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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.

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.

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.

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.

The Supreme Court sometimes chooses to use its limited time to revisit earlier decisions. In doing so, the justices signal the importance of reasserting, correcting, or reconsidering their arguments. We find that the likelihood of the Supreme Court revisiting a case in a given year increases significantly as the number of circuit courts critical of that opinion increases. These results suggest that an acknowledgment of the important role of the circuit courts influences the decision to revisit cases. Even if the Court merely clarifies or reinforces earlier opinions, criticism in the circuits prompts the Court to take some action. Though the Supreme Court’s word is final, barring a constitutional amendment or legislative override in nonconstitutional cases, the mechanism of criticism in the circuits allows reconsideration of many issues already decided by the Court and sheds light on the importance of institutional structures to the maintenance of the rule of law.

Constitutional courts in Latin America have used judicial review to enhance the relevance of international law in recent years. Some scholars even speak of a growing “constitutionalization of international law” in the region. But these domestic courts can also act as gatekeepers that blunt or entirely deflect the domestic impact of international law. This essay explores three recent episodes in which constitutional courts joined or led efforts to escape treaty obligations: the Venezuelan Supreme Court's judgment urging the Chávez Administration to denounce the American Convention of Human Rights on constitutional grounds, which Chavez then did in 2012 (a court-inspired treaty exit); the Colombian executive's 2013 petition to have Colombia's acceptance of the International Court of Justice's (ICJ's) jurisdiction under the Pact of Bogotá declared unconstitutional (a court-legitimated treaty exit); and the Dominican Republic (DR) Constitutional Tribunal's 2014 judgment holding that the DR's acceptance of the jurisdiction of the Inter-American Court of Human Rights (IACtHR) had been unconstitutional (a court-led treaty exit).

One of the unique features of Israel's legal, military, and political control over the Occupied Palestinian Territories (OPT) has been the review by the Supreme Court of Israel of the actions and decisions of the authorities in those territories. Sitting as a High Court of Justice that has the competence to review the actions of all persons exercising public functions under law, the Court has entertained thousands of petitions relating to the legality of such varied actions as house demolitions, deportations, land requisition, entry permits, and establishment of settlements. There can be little doubt that the very existence of judicial review has had a restraining effect on the authorities. While the Court has not ruled against the government that often, and has provided legitimization for acts of dubious legality, such as punitive house demolitions and deportations, it has handed down some important rulings on questions of principle. Furthermore, in the shadow of the Court, many petitions have been settled without a court ruling, allowing for a full or partial remedy for the Palestinian petitioner.

IN Lungowe v Vedanta Resources Plc [2016] EWHC 975 (TCC), the High Court allowed a claim to be heard in England against parent company incorporated in England and its foreign subsidiary in relation to the overseas subsidiary's operations. The judge considered whether the claim against the English-domiciled defendant could be stayed on the basis of forum non conveniens, and whether jurisdiction could be established over its foreign subsidiary as a necessary and proper party to the case. The overall analysis of the judgment suggests that (1) the claims against the parent company in relation to the overseas operations of the foreign subsidiary can be heard in the English courts and (2) the existence of an arguable claim against the English-domiciled parent company also establishes jurisdiction of the English courts over the subsidiary even if the factual basis of the case occurs almost exclusively in the foreign state.

High-profile cases in the Supreme Court of the United States (‘SCOTUS’) on religion tend to attract a certain amount of academic comment in the United Kingdom but US judgments are cited only infrequently by the superior courts in the UK. In return, SCOTUS rarely cites foreign judgments at all. The reason, it is suggested, is that the effect given by the First Amendment to the US Constitution is to render US case law of less relevance to the UK than, for example, judgments from jurisdictions such as Canada and Australia.

