"ACT Administrative Appeals Tribunal Decisions." Ethos: Official Publication of the Law Society of the Australian Capital Territory, (200), pp. 42.

This article refers to the issues associated with the crucial significance of the interpretation of tax law provisions made by administrative courts in the course of the judicial inspection of tax decisions, within the context of protecting the subjective rights of taxpayers. The analysis in that regard has been prepared based on the provisions of art. 153 of the Act of 25 July 2002 on Proceedings before Administrative Courts, which expresses the important rule of binding the court (...) and the administrative authority, whose act was the subject of an appeal, with a legal assessment and instructions regarding the further proceedings described in the decision of the administrative court. As a result of this rule, a decision of an administrative court exerts the results exceeding the scope of judicial administrative proceedings, while its effect also covers the future tax proceedings. If the legal assessment made by the court refers to the regulations that affect the subjective rights of a taxpayer, it means that the administrative court imposes the effects of “its” interpretation of those provisions on a tax authority. In turn, the tax authority is obliged to respect those rights in accordance with the opinions of the court, which usually affects the final resolution of a tax case. It should be borne in mind that a taxpayer, by submitting an appeal against a tax decision to an administrative court, demands not only an inspection of the acts of tax administration, but also - which should be emphasized - demands the execution of its rights, including its subjective rights. Therefore, we should not forget the crucial role of the administrative courts in the protection of the substantive rights of taxpayers. The instrument that allows the administrative courts to guard the subjective rights of taxpayers, consists in the procedural regulations included in the provisions on proceedings before administrative courts, and in particular art. 153 of the Act on Proceedings before Administrative Courts in Poland. (shrink)

Negative externalities pervade immigration law. For example, immigration rules can cause negative economic externalities by barring foreign nationals whose participation would make labor markets more efficient. On the other hand, sweeping executive-branch measures to assist immigrants may unduly expand executive power and yield adverse effects on governance. This essay divides immigration's negative externalities into three categories: economic, relational, and rhetorical. It then argues for specific legal and policy measures, including tailored executive discretion over deportation; more robust court review of (...) immigration restrictions that affect foreign nationals outside the United States; and classifying deportation of lawful permanent residents of the United States as punishment requiring advance notice that specific acts can prompt removal, like the notice the Constitution's Ex Post Facto Clause requires for criminal laws. (shrink)

Judicial review (richterliches Prüfungsrecht), administrative review (Verwaltungsgerichtbarkeit), and constitutional review (Verfassungsgerichtsbarkeit) are three different ways in which the judiciary has sought to control the executive and legislative powers of the state. Historically and functionally they are closely linked. I intend to discuss them in their German context, focussing, in particular, on the Weimar Republic, that is to say, on the period between 1919 and 1932. Although I shall not be addressing the highly interesting parallels with (...) the U.S. Supreme Court, or with the comparable courts in Italy, France, and, especially, Austria, I should like to invite attention to them, for there is really no Sonderweg in Germany as far as these developments are concerned. (shrink)

The general assumption that underlines Richard Posner’s argument in his book Not a Suicide Pact is that decisions concerning rights and security in the context of modern terrorism should be made by balancing competing interests. This assumption is obviously correct if one refers to the most rudimentary sense of balancing, namely, the idea that normative decisions should be made in light of the importance of the relevant values and considerations. However, Posner advocates a more specific conception of balancing, both substantively (...) and institutionally. Substantiality, he argues for balancing based on a consequential moral theory that rejects the ideas of deontological rights and particularly absolute or very weighty deontological rights. More specifically, it seems that Posner assumes a utilitarian theory that also rejects intrinsic concern for distributive justice. Institutionally, Posner argues that this method of reasoning should be adopted by judges when interpreting the constitution. These substantive and institutional background assumptions are of course controversial, but I do not dispute them in this Article. My critique concerns Posner’s conclusions based on these assumptions. Posner’s main claim is that given the magnitude of the danger of modern terrorism, even a small probability that an act of terror may occur justifies extreme anti-terror measures. While the general idea that even a slight risk of very serious harm justifies significant cost is plausible, I doubt Posner’s assumptions regarding the cost of various means of preventing these dangers, his claim that judicial review in this context should be very limited, and his suggestion of an absolute formal prohibition that is not strictly enforced in the context of measures such as interrogational torture. (shrink)

