Showing papers on "Judicial opinion published in 2021"

Preserving the rule of law in the era of artificial intelligence (AI)

Abstract: The study of law and information technology comes with an inherent contradiction in that while technology develops rapidly and embraces notions such as internationalization and globalization, traditional law, for the most part, can be slow to react to technological developments and is also predominantly confined to national borders. However, the notion of the rule of law defies the phenomenon of law being bound to national borders and enjoys global recognition. However, a serious threat to the rule of law is looming in the form of an assault by technological developments within artificial intelligence (AI). As large strides are made in the academic discipline of AI, this technology is starting to make its way into digital decision-making systems and is in effect replacing human decision-makers. A prime example of this development is the use of AI to assist judges in making judicial decisions. However, in many circumstances this technology is a ‘black box’ due mainly to its complexity but also because it is protected by law. This lack of transparency and the diminished ability to understand the operation of these systems increasingly being used by the structures of governance is challenging traditional notions underpinning the rule of law. This is especially so in relation to concepts especially associated with the rule of law, such as transparency, fairness and explainability. This article examines the technology of AI in relation to the rule of law, highlighting the rule of law as a mechanism for human flourishing. It investigates the extent to which the rule of law is being diminished as AI is becoming entrenched within society and questions the extent to which it can survive in the technocratic society.

Judicial Decision-Making, Ideology and the Political: Towards an Agonistic Theory of Adjudication

Abstract: The present paper puts forward a first outline of a possible agonistic theory of adjudication, conceived of as an extension of Chantal Mouffe’s agonistic theory of democracy onto the domain of the juridical, and specifically, judicial decision-making. Mouffe’s concept of the political as the dimension of inherent and unalienable conflicts (antagonisms) which, nonetheless, need to be tamed for a pluralist democracy to function, creates an excellent vantage point for a critical theory of adjudication. The paper argues for perceiving all judicial decisions as having a double nature—juridical and political. Cloaked in legal form, judgments nonetheless decide on individual instances of on-going collective conflicts, opposing workers to employers, consumers to traders, tenants to landlords, moral progressives to traditionalists, minorities to majorities and so forth. Judges, when handing down judgments, enjoy a ‘relative sovereignty’, being always already inscribed into the institutional imperatives of the juridical, on one hand, and ideological influences, on the other, but at the same time called upon to decide in the terrain of the undecidable and contingent (after all, law does not ‘apply itself’ on its own). Indeed the determinacy of legal decisions is only relative: in many cases judges can, by performing a sufficient amount of legal interpretive work, reach a conclusion which will be different from the prima facie interpretation. The collective conflicts of a various nature (economic, ideological, socio-political), once they are juridified, become the object of judicial decisions which, in light of Mouffe’s theory, can be seen as temporary hegemonic fixations. The goal of critical legal scholarship is to destabilise such hegemonies in the name of justice. This can be done not only through an external critique of the law, but also through an internal one. The methodological approach advanced in the latter part of the paper emphasises the need for a critique of judicial decisions based on the consideration of all possible alternative decisions a court could have reached, and their evaluation in the light of conflicting interests and ideologies.

Jobs for justice(s): Corruption in the Supreme Court of India

Abstract: We investigate whether judicial decisions are affected by career concerns of judges by analysing two questions: Do judges respond to pandering incentives by ruling in favour of the government in the hope of receiving jobs after retiring from the Court? Does the government actually reward judges who ruled in its favour with prestigious jobs? To answer these questions we construct a dataset of all Supreme Court of India cases involving the government from 1999 till 2014, with an indicator for whether the decision was in its favour or not We find that pandering incentives have a causal effect on judicial decision-making The exposure of a judge to pandering incentives in a case is jointly determined by 1) whether the case is politically salient (exogenously determined by a system of random allocation of cases) and 2) whether the judge retires with enough time left in a government’s term to be rewarded with a prestigious job (date of retirement is exogenously determined by law to be their 65th birthday) We find that pandering occurs through through the more active channel of writing favourable judgements rather than passively being on a bench that decides a case in favour of the government Furthermore, we find that deciding in favour of the government is positively associated with both the likelihood and the speed with which judges are appointed to prestigious post-Supreme Court jobs These findings suggest the presence of corruption in the form government influence over judicial decision-making that seriously undermines judicial independence