The jurisdictional framework of the Singapore courts has become more nuanced with the establishment of the Singapore International Commercial Court (SICC) on 5 January 2015 and the signing of the Hague Convention on the Choice of Court Agreements 2005 (Hague Convention) on 25 March 2015. Although the Hague Convention has yet to be incorporated in domestic law, it is expected this will happen in the near future. The SICC project, on the other hand, is part of Singapore's strategy to promote the jurisdiction as an international dispute resolution hub. In essence, the SICC is a domestic specialist court established to deal with international commercial litigation. Adapted from the arbitral model but underpinned by judicial control, central to the SICC framework are party autonomy and flexible procedural rules. The Hague Convention complements the SICC project by increasing the number of jurisdictions in which Singapore judgments will be recognized and enforced. These 2015 developments—key to establishing Singapore as the regional hub for dispute resolution—requires careful working out and an evaluation is needed of the jurisdictional regime that applies to the SICC and the internal allocation of jurisdiction as between the SICC and the Singapore High Court sans the SICC, as well as the impact of the Hague Convention. This article focuses on explaining the in personam jurisdictional rules of the Singapore High Court that now includes the SICC division. Its chief objective is to offer the international community an overview of the working framework of Singapore's version of an ‘international’ commercial court.

This article examines the challenges surrounding the enforcement of decisions of international courts, using the Caribbean Court of Justice (CCJ) as the fulcrum of the analysis. When sitting in its original jurisdiction, the CCJ adjudicates claims arising from the Revised Treaty of Chaguaramas and the operation of the Caribbean Single Market and Economy. However, there is no clear route for the enforcement of original jurisdiction decisions. The Agreement Establishing the CCJ leaves the issue of enforcement to the states themselves, who in turn have either failed to enact enforcement legislation or have provided for enforcement to be carried out ‘in like manner’ as the decisions of domestic courts. This phraseology raises the spectre of the Crown Proceedings Act and its legislative progeny which bar the pursuit of enforcement proceedings against the state. Several solutions to this enforcement conundrum are discussed, ranging from a regional enforcement treaty, akin to the New York Convention, to enforcement at common law using the Fick case, with the merits and demerits of each examined in turn.

Twenty-five years ago, in this Journal, Hilary Charlesworth, Christine Chinkin, and Shelley Wright argued that the structures of international law “privilege men.” As shown in Table 1, which summarizes data from a forthcoming article, on nine of twelve international courts of varied size, subject-matter jurisdiction, and global and regional membership, women made up 20 percent or less of the bench in mid 2015. On many of these courts, the percentage of women on the bench has stayed constant, vacillated, or even declined over time. Women made up a lower percentage of the bench in mid 2015 than in previous years on two-thirds of the courts surveyed.

The Constitutional Courts of a number of Member States exert a constitutional review on the obligation of national courts of last instance to make a reference for a preliminary ruling to the Court of Justice of the European Union (CJEU).Pursuant to Article 267(3) TFEU, national courts of last instance, namely courts or tribunals against whose decisions there is no judicial remedy under national law, are required to refer to the CJEU for a preliminary question related to the interpretation of the Treaties or the validity and interpretation of acts of European Union (EU) institutions. The CJEU specified the exceptions to this obligation inCILFIT. Indeed, national courts of last instance have a crucial role according to the devolution to national judges of the task of ensuring, in collaboration with the CJEU, the full application of EU law in all Member States and the judicial protection of individuals’ rights under EU law. With preliminary references as the keystone of the EU judicial system, the cooperation of national judges with the CJEU forms part of the EU constitutional structure in accordance with Article 19(1) TEU.

In this article, we present and test a market-based model of news content about state courts of last resort. We test our theory by examining newspaper coverage of decisions in death penalty cases. Our empirical results indicate that news elements of drama, novelty, and sensationalism influence coverage of state high courts' death penalty cases rather than traditional indicators of legal salience. News content either anywhere in a newspaper or on its front page is influenced by similar factors, but front-page coverage is more sensitive to dramatic conviction reversals and the rarity of executions in a given state. Our results suggest that traditional explanations of the relationship between crime and newsworthiness have limited impact on media attention given to state supreme courts. Media coverage of state high courts is instead associated primarily with the behavior of the court and its justices.

