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The Legal Practitioners Act of 2000 authorises the Sierra Leone Bar Association to elect six legal practitioners for membership of the General Legal Council (Council), which is the regulatory body of the legal profession in Sierra Leone. In April 2019, Ibrahim Sorie was among the legal practitioners elected to the Council. Subsequently, I—another legal practitioner—objected to and petitioned in the High Court of Sierra Leone Sorie’s election to the Council on the basis of ineligibility. The thrust of my objection was that Sorie, a two-term ex-president of the Sierra Leone Bar Association had not yet attained the necessary fifteen-year standing qualification at the date of his appointment to the Council, based on his year of enrolment into the Permanent Register or Roll of Court in 2011. Sorie filed an action in the Supreme Court against the Council invoking the exclusive original jurisdiction of the Supreme Court to interpret certain portions of the Constitution of Sierra Leone vis-à-vis the eligibility provision for membership to the Council in the Legal Practitioners Act.2 The Supreme Court delivered a controversial 97-paged judgment on 27 October 2020.

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Over the last century there has been significant growth within our society of practices that distribute costs and benefits to individuals based on statistical knowledge about the population. These actuarial practices like insurance premium setting and standardized testing in educational admissions are successful largely because they allow power to be exercised more effectively and at lower political cost. At the same time they generate ideological effects which have the potential to transform the way individuals understand themselves and their groups. In a 1977 case, Los Angeles Water and Power v. Manhart (435 U.S. 702), the United States Supreme Court considered a challenge to the actuarial use of gender in setting employee benefits. The case and the debates it generated illuminate the danger posed by the ideological effects of actuarial practices to our political culture in general, and to traditionally disempowered classes such as women in particular. At the same time it illustrates the limitation of traditional legal rights discourse as a means of resisting these dangers.

This study aims to analyze the original jurisdiction to the crime of bigamy in the early 17th century, when ecclesiastical jurisdiction claimed for a supremacy in that matter against Inquisition in Portuguese Empire. The methodology includes both primary sources which illustrate the debates that time and contemporary literature. As a result, we realized that many actors influenced in the attempt to find a final solution for this conflict, such as the appeal to the Pope and the mediation of the King in Church’s internal affairs, what denotes the multinormative perspective in the Portuguese colonial context and the convivence of different jurisdictions even when there was a conflict between them. O objetivo deste ensaio é analisar a discussão sobre a competência originária para o crime de bigamia no início do século XVII, em face da jurisdição eclesiástica ter entrado em confronto com a da Inquisição, que ocorreu no âmbito do império colonial português. A metodologia utilizada envolveu tanto o estudo de fontes primárias, que ilustram os debates que ocorreram acerca da temática, bem como o posicionamento de estudiosos do período. Os resultados alcançados demonstram que o processo de tentativa de encontrar uma solução definitiva para o conflito envolveu diversas esferas, destacando-se o apelo ao papa e a mediação do próprio rei em desentendimentos internos da Igreja Católica, percebendo-se que a tônica no cenário multinormativo do contexto colonial português envolveu diversas jurisdições, que não necessariamente sobrepujavam as outras envolvidas, mesmo quando entravam em conflito.

The manner in which political institutions convey their policy outcomes can have important implications for how the public views institutions’ policy decisions. This paper explores whether the way in which the U.S. Supreme Court communicates its policy decrees affects how favorably members of the public assess its decisions. Specifically, we investigate whether attributing a decision to the nation’s High Court or to an individual justice influences the public’s agreement with the Court’s rulings. Using an experimental design, we find that when a Supreme Court outcome is ascribed to the institution as a whole, rather than to a particular justice, people are more apt to agree with the policy decision. We also find that identifying the gender of the opinion author affects public agreement under certain conditions. Our findings have important implications for how public support for institutional policy-making operates, as well as the dynamics of how the Supreme Court manages to accumulate and maintain public goodwill.

