Showing papers on "Judicial opinion published in 2020"

Using machine learning to predict decisions of the European Court of Human Rights

Abstract: When courts started publishing judgements, big data analysis (i.e. large-scale statistical analysis of case law 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. We show, however, that predicting decisions for future cases based on the cases from the past negatively impacts performance (average accuracy range from 58 to 68%). Furthermore, we demonstrate that we can achieve a relatively high classification performance (average accuracy of 65%) when predicting outcomes based only on the surnames of the judges that try the case.

Arbitrary Decision-making and the Rule of Law : The Role of the Jurisdiction in Migrants’ Detention Proceedings – Between Discretion and Arbitrariness

Abstract: Many studies have highlighted a substantial "bureaucracy domination" in procedures relating to migrants’ access to territory. This form of domination is marked by highly discretionary and arbitrary practices, enacted by the administrative authorities of the state. Only minor attention, however, has been devoted to the arbitrariness of judicial decisions and to the judicial role in general in the numerous proceedings that increasingly affect the path of migrants. This path is the main object of this paper. The study focuses on Italian case law in expulsion and detention proceedings of irregular third country national citizens and asylum seekers and presents qualitative empirical research on decisions issued by the competent national authorities. The results have been analysed using a selection of theoretical tools, all referable to the general concept of the rule of law. The judicial decisions on pre-removal detention proceedings in two case studies are examined: the jurisprudence on detention of irregular migrants, in different offices of the Justice of the Peace in Italy; and the case law on detention of asylum seekers in the Ordinary Tribunal of Rome. The assumption underlying the research is that various conceptions of the rule of law may have different explanatory power when it comes to explaining the empirical results. To verify this hypothesis, the study proposes an overview of the main rule of law doctrines in the Western tradition of political and legal thought and applies the method of historical-conceptual analysis. As a result, the explanatory power of six theoretical models of the rule of law was verified against the data with the view to highlight the virtues and vices of the respective explanatory frameworks. This article reaches a two-fold conclusion. First, as far as the explanatory frameworks are concerned: the results of the two case studies cannot be fully explained by any of the models considered in this study. This fact alone casts doubts on the explanatory power of these theories and calls for further research on judicial decision-making more generally. Secondly, a key finding of the study regarding the notions of discretion and arbitrariness is that the judicial approach which assures the highest protection of rights is also the one that is most easily influenced by arbitrariness. The author argues that this paradox can be easily dissolved by paying attention to the plural dimensions of arbitrariness. If we consider arbitrariness from a legal point of view, i.e. as an illegal decision, it is unsurprising that the authority that most uses its discretionary powers is also the one most at risk of abusing these discretionary powers and hence of exercising arbitrary power. However, if we consider arbitrariness from the point of view of philosophical-political theory, i.e. as a form of domination characterised by the absence of sufficient justification, it is unsurprising that the judicial approach which assures the highest protection of rights is also the one that takes its own role as guarantor of these rights and of the constitutional democratic legal order as such most seriously. This judicial approach thus most often risks exercising its power in criticisable ways, as compared to an authority much more in line with the requirements of law enforcement agencies. Keywords: migration, discretion, justice, arbitrariness, civil rights, Rechtsstaat, expulsion, mixed constitution

Manna from Heaven for Judges: Judges’ Reaction to a Quasi‐Random Reduction in Caseload

Abstract: What is the impact of caseload on judicial decision making? Is increasing judicial staff effective in improving judicial services? To address these questions, we exploit a natural, near‐randomized experiment in the Israeli judiciary. In 2012, six senior registrars were appointed in two of the six magistrate's court districts. The choice of districts was motivated by reasons unrelated to judicial performance. In these two districts, the civil caseload per judge was substantially reduced. We find that the reduction had a significant impact on the process and outcomes of judicial decision making. Judges working in courts with reduced caseload invested more resources in resolving each case. The effect is mostly to the advantage of plaintiffs, who were more likely to win, recover a larger fraction of their claims, and be reimbursed for litigation costs. We discuss the implications for judicial management and theories about judicial decision making.

Global Developments in Laws on Induced Abortion: 2008-2019.

