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Judicial Authority in EU Internal Market Law: Implications for the Balance of Competences and Powers (Modern Studies in European Law)
by Vilija VelyvyteThis book examines the role of the European Court of Justice in the regulation of the internal market from a competence perspective. However, rather than focusing on the Court's role in enforcing the limits of EU competence in the EU's political decision making, it explores a related, albeit understudied, question: to what extent does the Court observe the constitutional limits of EU competence and its own institutional powers in the interpretation of EU internal market law laid down in the Treaties? The book provides an answer to this question through the analysis of EU free movement case law in light of the constitutional principles that govern the allocation of competences and powers in the EU: conferral, subsidiarity and proportionality, on the vertical level, and institutional balance, on the horizontal level. Why should the Court be bound by these principles? What do they mean when applied to judicial practice? To what extent are they observed in the free movement case law? The book argues that the Court's observance of the four principles has been inconsistent, thereby creating substantive and constitutional tensions in the EU's relationship with the Member States and upsetting the institutional balance of powers between the EU legislature and judiciary.
Judicial Authority in EU Internal Market Law: Implications for the Balance of Competences and Powers (Modern Studies in European Law)
by Vilija VelyvyteThis book examines the role of the European Court of Justice in the regulation of the internal market from a competence perspective. However, rather than focusing on the Court's role in enforcing the limits of EU competence in the EU's political decision making, it explores a related, albeit understudied, question: to what extent does the Court observe the constitutional limits of EU competence and its own institutional powers in the interpretation of EU internal market law laid down in the Treaties? The book provides an answer to this question through the analysis of EU free movement case law in light of the constitutional principles that govern the allocation of competences and powers in the EU: conferral, subsidiarity and proportionality, on the vertical level, and institutional balance, on the horizontal level. Why should the Court be bound by these principles? What do they mean when applied to judicial practice? To what extent are they observed in the free movement case law? The book argues that the Court's observance of the four principles has been inconsistent, thereby creating substantive and constitutional tensions in the EU's relationship with the Member States and upsetting the institutional balance of powers between the EU legislature and judiciary.
Judicial Avoidance: Balancing Competences in Constitutional Adjudication (Hart Studies in Constitutional Theory)
by Dr Carolina Alves das ChagasThis book analyses cases of judicial avoidance: what happens when courts leave some or all of the merits of a case undecided? It explores examples of justiciability assessments and deferential approaches regarding the decision of another authority and examines legitimacy issues involving judicial avoidance. The reader is presented with answers to two fundamental questions that guide the development of the book:- Is it legitimate to practise judicial avoidance?- How could judicial avoidance be practised legitimately? The conflict of competences, which often emerges in instances of judicial avoidance, is an important book baseline. From this conflict, the book considers and defends the possibility of applying 'formal balancing' to provide a clearer structure of the exercise of justiciability and judicial deference. The 'formal balancing' methodology is based on Alexy's principles theory, and its connection with judicial avoidance represents a significant contribution and novel point in constitutional adjudication.
Judicial Avoidance: Balancing Competences in Constitutional Adjudication (Hart Studies in Constitutional Theory)
by Dr Carolina Alves das ChagasThis book analyses cases of judicial avoidance: what happens when courts leave some or all of the merits of a case undecided? It explores examples of justiciability assessments and deferential approaches regarding the decision of another authority and examines legitimacy issues involving judicial avoidance. The reader is presented with answers to two fundamental questions that guide the development of the book:- Is it legitimate to practise judicial avoidance?- How could judicial avoidance be practised legitimately? The conflict of competences, which often emerges in instances of judicial avoidance, is an important book baseline. From this conflict, the book considers and defends the possibility of applying 'formal balancing' to provide a clearer structure of the exercise of justiciability and judicial deference. The 'formal balancing' methodology is based on Alexy's principles theory, and its connection with judicial avoidance represents a significant contribution and novel point in constitutional adjudication.
