The Council on Ethical and Judicial Affairs of the American Medical Association examines physicians’ professional ethical responsibility in the event that the security of patients’ electronic records is breached.

Rejecting judicial supremacy in constitutional interpretation, this paper argues that understanding the interpretation of constitutions to be a solely legal and judicial undertaking excludes citizens from such activity. The paper proffers a two-pronged classification of analyses of constitutional interpretation. Implicit accounts discuss interpretation without reflecting on whether such activity can or should be performed by non-judicial institutions as well. Explicit accounts ask whether interpretation of constitutions is a matter to be dealt with by courts and answer affirmatively. I criticise both (...) camps. Implicit accounts fail to explain why constitutional interpretation is purely judicial in character. Explicit accounts do not provide enough reasons why the judiciary is allegedly the ideal institution to give constitutions meaning with final authority, both in instrumental and normative terms. The paper closes by suggesting avenues for future research. (shrink)

The legal reasons that bind a judge and the moral reasons that bind all persons can sometimes pull in different directions. There is perhaps no starker example of such judicial dilemmas than in criminal sentencing. Particularly where mandatory minimum sentences are triggered, a judge can be forced to impose sentences that even the judge regards as “immensely cruel, if not barbaric.” Beyond those directly harmed by overly harsh laws, some courts have recognized that “judges who, forced to participate in such (...) inhumane acts, suffer a loss of dignity and humanity as well.” When faced with such a judicial dilemma—a powerful tension between the judge’s legal and moral reasons—the primary question is what a judge can do to resolve it. We argue that the two standard responses—sacrificing morality to respect the law (“legalism”), or sacrificing the law to respect morality (“moralism”)—are unsatisfying. Instead, this Article defends an underexplored third response: rather than abandoning one ideal to maximally promote the other, we argue that judges should seek to at least minimally satisfy the demands of both. Judges should, in other words, look for and employ what we dub Satisficing Options. These are actions that enjoy sufficient support from both the legal reasons and the moral reasons, and thus are both legally and morally permissible—even if the acts in question would not strictly count as optimal by the lights of the law or morality. This common sensical response to the problem is not only underappreciated in the literature, but also has great practical import. Focusing on the sentencing context, this Article demonstrates that judicial dilemmas can be systematically resolved, mitigated or avoided through a range of concrete strategies that on their own or in conjunction can constitute Satisficing Options: these strategies include seeking out legally permitted but morally preferable interpretations of the law, expressing condemnation of unjust laws in dicta, and seeking assistance or cooperation from other actors to help defendants facing substantively unjust mandatory sentences. While these strategies can at times also go too far, we argue that in certain contexts they can be sufficiently defensible on both legal and moral grounds to be a justifiable response to judicial dilemmas. This Article thus provides both a novel theoretical framework for understanding the justification of judicial responses to unjust laws, as well as a practical a menu of options which judges can use to guide their responses to the judicial dilemmas that they are increasingly likely to encounter within our criminal justice system. (shrink)

In a new book-length treatment, Tara Smith, who has written extensively on the intersections of Objectivist philosophy and law, explains how judicial review, a feature of non-Objectivist jurisprudence, should function in a truly Objectivist legal system. Divided into two halves, Judicial Review in an Objective Legal System first sets forth what Objectivism is and how Objectivists understand law. Of particular importance in this regard, Smith stresses, is the written constitution, which Smith, following the logical premises of Objectivism, calls “bedrock legal (...) authority.” In the second half of the book, Smith moves to narrower considerations of judicial review proper. Smith’s first task in those sections is to critique the “failures” of “the reigning accounts” to understand judicial review. After dispensing with the various mistaken versions of judicial review as she sees them, Smith defines Objectivist judicial review before providing a handful of examples of how such a process might work in “contemporary conditions.”. (shrink)

In this revised and updated edition of a classic text, one of America's leading constitutional theorists presents a brief but well-balanced history of judicial review and summarizes the arguments both for and against judicial activism within the context of American democracy. Christopher Wolfe demonstrates how modern courts have used their power to create new "rights" with fateful political consequences and he challenges popular opinions held by many contemporary legal scholars. This is important reading for anyone interested in the role of (...) the judiciary within American politics. Praise for the first edition of Judicial Activism: "This is a splendid contribution to the literature, integrating for the first time between two covers an extensive debate, honestly and dispassionately presented, on the role of courts in American policy. —Stanley C. Brubaker, Colgate University. (shrink)

Rejecting judicial supremacy in constitutional interpretation, this paper argues that understanding the interpretation of constitutions to be a solely legal and judicial undertaking excludes citizens from such activity. The paper proffers a two-pronged classification of analyses of constitutional interpretation. Implicit accounts discuss interpretation without reflecting on whether such activity can or should be performed by non-judicial institutions as well. Explicit accounts ask whether interpretation of constitutions is a matter to be dealt with by courts and answer affirmatively. I criticise both (...) camps. Implicit accounts fail to explain why constitutional interpretation is purely judicial in character. Explicit accounts do not provide enough reasons why the judiciary is allegedly the ideal institution to give constitutions meaning with final authority, both in instrumental and normative terms. The paper closes by suggesting avenues for future research. (shrink)