In this lecture Justice Breyer examines three classical criticisms of constitutional judicial review. Those criticisms say that a grant to unelected judges of the power to set aside legislation as contrary to a written constitution leads to judicial decision-making that is (a) undemocratic, (b) subjective, and impractical. Justice Breyer describes features of the constitutional decision-making that do not dictate results in individual cases, but none the less hold the judges' 'subjective' will in check. He also describes necessary (...) judicial efforts to focus upon considerations of administrative practicality. The description seeks, not to refute the criticisms in their entirety, but to help evaluate the extent to which those criticisms militate against the adoption of a system of constitutional judicial review. (shrink)

Courts are sometimes called upon to review a law or some other official act of government to determine its constitutionality, its reasonableness, rationality, or its compatibility with fundamental principles of justice. In some jurisdictions, this power of judicial review includes the ability to ‘strike down’ or nullify a law duly passed by a legislature body. This article examines this practice and various criticisms of it, including the charge that it is fundamentally undemocratic. The focus is on the (...) powerful critique mounted by Jeremy Waldron, the foremost philosophical opponent of judicial review. (shrink)

The Diagnostic Statistical Manual of the American Psychiatric Association defines substance dependence, more commonly known as “drug addiction,” as “a cluster of cognitive, behavioral, and physiological symptoms indicating that the individual continues use of the substance despite significant substance-related problems. There is a pattern of repeated self-administration that usually results in tolerance, withdrawal, and compulsive drug-taking behavior.” If drug addiction is a matter of compulsion, as this definition suggests, then is it correct to say that a drug addict chooses to (...) take their drug of choice? Similarly, does it make sense to say that a person in the grip of fear really chooses to flee from what frightens them? In this book, Jon Elster argues that in general drug addicts and people subject to powerful emotions should be interpreted as making choices. Although there is a compulsion to choose, there is choice nonetheless. This is different from cases where there is a compulsion to act but no choice. But what kind of choice is this? And are such choices rational or not? These are among the central questions addressed in this book. (shrink)

This article aims to show how the changes to NEPA by the Trump Administration are an act of environmental racism, defined as “[i]ntentional or unintentional racial discrimination in environmental policy‐making, enforcement of regulations and laws, and targeting of communities for the disposal of toxic waste and siting of polluting industries.”.

In Sovereignty’s Promise: The State as Fiduciary, Evan Fox-Decent uses the idea of fiduciary relationships to explain the legitimate exercise of governmental authority. He makes use of the idea of the state as a fiduciary for the people to ground an account of the duty to obey the law, to explain the proper relationships between colonial (or “settler”) societies and aboriginal populations, the role of agency discretion and judicial review in the administrative state, the rule of law, (...) the relationship between law and morality, and the foundations of human rights. While I was not convinced by several of the arguments, the book does have many important virtues. In particular, it provides a clear discussion of the idea of fiduciary relationships and duties that is useful for, and should be largely accessible to, non-lawyers. And, though I do not think that Fox-Decent has established all that he hoped to in the book, he does a good job of showing how fiduciary relationships are relevant to the above issues and worth considering. (shrink)

The article presents the argument that administrative decision-making should be understood as devoted to balancing between conflicting interests of individuals or groups, usually when none of the affected parties has predefined legal rights that are relevant to the substantial content of the administrative decision. Administrative decisions often have a direct effect not only on human and civil rights issues, but also on matters bearing on the quality of life, living conditions, prices of regulated products, and the allocation (...) of government funds. Since the decision as to which interest should prevail in the conflict is a distributive one and has many possible answers, the role of administrative law is primarily to ensure that these decisions are made fairly, with due weight given to the conflicting interests of the various groups and individuals involved. With this as background, the article shows how the doctrines of positive administrative law are designed to meet the challenge of coping with conflicting interests in the administrative decision-making process, using such examples as the prohibitions against decision-makers’ conflicts of interest and the rules regarding interest representation and judicial review. In the second part, the article applies the interest perspective to the administrative decision-making process in order to analyze the highly extensive regulation of land resources in Israel. The analysis concentrates on the Israeli Supreme Court decision in one of the most controversial petitions brought before it: against administrative decisions on the development of formerly agricultural lands. (shrink)