Judging parental competence: A cross-country analysis of judicial decision makers' written assessment of mothers' parenting capacities in newborn removal cases

Abstract: This paper examines the discretionary reasoning of the judiciary in three jurisdictions, England, Germany and Norway, in cases deciding whether a newborn child is safe with her parents or intervention is necessary. Our analysis focuses on one specific dimension of decision makers' exercise of discretion, namely, if and how the strengths and weaknesses of the mother are considered. The data material consists of all decisions concerning care orders of newborns from one large city in Germany from 2015 to 2017 (n= 27) and 2016 in Norway (n= 76) and all publicly available newborn removal decisions in England for 2015–2017 (n= 14). The findings reveal a high number of risk factors in the cases and less focus on risk-reducing factors. The situation of the newborn is considered to be harmful, as most cases result in a care order. Judicial discretion differs by how much information, and what types of factors, are included in the justification for the decision. A learning point for decision makers and policymakers would be to actively undertake a balancing act between risk-increasing and risk-reducing factors.

Company Law - A Real Entity Theory

Abstract: This book advances an entity theory of company law. It builds on the insight that organizations or firms are autonomous actors in their own right. They are more than the sum of the contributions of their participants. They also act independently of the views and interests of their participants. This occurs because human beings change their behavior when they act as members of a group or an organization. In a group we tend to develop and conform to a shared standard. When we act in organizations routines and procedures form and a culture emerges. These over time take on a life of their own affecting the behavior of the participants. Participants can themselves affect organizational behavior and modify routines, procedures and culture but this takes time and effort. Organizations are a social phenomenon outside of company law. Company law finds this phenomenon and provides it with a legal structure. It makes available legal personality and a procedural framework facilitating corporate decision making and corporate acting. Company law evolves with a view to supporting autonomous action through organizations. It will be shown in this book that a framework that conceives companies as vehicles for autonomous organizational entities that are characterized by their routines, procedures and culture explains the law as it stands at a positive level. The framework also helps to formulate normative recommendations guiding law reform and judicial decision making. An entity approach is sometimes associated with a normative argument advocating for more influence for stakeholders such as employees. This book does not take a position on the normative question whether stakeholders should have more influence than they currently have. The thesis of this book holds irrespective of how the law fine-tunes the influence over corporate decision making.

When Issue Salience Affects Adjudication: Evidence from Swiss Asylum Appeal Decisions

Abstract: Immigration is a top concern among citizens across the globe. Research shows that the salience of immigration shapes voters' political behavior, but little is known about whether it influences judicial behavior. This article theorizes that variation in issue salience influences judges' behavior when there is a clear connection between the legal and a generally salient, politicized issue. I test this argument drawing on all Swiss asylum appeal decisions reached between 2007 and 2015. I find that higher asylum salience leads judges to decide otherwise similar asylum appeals less favorably. This effect is not restricted to judges affiliated with anti-immigrant parties, unlikely to be driven by accountability pressures, and strongest for those topics known to drive anti-immigrant sentiment in the general public. Together, these findings raise concerns that issue salience threatens the consistency of judicial decisions.

On the relevance of algorithmic decision predictors for judicial decision making

Abstract: In this article, we discuss case decision predictors, algorithms which, given some features of a legal case predict the outcome of the case (i.e. the decision of the judge). We discuss whether, and if so how, such prediction algorithms can be used to support judges in their decision making process. We conclude that case decision predictors can only be useful in individual cases if they can give legal justifications for their predictions, and that only these legal justifications are what should matter for a judge.