The judiciary is a key policy actor that is involved in deciding health rights and policy by intervening in the policy process through a variety of judicial mechanisms, yet the appropriate extent of its involvement remains contentious. Taking the competence objection seriously requires understanding it as an epistemic problem about how courts assess empirical and scientific evidence in order to competently adjudicate controversial health claims. This paper examines recent advances in social epistemology to develop insights for the epistemic competence of (...) the judiciary from a system‐oriented approach. I outline three epistemic features that set the judiciary and the judicial decision‐making process apart from other types of decision‐makers in health policy: the distribution of epistemic power, the epistemic authority of a justified believer, and the principle of disinterestedness. Finally, I relate these insights back to the judicial decision‐making process with a specific focus on recent court decisions in health rights and health policy in Chile. (shrink)

Predictive judicial analytics holds the promise of increasing efficiency and fairness of law. Judicial analytics can assess extra-legal factors that influence decisions. Behavioral anomalies in judicial decision-making offer an intuitive understanding of feature relevance, which can then be used for debiasing the law. A conceptual distinction between inter-judge disparities in predictions and inter-judge disparities in prediction accuracy suggests another normatively relevant criterion with regards to fairness. Predictive analytics can also be used in the first step of causal inference, where the (...) features employed in the first step are exogenous to the case. Machine learning thus offers an approach to assess bias in the law and evaluate theories about the potential consequences of legal change. (shrink)

Many scholars believe that it is procedurally undemocratic for the judiciary to have an active role in shaping the law. These scholars believe either that such practices as judicial review and creative statutory interpretation are unjustified, or that they are justified only because they improve the law substantively. This Article argues instead that the judiciary can play an important procedurally democratic role in the development of the law. Majority rule by legislatures is not the only defining feature of democracy; rather, (...) a government is democratic to the extent to which it provides egalitarian forms of political participation. One such form of participation can be the opportunity to influence the law through the courts, either directly by participating in a case or indirectly by advocating litigation. Arguing from several examples, this Article shows that judicial decision-making allows different voices to be heard that may not necessarily have influence or power in majoritarian legislative structures or popular initiatives. Giving citizens the opportunity to change, to preserve, and to obtain authoritative clarification of the law through the courts can thus make a government procedurally more democratic. (shrink)

Jeremy Waldron is well known for his disdain of U.S. jurisprudential doc- trine that allows courts to invalidate democratically enacted legislation on the ground it violates certain fundamental constitutional (and quasi-moral) rights. He believes that where disagreement on the relevant substantive is- sues is widespread among citizens and officials alike, it is illegitimate for judges to impose their views on the majority by invalidating a piece of enacted law. Even if we assume, plausibly enough, there are objective moral constraints on (...) what restrictions on behavior may be enacted into law, judges have no privileged access to the objective truth and must, like everyone else, rely on their own subjective intuitions and views. Given that judges are hence no more likely than citizens or legislators to reach the correct decision about what morality requires, these disagreements should be democratically resolved. As he puts it, if disagreement about rights is to be sorted out by counting heads, it should be the heads of citizens who have ultimate sovereignty in a democracy, rather than those of unelected judges, that ought to count.In this essay, I consider Wilfrid Waluchow’s response to Waldron’s argument in his outstanding new book, A Common Law Theory of Judicial Re- view, in which he attempts to provide the practice of judicial review with something akin to the foundation that justifies allowing judges authority over the development of the common law. I will begin with a short explication of Waldron’s argument and then consider Waluchow’s objections to Waldron, as well as Waluchow’s living-tree conception of a common-law constitution with content that evolves through a common law approach to reasoning in constitutional disputes.Resumen:A Jeremy Waldron se le conoce por el desprecio que ha manifestado con relación a la doctrina constitucional estadounidense que permite a los tribunales invalidar legislación que ha sido promulgada de manera democrática, dado que según Waldron lo anterior constituye una violación a ciertos derechos constitucionales (y cuasi-morales). Él piensa que si existe un desacuerdo importante entre los ciudadanos y oficiales del derecho en relación con cierto tema sustantivo, es ilegítimo que los jueces impongan sus puntos de vista sobre los de la mayoría de la población al invalidar una ley promulgada. Incluso si suponemos, de manera lo suficientemente plausible, que existen limitantes morales objetivas sobre las restricciones que el derecho puede contemplar en relación con el comportamiento de los ciudadanos, los jueces no gozan de un privilegio especial con el que puedan acceder a estas verdades objetivas y deben, como todos los demás, basarse en sus propios puntos de vista e intuiciones subjetivas. Entonces, dado que los jueces al igual que los ciudadanos y legisladores no pueden llegar a mejores y correctas decisiones en relación con lo que exige la moralidad, estos desacuerdos se deben decidir de manera democrática. Como sostiene Waldron, si los desacuerdos sobre los derechos se deben decidir con un recuento de manos, deben ser las manos de los ciudadanos, los cuales tienen la soberanía última en una democracia, no así los jueces que no son electos.En este artículo, el autor analiza la respuesta de Wilfrid Waluchow a los argumentos de Waldron, los cuales se encuentran plasmados en el nuevo e interesante libro: A Common Law Theory of Judicial Review, donde Waluchow intenta justificar la práctica del judicial review a través de algo parecido a la justificación que otorga a los jueces autoridad para desarrollar el common law. El autor inicia con una breve explicación del argumento de Waldron y continúa con las objeciones de Waluchow a Waldron, entre las cuales destaca la concepción de Waluchow de la Constitución como árbol viviente. (shrink)