Abstract: Context Evidence shows that laws that restrict abortion do not eliminate its practice, but instead result in women having clandestine abortions, which are likely to be unsafe. It is important to periodically assess changes in the legal status of abortion around the world. Methods The criteria for legal abortion as of 2019 for 199 countries and territories were used to distribute them along a continuum of six mutually exclusive categories, from prohibited to permitted without restriction as to reason. The three most common additional legal grounds that fall outside of this continuum-rape, incest and fetal anomaly-were also quantified. Patterns by region and per capita gross national income were examined. Changes resulting from law reform and judicial decisions since 2008 were assessed, as were changes in policies and guidelines that affect access. Results Legality correlated positively with income: The proportions of countries in the two most-liberal categories rose uniformly with gross national income. From 2008 to 2019,27 countries expanded the number of legal grounds for abortion; of those, 21 advanced to another legality category, and six added at least one of the most common additional legal grounds. Reform resulted from a range of strategies, generally involving multiple stakeholders and calls for compliance with international human rights norms. Conclusions The global trend toward liberalization continued over the past decade; however, even greater progress is needed to guarantee all women's right to legal abortion and to ensure adequate access to safe services in all countries.

The Dilemma of Dissent: Split Judicial Decisions and Compliance With Judgments From the International Human Rights Judiciary:

Abstract: The mutual dependence between courts and their compliance constituencies is a fundamental feature of judicial power. Actors whose rights and interests are reinforced by court decisions may use thes...

Verdict Prediction for Indian Courts Using Bag of Words and Convolutional Neural Network

Abstract: All courts in India publish judgment by statistically analyzing the data of different cases and understanding the verdict from precedents judgments and the statute law. The approach of our study is to highlight the importance of Convolutional Neural Network (CNN) and Natural Language Processing (NLP) in the legal domain. The Bag of Words technique is being proposed i.e., one of the NLP tool to analyze the text of the court proceedings to extract the keywords from the text and CNN to classify each case into its charges (as per judicial law of India), to predict whether it is a bailable or a non-bailable offence and to give an approximate judicial decision. The results show that this method has an average accuracy of 85% in prediction based on the IPC (Indian Penal Code) which is extracted from the case files. This research work data is taken from the judicial pronouncement and the constitution of India.

The Problem of Data Bias in the Pool of Published U.S. Appellate Court Opinions

Abstract: For decades, researchers have studied the relationship between the political leanings of judges and the outcomes of appellate litigation in the United States. The primary source of data for this research has been published judicial opinions that describe cases and their outcomes. However, only a relatively small number of cases result in published opinions, and this sample of cases may be subject to serious biases. Based on computational text analysis of over 150,000 published opinions issued by federal appellate courts in the years 1970–2010, we find strong evidence of data bias based on relationships between the party affiliations of judges on appellate court panels and the characteristics of cases that result in published opinions. These relationships imply that the inferential model that underlies much of the judicial politics literature can lead to biased or spurious findings concerning the causal influence of judicial attributes on case outcomes.

The extraordinary autonomy of sports bodies under Swiss law: lessons to be drawn

Abstract: High-profile decisions of the sports governing bodies and subsequent judicial decisions of the Court of Arbitration for Sports (CAS) in Lausanne, the Swiss Federal Tribunal and, sometimes, the European Court of Human Rights frequently draw wide public attention to the fact that in litigations of the sports world, the decisions of the sports governing bodies will generally be upheld on court appeal. This is due to the extraordinary autonomy that sports governing bodies enjoy under Swiss law, deriving on the one hand from the liberal legislations in Switzerland governing associations and arbitration, and on the other hand, from their equally liberal application by the courts, especially in sports-related cases. While the high degree of self-regulation and arbitration in sports allowed the efficient handling of the increasingly complex activities of international sports and of the ever-rising cases of contention among its stakeholders, it is also necessary to point out the flaws of the resulting situation: for the governing bodies of international sports, self-regulation serves primarily the smooth organization of sports, while the specific interests of the subjects of their rules, in particular those of the lower level sports organizations and of athletes, are of secondary importance or may fall completely by the way-side. By contrast, state and international political and judiciary bodies must weigh the interests and rights of all parties involved when regulating relations or deciding in litigation between private parties, so as to ensure that the essential rights of the weaker parties are respected in all situations. This is a heavy responsibility for courts facing the bulk and the power of international sports governing bodies, foremost the Swiss Federal Tribunal, and to a certain extent also the Swiss legislator.