The Powerful Problem of Prayer at Public School Board Meetings

Abstract: Public school board meeting prayer cases are intensely divisive and difficult. The federal circuit courts have struggled mightily with these Establishment Clause cases, and this struggle has resulted in a circuit split regarding these prayers’ constitutionality. At the core of this unresolved split is whether these cases are governed by the Supreme Court’s seventy-five-year school prayer jurisprudence or by its narrow Marsh-Town of Greece legislative prayer exception. This Article analyzes how these divergent decisions and the continued crafting of invocation policies by public school boards in the vacuum of direct Supreme Court guidance exemplify the complex constitutional issues that arise in all school law First Amendment cases. It then argues that public school board meeting prayers are a violation of the Establishment Clause because they are coercive, polarizing prayers that run contrary to the core of this religion clause of the First Amendment. They cannot be cured as constitutional violations by claiming that they are subject to the legislative prayer exception, by asserting that they are private student speech, by requiring students to absent themselves during their delivery, or by arguing that they are de minimis encroachments. Consequently, these prayers require invalidation as they infringe upon the conscientious liberties of the schoolchildren who are most impacted by this state-sponsored religious speech; they allow the state to transverse the boundaries of religious sanctity; and they give rise to majoritarian governmental orthodoxy. These are Establishment Clause violations, and principled judicial decision making from all federal courts, including the Supreme Court, is needed to end these significant constitutional abuses.

International Investment Law and Arbitration: Commentary, Awards and other Materials

Abstract: International investment law and arbitration is a rapidly evolving field, and can be difficult for students to acquire a firm understanding of, given the considerable number of published awards and legal writings. The first edition of this text, cited by courts in Singapore and Colombia, overcame this challenge by interweaving extracts from these arbitral decisions, treaties and scholarly works with concise, up-to-date and reliable commentary. Now fully updated and with a new chapter on arbitrators, the second edition retains this practical structure along with the carefully curated end-of-chapter questions and readings. The authors consider the new chapter an essential revision to the text, and a discussion which is indispensable to understanding the present calls for reform of investment arbitration. The coverage of the book has also been expanded, with the inclusion of over sixty new awards and judicial decisions, comprising both recent and well-established jurisprudence. This textbook will appeal to graduates studying international investment law and international arbitration, as well as being of interest to practitioners in this area.

Sustaining Cultural Genocide—A Look at Indigenous Children in Non-Indigenous Placement and the Place of Judicial Decision Making—A Canadian Example

Abstract: The Truth and Reconciliation Commission has called upon Canada to engage in a process of reconciliation with the Indigenous peoples of Canada. Child Welfare is a specific focus of their Calls to Action. In this article, we look at the methods in which discontinuing colonization means challenging legal precedents as well as the types of evidence presented. A prime example is the ongoing deference to the Supreme Court of Canada decision in Racine v Woods which imposes Euro-centric understandings of attachment theory, which is further entrenched through the neurobiological view of raising children. There are competing forces observed in the Ontario decision on the Sixties Scoop, Brown v Canada, which has detailed the harm inflicted when colonial focused assimilation is at the heart of child welfare practice. The carillon of change is also heard in a series of decisions from the Canadian Human Rights Tribunal in response to complaints from the First Nations Child and Family Caring Society of Canada and the Assembly of First Nations regarding systemic bias in child welfare services for First Nations children living on reserves. Canadian federal legislation Bill C-92, “An Act respecting First Nations, Inuit and Metis children, youth and families”, brings in other possible avenues of change. We offer thoughts on manners decolonization might be approached while emphasizing that there is no pan-Indigenous solution. This article has implications for other former colonial countries and their child protection systems.