Judicial formalism is perceived as fully compliant with the requirements of the rule of law. With its reliance on plain meaning and its reluctance to apply historical, purposive and functional interpretative premises, it seems an ideal tool for constraining discretionary judicial powers and securing the predictability of law’s application, which latter is one of the main tenets of the rule of law. In this paper, I argue that judicial formalism is based on a misguided model of language, and as such (...) cannot deliver what it promises. In fact, judicial decisions based on formalistic reasoning are surprising to their addressees and instead of promoting predictability, they undermine it. A judicial strategy fully compliant with the rule of law requires a different vision of language than that proposed by judicial formalism, and as a consequence, a different, moderately non-formalistic conception of legal interpretation. (shrink)

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 theprima facieinterpretation. 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. (shrink)

Featuring a new, explanatory Foreword by Justice Cardozo's premier biographer, this renowned and much-used analysis of the process of judicial decision-making includes embedded page numbers from the original 1921 edition for continuity of citations and syllabi.

This study examines discursive representations of judicial power in Russian print media. The data are drawn from governmental and oppositional newspapers and cover a six-month period during 2013. Using an approach that is informed by Critical Discourse Analysis and a pragma-dialectical perspective on argumentation, the authors distinguish strategies and specific linguistic means as well as argumentation fallacies that journalists employ in the articles to construct the representation which is consistent with a newspaper’s ideology.

Americans cannot live with judicial review, but they cannot live without it. There is something characteristically American about turning the most divisive political questions - like freedom of religion, same-sex marriage, affirmative action and abortion - into legal questions with the hope that courts can answer them. In Judicial Review in an Age of Moral Pluralism Ronald C. Den Otter addresses how judicial review can be improved to strike the appropriate balance between legislative and judicial power under conditions of moral (...) pluralism. His defense of judicial review is predicated on the imperative of ensuring that the reasons that the state offers on behalf of its most important laws are consistent with the freedom and equality of all persons. Den Otter ties this defense to a theory of constitutional adjudication based on John Rawls's idea of public reason and argues that a law that is not sufficiently publicly justified is unconstitutional, thus addressing when courts should invalidate laws and when they should uphold them even in the midst of reasonable disagreement about the correct outcome in particular constitutional controversies. (shrink)

This article provides an exploration of the relationships between a procedural account of epistemic democracy, illegitimate laws and judicial review. I first explain how there can be illegitimate laws within a procedural account of democracy. I argue that even if democratic legitimacy is conceived procedurally, it does not imply that democracy could legitimately undermine itself or adopt grossly unjust laws. I then turn to the legitimacy of judicial review with regard to these illegitimate laws. I maintain that courts do not (...) have a moral privilege on the overthrow of illegitimate laws; in this respect the refusal of royal assent has the same status. I also explain how the rule of the clear mistake fails to restrict the action of courts to only illegitimate laws. Finally, I argue for the positive epistemic inputs of weak judicial review. (shrink)

This paper examines Jeremy Waldron’s ‘core case’ against judicial review. Waldron’s arguments, it shows, exaggerate the importance of voting to our judgements about the legitimacy and democratic credentials of a society and its government. Moreover, Waldron is insufficiently sensitive to the ways that judicial review can provide a legitimate avenue of political activity for those seeking to rectify historic injustice. While judicial review is not necessary for democratic government, the paper concludes that Waldron is wrong to believe that it is (...) a threat to democracy. (shrink)