BackgroundThe Freedom of Information Act (FOIA) provides access to unreleased government records that can be used to enhance the transparency and integrity of biomedical research. We characterized FOIA requests to Department of Health and Human Services (HHS) agencies, including request outcomes, processing times, backlogs, and costs.MethodsUsing HHS FOIA annual reports, we extracted data on the number of FOIA requests received and processed by HHS agencies between 2008 and 2017, as well as request outcomes. Processing times were reported in three time (...) increments, < 1–20, 21–60, or 61+ days, and trends in backlog status were also described. Information about costs and fees collected were aggregated.ResultsBetween 2008 and 2017, 69.6% of 530,094 HHS FOIA requests were received by the Centers for Medicare and Medicaid Services (CMS), 18.9% by the Food and Drug Administration (FDA), and 11.6% by all other HHS agencies. During this period, CMS processed 374,728 requests, FDA 114,938, and other HHS agencies 61,890. CMS and FDA reduced backlogged requests by 9396 (89.7%) and 4289 (65.3%), respectively, leaving backlogs of 1081 and 2279 requests at the end of 2017. CMS fully or partially granted 60.3% of requests whereas FDA fully or partially granted 72.4%. Of all requests to CMS, 82.0% were considered simple and 18.0% complex; 82.2% of simple requests and 54.9% of complex requests were processed in 20 days, and 5.6% and 29.9% were processed in 61+ days. In contrast, 60.2% of requests to FDA were considered simple and 39.8% complex; 28.8% of simple requests and 9.0% of complex requests were processed in 20 days, and 58.3% and 81.5% were processed in 61+ days. The costs to HHS associated with FOIA requests totaled $446.4 million ($809 per processed request), increasing from $28.1 million ($423 per request) in 2008 to $53.3 million ($1544 per request) in 2017. In total, HHS collected $8.5 million in fees (1.9% of total costs).ConclusionsFOIA is frequently used to obtain information about HHS and its agencies. With growing costs, minimal fees collected, and lengthy processing times, HHS agencies’ FOIA programs might be made more efficient through greater proactive record disclosure. (shrink)

Student evaluations of teaching are ubiquitous in the academe as a metric for assessing teaching and frequently used in critical personnel decisions. Yet, there is ample evidence documenting both measurement and equity bias in these assessments. Student Evaluations of Teaching have low or no correlation with learning. Furthermore, scholars using different data and different methodologies routinely find that women faculty, faculty of color, and other marginalized groups are subject to a disadvantage in SETs. Extant research on bias on teaching evaluations (...) tend to review only the aspect of the literature most pertinent to that study. In this paper, we review a novel dataset of over 100 articles on bias in student evaluations of teaching and provide a nuanced review of this broad but established literature. We find that women and other marginalized groups do face significant biases in standard evaluations of teaching – however, the effect of gender is conditional upon other factors. We conclude with recommendations for the judicious use of SETs and avenues for future research. (shrink)

The legacy of René Descartes' notorious dualism of mind and body extends far beyond academia into everyday thinking: "These athletes are prepared both mentally and physically," and "There's nothing wrong with your body--it's all in your mind." Even among those of us who have battled Descartes' vision, there has been a powerful tendency to treat the mind (that is to say, the brain) as the body's boss, the pilot of the ship. Falling in with this standard way of thinking, we (...) ignore an important alternative: viewing the brain (and hence the mind) as one organ among many, a relatively recent usurper of control, whose functions cannot properly be understood until we see it not as the boss, but as just one more somewhat fractious servant, working to further the interests of the body that shelters and fuels it, and gives its activities meaning. This historical or evolutionary perspective reminds me of the change that has come over Oxford in the thirty years since I was a student there. It used to be that the dons were in charge, while the bursars and other bureaucrats, right up to the Vice Chancellor, acted under their guidance and at their behest. Nowadays the dons, like their counterparts on American university faculties, are more clearly in the role of employees hired by a central Administration, but from where, finally, does the University get its meaning? In evolutionary history, a similar change has crept over the administration of our bodies. Where resides the "I" who is in charge of my body? In his wonderfully written book, Antonio Damasio seeks to restore our appreciation for the perspective of the body, and the shared balance of powers from which we emerge as conscious persons. (shrink)

