Judicial opinion

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

Judicial Delegation Doctrines: The US, Britain, and France

Abstract: Legislatures frequently enact primary legislation that delegates secondary law making powers to administrative agencies. Judicial review designed to ensure that this secondary legislation is in accord with the primary legislation necessarily involves judicial interpretation of the primary legislation and hence also some degree of judicial law making. Both the relative degree of judicial law making and its causes may vary from country to country. Judicial review of secondary legislation in three countries is examined. Judicial activism is great in the United States and probably related both to congressional inefficiency in passing amending statutes and judicial recruitment and career patterns. The level of judicial activism in the UK has been low but may be increasing. It is severely constrained by the capacity of parliament rapidly to 'correct' judicial interpretations but encouraged by judicial career patterns. The formal decisions of the French Council of State show little judicial intervention against ...

Gore, Gibson, and Goldsmith: The Evolution of Internet Metaphors in Law and Commentary

Abstract: This paper addresses the evolution of metaphors for the Internet and shows how they have constrained and determined the development of cyberlaw Within the law, metaphors mold the framework of discourse, determining the scope of appropriate questions about and answers to various social and legal problems Courts and commentators employ metaphors as heuristics to generate hypotheses about the application of law to novel, unexplored domains Metaphors structure the way lawyers conceptualize legal events, as they infiltrate, consciously and unconsciously, legal discourse Under the classic formalist view of common law analogy as syllogism, analogical reasoning from precedent begins with the establishment of a rule behind a case or group of similar cases Judges then apply the rule fairly mechanically to the case at hand to yield a result that is understood through the background of precedent In contrast to figurative literary metaphors, highly structured analogical, metaphorical mappings may be used to make persuasive, logical arguments Like all metaphors, however, legal metaphors possess a paradoxical quality, embodied in the constant tension between the legal metaphor's literal incongruence and metaphorical congruence with reality Metaphors whose metaphorical congruence with reality is perceived as dominant, such as the "marketplace of ideas" metaphor in First Amendment jurisprudence and the "bundle of sticks" metaphor in Takings clause jurisprudence, will continue to have analogical value and will be perpetuated through judicial opinion and scholarly commentary Conversely, legal metaphors erceived as having greater literal incongruence with reality, such as the slavery metaphor of African Americans as chattels, will lose their value and be discarded While metaphors aid humans in comprehending abstract concepts and legal doctrines, they also may limit human understanding by selectively highlighting various aspects of an issue while suppressing and marginalizing others Unreflective use of metaphors can lead lawyers to take for granted the "realities" that metaphors enable A bad metaphor can also simply lead to bad decision making For example, Cass Sunstein argues that the "marketplace of ideas" metaphor has turned the right to free expression into a degraded form of commerce This paper seeks to explore the evolution of metaphorical inferences as applied to the Internet within legal commentary and judicial opinions Three metaphors in particular will be examined: the information superhighway, cyberspace, and the Internet as "real" space Given the Internet's ongoing evolution as an unstable and ever-changing technology, courts and commentators have faced perpetual difficulty in mapping metaphors to it Changing social constructions of the Internet as necessitated by its evolving underlying technological architecture have supported, or conversely eroded, a particular metaphor's literal congruence with reality The purpose of this paper to make transparent the different conceptions of the Internet courts and commentators are sub silentio employing, and the various sociological, technological, and ideological conceptions of the world that support them

Multi-Case Review of the Application of the Precautionary Principle in European Union Law and Case Law.

Abstract: The precautionary principle was formulated to provide a basis for political action to protect the environment from potentially severe or irreversible harm in circumstances of scientific uncertainty that prevent a full risk or cost-benefit analysis It underpins environmental law in the European Union and has been extended to include public health and consumer safety The aim of this study was to examine how the precautionary principle has been interpreted and subsequently applied in practice, whether these applications were consistent, and whether they followed the guidance from the Commission A review of the literature was used to develop a framework for analysis, based on three attributes: severity of potential harm, standard of evidence (or degree of uncertainty), and nature of the regulatory action This was used to examine 15 pieces of legislation or judicial decisions The decision whether or not to apply the precautionary principle appears to be poorly defined, with ambiguities inherent in determining what level of uncertainty and significance of hazard justifies invoking it The cases reviewed suggest that the Commission's guidance was not followed consistently in forming legislation, although judicial decisions tended to be more consistent and to follow the guidance by requiring plausible evidence of potential hazard in order to invoke precaution

Letter to the Editor: Request for a Judicial Opinion Concerning the Type Species of Agrobacterium

Abstract: The circuit includes a high gain fluidic amplifier device in a forward circuit portion and a vortex fluidic device in a negative feedback circuit portion connected around the forward circuit. The vortex device may be a passive component utilizing only a control fluid input from the amplifier output, or may be an active component utilizing both the control (tangential) fluid input and a power fluid (radial) input supplied from a source of constant pressurized fluid.