Judicial Coherence in the European Patent System: Lessons from the US and Japan
by Federica BaldanThis comprehensive book examines the judicial governance of the patent system in Europe and beyond, and looks at mechanisms for enhancing coherence. Federica Baldan investigates the challenges to judicial coherence which may arise after the establishment of a specialised patent court in Europe. The book highlights the various options that have been explored in the past decades for the creation of a centralised and specialised European patent court. Chapters retrace the most developed proposals for the establishment of a patent court, assess their impact on judicial coherence and identify potential weaknesses and room for improvement. The UPC Agreement has a central role in this analysis as it is the most advanced proposal and is currently in its implementation phase.Providing a comparative analysis of the US and Japanese patent systems and identifying the potential for improvements, this timely book will be a valuable resource for scholars, students and policymakers in the fields of IP law, governance and political science.
Judicial Decision-Making: Integrating Empirical and Theoretical Perspectives (Economic Analysis of Law in European Legal Scholarship #14)
by Piotr Bystranowski Bartosz Janik Maciej PróchnickiThis book shares state-of-the-art insights on judicial decision-making from both theoretical and empirical perspectives. It offers in-depth coverage of the forefront of the field and reviews the most important issues and discussions connected with an empirical approach to judicial decision-making. It also addresses the challenges of judicial psychology to the ideal of rule of law and explores the promise and perils of applying artificial intelligence in law. In closing, it offers empirically-driven guidance on ways to improve the quality of legal reasoning.
Judicial Decision-Making in a Globalised World: A Comparative Analysis of the Changing Practices of Western Highest Courts (Hart Studies in Comparative Public Law)
by Elaine MakWhy do judges study legal sources that originated outside their own national legal system, and how do they use arguments from these sources in deciding domestic cases? Based on interviews with judges, this book presents the inside story of how judges engage with international and comparative law in the highest courts of the United Kingdom, Canada, the United States, France and the Netherlands. A comparative analysis of the views and experiences of the judges clarifies how the decision-making of these Western courts has developed in light of the internationalisation of law and the increased opportunities for transnational judicial communication. While the qualitative analysis reveals the motives that judges claim for using foreign law and the influence of 'globalist' and 'localist' approaches to judging, the author also finds suggestions of a convergence of practices between the courts that are the subject of this study. This empirical analysis is complemented by a constitutional-theoretical inquiry into the procedural and substantive factors of legal evolution, which enable or constrain the development and possible convergence of highest courts' practices. The two strands of the analysis are connected in a final contextual reflection on the future development of the role of Western highest courts.
Judicial Decision-Making in a Globalised World: A Comparative Analysis of the Changing Practices of Western Highest Courts (Hart Studies in Comparative Public Law #3)
by Elaine MakWhy do judges study legal sources that originated outside their own national legal system, and how do they use arguments from these sources in deciding domestic cases? Based on interviews with judges, this book presents the inside story of how judges engage with international and comparative law in the highest courts of the United Kingdom, Canada, the United States, France and the Netherlands. A comparative analysis of the views and experiences of the judges clarifies how the decision-making of these Western courts has developed in light of the internationalisation of law and the increased opportunities for transnational judicial communication. While the qualitative analysis reveals the motives that judges claim for using foreign law and the influence of 'globalist' and 'localist' approaches to judging, the author also finds suggestions of a convergence of practices between the courts that are the subject of this study. This empirical analysis is complemented by a constitutional-theoretical inquiry into the procedural and substantive factors of legal evolution, which enable or constrain the development and possible convergence of highest courts' practices. The two strands of the analysis are connected in a final contextual reflection on the future development of the role of Western highest courts.
Judicial Decision Making, Sentencing Policy, and Numerical Guidance (Research in Criminology)
by Austin LovegroveThis book describes an original, empirical study of judicial decision making. The process of determining sentences is a difficult one for judges and often unnecessarily intuitive, subjective, and complex. The present study introduces a conceptual outline and empirical technique for increasing the precision of sentencing policy, thus offering an aid to judges who sentence in the light of this policy. The primary purpose of this model of judicial decision making is to provide a framework for scaling the seriousness of any single case in relation to the facts of that case and for relating this assessment to the appropriate quantum of sentence. The validity of the model is tested and cross-validated in an archival study. This innovative research serves as an important prototype for a system of numerical guidance to judges and sentencers.