The Supreme Court is currently considering whether it will accept original jurisdiction over New Hampshire v. Massachusetts. At issue is the State of New Hampshire’s (and its amici’s) claim that Massachusetts’s insistence on applying its income tax to residents of New Hampshire, who once commuted to work in Massachusetts but now work for the same businesses remotely in New Hampshire because of the COVID-19 pandemic, violates the Due Process Clause and dormant Commerce Clause. The claim is simple and seductive: if these New Hampshire residents barely leave their own homes, much less their state, how can it accord with due process for Massachusetts to tax them? In this short colloquium essay, I make the following points about the merits of this case. (I think the case should be dismissed on procedural grounds, but believe the merits are important and will eventually be reached on a similar fact pattern.) 1. The plaintiffs are essentially arguing for physical presence as a predicate for individual income taxation. To the extent that the argument is that physical presence is currently required by the Due Process Clause or the dormant Commerce Clause, I argue that contention is wrong. 2. I also argue that a physical presence rule should not be created. This is a case where common sense intuitions about work and the creation of value can lead one astray. Here, what intuition misses is the importance of agglomeration economics. The residents of New Hampshire massed on the border with Massachusetts (and paying higher housing prices to do so) are not preparing for an invasion. Rather, they are rationally choosing to live in the Greater Boston area because of the professional and cultural amenities that the area offers and for which the state of Massachusetts can reasonably ask them to contribute. 3. The plaintiffs make a similar argument about apportionment, namely that the Massachusetts’s regulations fail fair apportionment. Again, as based on current law, this argument is incorrect (and should remain so). Apportionment is judged by a reasonableness standard and here what Massachusetts is doing satisfies that standard. It has long been acceptable for states that are the source of an employee’s income because that is where the employee works to consider itself the source of all of that income. All Massachusetts has done is argue that the usual source rule should apply during this temporary disruption. Similarly, all New York’s convenience of the employer rule argues is that the usual source rule of thumb should not be disturbed unless the employer is the driving force behind the employee working elsewhere. 4. There is a difference between what the Constitution permits and what would be best as a matter of policy. If, as seems likely, there will be more remote work in the future, then the traditional all-or-nothing rule of thumb as to the source of individual income should be reconsidered. In particular, I argue, it is appropriate for states to shift to apportioning the income of individuals just like they currently do for the income of businesses.

If any of Indonesia’s judiciary branches can be said to have been in constant flux before and after the one roof system under the Supreme Court, it is the Administrative Court. From limited jurisdiction—by limitation from The Administrative Court Act (ACA), (Undang-Undang Tentang Peradilan Tata Usaha Negara) and others unresponsive legal policy, establishment of new court, and supreme court decision—to expansion jurisdiction by enactment of Government Administration Act (GAA), (Undang-Undang Tentang Administrasi Pemerintahan) and establishment sectoral laws, including expansion from Constitutional Court decision, has brought dynamic changing to the Administrative Court jurisdiction. In this paper, I will discuss to what extent the Administrative Courts have indeed changed, survived, and improved the administration of justice in their field. I will first provide a short overview of the original jurisdiction on the Administrative Court Act (ACA), followed by an analysis of the legal impact of the enactment of the Government Administration Act (GAA) and other relevant Law and Regulation. This paper demonstrated that Administrative Court jurisdiction expansion urgently required harmonization between the ACA and the GAA: the existing legal gap has been not sufficiently filled by the Supreme Court Regulation (SCR) or Supreme Court Circular (SCC).

This book provides a systematic and comprehensive analysis of the ICC's jurisdiction over nationals of non-States Parties. It is within the context of developments at the Court in recent years that this work addresses the overarching question: On what legal basis is the ICC authorised to exercise jurisdiction over nationals of non-States Parties? Engaging with ICC jurisprudence and building upon arguments developed in legal scholarship, this book explores the theory of delegated jurisdiction and critically examines the idea that the Court might alternatively be exercising jurisdiction inherent to the international community. It argues that delegation of territorial jurisdiction and implied consent by virtue of UN membership provide a legal basis to allow the ICC to exercise jurisdiction over nationals of non-States Parties in almost all situations envisaged by the Rome Statute.