The jurisdiction of the International Criminal Court has remained largely uncontested during the first 10 years of its operation. Today, the jurisdictional cooling-off period seems to have run its course. The Prosecutor has opened the first Article 15 investigations and prosecutions in Kenya. The defence has been active in challenging the jurisdiction of the Court. Judges at the pre-trial stage have taken a more inquisitive approach to jurisdictional assessments. This awakening has led to the identification of novel legal issues. One of them is the applicable burden and standard of proof for defence challenges to jurisdiction. So far, this issue has been addressed largely through interpretation of the Statute. The Court's first decisions seem to fluctuate significantly on this point. From pronouncements accepting that such burden and standard do exist and seeking to articulate them, to rulings implying that they do not exist altogether, the Court's case law reveals a measure of inconsistency and a lack of reasoning. This article seeks to expose the different positions assumed on the matter, typically as a result of the judges’ efforts to balance procedural efficiency and fair trial considerations. In doing so, we will reflect critically on the causes and effects of the current state of the law and propose a reorientation of the case law through the use of other relevant international jurisprudence.

This paper evaluates the impact of a higher court articulating doctrine as either a “rule” or a “standard.” The legal doctrine we evaluate concerns police searches based upon information supplied by confidential informants. The Supreme Court’s Aguilar-Spinelli test was a rule, and its Illinois v. Gates “totality of the circumstances” test is a standard. Using a data set of circuit court opinions from 1951 to 1999, we compare circuit-level implementation of these two doctrines. The results suggest that rules are more effective than standards at constraining ideological voting in lower courts.

Protocol 16 ECHR will provide for an extension of the advisory jurisdiction of the European Court of Human Rights (ECtHR), enabling highest national courts to request advisory opinions on questions of principle concerning the interpretation of the European Convention on Human Rights (ECHR) or its protocols. This extension of the ECtHR's advisory jurisdiction aims to achieve two goals: a reduction in the ECtHR's excessive docket, and the enhancement of dialogue between the ECtHR and (highest) national courts. While the aims of this reform initiative are laudable, we argue that Protocol 16 is likely to fail to achieve its objectives. Our analysis suggests that rather than facilitating the Court's adjudicatory function, extended advisory jurisdiction has the potential to impact on the Court's constitutionalist function in a manner that can be better achieved through the Court's contentious cases. The burden that this procedure will place on the Court's already overstretched resources would risk delays to contentious cases and potentially undermine judicial comity should requests for advisory opinions be declined. Furthermore, evidence of ‘constructive’ dialogue between highest national courts and the ECtHR is emerging in contentious cases without the need for a reformed advisory opinions mechanism. Rather than achieving its objectives, Protocol 16 risks exacerbating the Court's backlog and nullifying the positive effects of advisory opinions on dialogue.

In contrast with most other municipal courts in the world, the Israeli Supreme Court routinely decides cases based on international humanitarian law (IHL). Since the Six Day War in 1967, both the state and the Supreme Court have agreed that the Court has jurisdiction to decide humanitarian issues that come before it from territory held under belligerent occupation. The Court has indeed done so in issues ranging from land seizures to targeted killings, ruling on the basis of the relevant IHL. The Court has been criticised for its judgments, both from the right wing of the political spectrum, who see it as interfering with military matters, and from the left, who see it as granting legitimacy to occupation. In this article, I briefly describe the development, both historical and legal, of IHL in the Israeli Supreme Court, the criticism of the way the law is applied by the Court, and finally the importance of the fundamental concepts of human dignity and proportionality to IHL decisions.