Judicial Deliberations compares how and why the European Court of Justice, the French Cour de cassation and the US Supreme Court offer different approaches for generating judicial accountability and control, judicial debate and deliberation, and ultimately judicial legitimacy. Examining the judicial argumentation of the United States Supreme Court and of the French Cour de cassation, the book first reorders the traditional comparative understanding of the difference between French civil law and American common law judicial decision-making. It then uses this analysis (...) to offer the first detailed comparative examination of the interpretive practice of the European Court of Justice. Lasser demonstrates that the French judicial system rests on a particularly unified institutional and ideological framework founded on explicitly republican notions of meritocracy and managerial expertise. Law-making per se may be limited to the legislature; but significant judicial normative administration is entrusted to State selected, trained, and sanctioned elites who are policed internally through hierarchical institutional structures. The American judicial system, by contrast, deploys a more participatory and democratic approach that reflects a more populist vision. Shunning the unifying, controlling, and hierarchical French structures, the American judicial system instead generates its legitimacy primarily by argumentative means. American judges engage in extensive debates that subject them to public scrutiny and control. The ECJ hovers delicately between the institutional/argumentative and republican/democratic extremes. On the one hand, the ECJ reproduces the hierarchical French discursive structure on which it was originally patterned. On the other, it transposes this structure into a transnational context of fractured political and legal assumptions. This drives the ECJ towards generating legitimacy by adopting a somewhat more transparent argumentative approach. (shrink)

This paper is the result of my participation in a discussion event of Problema. Anuario de filosofía y teoría del derecho entitled “The Construction of Precedent in Civil Law: Debates, Concepts and Challenges”. Several colleagues with a vast knowledge on the subject of judicial precedent participated in this seminar, which also delved into the widely debated aspects of judicial precedent focused on the case of Chile. The entire discussion aimed at proposing solutions, as well as shedding some light on some (...) of its important aspects.Starting from such transcendental concepts as, rationality and argumentative use, it is possible to find certain problems arising from the improper use of the above concepts, which in turn leads us to stare decisis, a term that if used incorrectly may result in an act against the internal independence of judges. (shrink)

This essay defends judicial review on procedural grounds by showing that it is an integral part of American democracy. Critics who object to judicial review using counter-majoritarian and epistemic arguments raise important concerns that should shape our understanding of the Supreme Court. Nevertheless, critics often fail to account for the formal and informal mechanisms that overcome these difficulties. Critics also fail to show that other branches of government could use the power of Constitutional interpretation more responsibly. By defending judicial review (...) in the American context, this essay demonstrates that judicial review is not inherently undemocratic. (shrink)

El presente trabajo es el resultado de mi participación en el evento de discusión de la revista Problema. Anuario de Filosofía y Teoría del Derecho, que llevó por nombre “La construcción del precedente en el Civil Law: debates, conceptos y desafíos”, en el cual participaron varios colegas con un amplio conocimiento en el tema del precedente judicial; de igual forma, ahonda en los temas de mayor debate dentro de lo referente al precedente judicial, enfocado al caso chileno. Todo ello, con (...) la finalidad de proponer algunas soluciones al respecto, así como dilucidar ciertos aspectos importantes dentro del precedente. Partiendo de conceptos tan trascendentes como la prescriptibilidad, la racionalidad y el uso argumentativo, se logra llegar a ciertas problemáticas provocadas por el mal uso de los conceptos previamente mencionados, que a su vez nos conduce al stare decisis, término que mal utilizado puede resultar en un acto contrario a la independencia interna de la cual gozan los jueces. (shrink)

Since the proclamation of the Universal Declaration of Human Rights, over 165 countries have incorporated human rights standards into their legal systems: the resulting jurisprudence from diverse cultural traditions creates new dimensions to concepts first articulated in 1948. In this revised second edition, Nihal Jayawickrama draws on extensive sources to encapsulate the judicial interpretation of human rights law in one comprehensive volume. Jayawickrama covers the case law of the superior courts of 103 countries in America, Europe, Africa, Asia, the Caribbean (...) and the Pacific, as well as jurisprudence of human rights monitoring bodies. He analyses the judicial application of human rights law to demonstrate empirically the universality of contemporary human rights norms. This definitive volume is essential for legal practitioners, and government and non-governmental officials, as well as academics and students of both constitutional law and the international law of human rights. (shrink)

This article focuses on strategic manoeuvring that takes place in Dutch administrative judi- cial decisions. These decisions may be seen as a distinct argumentative activity type. Starting from the char- acteristics that traditionally are per- tinent to this activity type, I will explore how implications of current discussions on the changing task of the administrative judge may be- come manifest in the judge’s strate- gic manoeuvring by means of the presentation of argumentation and the introduction of additional stand- points. The (...) case study of Dutch administrative law serves to demon- strate what consequences changing institutional demands may have for the starting points of the analysis of argumentation in judicial decisions. (shrink)

Entendo a partidarização judicial como agravamento do anti-igualitarismo jurídico que degrada o formalismo democrático. Atenho-me ao Brasil, sem generalizar: há pessoas dignas no judiciário. Falo na aplicação indevida da lei na esfera política para impedir mudanças na sociedade. Trato o tema em três níveis. Preliminarmente, discuto a desigualdade político-jurídica, depois os golpes de Estado, e por fim o manejo da legislação como arma política que mantém injustiças.