The Caribbean Court of Justice (CCJ) serves as both a final appellate court and, under its original jurisdiction, as a treaty-interpreting court. Under this latter jurisdiction the CCJ has developed and enhanced the effectiveness of Caribbean Community law. It has introduced a number of legal doctrines, several of which parallel doctrines of European Union law. In doing so the Court has challenged fundamental national legal norms and traditions, including the dualist view of the relationship between international law and municipal law, the principles of constitutional supremacy and separation of powers, the role of legitimate expectations, and potential for indirect effect. This chapter introduces the CCJ’s original jurisdiction jurisprudence and places it in its legal and historical context. It identifies the different bases under which the CCJ can take jurisdiction, and critically discusses some of its foundational decisions in two areas, namely, free movement of persons and the rules related to the Common External Tariff. The chapter compares the jurisprudence of the CCJ to that of the European Court of Justice in order to assess the former’s potential effect upon Caribbean constitutional norms. The chapter concludes by suggesting that the CCJ has laid the foundations for significant legal developments which may reshape our understandings of the relationship between the regional and national spheres and the scope of authority within each sphere.

“The court and the public” argues that a judge’s awareness of public opinion is not only inevitable, but also necessary. Can the Court also influence the public? The long tenures of the justices do not seem to affect the equilibrium in which the Court and the public exist. Public polls show some approval for the Supreme Court in general, rather than its specific actions. However, famously contentious cases such as Roe v. Wade reveal the intersection of public opinion and Court judgment, showing what happens when the Court feels its legitimacy is threatened. Has the Court aligned itself with public opinion over time?

A very small percentage of cases reach the Supreme Court. “The Court at Work” explains that even if a case meets all the criteria, the justices are still at liberty to refuse it. The Court has navigated debates about the separation of powers and conflicting approaches to interpretations of the statutes. The growth of the administrative state means that the Court is now more often tasked with determining whether administrative agencies are carrying out their duties correctly. What do cases and controversies mean to the Supreme Court? Why are these terms important, and how have the Court’s interpretations of them changed over time?

This Article is the first to examine the behavior of judges and their law clerks (officially entitled référendaires) at the Court of Justice of the European Union. It identifies a number of serious issues affecting Court performance. First, the Article finds that the Court's high judicial salaries and lack of procedural safe-guards for EU judicial appointments attract political appointees. As a consequence, some judges who are selected are not compe-tent to perform their duties and are dominated by their référen-daires. Moreover, the high turnover rate of EU judges hampers their productivity and increases their dependence on the référen-daires. Using a sample of data hand-collected from LinkedIn, the Article demonstrates that référendaires are drawn from a rela-tively closed social network. There is no open platform for re-cruiting référendaires, and the requirement of French as the working language significantly limits the pool of eligible candi-dates. The inefficiency of the référendaire labor market results in less competition, leading many référendaires to stay longer at the Court. The revolving door between the Court and the European Commission raises serious conflict issues, as the Commission is able to exert influence on the Court from the inside and gain a comparative advantage in litigation. In addition, the Court’s practice of issuing a single, collegial decision encourages free-riding, increases pressures for judges and référendaires to con-form, and suppresses dissent, as illustrated in the Microsoft case. Last but not least, the division of labor between the General Court and the Court of Justice could lead to divergent incentives for judges working at different levels of the Court.

How does the Supreme Court choose among cases to grant cert? In the context of a model that considers a strategic Supreme Court, a continuum of rule-following lower courts, a set of cases available for revision, and a distribution of future lower court cases, we show that the Court grants cert to the case that will most significantly shape future lower court case outcomes in the direction that the Court prefers. That is, the Court grants cert to the case with maximum salience. If the Court is rather liberal (conservative) then the most salient case is the one that moves the discretionary range of the legal standard as far left (right) as possible. But if the Court is moderate, then the most salient case will be a function of the skewedness of the distribution of ideologies of the lower courts and the likelihood that future cases will fall within the part of the discretionary range that is adjusted if the case is granted cert. Variations take place when the ideology of the Court is moderately liberal, moderately conservative or fully moderate. Extensions of the model allow us to identify the sensitivity of the results to the number of petitions for revision; the variety of legal topics covered by the petitions; and anticipation of whether the Court will confirm or reverse.