Not unlike national parliaments, which have seen their influence eroded as power gradually shifted to Brussels, constitutional courts are, if anything, net losers of the integration process.1 At least lower domestic courts had some incentives to embrace the constitutional revolution initiated by the Court of Justice. For them, the twin doctrines of supremacy and direct effect combined with the Simmenthal mandate came as a promise of empowerment. It was a promise of empowerment against domestic legislators as lower courts gained the power to set aside statutes, in legal systems that had either made it the exclusive preserve of constitutional courts or denied it altogether to the judicial branch. But equally, it was a promise of empowerment against the higher echelons of the domestic judicial hierarchy as EU law and the European Court afforded lower court judges a convenient avenue to challenge established lines of case law. None of this applied to constitutional courts. Not only did legal integration entail the loss of a cherished monopoly that was a distinctive trait of the Kelsenian model of constitutional review. But it also meant that, as the body of EU law expanded, so too did the Court of Justice's remit and influence. Very much like in a zero-sum game, any jurisdictional gain for the Court of Justice came at a commensurate loss for constitutional judges. Worse still, for the constitutional courts that used to exert a tight grip on the operations of ordinary courts, or wished to establish such control, the ever-expanding reach of EU law together with the emergence of a powerful European Court posed a potentially ominous challenge to their authority over ordinary judges.

The opinion-writing process is a vital yet understudied aspect of judicial decision making on state supreme courts. We argue that this process is influenced by the political context and particularly by institutional rules that serve to reactivate and reinforce divisions among justices, leading to less cooperation on the court. We test our theory with original data comprising all education cases decided from 1995 to 2005 in all 50 states and find evidence to support our theory. Specifically, we find that elections lead to fewer unanimous decisions and more separate written opinions, indicating that judicial elections may have a more pervasive effect on the daily work of these courts than previously thought.

Supreme Court of Ghana decision regarding enforcement of advance waiver of sovereign immunity of foreign warship

There has been a fair amount of recent scholarly attention to the role and influence of law clerks at the Supreme Court of the United States. This new wave of systematic research began when Todd C. Peppers (2006) published Courtiers of the Marble Palace: The Rise and Influence of the Supreme Court Law Clerk at almost exactly the same time as Artemus Ward and David L. Weiden's (2006) Sorcerers' Apprentices: 100 Years of Law Clerks at the United States Supreme Court. Then Peppers and Ward (2012) teamed up to produce an edited volume, In Chambers: Stories of Supreme Court Law Clerks and Their Justices, in which each chapter focuses on the relationship of a specific justice and his or her clerks. Together these three works raise interesting questions about how one properly studies the role and power of law clerks at the US Supreme Court. How does one measure the influence of these temporary assistants to the justices? Should sociolegal scholars trust them to help us understand the approaches and behavior of the justices today or in the past or do they have an unrealistic and inflated view of their own contributions? This essay offers a broad overview of what scholars and journalists currently know about the role of clerks at the Supreme Court.

Scholars studying judicial behavior have identified a host of factors theoretically and empirically connected to judicial decision making. One recent theory identifies economic conditions—which have implications for the decisions of voters and politicians—as influencing the voting behavior of US Supreme Court justices. Yet the US Supreme Court is a unique judicial institution addressing limited—though indisputably important—economic cases every year. State courts, on the other hand, address a multitude of issues every year with economic ramifications. Building on the rich body of literature examining state courts of last resort, I analyze whether judges, across a variety of methods for judicial selection and retention, respond to temporary changes in the state of the economy. Results indicate that the responses of state supreme court judges to changes in the state of the economy are conditional on the electoral vulnerability of the justice. This research thus offers considerable insight into judicial behavior under different selection mechanisms and the conditional influence of the state of the economy.