O artigo científico visa esclarecer acerca do judicial review com enfoque no originalismo e no interpretativismo. Neste trabalho pretendemos demonstrar ser o interpretativismo um construto da Suprema Corte dos Estados Unidos oriundo do precedente Brown. Em primeiro lugar, examinaremos os precedentes da Suprema Corte, cujos fundamentos foram obtidos a partir da corrente originalista, até chegarmos ao citado caso Brown e em seguida analisaremos filosoficamente o precedente. Em conclusão, antes se buscava a intenção original do constituinte, no entanto, modernamente, almeja-se controlar (...) a constitucionalidade com parâmetro nos princípios constitucionais. (shrink)

La doctrina establecida por la Corte Suprema de Justicia de la Argentina en relación a los crímenes de lesa humanidad cometidos durante la última dictadura militar, expresamente declaraba la obligación del Estado de investigar y juzgar a los responsables de su comisión. La Corte no sólo caracterizó dichos delitos, sino que también estableció que no eran susceptibles de amnistía, indulto, ni prescripción. Pero, en el año 2017 dictó el fallo “Muiña” donde, por voto mayoritario, decidió otorgarle el beneficio del “2 (...) por 1” a un condenado por dichos delitos. La consecuencia fue su inmediata libertad por el vencimiento de la condena. La respuesta de la sociedad fue clara. Con diversas manifestaciones, la sociedad civil, las instituciones y las personalidades públicas se declararon en contra de la sentencia. Más aún, del voto de los mismos jueces se observan expresiones que denotan un gran pesar a la hora de tomar la decisión. Más precisamente, sostenían estar ante un dilema. En este trabajo, lejos de realizar un análisis de la interpretación jurídica que se efectuó en la sentencia, se propone trabajar sobre el concepto de dilema y la posibilidad de aplicación en el presente caso. La finalidad concreta es indagar si se está ante un dilema y en su caso si los jueces utilizan este concepto como un arma argumentativa para lograr adhesión o compasión de la opinión pública. En este sentido, se comenzará relatando el marco jurídico del fallo, donde se describirá la historia judicial de Muiña y los argumentos dados por el voto mayoritario y el minoritario de la Corte. Luego, se realizará un análisis del concepto de dilema, para reconstruirlo sobre la base de dos grandes posturas: Una lógica conceptual y otra fenomenológica. Posteriormente, se realizará un examen de la dimensión institucional del derecho y la moralidad judicial, para - finalmente - poder intentar responder si se está efectivamente ante un dilema. (shrink)

H.L.A. Hart’s lost and found essay ‘Discretion’ has provided new insight into the issue of how legal systems can cope with indeterminacy in the law. The so-called ‘open texture’ of law calls for the exercise of judicial discretion, which, I argue, renders judges susceptible to the problem of dirty hands. To show this, I frame the problem as being open to an array of appropriate emotional responses, namely, various senses of guilt. With these responses in mind, I revise an example (...) from Michael Walzer’s original analysis in a way that highlights purely personal sacrifices in solutions to dirty hands situations. I then turn to an account of moral emotions in legal decision-making and show how judges—in failing to advance all interests—might be left with a unique sense of guilt. With an application of this account to Hart’s legal positivism, it can be seen that a judge’s hands are often dirtied in resolving borderline cases. If discretion leaves judges in situations where they must do wrong in order to do right, Hart’s endorsement of a closure view of wrongdoing will lead to difficulties in how he can explain the presence of moral remainders in jurisprudence. (shrink)

This article intends to explore the law relating to judicial separation inMalaysia from the perspective of its importance and the issues that have arisenwith respect to its effectiveness, as an avenue to encourage the preservation ofa marriage. The investigation extended to an analysis on the lacuna in law onjudicial separation in Malaysia, specifically with respect to the need for a timeframe, which would essentially create certainty and encourage reconciliationbetween the parties. A comparative legal research methodology is employed incomparing the positions (...) in Malaysia and India. It is hoped that the findings ofthis paper on judicial separation, particularly related to the need for a statutorytime frame, will encourage reconciliation between the parties and preserve thesanctity of marriage, as is envisioned in the concept of a judicial separation. (shrink)

I here address the question of how judges should decide questions before a court in morally imperfect legal systems. I characterize how moral considerations ought inform judicial reasoning given that the law may demand what it has no right to. Much of the large body of work on legal interpretation, with its focus on legal semantics and epistemology, does not adequately countenance the limited legitimacy of actual legal institutions to serve as a foundation for an ethics of adjudication. I offer (...) an adjudicative theory in the realm of non-ideal theory: I adopt a view of law that has achieved consensus in legal philosophy, make some plausible assumptions about human politics, and then consider directly the question of how judges should reason. Ultimately, I argue that judges should be cognizant of the goods that are at stake on particular occasions of adjudication and that this requires treating legal requirements transparently, i.e., as sensitive to their moral justifications. (shrink)

