Judicial opinion

About: Judicial opinion is a research topic. Over the lifetime, 5300 publications have been published within this topic receiving 64803 citations.

The American Law Institute and the Triumph of Modernist Jurisprudence

Abstract: In most studies of the early twentieth-century emergence of a modern conception of law in America, the formation of the American Law Institute in 1923 is not highlighted. One might point to academic literature advocating a “sociological” approach to judicial decision making, or a behavioralist approach to the work of judges, or the reorganization of law school casebooks to include “functional” legal categories or social science materials. One might unpack the work of an early twentieth-century lawyer, or even a judge, and find a jurisprudential perspective that could be labeled modernist. Finally, one might note the appearance of litigation strategies—encapsulated in the term “Brandeis brief”—designed to incorporate into case decisions arguments that legal rules should reflect their social context. But one would not associate the arrival of modernist jurisprudence in America with the early history of an organization of elite lawyers and judges whose stated purpose was to commission “restatements” of black-letter common law rules.

Judicial Specialization, Litigant Influence, and Substantive Policy: The Court of Customs and Patent Appeals

Abstract: Several courts of limited jurisdiction currently exist in the federal judicial system, and new specialized courts have been proposed. Opponents of some specialized courts have pointed to the potential policy implications of judicial specialization, and their arguments merit attention. In this article the effects of specialization on the influence of litigant groups over judicial decisions and on the substance of judicial policy are analyzed in general terms. These effects are then examined in greater depth through a case study of the U.S. Court of Customs and Patent Appeals. The findings are complex, but they indicate that specialization may have a significant impact on judicial behavior. This impact should be taken into account in decisions whether to create courts of limited jurisdiction.

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

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.