This panel was convened at 9:00 am, Thursday, April 10, by its moderator, Ruth Wedgwood of the Johns Hopkins School of Advanced International Studies, who introduced the panelists: the Honorable Kenneth Keith, Judge, the International Court of Justice; the Right Honorable Lord Jonathan Manee, Judge, the Supreme Court of the United Kingdom; and the Honorable Brett Kavanaugh, Judge, the U.S. Court of Appeals for the D.C. Circuit. * THE APPROACH OF THE COURTS TO FOREIGN AFFAIRS AND NATIONAL SECURITY: A VIEW FROM NEW ZEALAND AND THE HAGUE By Kenneth Keith ([dagger]) For reasons of geography, population, politics, and economics, the challenges in New Zealand in respect of foreign affairs and national security issues are fewer than in the United States and in the United Kingdom. But there is relevant material from which I can select and to which I will add related material from the experience of the International Court of Justice. I begin with two general propositions. The first is that the New Zealand courts have, fairly consistently over the years, proceeded on the basis that international law is part of the law of the land and that legislation, if possible, should be interpreted consistently with the international obligations of New Zealand. I need to make the important qualification that the executive has no power to change national law by entering with a treaty: legislation is in general needed for that purpose. A very early instance of the positive attitude comes from 1874. A murder was allegedly committed on an American barque on the high seas. The first port it reached was Port Chalmers in the South Island of New Zealand. Did the New Zealand courts have jurisdiction over that alleged offense? Counsel for Charles Dodd, who had been convicted of manslaughter, argued that the New Zealand courts did not have jurisdiction. (1) International law gave exclusive jurisdiction on the high seas to the flag state. He referred the Court of Appeal, among other things, to leading textbook writers of the day--Vattel, Story, Wheaton, Kent, and Phillimore--all of whom supported that proposition. The Court, unanimously, read the relevant legislation in those terms. That decision, I might note, was not among the many decisions of national courts to which the Permanent Court of International Justice was referred when 50 years later it ruled in the opposite direction in the Lotus case (2)--a ruling which was reversed by treaty some years later. I might also note that the young, successful counsel in that case, Robert Stout, who was one of the first law teachers in New Zealand and with access to very good law libraries for that time and that place, later became Premier and Chief Justice, a New Zealand parallel, if you like, to William Howard Taft. My second general proposition is that history--not just cases but also legislation and executive actions--demonstrates that much depends on the attitude of judges to the protection of liberty and, more broadly, to passions of the time. One case which demonstrates the willingness of civil courts to intervene in military matters at the time of supreme peril to the nation comes from New Zealand in 1944. Members of the returning furlough draft had refused to parade at Trentham Military Camp in January that year for embarkation to return to the Middle East. They were charged with desertion. A unanimous Court of Appeal overturned their convictions by courts-martial. The holding, in a sense, was a straightforward interpretation of the word "desertion." The offense of desertion occurs when a person "absents himself physically from the control of duly constituted [military] authority with the intention either of not returning or of avoiding some important service or duty." The soldiers' actions did not constitute desertion in these terms because they remained under military control. But there are arguments that might well have led a court, in a time of great peril to the nation, to say that the actions were in effect desertion and fell plainly within the purpose of the legislation. …

The behaviour of appellate courts has long fascinated scholars. Specifically, scholars have been attentive to the effect of the political context on judicial outcomes. This paper focuses on the decision-making of the Philippine Supreme Court (“Court”) over multiple decades with particular attention to the influence of changes in the executive branch on the outcomes of cases brought to the Court. The analysis evaluates the decisions of the Court from 1970 through 2000, encompassing the turmoil of the Marcos years through the first few years of the tumultuous tenure of Joseph Estrada. We test the hypothesis, grounded in Galanter’s seminal work, that the government has substantial advantages in the legal system and thus enjoys greater success than other litigants. The government has theoretically unlimited resources with which to litigate, control over the staffing of the bench, and authority over, or at least major influence on, the laws that the courts interpret. As a result, the government is expected to win the majority of the challenges that come before the Court. The Philippines provides an excellent laboratory to test this thesis. In the Marcos era the Court faced a dictator professing “constitutional authoritarianism” whose regime ultimately was toppled by the People Power Revolution. His successor, Corazon Aquino, was initially embraced as the popular wife of an assassinated hero, Senator Benigno Aquino, Jr., but later faced a series of attempts to topple her regime. President Fidel Ramos served for 6 years leading the nation through a period of economic growth. Elected by a wide margin in 1998, President Joseph Estrada quickly lost the confidence of the Filipino people as well as the business and military sectors. By 2001, he was removed from office through political actions which some consider the People Power II. This analysis evaluates the winners and losers before the Philippine Supreme Court across the tenures of these presidencies with particular focus on the ability of the Filipino government to succeed when compared to individuals and businesses and the success of different regimes over time as the executive’s popularity surges and wanes. The results suggest, that like other institutions, the Philippine Supreme Court responded to the rise and fall of the personal politics that dominates the distribution of power in this Asian archipelago.