Executive Absolutism: A Model

Abstract: Separated powers cannot permanently constrain individual ambitions. Concerns about a government's ability to respond to contemporary and future crises, we show, invariably compromise the principled commitments one branch of government has in limiting the authority of another. We study a dynamic model in which a politician (most commonly an executive) makes authority claims that are subject to a hard constraint (administered, typically, by a court). At any period, the court is free to rule against the executive and thereby permanently halt her efforts to acquire more power. Because it appropriately cares about the executive's ability to address real-world disruptions, however, the court is always willing to affirm more authority. Neither robust electoral competition nor alternative characterizations of judicial rule fundamentally alters this state of affairs. The result, we show, is a persistent accumulation of executive authority.

Judicial decisions, intellectual virtues and the division of labour:

Abstract: In this paper I argue that, given that one epistemic goal of judicial decision-making is to reach reasonably plausible decisions, the divisions of epistemic and cognitive labour help processes of j...

Communicating Dissent in Judicial Opinions: A Comparative, Genre-Based Analysis

Abstract: To date, there has been surprisingly little research on separate opinions in legal linguistics literature. Scarce attention has been paid to the linguistic and communicative aspects of how judges frame their disagreements. This paper serves as one of the early attempts to examine the institution of votum separatum, or separate opinion, from a comparative, cross-language perspective using a linguistic methodology. The evidence indicates a clear similarity in terms of how separate opinions are integrated within the respective macrostructures of the US SC opinions and the Constitutional Tribunal judgments. This study demonstrates how judges tend to employ highly formulaic expressions to signal their disagreement despite the absence of clear guidelines to communicate such stances. The analysis of their frequent phraseology demonstrates that declaring votum separatum and providing its justification are two different acts, not only legally but also linguistically, especially in terms of their formulaicity. The Polish and American justifications differ in the degree to which the frequent phraseology reveals peculiarities of judicial argumentation in addition to the presence of strong evaluative concerns.

The President and the Supreme Court: Going Public on Judicial Decisions from Washington to Trump

Abstract: When presidents take positions on pending Supreme Court cases or criticize the Court's decisions, they are susceptible to being attacked for acting as bullies and violating the norm of judicial independence. Why then do presidents target Supreme Court decisions in their public appeals? In this book, Paul M. Collins, Jr and Matthew Eshbaugh-Soha argue that presidents discuss the Court's decisions to demonstrate their responsiveness to important matters of public policy and to steer the implementation of the Court's decisions. Using data from Washington to Trump, they show that, far from being bullies, presidents discuss cases to promote their re-election, policy goals, and historical legacies, while attempting to affect the impact of Court decisions on the bureaucracy, Congress, the media, and the public.

COVID-19, the Shadow Pandemic, and Access to Justice for Survivors of Domestic Violence

Abstract: The COVID-19 pandemic has co-existed alongside a far less visible "shadow pandemic" of violence against women, with COVID-19 impacting the number and complexity of domestic violence cases and enabling new tactics for coercive control This article provides a preliminary assessment of the extent to which Canada's responses to the COVID-19 pandemic have prioritized the safety of women and children, with a focus on the courts and women's access to justice We examine court directives and judicial decisions triaging which cases would be heard as "urgent," as well as courts' decisions on the merits in cases involving domestic violence and COVID-19, spanning the areas of family, child welfare, criminal law, and civil protection orders In the sixty-seven reported decisions in our sample, we find very little awareness overall of the heightened risks for survivors during COVID-19, in keeping with the pre-pandemic tendency of decision makers to focus on incident-based physical violence instead of patterns of coercive control Our analysis also suggests that survivors' ability to prove domestic violence and secure court orders that would help to ensure their safety was hampered not only by procedural complexity but also by the reduced availability of a range of services-health, counselling, housing, and supervised access centres, for example-as a result of COVID-19 The cases further reveal significant differences in judicial interpretation of the risks of COVID-19 relative to the risks of domestic violence, often depending on the area of law in question This again aligns with observations of the judicial treatment of domestic violence prior to the COVID-19 pandemic, with different and sometimes conflicting norms and assumptions prevailing in different legal contexts We conclude that despite some positive government responses and judicial decisions, COVID-19 has further exposed many of the gaps in knowledge about domestic violence and in the supports and resources necessary to make women and children safe that long pre-dated COVID-19 In addressing the ongoing pandemic of violence against women, we offer some suggestions of measures to improve access to justice during this and future disasters