Bench over Ballot: The Fight for Judicial Supremacy and the New Constitutional Politics, 1910–1916

Abstract: The nature of American constitutional politics was forever changed during the Progressive Era. In the nineteenth century, the process of constitutional interpretation was a vague and decentralized enterprise balanced between the courts and the public square. The meaning of the Constitution was decided as much at the polls or on the battlefield as in court opinions. This balance started to give way at the turn of the century as federal courts began asserting greater authority in the definition of constitutional bounds. “Bench over Ballot” illustrates how the assertion of judicial supremacy in the Progressive Era precipitated a fight that upended the traditional dynamic of American politics. Populist-progressives championed the people's ultimate right to correct judicial decisions while traditionalist-conservatives stood for judicial supremacy to ensure a “government of laws.” The outcome of the political battle in 1912 was a consensus between Wilsonian progressives and Taftian conservatives in favor of judicial supremacy that banished the notion of popular supremacy and transformed the nature of constitutional politics from a popular, decentralized process to a vicious battle over the personal composition of the bench—a phenomenon deeply familiar over a century later.

Path dependence in administrative adjudication: the role played by legal tradition

Abstract: Based on the theory of path dependence, we show that legal tradition affects the administrative court’s rulings. It also complements the two other reasons for diversified verdicts: the experience of the judges and courts (specialization) and preference (bias) for one of the parties. This effect is persistent even if the verdicts are controversial and result in serious consequences for a party and when the penalty paid by the complainant is perceived as excessive but fulfilling the strict rules of law. We prove that judicial decision making is a function of path dependency stemming from a legal tradition of the court. To confirm this, logistic regression is applied to a sample of 337 erroneous excise duty documentation cases of heating oil sales from all sixteen provincial administrative courts in Poland. Increasing the specialization of judges and having them exchange experiences may be a remedy for the unjustified adjudication differences.

The effectiveness of the Bern Convention on wildlife legislation and judicial decisions in Turkey

Abstract: The Bern Convention aims to conserve wild flora and fauna and their natural habitats, especially those species and habitats whose conservation requires the cooperation of several states. Turkey became a party to the convention in 1984 and therefore made it binding in terms of domestic law. It was sought to answer the question of how effective the Bern Convention was in Turkish legislation and judicial decisions. For that purpose, first, comparison of the provisions of the Bern Convention with Turkish legislation is carried out by using a four-point scoring chart, and second, the effect of the convention on the judicial decisions was examined by considering whether the Bern Convention was clearly referred in the relevant judicial decisions—47 Council of State decisions were analyzed from 1984 to 2019. It is observed an improvement in Turkish wildlife legislation increased from 17 to 74% per the Bern Convention’s goals and objectives. The proportion of judicial decisions referred to the Bern Convention, which resulted in a positive ecological decision was 87.5%. Decisions that do not refer to the Bern Convention were 66% positive. A comprehensive evaluation of both judicial decisions and legislative analysis showed that there are many deficiencies, especially in terms of migratory species and interstate coordination. To improve judicial decisions, courts should be subjected to mandated capacity-building training/workshops concerning international conventions.

The Supreme Court's Two Constitutions: A First Look at the "Reverse Polarity" Cases

Abstract: In the traditional approach to ideological classification, “liberal” judicial decisions are those that support civil liberties claims; “conservative” decisions are those that reject them. That view – particularly associated with the Warren Court era – is reflected in numerous academic writings and even an article by a prominent liberal judge. Today, however, there is mounting evidence that the traditional assumptions about the liberal-conservative divide are incorrect or at best incomplete. In at least some areas of constitutional law, the traditional characterizations have been reversed. Across a wide variety of constitutional issues, support for claims under the Bill of Rights or the Reconstruction Amendments is now regarded as the conservative position. This article presents the first comprehensive examination of this phenomenon; it also supplies a label – “reverse polarity.” Relying on a case classification system designed to promote transparency, the article provides a detailed taxonomy of reverse polarity issues. Three are defined by provisions of the Bill of Rights (the Second Amendment, the Takings Clause, and the Free Exercise Clause), the others by lines of precedent, primarily involving freedom of expression. The article also discusses other constitutional issues that may be evolving in the direction of reverse polarity. Beyond taxonomy, the article explores three ways of looking at reverse polarity. It considers reverse polarity liberalism as a throwback to the Progressive Era and as an embrace of Justice Felix Frankfurter’s vision of judicial self-restraint. It examines reverse polarity conservatism as an application of the theory of judicial review associated with Justice Stone’s famous Footnote Four in United States v. Carolene Products Co. More broadly, the article calls attention to an unusual feature of the Roberts Court: conservative as well as liberal Justices support “a generous or expansive interpretation of the Bill of Rights” – but in different cases. It is almost as though each group of Justices has found its own copy of the Constitution, with some rights printed in boldface and italics and others grayed out and indistinct on the page.