Judicial Decisions in International Law Argumentation: Between Entrapment and Creativity (Studies in International Law)
by Letizia Lo GiaccoThis book explores the question of how the multiplication of judicial decisions on international law has influenced the way in which legal findings in international law adjudication are justified. International law practitioners frequently cite judicial decisions to persuade. Courts interpreting international law are no exception to this practice. However, judicial decisions do much more than persuading: they enable and constrain interpretive discretion.Instead of taking the road of the sources of international law, this book turns to the somewhat uncharted terrain of legal argumentation. Using international criminal law as a case study, it shows how the growing number of judicial decisions has normalised courts' resort to them in legal justification and enabled some argumentative practices to become constitutive of international law. In so doing, it critically revisits the implications of an iterative use of judicial decisions, and reassesses the influence of the 'judicialisation turn' on the ways in which the meaning of international law is formed, shaped and reshaped by reference to judicial decisions.
Judicial Decisions in International Law Argumentation: Between Entrapment and Creativity (Studies in International Law)
by Letizia Lo GiaccoThis book explores the question of how the multiplication of judicial decisions on international law has influenced the way in which legal findings in international law adjudication are justified. International law practitioners frequently cite judicial decisions to persuade. Courts interpreting international law are no exception to this practice. However, judicial decisions do much more than persuading: they enable and constrain interpretive discretion.Instead of taking the road of the sources of international law, this book turns to the somewhat uncharted terrain of legal argumentation. Using international criminal law as a case study, it shows how the growing number of judicial decisions has normalised courts' resort to them in legal justification and enabled some argumentative practices to become constitutive of international law. In so doing, it critically revisits the implications of an iterative use of judicial decisions, and reassesses the influence of the 'judicialisation turn' on the ways in which the meaning of international law is formed, shaped and reshaped by reference to judicial decisions.
Judicial Decisions on the Law of International Organizations
by Cedric Ryngaert, Ige F Dekker, Ramses A Wessel and Jan WoutersWith the rising relevance of international organizations in international affairs, and the general turn to litigation to settle disputes, international institutional law issues have increasingly become the subject of litigation, before both international and domestic courts. The judicial treatment of this field of international law is addressed in Judicial Decisions on the Law of International Organizations through commentary on excerpts of the most prominent international and domestic judicial decisions that are relevant to the law of international organizations, providing in-depth analysis of judicial decisions. The commentaries written and edited by leading experts in the field of international institutional law, they are opinionated and critically engage with the decision in question, with commentators' and stakeholders' reactions thereto, and with later decisions, codifications, and reports.
Judicial Decisions on the Law of International Organizations
With the rising relevance of international organizations in international affairs, and the general turn to litigation to settle disputes, international institutional law issues have increasingly become the subject of litigation, before both international and domestic courts. The judicial treatment of this field of international law is addressed in Judicial Decisions on the Law of International Organizations through commentary on excerpts of the most prominent international and domestic judicial decisions that are relevant to the law of international organizations, providing in-depth analysis of judicial decisions. The commentaries written and edited by leading experts in the field of international institutional law, they are opinionated and critically engage with the decision in question, with commentators' and stakeholders' reactions thereto, and with later decisions, codifications, and reports.
Judicial Deference in International Adjudication: A Comparative Analysis (Studies in International Law)
by Johannes Hendrik FahnerInternational courts and tribunals are increasingly asked to pass judgment on matters that are traditionally considered to fall within the domestic jurisdiction of States. Especially in the fields of human rights, investment, and trade law, international adjudicators commonly evaluate decisions of national authorities that have been made in the course of democratic procedures and public deliberation. A controversial question is whether international adjudicators should review such decisions de novo or show deference to domestic authorities. This book investigates how various international courts and tribunals have responded to this question. In addition to a comparative analysis, the book provides a normative argument, discussing whether different forms of deference are justified in international adjudication. It proposes a distinction between epistemic deference, which is based on the superior capacity of domestic authorities to make factual and technical assessments, and constitutional deference, which is based on the democratic legitimacy of domestic decision-making. The book concludes that epistemic deference is a prudent acknowledgement of the limited expertise of international adjudicators, whereas the case for constitutional deference depends on the relative power of the reviewing court vis-à-vis the domestic legal order.