Justification of Judicial Decisions from a Normativist and Inferentialist Approach

Abstract: The aim of this work is to analyse the notion of justification of judicial decisions. In a nutshell, the analysis is carried out in two directions: firstly, criticising the notion of justification of the deductive model –i.e. one of the most well-accepted theoretical models about judicial decisions; and secondly, proposing a new notion of justification, that has better theoretical performance. The main argument begins by making the deductive model explicit. The argument continues with Juan Carlos Bayón’s objection to the deductive model. Bayón argues that this model is implicitly committed to a conception of rules and the application of rules that is afflicted by the rulefollowing paradox. The argument then shows that this paradox, in its most threatening version, contains two other problems that Bayón did not consider. The argument is further developed by specifying a conception of rules and the application of rules, that is in keeping with WittgensteinBrandom’s normativist and inferentialist theoretical project, which in itself avoids these philosophical problems associated with this paradox. Finally, this article concludes by proposing a meta-theoretical criterion of justification, based on the avoidance of those problems, which is more rigorous and appropriate to be used in theories about judicial decision practices.

The Hidden Inconsistencies Introduced by Predictive Algorithms in Judicial Decision Making

Abstract: Algorithms, from simple automation to machine learning, have been introduced into judicial contexts to ostensibly increase the consistency and efficiency of legal decision making. In this paper, we describe four types of inconsistencies introduced by risk prediction algorithms. These inconsistencies threaten to violate the principle of treating similar cases similarly and often arise from the need to operationalize legal concepts and human behavior into specific measures that enable the building and evaluation of predictive algorithms. These inconsistencies, however, are likely to be hidden from their end-users: judges, parole officers, lawyers, and other decision-makers. We describe the inconsistencies, their sources, and propose various possible indicators and solutions. We also consider the issue of inconsistencies due to the use of algorithms in light of current trends towards more autonomous algorithms and less human-understandable behavioral big data. We conclude by discussing judges and lawyers' duties of technological ("algorithmic") competence and call for greater alignment between the evaluation of predictive algorithms and corresponding judicial goals.

The Value of Behavioral Economics for EU Judicial Decision-Making

Abstract: This Article analyzes the value of behavioral economics for EU judicial decision-making. The first part introduces the foundations of behavioral economics by focusing on cognitive illusions, prospect theory, and the underlying distinction between different processes of thought. The second part examines the influence of selected biases and heuristics, namely the anchoring effect, availability bias, zero-risk bias, and hindsight bias on diverse legal issues in EU law including, among others, the scope of the fundamental freedoms, the proportionality test as well as the roles of the Advocate General and Reporting Judge. The Article outlines how behavioral economic findings can be taken into account to improve judicial decision-making. Accordingly, the adaptation of judicial training concerning cognitive illusions, the establishment of a de minimis rule regarding the scope of the fundamental freedoms, and the use of economic models when determining the impact of certain measures on fundamental freedoms is suggested. Finally, an “unbiased jury” concentrating exclusively on specific factual issues such as causal connections within the proportionality test is necessary, if the hindsight bias is to be avoided. While it is of great importance to take behavioral economic findings into account, judicial decision-making is unlikely to become flawless based on natural intelligence. Despite bearing fundamental risks, artificial intelligence may provide means to achieve greater fairness, consistency, and legal certainty in the future.

Extracting Outcomes from Appellate Decisions in US State Courts.

Abstract: Predicting the outcome of a legal process has recently gained considerable research attention. Numerous attempts have been made to predict the exact outcome, judgment, charge, and fines of a case given the textual description of its facts and metadata. However, most of the effort has been focused on Chinese and European law, for which there exist annotated datasets. In this paper, we introduce CASELAW4 — a new dataset of 350k common law judicial decisions from the U.S. Caselaw Access Project, of which 250k have been automatically annotated with binary outcome labels of AFFIRM or REVERSE by our hybrid learning system. To our knowledge, it is the first attempt to perform outcome extraction (a) on such a large volume of English-language judicial opinions, (b) on the Caselaw Access Project data, and (c) on US State Courts of Appeal cases, and it paves the way to large-scale outcome prediction and advanced legal analytics using U.S. Case Law. We set up baseline results for the outcome extraction task on the new dataset, achieving an F-measure of 82.32%.