The Moçambique rule provides that an English court may not adjudicate on title to foreign immovable property. This article considers the primary exception to that rule: where the court assumes jurisdiction in personam to enforce a contractual or equitable claim concerning foreign immovable property against a defendant subject to the court's personal jurisdiction. It addresses two questions: how should the English court decide whether to assume jurisdiction in relation to foreign land, and if the positions are reversed, should an English court recognize or enforce the order of a foreign court affecting English land? As to the first question, this article argues that the orthodox English approach is anachronistic. English law applies the lex fori exclusively to determine whether an obligation exists which the court has jurisdiction to enforce. Instead, modern conflict of laws principles demand that the court should apply the proper law of the substantive claim in determining whether a sufficient equitable or contractual obligation exists. As to the second question, this article argues that despite the prevailing view that foreign non-money judgments are not enforceable in England, foreign orders in relation to English land are in principle entitled to recognition in a subsequent action in England by the successful claimant.

The traditional process of educating undergraduates is often relegated to the passive lecturing format. One means of engaging students in active learning is through the use of simulations. Students were asked to take on the roles of United States senators and a Supreme Court nominee during a United States Supreme Court confirmation hearing simulation. Each student participated by researching a sitting senator and the nominee selected and engaged in a question-and-answer session as is done in the Senate Judiciary Committee. Students came away from this valuable experience by not only learning a great deal about the operation of the confirmation hearing as well as the substantive material learned but participating in a process that few people will ever actually experience.

Throughout its history, the Inter-American Court of Human Rights has ruled in a significant number of cases on the state's obligations to investigate and prosecute grave human rights violations and international crimes. Regardless of the existence of this body of international jurisprudence, an important question remains unanswered: Can the Inter-American Court's decisions have any significant normative impact on national jurisdictions when it comes to the prosecution of international crimes? This article argues that such an impact is possible provided that the national courts have a specific judicial identity, better associated with the idea of neo-constitutionalism. In this context, international law and regional human rights jurisprudence becomes a relevant argumentative resource, which can be incorporated into judicial decisions in order to ensure the effective prosecution of gross human rights violations and international crimes.

The study of U.S. state supreme courts has been significantly constrained by a lack of available data. To remedy this deficiency, this article introduces an original data set of every state supreme...

Kiobel v. Royal Dutch Petroleum is the United States Supreme Court’s second decision interpreting the Alien Tort Statute (ATS), 28 U.S.C. § 1350, which was enacted by the First Congress as part of the Judiciary Act of 1789. The ATS provides that federal district courts “shall have original jurisdiction of any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States.” Absent the ATS, such claims could only be brought in state, not federal, courts.

The article focuses on judicial politics in three international regimes. The courts of these regimes are trustee courts, operating in an environment of judicial supremacy with respect to states. An international trustee court meets three criteria: (1) the court is the authoritative interpreter of the regime’s law; (2) the court’s jurisdiction is compulsory; and (3) it is virtually impossible, in practice, for contracting states to reverse the court’s important rulings. After developing a theory of trusteeship, we turn to how judges have used their powers. Although there is variation, each court has engaged in “majoritarian activism,” producing law that reflects standard practices or a high degree of state consensus but that would not have been adopted by states under unanimity decision rules. Majoritarian activism helps judges to develop the law progressively, to mitigate potential legitimacy problems, and to render efforts at curbing the growth of their authority improbable or ineffective.

The decision in Kiobel v. Royal Dutch Petroleum Co. left open a number of questions about the scope of the Alien Tort Statute (ATS). One such question is the extent to which Kiobel ‘s holding on extraterritoriality applies to the oft-neglected final words of the ATS: “The district courts shall have original jurisdiction of any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States.”What if one such treaty obliged the United States to provide a civil forum for litigation ofhumanrights violations that occurred abroad and did not involve piracy?