Judicial Deference in International Adjudication: A Comparative Analysis (Studies in International Law)
by Johannes Hendrik FahnerInternational courts and tribunals are increasingly asked to pass judgment on matters that are traditionally considered to fall within the domestic jurisdiction of States. Especially in the fields of human rights, investment, and trade law, international adjudicators commonly evaluate decisions of national authorities that have been made in the course of democratic procedures and public deliberation. A controversial question is whether international adjudicators should review such decisions de novo or show deference to domestic authorities. This book investigates how various international courts and tribunals have responded to this question. In addition to a comparative analysis, the book provides a normative argument, discussing whether different forms of deference are justified in international adjudication. It proposes a distinction between epistemic deference, which is based on the superior capacity of domestic authorities to make factual and technical assessments, and constitutional deference, which is based on the democratic legitimacy of domestic decision-making. The book concludes that epistemic deference is a prudent acknowledgement of the limited expertise of international adjudicators, whereas the case for constitutional deference depends on the relative power of the reviewing court vis-à-vis the domestic legal order.
Judicial Dialogue on Human Rights: The Practice of International Criminal Tribunals (International Studies In Human Rights Ser. #120)
by Paolo Lobba Triestino MarinielloThe book presents a critical assessment on the use of human rights case law by international criminal tribunals. Based on the inadequacies highlighted though this analysis, the book propounds a coherent method to transfer human rights standards into international criminal justice.
Judicial Dictatorship
by William J. Quirk Randall BridwellAmerican society has undergone a revolution within a revolution. Until the 1960s, America was a liberal country in the traditional sense of legislative and executive checks and balances. Since then, the Supreme Court has taken on the role of the protector of individual rights against the will of the majority by creating, in a series of decisions, new rights for criminal defendants, atheists, homosexuals, illegal aliens, and others. Repeatedly, on a variety of cases, the Court has overturned the actions of local police or state laws under which local officials are acting. The result, according to Quirk and Birdwell, is freedom for the lawless and oppression for the law abiding. 'Judicial Dictatorship' challenges the status quo, arguing that in many respects the Supreme Court has assumed authority far beyond the original intent of the Founding Fathers. In order to avoid abuse of power, the three branches of the American government were designed to operate under a system of checks and balances. However, this balance has been upset. The Supreme Court has become the ultimate arbiter in the legal system through exercise of the doctrine of judicial review, which allows the court to invalidate any state or federal law it considers inconsistent with the constitution. Supporters of judicial review believe that there has to be a final arbiter of constitutional interpretation, and the Judiciary is the most suitable choice. Opponents, Thomas Jefferson and Abraham Lincoln among them, believed that judicial review assumes the judicial branch is above the other branches, a result the Constitution did not intend. The democratic paradox is that the majority in America agreed to limit its own power. Jefferson believed that the will of the majority must always prevail. His faith in the common man led him to advocate a weak national government, one that derived its power from the people. Alexander Hamilton, often Jefferson's adversary, lacking such faith, feared "the amazing violence and turbulence of the democratic spirit." This led him to believe in a strong national government, a social and economic aristocracy, and finally, judicial review. This conflict has yet to be resolved. 'Judicial Dictatorship' discusses the issue of who will decide if government has gone beyond its proper powers. That issue, in turn, depends on whether the Jeffersonian or Hamiltonian view of the nature of the person prevails. In challenging customary ideological alignments of conservative and liberal doctrine, 'Judicial Dictatorship' will be of interest to students and professionals in law, political scientists, and those interested in U.S. history.
Judicial Dictatorship
by William J. Quirk Randall BridwellAmerican society has undergone a revolution within a revolution. Until the 1960s, America was a liberal country in the traditional sense of legislative and executive checks and balances. Since then, the Supreme Court has taken on the role of the protector of individual rights against the will of the majority by creating, in a series of decisions, new rights for criminal defendants, atheists, homosexuals, illegal aliens, and others. Repeatedly, on a variety of cases, the Court has overturned the actions of local police or state laws under which local officials are acting. The result, according to Quirk and Birdwell, is freedom for the lawless and oppression for the law abiding. 'Judicial Dictatorship' challenges the status quo, arguing that in many respects the Supreme Court has assumed authority far beyond the original intent of the Founding Fathers. In order to avoid abuse of power, the three branches of the American government were designed to operate under a system of checks and balances. However, this balance has been upset. The Supreme Court has become the ultimate arbiter in the legal system through exercise of the doctrine of judicial review, which allows the court to invalidate any state or federal law it considers inconsistent with the constitution. Supporters of judicial review believe that there has to be a final arbiter of constitutional interpretation, and the Judiciary is the most suitable choice. Opponents, Thomas Jefferson and Abraham Lincoln among them, believed that judicial review assumes the judicial branch is above the other branches, a result the Constitution did not intend. The democratic paradox is that the majority in America agreed to limit its own power. Jefferson believed that the will of the majority must always prevail. His faith in the common man led him to advocate a weak national government, one that derived its power from the people. Alexander Hamilton, often Jefferson's adversary, lacking such faith, feared "the amazing violence and turbulence of the democratic spirit." This led him to believe in a strong national government, a social and economic aristocracy, and finally, judicial review. This conflict has yet to be resolved. 'Judicial Dictatorship' discusses the issue of who will decide if government has gone beyond its proper powers. That issue, in turn, depends on whether the Jeffersonian or Hamiltonian view of the nature of the person prevails. In challenging customary ideological alignments of conservative and liberal doctrine, 'Judicial Dictatorship' will be of interest to students and professionals in law, political scientists, and those interested in U.S. history.