Does the effective protection of constitutional rights require a system of robust judicial review? This differs from the question of whether judicial review is democratically legitimate, although the two are often merged. The dominant liberal constitutional discourse concerning the requirement of judicial review has arguably suffered from a degree of insensitivity to the actual effects of specific judicial review systems. In contrast to a fact‐insensitive approach, I suggest that the ‘matrix’ of rights‐protection in any specific system of judicial constitutional review (...) must incorporate two types of calculation. The first must compare incidences of the invalidation of ‘wrong’ statutes (on the ‘gains’ side) with invalidations of ‘right’ statutes and cases of upholding ‘wrong’ statutes (on the ‘losses’ side). The second looks at the gains and losses resulting from the very existence of the system of judicial review (rather than the specific cases that have been upheld or invalidated). It thus recognizes the deep disagreement between individuals about their preferred interpretations of constitutional rights. Under some conditions, the results of this matrix may be modified by arguments about an overlap in preferred articulations of constitutional rights, prudence, and the deliberative nature of the courts that exercise constitutional review, and the paper concludes with a discussion of how this can occur. We do not have to have a court that will strike down laws—a court with the power of judicial review—to have a vibrant language of fundamental rights available to us. (shrink)

The application of artificial intelligence (AI) to judicial decision-making has already begun in many jurisdictions around the world. While AI seems to promise greater fairness, access to justice, and legal certainty, issues of discrimination and transparency have emerged and put liberal democratic principles under pressure, most notably in the context of bail decisions. Despite this, there has been no systematic analysis of the risks to liberal democratic values from implementing AI into judicial decision-making. This article sets out to fill this (...) void by identifying and engaging with challenges arising from artificial judicial decision-making, focusing on three pillars of liberal democracy, namely equal treatment of citizens, transparency, and judicial independence. Methodologically, the work takes a comparative perspective between human and artificial decision-making, using the former as a normative benchmark to evaluate the latter. -/- The chapter first argues that AI that would improve on equal treatment of citizens has already been developed, but not yet adopted. Second, while the lack of transparency in AI decision-making poses severe risks which ought to be addressed, AI can also increase the transparency of options and trade-offs that policy makers face when considering the consequences of artificial judicial decision-making. Such transparency of options offers tremendous benefits from a democratic perspective. Third, the overall shift of power from human intuition to advanced AI may threaten judicial independence, and with it the separation of powers. While improvements regarding discrimination and transparency are available or on the horizon, it remains unclear how judicial independence can be protected, especially with the potential development of advanced artificial judicial intelligence (AAJI). Working out the political and legal infrastructure to reap the fruits of artificial judicial intelligence in a safe and stable manner should become a priority of future research in this area. (shrink)

"The main argument of this paper is that there are reasons for judges not only to evaluate the substantive merit of legislation, but to advert to the fact that the place of elected legislatures in our scheme of government gives legislation a standing, an entitlement to consideration, that may go beyond judicial estimates of its intrinsic merit." [Is this just a statement of procedural legitimacy?] "To answer the question [of who assigns rights], courts must take a view as to the (...) proper role of courts vis-a-vis legislatures; they must take a view about the allocation of power in our legal/political system. In drawing this line, courts can take one of two approaches. First, they can make decisions solely on the basis of considerations internal to the relevant clauses of the Constitution, perhaps by giving them a moral reading. Second, they can include in their thinking institutional considerations regarding the role of popular decision-making bodies in our governmental structure." Claims that Dworkin advocates the first [which is false], and that we should accept the second, which is advocated by advocates of judicial restraint. It is appropriate for a judge to give weight to the fact that a decision was reached by a legislature. "Specifically, I think it appropriate that courts presume the constitutionality of such laws, understanding that their own role demands that they overturn them if they are not merely different from what the judges might have decided on their own, but are beyond acceptability." Reasons for the presumption of constitutionality: value of compromise, allocation of power ), appropriateness of humility, integrity and community. (shrink)

Ch. 1 defines activism as involving four judicial practices: refusing to take an attitude of deference for legislative or executive power or judgment; relaxing requirements for justiciability; breaking precedent; and loosely or controversially construing constitutions, statutes or precedents. I defend each element, through , in later chapters. I defend primarily in Ch. 2A-B, primarily in Ch. 2C, primarily in Ch. 3 and in Chs. 2 and 4. Ch. 1 concludes that - seem to have knowing change of the law in (...) common. Ch. 1 considers and rejects different definitions of activism. My definition explains what I call The Crossover Thesis, which says that two types of activism, and , are quite distinct, and what I call The Political Neutrality Thesis, which says activism and passivism are politically neutral in that neither is necessarily conservative or liberal, and neither is necessarily politically superior to the other. ;Ch. 2 defends activism against objections based on democracy by reconciling activism with democracy somewhat and by supporting some activism based on the Constitution's supreme legal authority. I give what I call The Ashwander Defense and the Carolene Defense of activism, which are named after famous judicial opinions I use to defend activism. ;Ch. 3 argues against stare decisis, which requires following precedent. The passivists' version of stare decisis is inadequately supported by arguments that stare decisis increases: the fairness of treating like cases alike; the predictability of the law; thereby the efficiency of judges in making decisions. ;Ch. 4 argues that courts should use due process more to support activism which clarifies the law. I show how much activism is justified by the vagueness doctrine, which constitutionally requires law's meaning to be reasonably accessible to ordinary people. ;Ch. 5 summarizes earlier chapters and shows how my defense of activism is restrained. (shrink)

In his tightly argued, thought-provoking volume Interpretation without Truth, Pierluigi Chiassoni offers a groundbreaking, reductionist account of judicial fictions.1 Under Chiassoni’s view, judici...

