Judicial opinion

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

Green Justice: The Environment And The Courts

Abstract: This book introduces the interrelationship of the legal system and the environment. Students are confronted with key environmental law cases and asked to determine for themselves how the cases should have been decided. Broad questions are raised: What is the capacity of the courts to make fair judgments in cases involving complex scientific issues. Does the adversarial system on which our legal system is based, work at all when the issues involve multiple points of view. The authors' liberal arts approach leads to a wide spectrum of related topics: the history of the common law, the political science of administrative agencies, the philosophy of new rights for nonhumans, our obligation to future generations, and the ecology of species extinction. The struggle to spell out answers to questions such as the constitutional right to a decent environment and the placing of nature in public trust is revealed in the judicial opinions that form the centerpiece of this text. Explanatory introductions make the cases intelligible to beginners, and the accompanying study questions help both faculty and students link the cases to broader issues and to the relevant literature. The text is appropriate for under-graduate courses in environmental law and environmental policy, asmore » well as for nonlaw graduate courses in planning or public administration.« less

The Atrophy of Constitutional Powers

Abstract: In many constitutional regimes, constitutional powers atrophy over time. Although at one point such a power is explicitly established in a written constitution or solidly based in constitutional conventions, the power gradually sinks into desuetude, and at a later time actors in the legal system declare its use illegitimate or assert that a constitutional convention now prohibits its exercise. Examples of atrophied powers – listed roughly from most clearly atrophied to less clearly so -- include the royal veto in the United Kingdom, the power of the Canadian federal government to disallow provincial laws, the power of the U.S. Congress to expand the number of Supreme Court justices (court-packing), the notwithstanding clause that authorizes the Canadian Parliament to override judicial decisions, and congressional impeachment of executive officers. I will try to offer some mid-level generalizations about the atrophy phenomenon. On this account, the common dynamic is slippage in the modal status of power: a power that is not exercised tends, over time, to become unexercisable. I offer several stylized hypotheses, each based on a different causal mechanism, that might explain this pattern. The common theme is that when a power goes unexercised over some sufficiently long period, its use comes to seem illegitimate to boundedly informed publics (including elites who lack relevant specialized knowledge). Such publics use a political precedent heuristic, according to which an attempt to revive the power at a later time amounts to an illegitimate attempt to change the rules of the political game. I then elicit implications for constitutional actors who wish to prevent the atrophy of particular constitutional powers. Actors in this situation would do well to engage in pointless exercises of power -- a form of deliberate precedent-setting in which the power is exercised merely to preserve its existence for the future. By way of illustration, I apply this point to legislative power to overturn or override constitutional or quasi-constitutional decisions of the judiciary, with special reference to judicial review under the Human Rights Act in the United Kingdom. This advice can also be turned on its head for actors who wish to hasten the atrophy of constitutional powers.

An Empirical Survey of Climate Change Litigation in the United States

Abstract: A quickly growing number of commentators have suggested that the domestic U.S. courts are already significant drivers of climate change policy, and their role is likely to increase. Carol Browner, Director of the White House Office of Energy and Climate Change Policy, for example, has suggested that “the courts are starting to take control” of climate change. In addition to fashioning law on their own, judicial decisions have significant implications for the work of the other branches, For example, in characterizing the Second Circuit’s recent decision in Connecticut v. American Electric Power a significant victory for activists because of its favorable holdings on standing and justiciability grounds, Professor Richard Lazarus notes that a major challenge for “environmentalists” is “how best to use this win to help promote meaningful climate change legislation in Congress and regulatory action by EPA, where the issues will best be addressed.” The foundational gap we seek to begin to fill in this Article is an empirically-based chronicling of climate change activity in the judicial arena. In particular, we have reviewed, and coded for a broad variety of attributes, every climate change case that has been resolved to date (through December 31, 2009); and, if a case has been filed but no resolution has yet been reached, we have reviewed (and coded) the complaint and other documents in the court docket. In all our study covers over 130 active or resolved pieces of climate change litigation. We hope that this project will contribute in two important respects to understanding of the action in the courts on climate change to date. First, we compile and present basic information about the cases brought to date (e.g., the types of cases, where they have been brought, the types of plaintiffs and defendants involved, and the outcomes). In addition, we provide an additional layer of analysis through our synthesis of this information and our identification of trends that have emerged thus far. Our purpose in this Article, in short, is to present an empirically-based picture of what one New York Times headline describes as courts serving as “battlefields” in “climate fights.”

The Aegean Dispute in the Context of Contemporary Judicial Decisions on Maritime Delimitation

Abstract: The 1982 United Nations Convention on the Law of the Sea (UNCLOS) is the principal international law document, which regulates the establishment of the maritime economic zones, namely the Continental Shelf (CS) and the Exclusive Economic Zone (EEΖ) as well as any issues that may come up during their delimitation. Maritime delimitation issues are settled either through state agreements or through legal redress before the respective international tribunals. In this context, the aim of this paper is to elaborate on the delimitation prospect concerning a Greek CS/EEZ based on contemporary conventional and customary international law of the sea, in addition to contemporary judicial decisions. More specifically, the analysis focuses on dispute issues in the region of the Aegean Sea and the Eastern Mediterranean, between Greece and its neighboring country Turkey, concerning the CS/EEZ delimitation. An attempt is made to critically compare this case to the outcome of recent relevant international judicial decisions by highlighting not only the common points but also any differences and complexities. The main purpose is to render the reader aware of the special treatment needed for the case in question, with the expectation for a fair future delimitation of the Greek maritime economic zones.

Legal Innovation Within the Wider Intellectual Tradition: The Pragmatism of Oliver Wendell Holmes, Jr.

Abstract: Oliver Wendell Holmes, Jr. is one of the dominant figures in American jurisprudence. As a scholar, he wrote prolifically about legal theory and legal history. His book The Common Law is one of the most influential studies of the common law tradition; it has shaped the views of American legal scholars for several generations. In addition, Holmes spent nearly forty years as a judge-first as a justice on the Massachusetts Supreme Judicial Court and later as an Associate Justice of the United States Supreme Court. On the bench, Holmes was a formidable presence influencing the development of American law. His judicial opinions are both numerous and memorable. More than fifty years after his death, casebooks still include many of his opinions and legal periodicals frequently contain analyses of his judicial philosophy.' Indeed, Holmes is so central to the American legal tradition that understanding what Holmes thought about law is an important step in understanding one's own thoughts on legal theory.