The exclusive jurisdiction of the traditional justice system – which in effect is based on racial classification – has been the subject of debate in South Africa since the attainment of democracy in 1994. The debate is drawn from the Constitution, which recognises the general system of customary law, and limits its application to the people who observe it. The debate is further fuelled by the non-explicit recognition of the customary court system within the judicial structure of the Republic. These courts are inferred from the concept of ‘any other courts’ in the Constitution. The inference of customary courts from ‘any other courts’, compromises the legitimate status of these courts in the resolution of disputes that arise from the system of customary law – in line with the ideals of the new constitutional dispensation. This considered, this article critically reviews the constitutional status of the customary court system in South Africa. The objective is to examine the effect of its exclusive jurisdiction in the application of the principles of traditional justice. It is also limited to the review of South Africa’s constitutional perspective on the protection of customary law relating to the advancement of the traditional justice system. It is argued, therefore, that the exclusive jurisdiction of the traditional justice system is a direct racial classification under the guise of the foundational values of the new democratic dispensation. Equally, the status given to customary courts – which is inferred from the concepts of ‘any other’ – constitutes a manifestation of the historic divide that compromises the legitimacy of these courts in the application of traditional justice. The extent, to which the exclusive jurisdiction can move towards a system that inclusively reflects the values of the new democratic dispensation, is also reviewed in general.

Since 2013 judicial reforms in China have intensified. While recent studies of the Chinese judiciary have focused on structural reforms concerning the jurisdiction of courts and internal court management, it has largely gone unnoticed that the Supreme People’s Court (SPC) has established an open-access database archiving the decisions of every court in China. On the basis of legal documents, secondary literature and interviews with experts, this study investigates the implications of the new database. We find that the database establishes new channels of communication that affect the relationship between the courts and the public, and the position of judges within the judiciary. Further, the open-access database facilitates changes in the structure of communication among legal experts, which in turn promotes legal professionalism. We argue that the SPC made use of the party policy on the direct accountability of the courts towards the people in order to pursue its institutional interest in a professional judiciary.

Legal precedent serves as the foundation of the common law. Judges provide their reasoning through precedent, citing cases to support their conclusion while distinguishing between cases cited by that counsel in favor of an opposing result. Legal precedent also provides the mechanism by which judges communicate with one another, at the same time providing guidance to prospective litigants and the practicing bar. This process is particularly important for supreme courts, whose decisions bind all lower courts within their jurisdiction. For this reason, in most common‐law jurisdictions, the supreme court decides relatively few cases but draws heavily on precedent for the opinions it issues. The Supreme Court in India stands in contrast to its counterparts in countries such as the United States and Canada in that it decides thousands, rather than tens, of cases. Examining the universe of Court decisions from 1950–2010, we find that the Court elects not to cite precedent in nearly half its opinions. In turn, these opinions without citation to precedent are rarely subsequently cited. However, there is a second set of decisions that is more analogous to U.S. Supreme Court decisions. These decisions do cite prior decisions and are cited by later cases. Opinions that do cite precedent gravitate to older opinions, whose salience often endures for decades. These findings suggest the Court is constrained in its ability to process a heavy caseload, and makes strategic decisions as to which opinions to emphasize through its use of precedent.

This study grew out of my on-the-job blogging. At both the Charleston School of Law and the J. Rueben Clark Law School, I read every opinion from the state and federal appellate courts with jurisdiction over South Carolina and Utah respectively, summarizing the binding authority and posting those summaries online at the Barrister blog and the Binding the Law blog. This has served as excellent current awareness and bar preparation service to the law school communities and a research tool to the legal community generally.

Last month, the U.S. Supreme Court opened the 2017-2018 term with its most important focus on alternative dispute resolution in decades.

The article examines how states talk about the International Criminal Court (ICC, or the Court) through the lens of Albert Hirschman’s exit, voice and loyalty framework. Based on a content analysis...