Case-level prediction of motion outcomes in civil litigation

Abstract: Lawyers regularly predict court outcomes to make strategic decisions, including when, if at all, to sue or settle, what to argue, and how to reduce their clients' liability risk. Yet, lawyer predictions tend to be poorly calibrated and biased, which exacerbate unjustifiable disparities in civil case outcomes. Current machine learning (ML) approaches for predicting court outcomes are typically constrained to final dispositions or are based on features unavailable in real-time during litigation, like judicial opinions. Here, we present the first ML-based methods to support lawyer and client decision making in real-time for motion filings in civil proceedings. Using the State of Connecticut Judicial Branch administrative data and court case documents, we trained six classifiers to predict motion to strike outcomes in tort and vehicular cases between July 1, 2004 and February 18, 2019. Integrating dense word embeddings from complaint documents, which contain information specific to the claims alleged, with the Judicial Branch data improved classification accuracy across all models. Subsequent models defined using a novel attorney case-entropy feature, dense word embeddings using corpus specific TF-IDF weightings, and algorithmic classification rules yielded the best predictor, Adaboost, with a classification accuracy of 64.4%. An analysis of feature importance weights confirmed the usefulness of incorporating attorney case-entropy and natural language features from complaint documents. Since all features used in model training are available during litigation, these methods will help lawyers make better predictions than they otherwise could given disparities in lawyer and client resources. All ML models, training code, and evaluation scripts are available at https://github.com/aguiarlab/motionpredict.

Smart Courts and Governance in the PRC

Abstract: The digitalisation and automation of the judiciary, also known as judicial informatisation, (司法信息化) has been ongoing for two decades in China. The latest development is the emergence of “smart courts” (智慧法院), which are part of the Chinese party-state’s efforts to reform and modernise its governance capacity. These are legal courts where the judicial process is fully conducted digitally, and judicial officers make use of technological applications sustained by algorithms and big-data analytics. The end-goal is to create a judicial decision-making process that is fully conducted in an online judicial ecosystem where the majority of tasks are automated and opportunities for human discretion or interference are minimal. This article asks how the automation and digitalisation of judicial processes might influence judicial discretion and procedural flexibility? To answer this question, this article uses a dataset of primary documentary sources, namely the 2020 Annual Report on Informatisation of Courts, which contains numerous case-studies of automation and digitalisation initiatives by different courts undertaken as part of the ‘building smart courts’ policy. This is supplemented with judicial opinions and other official documents, secondary, and grey literature. The article argues that automation and digitalisation play a significant role in the centralisation of judicial power and increasing control and supervision over China’s courts. It aims to make courts more efficient and effective governance institutions by making judges more procedurally compliant and increasing the supervision over their work. In this sense, courts’ widespread embrace of artificial intelligence and machine learning technologies is part of a broader movement in the PRC towards algorithmic governance, permeated by a firm belief in the power of technology and distrust of human discretion.