This paper investigates the phenomenon of judicial law-making in the practice of the highest courts dealing with criminal matters in Germany and Poland on the basis of 200 of their decisions. While German jurisprudence principally acknowledges the right of the judiciary to create new law, the Polish legal theory generally rejects this notion. Still, research indicates that, in practice, the differences in the frequency and intensity with which these courts pass creative rulings are not as substantial as the discrepancy in (...) the theoretical stance would suggest. Owing to circumstances, both the German Federal Court of Justice and the Polish Supreme Court are willing to create new legal norms, but the dimensions of judicial law-making presented by these bodies deviate from each other. In the research sample, the German Federal Court of Justice was more inclined to introduce legal institutions that were foreign to the statutes and rule against the will of the lawmaker explicitly stated in the preparatory works. On the other hand, the Polish Supreme Court used logical conclusions more often, but did not also refrain from passing rulings against the clear wording of the statutory law, and was just as willing to go beyond the wording of the law as was the German Federal Court of Justice. Notably, only the German apex court is willing to openly admit that it creates new legal norms, whereas the Polish Supreme Court does not concede in the reasons that its decisions are of a law-making nature, especially when it applies so-called “interpretation in the wider sense”—which is, in essence, a “concealed” way of creating new legal norms. (shrink)

In this book, a distinguished international group of legal theorists re-examine legal positivism as a prescriptive political theory and consider its implications for the constitutionally defined roles of legislatures and courts. The issues are illustrated with recent developments in Australian constitutional law.

O presente estudo trata-se de uma pesquisa qualitativa com objetivo de analisar as mudanças nas relações familiares provenientes da guarda judicial dos netos, em disputa com seus filhos. Nesse texto, enfatizamse as questões sobre tempo e dinheiro e suas influências sobre essas relações. Para a const..

Nuestro trabajo ofrece algunas claves de lectura del proceso por el cual fue posible que la actividad de los tribunales de justicia, a comienzos de los años '90 en Latinoamérica en general y en Argentina de manera significativa, adquiriese una relevancia y una consideración singular respecto al ejercicio del poder político. Este fenómeno, habitualmente denominado "judicialización de la política", supone una tendencia a procesar y dar respuesta a conflictos de índole política, a través de instituciones judiciales. En relación a ello, (...) nos interesa mostrar las interconexiones, puntos de apoyo, resortes a través de los cuales es posible ligarlo al diagrama de relaciones de poder y procesos de subjetivación que caracterizan a la gubernamentalidad neoliberal. Our paper offers some lecture keys on the process through which made it possible the political relevance of judicial activity during the 1990's in Latin American in general, and in Argentina in particular. This phenomenon, commonly known as 'judicialization of politics', supposes a tendency of processing political conflicts through the judiciary. Related to that our paper proposes to show, to make it visible, interconnections and supports through which it is possible to understand it emergence within the diagram of power relations and processes of subjectivation that characterizes neoliberal governmentality. (shrink)

Many theories of liberal public reason exclude claims derived from religion on grounds that religious beliefs are not publicly ‘accessible’, because they are not amenable to meaningful evaluation by outsiders to the faith. Some authors, though, have argued that at least some religious beliefs are, in fact, publicly accessible. This paper examines the consequences of these arguments by exploring the accessibility requirement in relation to U.S. judicial precedent concerning religious accommodation. I first show that precedent accords de facto with the (...) accessibility requirement by precluding judicial evaluation of the content of religious beliefs. I then show that this norm is independent of the status of religious claims vis-à-vis accessibility: even granting the accessibility of religious beliefs, other important political ends weigh against judicial evaluation of the content of those beliefs. I then generalize this conclusion to the broader enterprise of public reason, suggesting the general inadequacy of the accessibility requirement. (shrink)

Many scholars think that women are sentenced more leniently than men because judges are paternalistic toward women. In this article, I suggest that paternalism is a multilayered concept and that it is important to distinguish between judicial concerns for protecting women and those for protecting children and families. To learn what factors judges consider in sentencing and whether these differ for men and women defendants, I interviewed 20 men and 3 women judges in two state criminal courts. I learned that (...) the primary objects of judicial protection were not women, but children, and men's and women's economic support or care for families. However, there was a labor hierarchy in the judges' minds in that they believed that care giving was more important than wage earning for the maintenance of families. Interactive influences among the defendant's gender, familial status, race or ethnicity, and the nature of the offense charged are discussed. (shrink)

'A clear, readable and fair account of the development of judicial review.'-Ashley Montagu.

