Judicial Role

Abstract: Introduction 1. The judiciary, the rule of law, and democracy: aspirations and impediments 2. The institutional construction and the judicial role in Chile 3. Conservative activism in the heyday of democracy, 1964 to 1973 4. Legitimizing authoritarianism, 1973 to 1990 5. Continuity and change after the return of democracy, 1990 to 2000 6. Conclusions and implications Appendixes.

Abstract: In 1988, hundreds of federal district judges were suddenly confronted with the need to render a decision on the constitutionality of the Sentencing Reform Act and the newly promulgated criminal Sentencing Guidelines. Never before has a question of such importance and involving such significant issues of constitutional law mandated the immediate and simultaneous attention of such a large segment of the federal trial bench. Accordingly, this event provides an archetypal model for exploring the influence of social background, ideology, judicial role and institution, and other factors on judicial decisionmaking. Based upon a unique set of written decisions involving an identical legal problem, the authors have produced an unprecedented empirical study of judicial reasoning in action. By exploiting this treasure trove of data, the authors have looked deeper into the judicial mind and observed the emergence of influences upon the manner in which a judge examined the constitutional issues, adopted a constitutional theory, and engaged in legal reasoning.

Abstract: Recent holdings by Britain's High Court and the Court of Appeal in In re F (In Utero) that the court has no power to make an unborn child a ward of court drew upon two earlier cases in which fathers' attempts to restrain women from terminating their pregnancies failed on the grounds that a fetus has no rights of its own until it has a separate existence from its mother. While English law maintains that any wardship status would be incompatible with the rights and welfare of the mother, a Canadian court has granted temporary custody of an unborn child to the Children's Aid Society and had its mother involuntarily committed to the hospital, raising questions of how substantial a risk to the fetus necessitates invasive procedures and what rights a pregnant woman should retain to control her own lifestyle.

Abstract: OBJECTIVE: To evaluate how the Judicial Power safeguards the social right to pharmaceutical assistance as well as the relationships between the legal and political systems to safeguard this right. METHODS: There were assessed decisions in lawsuits of drug supply in the state of Sao Paulo, Southern Brazil, between 1997 and 2004. Discourse of the Collective Subject of procedural actors was the methodological approach used. RESULTS: In 96.4% of the cases analyzed, judges' discourse sentenced the State. In these cases, the State was obliged to provide drugs exactly as requested by the plaintiff, even when drugs were not registered in the National Health Surveillance Agency (9.6% of cases). Also, 100% of the lawsuits were proposed by individual plaintiffs; in 77.4% of the cases the plaintiff requested an specific drug of a specific pharmaceutical company; and in 93,5%, the drugs were provided to the plaintiff through an urgent preliminary order. CONCLUSIONS: The Judicial Power is not taking into account in its decisions political elements of drug policies, established to enforce the social right to pharmaceutical assistance. The Judicial Power is hindering the collective decision making process by the political system, prioritizing plaintiffs' individual needs over community interests.