Judicial Dis-Appointments: Judicial Appointments Reform and the Rise of European Judicial Independence
by Mitchel de S.-O.-l'E. LasserIn 2009 and 2010, the European Court of Justice and the European Court of Human Rights underwent significant reforms to their respective judicial appointments processes. Though very different judicial institutions, they adopted very similar - and rather remarkable - reforms: each would now make use of an expert panel of judicial notables to vet the candidates proposed to sit in Luxembourg or Strasbourg. Once established, these two vetting panels then followed with actions no less extraordinary: they each immediately took to rejecting a sizable percentage of the judicial candidates proposed by the Member State governments. What had happened? Why would the Member States of the European Union and of the Council of Europe, which had established judicial appointments processes that all but ensured themselves the unfettered power to designate their preferred judges to the European courts, and who had zealously maintained and exercised that power over the course of some fifty years, suddenly decide to undermine their own capacity to continue to do so? This book sets out to solve this mystery. Its point of departure is that it would be a mistake to view the 2009-2010 establishment of the two vetting panels in isolation from other European judicial developments. Though these acts of institutional creation are certainly the most notable recent developments, they actually represent but the crowning achievement of a process of European judicial appointments reform that has been running unremittingly since the 1990's. This longstanding and tenacious movement has actually triggered a broad set of interrelated debates and reforms, encompassing not only judicial appointments per se, but also a much wider set of issues, including judicial independence, judicial quality, judicial councils, the separation of powers, judicial gender equity, and more.
Judicial Dis-Appointments: Judicial Appointments Reform and the Rise of European Judicial Independence
by Mitchel de S.-O.-l'E. LasserIn 2009 and 2010, the European Court of Justice and the European Court of Human Rights underwent significant reforms to their respective judicial appointments processes. Though very different judicial institutions, they adopted very similar - and rather remarkable - reforms: each would now make use of an expert panel of judicial notables to vet the candidates proposed to sit in Luxembourg or Strasbourg. Once established, these two vetting panels then followed with actions no less extraordinary: they each immediately took to rejecting a sizable percentage of the judicial candidates proposed by the Member State governments. What had happened? Why would the Member States of the European Union and of the Council of Europe, which had established judicial appointments processes that all but ensured themselves the unfettered power to designate their preferred judges to the European courts, and who had zealously maintained and exercised that power over the course of some fifty years, suddenly decide to undermine their own capacity to continue to do so? This book sets out to solve this mystery. Its point of departure is that it would be a mistake to view the 2009-2010 establishment of the two vetting panels in isolation from other European judicial developments. Though these acts of institutional creation are certainly the most notable recent developments, they actually represent but the crowning achievement of a process of European judicial appointments reform that has been running unremittingly since the 1990's. This longstanding and tenacious movement has actually triggered a broad set of interrelated debates and reforms, encompassing not only judicial appointments per se, but also a much wider set of issues, including judicial independence, judicial quality, judicial councils, the separation of powers, judicial gender equity, and more.
Judicial Discretion within Adjudicative Committee Proceedings in China: A Bounded Rationality Analysis
by Li LiThis book studies the organizational influences on judicial discretion within Adjudicative Committee (AC) proceedings in China. It argues that institutional reforms and practice have mainly reduced judicial discretion within AC proceedings through the rationalization of organizational processes. This central argument will be of particular interest to the readers, as previous studies offer little insight into the overall impacts of judicial institution reforms. This book is the first that uses the bounded rationality theory developed in economics and related disciplines to formulate an analytic framework for a systematic and comprehensive examination of the impacts of organizational factors on discretion within Adjudicative Committees’ decision-making processes. Readers will gain a practical and fresh understanding of the Chinese judicial reforms.
