful judicial decision or other act related to the performance of a judge’s official duties may be recognized as a crime only on condition that there is intent. A judicial decision can be considered to be contrary to the content and purpose of justice which: a) is incomprehensible, and the reasons for making it unclear; b) does not provide legal certainty to the parties, does not resolve the dispute and intensifies the conflict; c) is unjustified, inadequate, such that it is not passed within a reasonable time and not as a result of a fair trial. The approaches of legislators of other states concerning the criminalization of the issuance of an unlawful judicial decision and other acts related to the performance of a judge’s official duties are generalized. Thus, it has been found that criminal responsibility for acts related to the performance of official duties of a judge, in particular, the passing of court decisions, in the legislation of different countries, may appear: 1) none at all, or 2) there is a selfish act related to the performance of official duties of a judge, or 3) there is a deliberate rendering of a wrongful (illegal, biased, illegal and unreasonable, illegal and prejudiced) judgment – irrespective of selfish motives, or 4) there are other acts related to the performance of official duties of a judge. The requirements of the procedural legislation of Ukraine concerning court decisions and judicial practice are analyzed, and the definition of “unlawful judicial decision” is proposed.Article received 27.05.2019

Asian Courts and LGBT Rights

Abstract: Courts have played an integral part in advancing the rights of lesbian, gay, bisexual, and transgender (LGBT) communities in many parts of Asia. For example, Taiwan’s highest court ruled in 2017 that it was unconstitutional to exclude same-sex couples from marriage. As a result, in 2019, Taiwan became the first jurisdiction in Asia to legalize same-sex marriage. Among judicial decisions from Asia, Taiwan’s marriage ruling has gone the furthest in affirming same-sex relationships, but it is not alone in vindicating the rights of gay men, lesbians, and bisexuals. Courts in Asia have also advanced transgender rights. For example, building on earlier cases from Nepal and Pakistan, the Indian Supreme Court stated in 2014 that transgender persons have a right to select gender markers on identity documents based on self-determination. The judgment also directed the government to implement affirmative action programs to support transgender communities. This judgment broke new ground, not only for Asia but for the world. While LGBT rights advocates have celebrated these court victories, litigation to advance LGBT rights has failed in other parts of Asia. Indeed, courts in some parts of Asia have entrenched LGBT subordination. A vast expanse separates Asia’s most progressive judicial decisions from the most oppressive. The landscape of judicial decisions is further complicated by the fact that it continues to change at a rapid clip. This chapter examines this mixed and quickly changing landscape of judicial developments concerning LGBT rights in Asia. This chapter starts by providing an overview of the divergent roles that Asian courts have played with respect to LGBT rights. It then highlights — and offers preliminary answers to — three questions prompted by the judicial development of LGBT rights in Asia: (1) What factors have contributed to the divergence among Asian jurisdictions? (2) How should developments in Asia inform existing narratives about the development of LGBT rights? (3) How do politics and public opinion affect courts’ ability to advance LGBT rights in Asia?

Judicial decision-making within political parties: A political approach

Abstract: How do German intra-party tribunals manage internal conflicts? More specifically, why do they accept some cases for trial but reject others? Required by law to strictly adhere to implement rule of ...

Religious and Moral Grounds for Patent-Eligible Subject Matter Exclusions

Abstract: Patents in general, and patent-eligible subject matter (i.e., what can be patented) in particular, have significant links to religion. This is especially true in regard to patents on “inventions” derived from discoveries of natural products and their properties and of other natural phenomena. Such inventions have been the subject of important judicial decisions and of public concerns about the propriety of owning nature. This chapter briefly traces the history of such eligibility exclusions, as they developed from changing conceptions of the natural world and within patent law in the United Kingdom and were transplanted (with some differences) to the United States. It then explains why, under American patent law, such discoveries were to be treated as prior art against the applicant who disclosed them. The chapter concludes with a brief comparative discussion of the line between discovery and patent-eligible invention, and why it matters morally and practically. In particular, the chapter discusses the need to decide whether to fund scientific discovery through the patent system or through other means, such as government subsidies, prizes, and so on. With respect to such decisions, the moral concerns reflected in the history of eligibility exclusions remain salient, even if their religious origins have largely been forgotten.

The Influence of Type of Defense Counsel on Prosecutorial and Judicial Decision Making in Domestic Violence Cases

Abstract: This study examines the influence of the type of defense counsel on prosecutorial and judicial decisions in domestic violence cases. We found that the type of defense counsel mattered more in sentencing compared with previous decision points. Cases handled by private attorneys were less likely to experience charge reductions at screening and be dismissed. However, decision patterns are reversed postarraignment, where charges start to decrease at a higher rate for cases represented by private counsel. Defendants represented by private lawyers were less likely to plead guilty, but they were also markedly less likely to face incarceration.

States’ Varied Compliance with International Anti-money Laundering Standards for Legal Professionals

Abstract: textRecent reforms in international anti-laundering regime install legal professionals as gatekeepers by requiring them to take certain due diligence measures and actively cooperate with the state. These requirements have generated controversy and varied compliance among states. The prevailing view in legal academia and profession is that compliance with these requirements is inversely related to the resilience of states’ domestic rule of law system. The article critiques this view: the gatekeeping controversy is a debate taking place among different traditions of rule of law, and not creeping-in from outside the bounds of rule of law. By tracing policy documents, prominent judicial decisions and records of activities of legal professional associations, the article shows that states’ divergent compliance is instead a function of (i) a split in the philosophical inclinations of judiciaries over how the legal profession serves the public interest, and (ii) a turf-war over the administration of the legal profession.