Group-to-individual (G2i) inferences: challenges in modeling how the U.S. court system uses brain data

Abstract: Regardless of formalization used, one on-going challenge for AI systems that model legal proceedings is accounting for contextual issues, particularly where judicial decisions are made in criminal cases. The law assumes a rational approach to rule application in deciding a defendant’s guilt; however, judges and juries can behave irrationally. What should a model prize: efficiency, accuracy, or fairness? Exactly whether and how to incorporate the psychology of courtroom interactions into formal models or expert systems has only just begun to be examined in a serious fashion. Here, I outline data from the United States which suggest that trying to incorporate psychological biases into formal models of legal decision-making will be challenging. I focus on the use of neuroscience data in criminal trials, homing in on so-called group-to-individual (G2i) inferences. I argue that data which should be the most effective at swaying judicial decisions are in fact those most likely not to make a difference in the disposition of the case. I conclude that judges often assign culpability by ignoring what our best science regarding how human decision-making occurs.

Firearm Removal, Judicial Decision-Making, and Domestic Violence Protection Orders

Abstract: Firearms in situations of domestic violence (DV) are particularly lethal. Although firearms present a public health concern nationally, some states, such as Arizona, have especially high rates of i...

Artificially Intelligent Persons

Abstract: Artificial Intelligence (AI) entities seriously challenge traditional legal frameworks for attribution and liability because they operate at an increasing distance from their developers and owners, resulting in accountability gaps. Consider a scenario in which a self-driving car causes injury or even death to a human. Who do we hold accountable? We have no clear answer as to who can be sued or prosecuted because we lack a comprehensive legal understanding of AI entities. Many scholars propose as a solution to the accountability problem attaching liability to the direct source of the harm, the AI entity itself, by first granting it legal personhood. But the law has yet to answer the question of whether AI entities qualify for legal personhood and, if so, on what legal basis. This article is the first to empirically assess the scope of legal personhood as it relates to AI entities, and to answer this question. I make two claims about the problem of legal personhood for AI. First, I argue that the courts’ overall approach to legal personhood has been more disparate than many have assumed, and it does not support legal personhood for AI entities. To substantiate this position, I analyze the legal basis for judicial decisions conferring legal personhood on artificial entities across U.S. courts from 1809 to the present, and I offer a statistical analysis of the frequency with which different conditions for legal personhood appear in these decisions. I find a clear dissonance between legal doctrine and existing theory on legal personhood for AI entities. Second, I argue that empirically understanding the legal landscape for legal personhood prevents courts from conferring legal personhood on AI entities, and should give legislators pause before doing so. If courts and legislators consider the conditions for legal personhood that this article identifies in answering questions of liability for AI entities, they will discover the incompatibility between legal personhood and these entities. Without recognition of this incompatibility, theory, policy, and litigation surrounding AI entities could move in a direction that undermines legal certainty and upsets legal expectation.

From the rule of law to statue drafting: legal issues for algorithms in government decision-making

Abstract: Governments are increasingly relying on algorithms to automate decision-making in diverse areas, including social welfare, criminal justice, healthcare, law enforcement and national security. This chapter sketches the way in which algorithms are or may be used across the spectrum of government decision making — from the drafting of legislation, to judicial decision making, to the implementation of laws by the executive branch. Then, based on scholarship in the field and our own empirical, doctrinal and theoretical work, the chapter examines the rule of law values affected by automated government decision making systems and the legal and practical issues that the implementation and supervision of such systems may pose in practice.

Sustainable Civil Justice through Open Enforcement: The Ukrainian Experience

Abstract: Ukraine, which is a member of the Council of Europe and is firmly on the path to European integration, develops legislation and legal doctrine with the aim of the implementing European standards. The Association Agreement signed in 2014 set out to put into effect, in particular, the approximation of legislation, the strengthening of judicial cooperation etc. The comprehensive reforms taking place cover various areas of legal regulation, specifically, legal proceedings and the enforcement of judgments. This new legislation in the field of the judicial system was approved in Ukraine in 2015-2017. The low level of trust in the judiciary, inside as well as outside of Ukraine, causes economical relations to suffer increasingly. It impacts inter alia the circulation of judicial decisions between EU Member States and Ukraine, which is not unencumbered by this and may be described as uncertain at best. Regarding all of these, the first part of this paper is about the goal of civil justice definition and defining the enforcement part throughout the process of judicial rights protection in Ukraine. In the second part we are investigating the transitional issues of the creation of an open enforcement system in Ukraine, the challenges and ways to resolve them within the most current trends of sustainable development and inclusive justice. In the conclusion, some theoretical approaches are criticized due to the lack of attention to the very ideas of sustainable justice and a peaceful and strong institutions promotion, which elude the attention of the legislators. The way of its fruition of an open and peaceful judicial enforcement creation through proper goal definition were proposed.