The question of detention of asylum seekers is specific due to the special situation of detainees (persons who have experienced human rights violations and apply for asylum in receiving country) and due to peculiarities of detention itself (persons have not committed crimes, but come or stay illegally because they have been forced to do so by fleeing from human rights violations). Therefore, lately it raises many discussions at the European level. Sooner or later, discussions influence national laws, as after adopting (...) the EU directives their provisions must be properly transposed into national laws. This article describes the recent documents: the study in Lithuania, the UNHCR guidelines, the EU developments, the Lithuania judicial practice. The authors of the article discuss the latest amendments of the Law on the Legal Status of Aliens (entering into force on 1 February 2012) related to detention of asylum seekers after the transposition of the provisions of the Return Directive. The practice of the Supreme Administrative Court of Lithuania when applying the new detention-related provisions is also reviewed in the article. The authors do not agree with the position of the Supreme Administrative Court of Lithuania that the provisions of the Return Directive are applicable to asylum seekers. The authors pay attention to the case-law of the European Court of Justice, the preamble of the Return Directive and its legal relations with the EU asylum directives. At the end, the conclusions are drawn as to the way that the provisions of the Law on the Legal Status of Aliens should be interpreted in the light of the purposes and provisions of the European Union directives. In order to avoid contradictory practice and at the same time ensure the interests of public order in Lithuania, Article 113(7) of the Law on the Legal Status of Aliens could be applied. (shrink)

In a recent line of cases, senior judges in the UK have been called upon to adjudicate in complaints over the failure of health and local authorities to meet the welfare needs of citizens. Local authorities claimed that the disputes had been precipitated by a lack of resources allocated by central government to meet local demand. This article examines the role of the courts in resolving a fundamental tension between central government policy of financial cost-cutting on the one hand and (...) welfarist principles embodied in legislation for the delivery of public services on the other. Questions are raised about the relevance and appropriateness of rights-based adjudication in welfare needs contexts and about the reluctance of courts to intervene in the resolution of resource allocation disputes even where fundamental rights, particularly in areas such as health, community care, and education where notions of rights are inextricably bound up with use of financial resources. These key cases have arisen prior to the implementation of the Human Rights Act 1998. Where relevant, the likely impact of the Act on welfare needs disputes is considered. (shrink)

Judicial process is an integral part of legal systems. The process rests primarily on established principles of constitutional governance and responsibility. In the last ten years, the dynamism within judicial institutions and the judicial process has gained considerable attention. The dynamism is often viewed in light of the diversity of claims being addressed, the openness of courts to foreign material, and the use of non-legal studies and findings in court proceedings. How one views the judicial process (...) in the traditional sense, and in the light of the new experiences is an important question today. Also, what new theories explain this public sphere of activity? -/- In this regard, Dr. Pathak’s book "Judicial Process" is a noteworthy contribution. The book explores the complex nature of the judicial process, along with its wider constitutional, political, and social relevance. The book builds on an understanding that the judicial process, the courts, and the judges are central to constitutional governance. With that backdrop, it engages with four aspects of the judicial process, including (1) the nature of the judicial process, (2) the engagements and interactions within the judiciary, (3) the engagements and interactions between the courts and other institutions, and (4) the protection of rights and redressal of violations function performed by courts. -/- The book includes a detailed discussion on key concepts, practices, tests, and principles. The following chapters and discussions are particularly interesting. Chapter one involves a jurisprudential take on the subject while referring to the works of Blackstone, Holmes, and Cardozo. Particularly relevant in chapter one are Indian cases that have cited Cardozo while determining important judicial matters. Further, the chapter includes foreign case law which has been cited by the Indian courts to discuss the nature of the judicial process. Chapter three on Judicial Review discusses the scope of judicial review in India and its centralizing force in constitutional governance. The author carefully explores the expansion in a judicial capacity for review. The chapter highlights the dynamism attached to the practice of judicial review, moving from the review of constitutional amendments, to that of laws, administrative actions, and policy. Further, the chapter includes a discussion on the basic structure of the Indian Constitution. Chapter four on Law of Precedent includes a discussion on stare decisis, which the author refers to as a principle conferring legitimacy and stability to the judicial system. Recent scholarship on the nature of obiter dicta of higher courts and persuasive quality of foreign case law in domestic cases has been cited. Chapter five covers the Independence of the Judiciary debates in India. It discusses the issue of post-retirement appointments of judges and recusal from judicial matters. Chapter eight Judicial Activism traces the development of the concept from its early days to the present times. The chapter adopts the five core meanings offered by Keenan Kmiec to substantiate the old and the new avatars of judicial activism. The chapter discusses the role of social action litigation in India and its hand in defining the judiciary as a protector of rights and constitutional values. -/- The book provides sufficient guidance to study the nature of the judicial process. It also makes one curious about the changing nature of the judicial process and the new waves of constitutional ethics and governance. The following are some of the themes not attended to in the book. First, the judgments of the courts. The written judgments constitute an integral part of the judicial process. The judgments constitute public law reaching out to beneficiaries including litigants, people at large, as well as foreign institutions and courts. That being said, a discussion on judgements and the written or unwritten standards governing the same needs attention. Also included in this point is the role of dissenting judgments. How should one view or study dissent in judgments of constitutional significance? A normative framework to study the same is much needed. Second, the tools and indicators to measure judicial impact. The judicial impact can include (a) the impact of judicial decisions on the law, policy, and society (b) the impact of law/legislation on the judicial process, and (c) the impact of technological and scientific advancements on the judicial process. Tools like judicial impact assessment have been widely argued to be important to the working of the courts. Further, parameters to study compliance, policy integration, and the impact of judicial decisions on other state institutions have gained attention. (shrink)