This paper considers an often ignored topic in the English system of precedent, the role of High Court precedent in the county court. In doing so it reveals the many weaknesses of the existing approach to lower court precedent. It is argued that the High Court, (generally) a first instance tribunal, which does not bind itself and can come to contradictory decisions in different cases, the later not overruling the earlier, should not bind any court below it. A model of how multi-tiered first instance tribunals, such as the High Court and county court, should interact is demonstrated by the approach taken between the Court of Session, Outer House, and inferior courts in Scotland.

In this article the scope for dialogue between UK courts and the European Court of Human Rights is considered in theory and in practice. Having demonstrated that meaningful dialogue does take place in certain circumstances, the author considers the impact of dialogue and questions whether or not there can be any further expansion in dialogue whilst avoiding negative outcomes such as confusion over the creation of human rights norms and a loss in legitimacy for national courts adjudicating upon human rights issues.

At the time the United States withdrew from participation in the Nicaragua case at the International Court of Justice, the US government expressed concern that ‘the course on which the Court may now be embarked could do enormous harm to it as an institution and to the cause of international law’. This essay examines whether or to what extent the anticipated negative effects came to pass. It concludes that dire predictions of harm to the Court were overstated. Twenty-five years later, the rate at which states accept the Court's jurisdiction has held steady. Only a few states have added jurisdictional reservations concerning military activities. The mix of cases being brought to the Court has shifted towards a more representative distribution. States are generally complying with the Court's decisions, though some compliance problems remain. The most serious negative impact has been on the willingness of the United States (still the Court's most active litigant) to participate fully in international dispute settlement.

This Article provides a new interpretation of the origins of three central obsessions of federal-courts and constitutional-law scholarship: the question whether lower federal courts are constitutionally required; the relative powers of Congress, the Supreme Court, and the lower federal courts to define federal jurisdiction; and judicial supremacy. The Article argues that the extension of federal judicial power to the lower federal courts was a crucial element of the Federalists’ project of building national supremacy into the Republic’s structure. Chief Justice John Marshall, like many other federalist theorists who were affiliated with the Federalist Party, viewed the lower federal courts as essential to the establishment of a union in which national supremacy was instantiated through judicial structure. Marshall and his fellow federalists/Federalists shared a substantive commitment to structure – namely, a judiciary-centric federalism. In the early nineteenth century, most notably in two cases involving the Second Bank of the United States – Bank of the United States v. Deveaux (1809) and Osborn v. Bank of the United States (1824) – the Marshall Court carried out through case law what the political branches had been unable to do following the election of 1800: grant the lower federal courts the power to hear all cases arising under federal law. Judge-made doctrines therefore operated as a substitute for a legislative grant of jurisdiction, and federal courts throughout the period opposed Congress’s attempts to claim ultimate authority over federal jurisdiction. The traditional story of the Marshall Court’s nationalism has overlooked both this link between law and politics and the importance of the lower federal courts to early republican beliefs about federal structure.

726State immunity — Jurisdictional immunity — Officials — Definition of “foreign State” — Whether including individual officials of foreign State — United States Foreign Sovereign Immunities Act 1976 inapplicable to individual officials — Immunity of individual officials under common law — The law of the United States of America

Many legal systems have specialist labour courts with jurisdiction over individual employment disputes or collective labour disputes or both. The literature identifies a number of possible justifications for the use of specialist labour courts. This chapter will engage in a critical examination of this literature in order to develop a framework for analysing the performance of courts (whether specialist or otherwise) in deciding labour law cases. We shall then apply that framework to some of the recent case law of the Court of Justice of the European Union.

In rendering this decision, the Federal Supreme Court of Switzerland entered for the first time into a detailed analysis of questions relating to the cost-effectiveness of human healthcare. The decision, concerned with the availability of a drug for a rare genetic disease, makes it clear that the maximum amount available from a public health insurance provider for the medical treatment in a particular case has been reached once the amount requested by the individual patient cannot also be provided to all other persons in a comparable situation. It remains unclear, however, how cost-effectiveness is to be assessed below this maximum amount (author's headnote).