Construction Disputes and Associated Contractual Knowledge Discovery Using Unstructured Text-Heavy Data: Legal Cases in the United Kingdom

Abstract: Construction disputes are one of the main challenges to successful construction projects. Most construction parties experience claims—and even worse, disputes—which are costly and time-consuming to resolve. Lessons learned from past failure cases can help reduce potential future risk factors that likely lead to disputes. In particular, case law, which has been accumulated from the past, is valuable information, providing useful insights to prepare for future disputes. However, few efforts have been made to discover legal knowledge using a large scale of case laws in the construction field. The aim of this paper is to enhance understanding of the multifaceted legal issues surrounding construction adjudication using large amounts of accumulated construction legal cases. This goal is achieved by exploring dispute-related contract terms and conditions that affect judicial decisions based on their verdicts. This study builds on text mining methods to examine what type of contract conditions are frequently referenced in the final decision of each dispute. Various text mining techniques are leveraged for knowledge discovery (i.e., analyzing frequent terms, discovering pairwise correlations, and identifying potential topics) in text-heavy data. The findings show that (1) similar patterns of disputes have occurred repeatedly in construction-related legal cases and (2) the discovered dispute topics indicate that mutually agreed upon contract terms and conditions are import in dispute resolution.

Improving the Credibility of Empirical Legal Research: Practical Suggestions for Researchers, Journals and Law Schools

Abstract: Fields closely related to empirical legal research (ELR) are enhancing their methods to improve the credibility of their findings. This includes making data, analysis codes and other materials openly available on digital repositories and preregistering studies. There are numerous benefits to these practices, such as research being easier to find and access through digital research methods. However, ELR appears to be lagging cognate fields. This may be partly due to a lack of field-specific meta-research and guidance. We sought to fill that gap by first evaluating credibility indicators in ELR, including a review of guidelines for legal journals. This review finds considerable room for improvement in how law journals regulate ELR. The remainder of the article provides practical guidance for the field. We start with general recommendations for empirical legal researchers and then turn to recommendations aimed at three commonly used empirical legal methods: content analyses of judicial decisions, surveys and qualitative studies. We end with suggestions for journals and law schools.

The educational competence of the European Court of Human Rights: judicial pedagogies of religious symbols in classrooms

Abstract: The courts’ role in educational disputes is much researched, but while the legal and socio-political implications of judicial decisions are often scrutinised, judges’ pedagogical assumptions have g...

The UNIDROIT Principles as a Common Frame of Reference for the Uniform Interpretation of National Laws

Abstract: The preamble to the UNIDROIT Principles on International Commercial Contracts (otherwise referred to as “UPICC”, “PICC”, “UNIDROIT Principles” or simply the “Principles”) suggests many potential uses. However, almost half of the known judicial decisions and arbitral awards referring to the Principles invoke them for the purpose of supporting or providing further legitimacy to a solution which is either dictated or at least suggested by some national (domestic) law of contract. This general report provides a comparative perspective on how the Principles have been used to “interpret or supplement domestic law”. While exploring the use of the Principles in domestic contract law for the sole purpose of corroborating that a similar solution may be reached under the PICC, this research study suggests how courts and arbitrators may fruitfully resort to some of the rules of the PICC either for the purpose of clarifying some ambiguities or filling same internal gaps in domestic contract law.

Law, Fact, and Patent Validity

Abstract: Judges, not juries, typically decide questions of law. Likewise, it is judges who usually review the legality of actions taken by government agencies. And when judges or juries decide fact-laden issues in civil litigation, those decisions commonly receive deference on appeal. Patent law, however, does all of this precisely backwards. In patent infringement cases, juries often decide the legal question of patent validity. When a jury rules on a patent’s validity, it is reviewing the work of an administrative agency, the U.S. Patent and Trademark Office. And decisions on the case-specific, fact-specific issue of patent validity are reviewed de novo by the U.S. Court of Appeals for the Federal Circuit, which has exclusive jurisdiction over patent cases. These unusual features of patent litigation create significant inefficiencies: patent jury trials are expensive and jury decisions on technologically complex questions of patentability can be unpredictable; stringent standards of appellate review encourage prolonged litigation and result in costly post-appeal do-overs. All of this occurs because the Federal Circuit has drawn a strict, bright line between questions of law and questions of fact, leaving little room for a middle category of questions that require applying the law to the facts of a particular case. In most areas of law—but not often in patent law—those questions are called mixed questions of law and fact. This article advances a simple thesis: that all questions of patent validity are, ultimately, mixed questions of law and fact. This approach would greatly simplify Federal Circuit doctrine, which currently treats some validity issues as questions of law, others as questions of fact, and still others as questions of law based on underlying facts. It would also clarify ambiguities in Supreme Court precedent on the law-fact distinction in patent litigation, which similarly resists using the phrase “mixed question.” In addition, treating patent validity as a mixed question would improve the procedure of patent litigation in numerous ways: patent validity would be resolved in reasoned opinions by a judge rather than in the black box of a general jury verdict, those on-the-record judicial decisions would receive appropriate deference on appeal, and judicial review of Patent Office actions would be brought further into the mainstream of administrative law.