The EU's Common Foreign and Security Policy (CFSP) was conceived of as an area ill-suited for full judicial review by the Court of Justice of the European Union. The Lisbon Treaty confers on the Court limited jurisdiction which the recent case law has interpreted in broad terms. This article will place this case law in the broader constitutional setting of the EU legal order and will provide a critical analysis of its implications for both the EU's and domestic courts. The analysis is structured on the basis of three main themes. The first is about the position of CFSP in the EU's constitutional architecture: the article will analyse the constitutional ambivalence that characterizes this position and how it is conveyed by the provisions of the Treaty on the European Union and the Treaty on the Functioning of the European Union governing the Court's jurisdiction. The second theme is about the recent case law, and the integrationist approach that the Court of Justice has adopted to the scope of its jurisdiction. The third theme is about national courts: the article will argue that recent case law has been too quick to dismiss them, and that primary law renders them an essential part of the judicial review system governing CFSP.

On 5 October 2016, the International Court of Justice (ICJ, the Court) rendered three judgments declining to take jurisdiction in the Marshall Islands cases, in which that state alleged that India, Pakistan, and the United Kingdom violated their nuclear disarmament obligations under the Treaty on the Non-Proliferation of Nuclear Weapons and customary international law. In declining to take jurisdiction, the Court further confirmed its recent shift to jurisdictional formalism, initiated in Georgia v. Russia and confirmed in both Belgium v. Senegal and the Alleged Violations (Nicaragua v. Colombia) judgment. What is more, the Court heightened the burden of proving the existence of a dispute by incorporating an ‘objective awareness’ requirement in its analysis. The present contribution critically situates the Court's judgments within the context of the law of state responsibility and global security, with particular emphasis on the broader implications going forward. It first explores the principal features of the Court's formalistic shift on jurisdictional matters in the cases, setting the stage for the subsequent discussion. The article then turns to the broader implications of these decisions for state responsibility, taking into consideration that the ‘disputes’ submitted to the Court are not strictly bilateral in nature. My ambition is also to highlight the nexus between jurisdictional issues, state responsibility law, and broader questions of access to justice in multilateral disputes. By way of conclusion, the article highlights the importance of identifying creative solutions in a post-Marshall Islands world, suggesting the UN General Assembly as a law-making facilitator and the UN Security Council as an alternate – albeit imperfect – dispute settlement forum to tackle multilateral disputes with global security implications.

This article investigates the proper ambit of trust jurisdiction clauses. The author proposes that whether a trust-related proceeding is or is not subject to any jurisdiction clause in the trust instrument should be decided according to two key criteria: the proximity of the parties to the proceeding to the drafting of the trust instrument and whether the issues under review in the proceeding are part of the routine running of the trust, an attempt to undermine the trust, or an attack on an officer’s functioning within the trust framework. Other factors to be taken into account are the likely costs of proceedings before the chosen court and elsewhere (including difficulties over security for costs), the extent to which the chosen court offers a realistic prospect of a fair hearing, and the extent to which any court orders granted, whether by the court named in a jurisdiction clause or another court, are likely to be enforceable in practice.

Most state supreme court justices have time-bound terms that require them to be reappointed or reelected after a certain amount of time. In three American states, South Carolina, Vermont, and Virginia, the legislature has the sole power to retain justices. Legislatures, and their specialized judiciary committees, are well positioned to monitor judicial behavior and can reject retention for justices who are unacceptable. This turns the legislature's oversight authority into influence over policy making by justices who still need to be reappointed to additional terms. But some justices (co-partisans) are insulated from this influence by their connections to the majority party, which substantially increases the likelihood of their retention. I show that, between 1995 and 2014, justices appointed by the minority party who were eligible for a new term voted more in line with the preferences of their legislature than those who were no longer eligible for a new term due to mandatory or voluntary retirement. No similar effect is found among appointees of the majority party. To support my argument that it is the legislature's reappointment authority that gives them this power, I conduct a placebo test to show that governors in these states enjoy no comparable influence on reappointment-seeking justices. This legislative influence represents a substantial limitation on judicial independence.