While there is an extensive literature on the causes of dissensus on appellate courts in the US, few empirical studies exist of the causes of dissent in Canadian Supreme Court. The current study seeks to close that gap in the literature, proposing and then testing what we call a Canadian model of dissent. We find that the likelihood of dissent is strongly related to four broad factors that appear to exert independent influence on whether the Court is consensual or divided: political conflict, institutional structure, legal ambiguity in the law and variations in the leadership style of the chief justice.Résumé.Les causes de dissension dans les cours d'appel aux États-Unis font l'objet de nombreux articles et publications, mais il existe très peu d'études empiriques sur les causes de dissidence à la Cour suprême du Canada. La présente étude vise à combler cette lacune en proposant, un modèle canadien de dissension, puis en le mettant à l'épreuve. Nous avons constaté que le risque de dissension est fortement lié à quatre facteurs genéraux qui semblent exercer une influence indépendante, que la Cour soit en accord ou divisée. Ces facteurs sont le conflit politique, la structure institutionnelle, la présence d'une ambiguité juridique dans la loi et le style de direction du juge en chef.

Recent work by Szmer, Sarver, and Kaheny (2010) exploring US Supreme Court decision making has suggested that lawyer gender might play a role in influencing judicial voting behaviour. Specifically, while women lawyers were not revealed to have a more difficult time winning cases before the US Supreme Court, the study did suggest they face a tougher challenge in gaining support from the more conservative justices on that bench. Here, we test whether women lawyers face similar challenges before the SCC. Our findings do not reveal any disadvantage for litigation teams with larger proportions of women and, in most instances, such teams have an advantage. Specifically, in our model of civil rights and liberties votes, litigation team gender had no bearing on individual SCC justice decisions. However, in a pooled model of all issues combined and in separate models of criminal and economic votes, SCC justices were more likely to side with litigation teams with larger proportions of women lawyers.Résumé. Une étude récente de Szmer, Sarver et Kaheny (2010) explore la manière dont la Cour suprême des États-Unis prend ses décisions, suggérant que le sexe des avocats pourrait avoir une influence sur le comportement décisionnel des juges. Plus spécifiquement, bien que les avocates n'aient pas plus de difficulté que leurs collègues masculins à gagner leurs procès à la Cour suprême des États-Unis, l'étude suggère que leur plus grand défi est d'obtenir le soutien des juges plus traditionnels de cette cour. Dans le présent article, nous cherchons à déterminer si les avocates canadiennes font face à un défi semblable à la Cour suprême du Canada. Les résultats de notre étude ne révèlent aucun désavantage pour les équipes d'avocats comprenant plus de femmes et dans la plupart des cas, ces équipes bénéficient même d'un avantage. Plus précisement, dans notre modèle décisionnel en matière de droits et libertés civiles, le sexe des membres des équipes d'avocats n'avait aucune incidence sur les décisions individuelles des juges de la Cour suprême du Canada. Cependant, dans un modèle commun réunissant tous les types de dossiers et dans des modèles séparés pour les décisions sur des dossiers criminels et financiers, les juges de la Cour suprême du Canada étaient plus enclins à prendre parti pour des équipes comportant une plus grande proportion d'avocates.

The Revised Treaty of Chaguaramas (‘the RTC’) is an attempt on the part of a group of Caribbean States to respond in a collective manner to the pressing challenges posed by the forces of globalization and liberalization. The RTC seeks, inter alia, to deepen regional economic integration through the establishment of a Caribbean Community (‘CARICOM’) including a CARICOM Single Market and Economy (‘CSME’). The States in question—Antigua & Barbuda, The Bahamas, Barbados, Belize, Dominica, Grenada, Guyana, Haiti, Jamaica, Montserrat, St Kitts and Nevis, Saint Lucia, St Vincent and the Grenadines, Suriname and Trinidad & Tobago—are for the most part former British colonies that gained their independence in the 1960s and 1970s. The RTC signals yet another important step in the tortuous path taken by these Anglophone Caribbean States ‘to avoid the looming threat of marginalization’1 following the failure in 1962 of the West Indies Federation.2 Significantly, this latest step is being taken side by side with the non English speaking civil law States of Haiti and Suriname thereby adding a new and interesting dimension to the integration process.