Immigration law is exceptional enough to deserve an administrative law focus of its own. The Administrative Procedure Act (APA) does not demand uniformity in adjudication. Therefore, it may be counterintuitive to argue that any one area of administrative adjudication is exceptional. Removal adjudication is indeed exceptional because it is an extremely dysfunctional system, it operates in a double void of fewer constitutional protections and without the protections of the APA, it relies on a vast network of civil (...) detention, and it is of a different genre than the type of regulation that drove the development of the APA. The exceptionality of removal adjudication demands a review of administrative law doctrine with this exceptionality in mind. (shrink)

Purpose– The purpose of this paper is to attempt to investigate how Information and Communications Technology researchers in UK computing departments address ethics in their research. Whilst research and innovation in ICT has blossomed in the last two decades, the ethical, social and legal challenges they present have also increased. However, the increasing attention the technical development receives has not been replicated in the area of developing effective guidelines that can address the moral issues inherent in ICT research.Design/methodology/approach– This research (...) is qualitative and made use of interviews. The data analysis was done with dialectical hermeneutics. Through a dialectical hermeneutic process, this research unpacks different understandings of relevance attached to ethics reviews of ICT research in UK computing departments.Findings– The findings include that ethics reviews are relevant because; it is a moral duty, it improves trust for researchers, it is part of risk assessment, it is in compliance with the law and it is a sustainable act.Practical implications– These various understandings illustrate an important dialectic process on the current state of the art in ICT research.Social implications– It asks to what degree the currently dominant model of ethics review based on biomedical ethics is optimal to ICT.Originality/value– It proposes a framework that can effectively help researchers and administrators to ensure responsible research and innovation in ICT. Finally, it identifies that ICT researchers would benefit from the developing repertoire of responsible research innovation. (shrink)

Under the Human Rights Act, British courts are for the first time empowered to review primary legislation for compliance with a codified set of fundamental rights. In this book, Aileen Kavanagh argues that the HRA gives judges strong powers of constitutional review, similar to those exercised by the courts under an entrenched Bill of Rights. The aim of the book is to subject the leading case-law under the HRA to critical scrutiny, whilst remaining sensitive to the deeper constitutional, (...) political and theoretical questions which underpin it. Such questions include the idea of judicial deference, the constitutional status of the HRA, the principle of parliamentary sovereignty and the constitutional division of labour between Parliament and the courts. The book closes with a sustained defence of the legitimacy of constitutional review in a democracy, thus providing a powerful rejoinder to those who are sceptical about judicial power under the HRA. (shrink)