Ecosystem Services as a Promising Paradigm to Protect Environmental Rights of Indigenous Peoples in Latin America: the Constitutional Court Landmark Decision to Protect Arroyo Bruno in Colombia

Abstract: In the last years, the interest in ecosystem services (ESs) as a decision-making tool for environmental policy has been growing. The ES paradigm has also impacted the judicial system and in some countries the common law tradition. Experiences and lessons learned from the ES litigation have been already documented. In the initial analysis, this article aims to identify key trends in ESs case law in Latin America—a leading region in environmental constitutionalism—by exploring the judicial decisions issued by high courts and subnational environmental courts that mention or incorporate the ES term. In the second level of analysis, we focused on the Colombian Constitutional Court landmark decision; the Arroyo Bruno judgment aimed to protect the rights to water, food security, and health of the Wayuu indigenous people. We argue this is a groundbreaking ruling in Latin America, given that for the first time, a Court uses the ES-based approach to protect the environmental rights of ethnic communities, incorporating ES concepts to the constitutional law sphere and integrating into the same conversation, interdisciplinary and intercultural knowledge.

El control de convencionalidad y las garantías jurídicas en el proceso para el subrogado penal

Abstract: The extremely legalistic legal traditions still maintained in the Colombian criminal process underpin judges’ and prevent the application of sources of law that emanate from the Constitution, conventional norms, and precedents of the Inter-American Court of Human Rights. Given that legislative policies restrict the benefits of sentencing, an effort must be made to advance in a judicial interpretation more in line with the humanization of the process. Thus, this article examines the range of norms and precedents available to the criminal judge to achieve the ends of justice in the judicial decision, while promoting a change in the massive violation of the rights of persons deprived of liberty.

The Strategic Analysis of Judicial Behavior: A Comparative Perspective

Abstract: The past decade has witnessed a worldwide explosion of work aimed at illuminating judicial-behavior: the choices judges make and the consequences of their choices. We focus on strategic accounts of judicial-behavior. As in other approaches to judging, preferences and institutions play a central role but strategic accounts are unique in one important respect: They draw attention to the interdependent - i.e., the strategic - nature of judicial decisions. On strategic accounts, judges do not make decisions in a vacuum, but rather attend to the preferences and likely actions of other actors, including their colleagues, superiors, politicians, and the public. We survey the major methodological approaches for conducting strategic analysis and consider how scholars have used them to provide insight into the effect of internal and external actors on the judges' choices. As far as these studies have traveled in illuminating judicial-behavior, many opportunities for forward movement remain. We flag four in the conclusion.

La justicia de paz y las transformaciones en el gobierno de la ciudad (Rosario, 1852-1872)

Abstract: The article studies the transformations experienced by the figure of the justice of the peace in Rosario (Santa Fe, Argentina) between 1852 and 1872. It will show that these not only involved changes in regulatory and judicial decisions, but also in the way the city was governed. The research aims to examine the redefinitions of the role of these judges from a reconstruction of the network of relations —political, judicial, police, administrative, etc.— of which they were a part.