One of the most interesting and controversial crimes that belong to the subject matter jurisdiction of the newly to be established African Criminal Chamber is undoubtedly the crime of unconstitutional change of government. This article explores the question why this offence is upgraded to the regional level of criminal law enforcement. After all, any criminalization of the conduct at a regional level and the concomitant inclusion of the offence in the jurisdiction of regional courts raises questions about the right of foreign intervention in internal political affairs and the curtailment of the right to rebel. The crime of unconstitutional change of government is tested against these principles and it is concluded that they do not impede criminalization, nor the elevation of the crime to a regional level. In search of a positive argument in defence of the inclusion of the crime within the jurisdiction of the African Court, I contend that the best explanation is that insurgencies are not contained to single states but are inclined to spread to other countries. In view of the specific African experience, where endemic conflicts have proved to be contagious, it is clear that states have a common interest in suppressing both the dynamic and static form of unconstitutional change of government.

One of the issues that the current proliferation of international courts and jurisdictions raised in the international legal order is overlapping jurisdiction. On 27 June 2014, the Assembly of the African Union adopted a protocol on the Amendments to the Protocol on the Statute of the African Court of Justice and Human Rights which extends the jurisdiction of the court to cover international crimes. The decision of the AU to clothe the African court with a criminal jurisdiction has brought, once again, the issue of overlapping jurisdiction to the surface. This article is an attempt to answer the questions: to what extent does the criminal jurisdiction of the African court overlap with the jurisdiction of the ICC, and is the issue of overlapping jurisdiction a common occurrence or an imminent concern? Taking the crimes under the jurisdiction of the courts and the fact that large numbers of African states are state parties to the ICC into consideration, many tend to argue that overlapping jurisdiction is inevitable and is likely to cause friction for the primacy of jurisdiction. However, this article argues that a close scrutiny of the substantive and territorial jurisdiction of the ICC and the African Court suggests that the issue of overlapping jurisdiction is both rare and of remote concern.

In a span of three weeks during the spring of 2017, the U.S. Supreme Court issued three patent decisions, bringing the total number of patent decisions for the 2016-2017 term to six. This means that the October 2016 term ties the previous record of six patent decisions in the October 2014 term. This represents a tremendous increase in the number of patent decisions compared to earlier times, and particularly the early days of the Federal Circuit. For reference, during the first quarter of a century the Federal Circuit was in existence, the Supreme Court heard on average less than one patent case per year. The three most recent decisions, Sandoz, TC Heartland, and Impression Products are typical of recent Supreme Court patent jurisprudence in that they all soundly rejected the Court of Appeals of the Federal Circuit’s interpretation of statute and/or Supreme Court precedent, and all of the decisions resulted in a reduction of patent rights for patent owners. In this regard, they are quite representative of a wave of patent decisions by the Supreme Court over the last decade that challenged no signs of abating. In the aggregate, these decisions have led to a marked accretion of patent owner rights, that has weakened the value of issued patents and/or made it more difficult to obtain patents. This Article reviews these decisions, identifying the specific devaluation and its likely impact on biotechnology.

InShergill & Others v. Khaira & Others[2014] UKSC 33, the UK courts considered whether a Sikh holy saint had the power to dismiss trustees who questioned his “succession” to the religious institution of theNirmal Kutia Johal. The Supreme Court, reversing the decision of the Court of Appeal that religious questions were “nonjusticiable,” reinstated the judgment at first instance of the High Court to the contrary. The decision of the Supreme Court is important because whenever questions of the identification and legitimacy of successors to a religious institution have arisen, their “justiciability” before a secular court has invariably been a bone of contention on grounds that it threatens the autonomy of religious institutions. InShergillthe Supreme Court got around these concerns by drawing a normative distinction between the public law of the land (which the courts are required to determine), and the internal private law of a religious institution on matters of succession, ordination, and removal (which are not in themselves for the courts to decide). ButShergillalso went further than previous case law in two respects. First, the fundamental tenets of a belief system are capable of an objective assessment by a secular court provided that there is public law element to a dispute, in which case the court can then decide on the fitness of the successor for office. This means there is no general presumption that a secular court is barred from considering religious questions per se. Second, these principles apply just as much to the judicial consideration of non-Christian faiths as they to the Christian religion, and this is so notwithstanding the court's unfamiliarity with other faiths.