This work examines the development and performance of federal independent regulatory bodies in Canada in the period up to 1979, with particular attention to the operation of legislative schemes that include executive review and appeal powers. The author assesses the impact of the exercise of these powers on the administrative law process, and proposes new models for the generation, interpretation, implementation, review, and enforcement of regulatory policy. The study includes a series of representative case studies based on (...) documentation and extensive interviews with individuals drawn from government, agencies, and other parties, including counsel for public interest groups. This enables author, writing from her experience as a participant-observer embedded in the public interest legal sector, to draw on the experiences and perspectives of a broad range of participants in the regulatory process, including but not limited to those dealing with the regulated energy, transportation, communications, and foreign investment sectors. Legal principles identified as emergent in leading judicial decisions in administrative law are used to assess the powers and practices used in executive reviews and appeals. The author finds those powers and practices to be flawed and proposes changes. The proposed models are designed to accord with emerging legal principles and avoid flaws of the types identified in the review and appeal provisions. This work, written under contract with the Administrative Law Project of the Law Reform Commission of Canada, formed one part of a comprehensive study of administrative law at the federal level in Canada. (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)

It is now commonplace in many jurisdictions for judges to refer to the decisions of the courts of foreign jurisdictions when interpreting domestic human rights guarantees. But there has also been a persistent undercurrent of scepticism about this trend, and the emergence of a growing debate about its appropriateness. This issue is of particular relevance in jurisdictions that have relatively recently incorporated human rights provisions that are significantly judicially enforced. In the UK, a reconsideration of the use of comparative (...) class='Hi'>judicial decisions in human rights cases is therefore particularly timely. The interpretation of the Human Rights Act 1998 will bring with it the issue of how far British courts will (and/or should) use jurisprudence from other countries in order to help in arriving at decisions on the interpretation of the Act. This article raises for debate, therefore, the meaning and significance of national judges» citation of judgments from other jurisdictions as part of their reasoning in cases with a significant human (or constitutional) rights aspect. Several questions are identified and explored in an attempt to consider various aspects of the general phenomenon. These include empirical questions (how far does it happen, and where?), jurisprudential questions (can we identify criteria that help explain why it does or does not happen?), and normative questions (is it legitimate?). A review of the existing literature is undertaken with a view to determining how far scholars have succeeded in answering these questions. The article concludes that significant gaps exist in our understanding of the phenomenon and raises for discussion the methodologies that may be appropriate for addressing the phenomenon in the future. (shrink)

Robert Alexy has argued that the democratic objection to judicial review of legislation can be successfully addressed by assuming that judges exercise a special form of argumentative representation. In this article we argue that Alexy does not explain (as he should) under what circumstances judicial review tends to produce better decisions than parliamentary procedure, nor does he explain how judicial review can have a greater intrinsic value than parliamentary procedure. Subsequently, we argue that the (...) intrinsic value of argumentative representation depends on the promotion of citizen deliberation, whereas its instrumental value depends on judges being committed to the rights of discrete and insular minorities in the face of hostile majorities. (shrink)

The relationship between Canadian administrative law and the Canadian Charter of Rights and Freedoms is complex and still unfolding. If a decision touches a Charter right, frontline decision-makers and reviewing courts alike determine the requirements of legality using the Charter, administrative law principles, or some combination of the two. There is an emerging consensus that the Charter does not replace the common law, but rather embodies and supplements fundamental legal principles contained within it.This chapter sets out various ways (...) in which judicial review at common law has influenced understandings of the Charter, as well as the manner in which the Charter has influenced review of administrative decisions when a Charter right is clearly at stake. The influence runs in both directions, and has significant implications for judicial review of both the procedure and substance of administrative action. In the realm of procedure, the courts rely on the common law doctrine of procedural fairness to interpret the principles of fundamental justice set out in s. 7 of the Charter. However, when courts review the substance rather than the procedural aspects of a decision that engages a Charter right, they tend to review the decision using the analytical framework developed in R. v. Oakes for testing the validity of legislation. Taken together, these general features of the relationship between Charter jurisprudence and administrative law suggest that each is porous and open-textured to the other. Put another way, the relationship between the Charter and administrative law exhibits a cross-fertilization of principles and approaches which inform judicial review of administrative action. (shrink)