Concepts not Nomenclature: Universal Injunctions, Declaratory Judgments, Opinions, and Precedent

Abstract: Battle lines are drawn on the permissibility and validity of injunctions in federal constitutional litigation purporting to halt government enforcement of a challenged law against all possible targets of that law and to protect all rights holders against enforcement. Courts, members of the Supreme Court, and legal scholars are divided — some supporting and others rejecting them as impermissible.; I have staked my position in the latter camp. From that starting point, this paper considers three subsidiary issues: 1) the proper label for these injunctions, arguing that “universal” or “non-particularized” is a more accurate term than the prevailing “nationwide”; 2) how universality applies to the related constitutional remedy of declaratory judgments; and 3) the distinction between court judgments and judicial opinions, where supporters of universal injunctions err in giving a judgment the prospective legal effects and consequences of an opinion. The paper suggests that the debate over the scope of injunctions is an unfortunate and unnecessary distraction, because no one takes universality literally or seriously.

Professional Judgement about Reoffending: Factorial survey

Abstract: SummarySocial workers in criminal justice provide reports to courts, including assessments of the likelihood of re-offending, which are used to assist in judicial decisions. This study used a facto...

Rome and Roman law in English antislavery literature and judicial decisions

Abstract: The abolition of slavery by modern states was an important step towards the recognition of what is now known as human rights. The British Empire and its cradle, England, were the leading entities responsible for the support of the international trade slave. For this reason, its antislavery movement is one which deserves particular attention. The argumentation used by the abolitionists has been a subject of many studies. Philosophical, theological or commercial arguments against slavery are well researched. It needs to be emphasised, however, that abolition was a legal step. In this context, it is interesting to seek legal argumentation against the enslavement of people. It is obvious that an appropriate reasoning would be difficult to find. Slavery has been a common social institution since ancient times. The universal principles of Roman law, as well as the significance of Roman civilisation for the development of the Western culture, made it one obvious field of research. The main aim of this article is to check if reference to Roman antiquity has been one of the crucial arguments in the antislavery struggle in Britain.

Contemporary issues regarding member state liability for infringements of eu law by national courts

Abstract: The objective of the paper is the analysis of the development of the concept of liability of Member States of the European union for infringements of EU law committed by national courts of last instance. Focus is placed on the improvements in the Court of Justice of the European union’s (CJEU) case-law which have been made on the subject in the almost 25 years since its landmark judgment in the joined cases of Brasserie du Pecheur and Factortame, where it was firstly explicitly stated that a Member State may be held liable for damage arising even from decisions of the judiciary. Balancing on the thin line between the doctrine of judicial independence and the need for compensation of damages suffered by a judicial breach has always been an uncomfortable and arduous legal task, which is why the CJEU occasionally undertook to clarify and improve its position on the topic during the twenty first century. Even though serious advancement towards satisfying both of the aforementioned notions have been carried out by the CJEU in almost a quarter of a century since the Brasserie judgment, many legal predicaments and insufficiently answered questions which may arise in modern cases still remain present. The paper in its introductory part addresses the impact of the Francovich and Brasserie judgments which are considered landmark rulings in the area of Member State liability. In the central part, it demonstrates the more in-depth standpoint of the CJEU in the area of Member State liability for infringements committed within judicial decisions that firstly appeared in the CJEU’s Kobler judgment. Furthermore, it depicts how the CJEU further interpreted the criteria required for Member State liability for infringements of EU law by national courts to arise. The focal point of the paper deals with the most recent case-law of the CJEU that demonstrates how it attempts to tackle the issues around Member State liability in contemporary times. Since not everyone seems to be in full agreement with the current Member State liability arrangements in that regard, certain disagreements of legal scholarship with the CJEU’s latest solutions are also discussed. Finally, as a conclusion, a step-by-step demonstration of the obstacles which injured persons face in an action for damages suffered by a breach of EU law caused by a judicial decision of a national court of last instance is provided, and suggestions for future improvements and developments in this legal area are also pointed out.