Judicial Dissent in European Constitutional Courts: A Comparative and Legal Perspective
by Katalin KelemenDissent in courts has always existed. It is natural and healthy that judges disagree on legal issues of a certain importance and difficulty. The question is if it is reasonable to conceal dissent. Not every legal system allows judges to explain their disagreement to the public in a separate opinion attached to the judgment of the court. Most constitutional courts do. This book presents a comparative analysis of the practice of judicial dissent in constitutional courts from the perspective of the civil law tradition. It discusses the theoretical background, presents the history of the institution and today’s practice, thus laying down the basis for an accurate consideration of the phenomenon from a legal perspective.
Judicial Dissent in European Constitutional Courts: A Comparative and Legal Perspective
by Katalin KelemenDissent in courts has always existed. It is natural and healthy that judges disagree on legal issues of a certain importance and difficulty. The question is if it is reasonable to conceal dissent. Not every legal system allows judges to explain their disagreement to the public in a separate opinion attached to the judgment of the court. Most constitutional courts do. This book presents a comparative analysis of the practice of judicial dissent in constitutional courts from the perspective of the civil law tradition. It discusses the theoretical background, presents the history of the institution and today’s practice, thus laying down the basis for an accurate consideration of the phenomenon from a legal perspective.
Judicial Engagement of International Economic Courts and Tribunals (Elgar International Economic Law series)
by Michelle ZangIn this thought-provoking book, Michelle Q. Zang critically examines the practices and outcomes of international economic adjudication through an exploration of a selected group of specialized judicial actors. She draws on an in-depth review of decisions delivered by bilateral, regional and multilateral judiciaries in order to respond to questions surrounding the proliferation and fragmentation of international adjudication, including the concerns and challenges this raises. By disentangling and analysing the relationships between the various economic regimes involved, Zang reveals their substantial influence on the manner of engagement between specific adjudicators embedded in these regimes. The book also provides critical discussion about the development of international economic judiciaries, and explores the role of judicial bodies as regime coordinators within specialized and regional regimes under international law. It demonstrates that despite criticisms of plurality as the dominant phenomenon in international economic adjudication, it is not the sole root of the issues examined. Scholars and students of international law, in particular those interested in international adjudication and international economic law, will find this book to be crucial reading. It will also prove useful for practitioners specializing in international economic dispute settlement.
The Judicial Function: Fundamental Principles of Contemporary Judging
by Joe McIntyreJudicial systems are under increasing pressure: from rising litigation costs and decreased accessibility, from escalating accountability and performance evaluation expectations, from shifting burdens of case management and alternative dispute resolution roles, and from emerging technologies. For courts to survive and flourish in a rapidly changing society, it is vital to have a clear understanding of their contemporary role – and a willingness to defend it. This book presents a clear vision of what it is that courts do, how they do it, and how we can make sure that they perform that role well. It argues that courts remain a critical, relevant and supremely well-adjusted institution in the 21st century. The approach of this book is to weave together a range of discourses on surrounding judicial issues into a systemic and coherent whole. It begins by articulating the dual roles at the core of the judicial function: third-party merit-based dispute resolution and social (normative) governance. By expanding upon these discrete yet inter-related aspects, it develops a language and conceptual framework to understand the judicial role more fully. The subsequent chapters demonstrate the explanatory power of this function, examining the judicial decision-making method, reframing principles of judicial independence and impartiality, and re-conceiving systems of accountability and responsibility. The book argues that this function-driven conception provides a useful re-imagining of some familiar issues as part of a coherent framework of foundational, yet interwoven, principles. This approach not only adds clarity to the analysis of those concepts and the concrete mechanisms by which they are manifest, but helps make the case of why courts remain such vital social institutions. Ultimately, the book is an entreaty not to take courts for granted, nor to readily abandon the benefits they bring to society. Instead, by understanding the importance and legitimacy of the judicial role, and its multifaceted social benefits, this books challenge us to refresh our courts in a manner that best advances this underlying function.