In his thought-provoking book, Why Law Matters, Alon Harel defends two key claims: one ontological, the other axiological. First, he argues that constitutions and judicial review are necessary constituents of a just society. Second, he suggests that these institutions are not only means to the realization of worthy ends, but also non-instrumentally valuable. I agree with Harel that constitutions and judicial review have more than instrumental value, but I am not persuaded by his arguments in support (...) of this conclusion. I argue that Harel’s ontological claim is unsustainable, and that his axiological claim needs revision. Regarding the former, I show that constitutions and judicial review are only contingent constituents of a just society. Regarding the latter, I contest Harel’s specific account of the value of constitutions and judicial review. Harel grounds the non-instrumental value of constitutions in freedom as non-domination but, upon scrutiny, it emerges that their non-instrumental value lies elsewhere. Further, Harel holds that the non-instrumental value of judicial review stems from its embodying a right to a fair hearing. I argue that this right has non-instrumental value only under a particular set of circumstances. I thus conclude, contrary to Harel, that the non-instrumental value of judicial review is contingent on those circumstances obtaining. (shrink)

The concepts of judicial independence and the separation of powers are used more as terms of political rhetoric than legal concepts in the British constitution. Responsible government significantly merges the executive and the legislative while parliamentary sovereignty has meant that judicial independence has had a peculiar British meaning, rarely unpacked. In practice, in England, (and presumably in the other UK jurisdictions), individual judges are accorded a high degree of independence, while there is no effective independence of the judiciary (...) collectively as a branch of government. This article then asks what impact current constitutional changes will have on this state of affairs. Adherence to the EU, the growth of judicial review and other factors have already had an important impact; devolution, the Human Rights Act and the reform of the House of Lords may have impacts that will be different in both quality and degree. Coupled with other political changes the end result may well be a more effective separation of powers and more real independence for the judges as a branch of government; but that in turn may call for more open and meaningful democratic control over the appointment of judges. (shrink)

In my article, I want to focus on the critique Cristina Lafont makes to expertocracy and epistocracy, mainly through the institution of judicial review, to which she dedicates chapter 7 and part of...

To study Judicial determinants of the ordered obstetrical and fertility interventions. Nature, corresponding laws, decisions upon the 37 expounded holdings at the Probate, Trial, District, Appellate, and Supreme Courts are studied in 92 published materials identified through the ACOG, RCOG, SOCG portals, and Legal Scholarship Repository. Hearings are held in the US (83.8 %), Canada (10.8 %) and U.K (5.4 %). Of all the hearings reviewed, 27 % concern mentally impaired, 37.8 %-maternal incompetence, and 21.6 % cases are of (...) criminal nature. The Judicial determinants vary from country to country. In Canada, the ordered medical interventions are effected by the child protection legislation, whereas in the US, by court orders. In majority of cases, orders are obtained by dismissing the patriae petitions for involuntary sterilizations of mentally impaired sui juris adults (57 %); coerced obstetrical interventions (33.3 %), fetal custody (50 %); enforcement of surrogacy contracts (62.5 %) in favor of the Common Humanity Benefit clause; and recognizing the rights to inherit in posthumously conceived children (80 %) pursuant to the Social Security Act, Law of obviousness, Law of inherent anticipation, and Intestacy statute. Current study prioritizes two questions: (1) whether it is justified to override the wishes of a competent patient purportedly in her best interests; and (2) whether the patient’s autonomy and competence is an absolute concept. With the law unsettled as to a woman’s right to assent a treatment and contradict her fetus, parties concerned with fetal rights should consider exercising of screening tools on maternal judgmental fitness jointly developed by medical and legal practitioners. Further, given the advances in gamete conservations, states consider enacting legislation in order to safeguard the orderly administration of estates disrupted by claims from posthumously conceived children. A balance must be struck between the child’s right to inherit, the state’s interest, as well as the interests of prior born children. (shrink)