El reconocimiento constitucional de ciertos derechos colectivos de los pueblos originarios, efectuado en algunas Repúblicas hispanoamericanas que han avanzado en procesos constituyentes hacia un Estado de carácter plurinacional, multiétnico e intercultural, ha conseguido quebrar hasta cierto punto aquella cultura jurídica hegemónica que dominó con su carácter monista durante décadas o, mejor dicho, durante siglos. La legitimación de un derecho consuetudinario indígena, poseedor de una jurisdicción especial y autónoma, esto es, la construcción de un marco dentro del cual estas comunidades tengan (...) «derecho al propio derecho», constituye sin duda un principio importante para romper la persistencia secular de aquella colonialidad jurídica que, primero desde una matriz criolla y después desde una matriz mestiza, negaba toda autonomía judicial a las distintas nacionalidades indígenas. Pero este nuevo horizonte, si bien representa un proyecto eminentemente decolonial en muchos aspectos, no está exento de problemáticas contradicciones. Porque un escenario de radical pluralismo jurídico quebrantaría la posibilidad de establecer un marco común de ciudadanía, y es éste un nudo de conflicto importantísimo. (shrink)

Legal Judgment Prediction (LJP) is an essential component of legal assistant systems, which aims to automatically predict judgment results from a given criminal fact description. As a vital subtask of LJP, researchers have paid little attention to the numerical LJP, i.e., the prediction of imprisonment and penalty. Existing methods ignore numerical information in the criminal facts, making their performances far from satisfactory. For instance, the amount of theft varies, as do the prison terms and penalties. The major challenge is how (...) the model can obtain the ability of numerical comparison and magnitude perception, e.g., 400 < 500 < 800, 500 is closer to 400 than to 800. To this end, we propose a judicial knowledge-enhanced magnitude-aware reasoning architecture, called NumLJP, for the numerical LJP task. Specifically, we first implement a contrastive learning-based judicial knowledge selector to distinguish confusing criminal cases efficiently. Unlike previous approaches that employ the law article as external knowledge, judicial knowledge is a quantitative guideline in real scenarios. It contains many numerals (called anchors) that can construct a reference frame. Then we design a masked numeral prediction task to help the model remember these anchors to acquire legal numerical commonsense from the selected judicial knowledge. We construct a scale-based numerical graph using the anchors and numerals in facts to perform magnitude-aware numerical reasoning. Finally, the representations of fact description, judicial knowledge, and numerals are fused to make decisions. We conduct extensive experiments on three real-world datasets and select several competitive baselines. The results demonstrate that the macro-F1 of NumLJP improves by at least 9.53% and 11.57% on the prediction of penalty and imprisonment, respectively. (shrink)

Most of us think that states are justified in incarcerating criminals, sometimes for decades. In this paper I suggest that if states are justified in this, they are also justified in inflicting certain forms of corporal punishment. Many forms of corporal punishment are less burdensome than long-term incarceration, and arguably, they are also cheaper, fairer, more deterring, and less destructive of the social and economic networks that convicts often depend on for future reintegration into society. After presenting a pro tanto (...) case for corporal punishment, I consider a number of objections. I conclude that although there are genuine downsides to corporal punishment that must be taken very seriously, the case for the judicial use of this punishment method is much stronger than what is commonly assumed. (shrink)

This article discusses judicial recruitment in civil law countries. It introduces the emergence of comparative global studies. The United States was the first country to offer university courses on the judiciary outside of law schools. Significant empirical research has been carried out on the system of judicial recruitment since the latter half of the twentieth century and in recent years much of the work of empirically oriented judicial researchers has focused on reforming traditional ways of recruiting and appointing judges. In (...) countries with authoritarian regimes, empirical judicial studies focus on how judiciaries are developed to enforce the regime's policies. Research has shown variations among career judiciaries and their convergence with common law models of the judicial career. It is foreseen that the next wave of empirical research on judiciaries will show how differences in recruitment systems and judicial education influence judicial decision-making. (shrink)

There have been few studies of the Law Lords, and no study of them by a political scientist for more than ten years. This book concentrates on the arguments the Law Lords use in justifying their decisions, and is concerned as much with the legal methodology as with the substance of their decisions. Very close attention is paid to the different approaches and styles of judicial argument, but the book is not restricted to this traditional analytic approach. One chapter applies (...) the statistical techniques Americans call 'jurimetrics' and have successfully used on the US Supreme Court. The main theme is that the Law Lords enjoy and fully utilise far more discretion in their judgements than is normally admitted, and that much depends on exactly which judges happen to hear a case. the second part of the book shows the impact this extreme discretion has had in shaping both public law and areas of civil law. (shrink)