Common Law Theory of Judicial Review: The Living Tree, Wil Waluchow neatly sidesteps the critique of judicial review based on the con- tention that constitutional rights are unacceptably indeterminate by arguing that it is this very indeterminacy that makes a common law method of legal interpretation appropriate. However, his contention that judges are able to ‘discover’ the underlying ‘authentic’ moral views of citizens is insufficiently grounded to meet the objection that common law reasoning utilising such unspecific (...) material will result in controversial decisions that reflect the val- ues and experience of an unrepresentative social and professional elite. He also ignores the important fact that electoral democracy is partly about the protection of vulnerable majorities against powerful minorities. However, Waluchow’s approach could be rendered more acceptable where there is the practical possibility of effective legislative on law style decision-making in the arena of human rights.Resumen:En su libro A Common Law Theory of Judicial Review: The Living Tree, Wil Waluchow de manera elegante y sutil evita la crítica al judicial review con el argumento de que los derechos constitucionales son irremediablemen te indeterminados y sostiene que precisamente por este aspecto de inde terminación un método basado en el common law es adecuado para la in terpretación de los derechos. Sin embargo, su postura de que los jueces son capaces de “descubrir” las perspectivas morales “auténticas” de los ciudadanos no está bien fundamentada como para hacer frente a la crítica de que el método del common law, al utilizar dicho material poco específico, da como resultado decisiones controvertidas que reflejan los valores y experiencia de una elite profesional y social no representativa. También el argumento de Waluchow ignora que la democracia electoral tiene como objetivo proteger a mayorías vulnerables de poderosas minorías. No obstante lo anterior, la tesis de Waluchow puede ser más viable donde exista la posibilidad práctica de una revisión efectiva de las leyes a través de las decisiones propias del método del common law en el ámbito de los derechos humanos. (shrink)

In this paper I argue, from the point of view of a legal positivist conception of law and its associated approach to legal interpretation, that having a ‘democratic Bill of Rights’ as a basis for enacting ‘human rights legislation’ is more legitimate and likely to be more effective with respect to promoting human rights than the contemporary model of using ‘juridical Bills of Rights’ as a basis for modifying or overriding enacted legislation.Resumen:Desde una concepción positivista del derecho y su respectivo (...) enfoque hacia la interpretación jurídica, en este artículo se argumenta que el tener un “Bill of Rights democrático” como base para expedir una “legislación de derechos humanos” resulta ser más legítimo y más efectivo para la promoción de los derechos humanos, que el modelo contemporáneo de “Bill of Rights jurisdiccionales” que sirve para modificar o invalidar la legislación promulgada. (shrink)

This article seeks to examine the ways in which courts of constitutional review have tried to deal with public sentiments within societies emerging from large-scale oppression and conflict. A comparative analysis of judicial review decisions from post-communist Hungary, post-apartheid South Africa and post-dictatorial Argentina is meant to show-case how judges have, more or less successfully, recognised and pedagogically engaged social negative feelings of resentment and indignation towards former victimisers and beneficiaries of violence. Thus, the article hopes to (...) pave the way for more in-depth research on one of the most neglected dimensions of post-conflict societies: public affect. (shrink)

Both law and medicine rely on self-regulation and codes of professionalism to ensure duties are performed in a competent, ethical manner. Unlike physicians, however, judges are lawyers themselves, so judicial oversight is also self-regulation. As previous literature has highlighted, the hesitation to report a cognitively-compromised judge has resulted in an “opensecret” amongst lawyers who face numerous conflicts of interest.Through a case study involving a senior judge with severe cognitive impairment, this article considers the unique ethical dilemmas that cognitive specialists (...) may encounter when navigating duties to patient, society, and the medical profession, without clear legal guidance.Systemic self-regulatory inadequacies in the legal profession are addressed, as well as challenges that arise when trying to preserve the trust and dignity of an incapacitated patient who must fulfill special duties to society.Ultimately, because of their unique neurological expertise and impartial assessments, we submit that allowing cognitive specialists to submit their assessments to an internal judiciary board may act as an additional check and balance to ensure the fair and competent administration of justice. (shrink)

In this paper the author discusses the legitimation of judicial review of legislation. He argues that such a legitimation is not just a moral matter but is to be considered more generally in terms of societal acceptability, since it is based on a wide range of reasons including moral, social and pragmatic concerns. Moreover, the paper stresses that the legitimation of judicial decisions should be properly viewed in a circular perspective, so that the relationship between legislators and (...) judges cannot be reduced to an absolute supremacy of those who are democratically elected over those who apply the law. On the contrary, the law is constantly made, adapted and developed in legal practice and legal decisions are basically legitimated through several processes of deliberative communication. (shrink)

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)