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Russian Abstract: В статье рассматривается проблема ограничения права сторон на обжалование судебного решения в результате применения института истопл (estoppel). Сложилась практика, когда неприменение апелляционным судом «принципа» estoppel приводит к отмене судебных актов в кассационной инстанции. В этой связи предлагается проанализировать доктринальное обоснование, содержание и цель применения разных видов истопл в сравнительно-правовой перспективе. Раскрывается содержание постановления Президиума ВАС РФ от 22.03.2011 No 13903/10 как судебного акта, которым суд обосновал применение расширенной доктрины estoppel per rem judicatem (res judicata), а не частноправового истопл. По итогам обосновывается ошибочность представлений о том, что истпол должен служить цели формирования последовательного процессуального поведения сторон, а также оправданность применения формального вида истопл в отношении предъявления множественных исков, основанных на одном материальном правоотношении. English Abstract: The denial of the citizen’s right of access to the court guaranteed by the law, through unprincipled judicial discretion, is justifiably seen as a true vice of a judicial system. The current position of the Russian Supreme Court as to the existence of a broad principle of estoppel and coherence in litigants’ acts as its underlying ratio raises a few doubts. Moreover, the court uses the broad concept of estoppel, undefined in the civil procedure law, to reverse the decisions of lower courts. Thus, the rights of litigants are fully dependent on the judicial discretion as to the existence of estoppel in any particular case. This discretion is wholly unpredictable for there is neither legislation nor judicial dictum of the Russian Supreme Court on the elements needed to establish and prove an estoppel claim. Meanwhile, those are of paramount importance in the estoppel authentic legal systems. What is more important is that the fallacious understanding of the true kind of the estoppel employed by the Russian Supreme Commercial Court in 2011 has made it possible to plead and use estoppel as a source of limiting procedural rights of litigants, which contradicts the original idea of estoppel as an instrument establishing either representations or promises. Thus, the aim of the article is to reveal those discrepancies in the current use of the estoppel instrument which result in denying the litigant’s right to justice.

Spanish Abstract: El articulo analiza las voces “denuncia” y “delito”, estableciendo su conceptualizacion, tipologias y caracteristicas, como tambien sus cambios y continuidades en el tiempo. La denuncia fue una de las formas mediante las cuales se podia iniciar un proceso canonico penal en el Antiguo Regimen, cuya relevancia provino de su finalidad correctiva y por ser la formula que mas utilizaron los indigenas en el Nuevo Mundo para iniciar procedimientos penales. La denuncia podia ser judicial, es decir, la presentada ante el juez competente que tenia por finalidad satisfacer la felicidad publica. Asimismo, podia ser extrajudicial. En este ultimo caso, se trataba de la advertencia caritativa, que era realizada por un agente denunciante, con miras a corregir privadamente al hechor de la conducta delictuosa. Lo anterior es fundamental puesto que es lo que distinguio a la denuncia de las otras formas con las que se iniciaban los procesos penales canonicos y sus efectos juridicos. Asi, no todo delito denunciado implicaba una pena publica, diferenciandose de los delitos que se acusaban. Respecto a la voz “delito”, este articulo, a base de la casuistica de los foros de justicia, del arbitrio judicial y la opinion de los juristas delimita que practicas fueron consideradas transgresoras del orden, y por tanto delitos. A partir de su delimitacion, se ha realizado su tipologia, como tambien, se han establecido las penas o castigos que se aplicaron. English Abstract: The article analyzes the terms “complaint” and “felony” (or “crime”) establishing their conceptualization, typologies and characteristics, as well as their changes and continuities over time. In early modern times, the complaint was one of the ways in which criminal procedure in canon law could begin; its relevance resulted from its corrective purpose and from the fact that it was the formula most widely used by indigenous people in the New World to initiate criminal proceedings. The complaint could be judicial, that is, filed before the competent judge whose purpose was to satisfy public happiness. Likewise, a complaint could be extrajudicial. In this latter case, it was a charitable warning, made by a complainant agent, who aimed to privately correct the perpetrator of the criminal conduct. This aspect is fundamental since it distinguished the complaint from other ways to initiate canonical criminal trials and their legal effects. So not every felony reported entailed a public penalty, distinguishing itself from the crimes that were reported. Regarding the voice “felony”, this article, based on the casuistry of justice forums, judicial discretion and the opinion of the jurists, defines what practices were considered transgressions of order, and therefore felonies. From its delimitation, a typology of felonies has been developed, as well as the penalties or punishments that were applied have been established.

Many international websites have online user agreements with forum selection clauses that refer all disputes to a foreign forum. This article discusses the question of whether and when such clauses should be enforced. On the one hand, they form part of a standard contract whose formulation is predetermined solely by the website, and when entered with a consumer reflect inequality of bargaining power that often result in de facto blocking the consumer’s access to courts. On the other hand, prohibiting altogether forum selection in e-commerce contracts would deprive the parties from enjoying the certainty and predictability that such an agreement otherwise would offer. It is important to establish appropriate rules for e-commerce contracts, which will provide sufficient protection for consumers on the one hand, without obstructing the development of e-commerce and the Internet on the other hand. This article develops a multidimensional model for handling forum selection clauses in online website agreements, that aims to balance between these opposing interests. This innovative model offers new criteria by adding clear considerations, with new specified parameters and criteria to be taken into account when considering whether or not to enforce the forum selection clause. These considerations help construct the judicial discretion regarding the validity and enforcement of forum selection clauses.

On 8 May 2020, the Supreme Court of Canada (“SCC”) released its written reasons in 9254-9186 Quebec inc. v. Callidus Capital Corp. (“Bluberi”), after having issued its unanimous decision from the bench earlier in the year. The decision pertained to a proceeding under the Companies’ Creditors Arrangement Act (“CCAA”) in which substantially all of the debtor’s assets had been liquidated.

The digitalisation and automation of the judiciary, also known as judicial informatisation, (司法信息化) has been ongoing for two decades in China. The latest development is the emergence of “smart courts” (智慧法院), which are part of the Chinese party-state’s efforts to reform and modernise its governance capacity. These are legal courts where the judicial process is fully conducted digitally, and judicial officers make use of technological applications sustained by algorithms and big-data analytics. The end-goal is to create a judicial decision-making process that is fully conducted in an online judicial ecosystem where the majority of tasks are automated and opportunities for human discretion or interference are minimal. This article asks how the automation and digitalisation of judicial processes might influence judicial discretion and procedural flexibility? To answer this question, this article uses a dataset of primary documentary sources, namely the 2020 Annual Report on Informatisation of Courts, which contains numerous case-studies of automation and digitalisation initiatives by different courts undertaken as part of the ‘building smart courts’ policy. This is supplemented with judicial opinions and other official documents, secondary, and grey literature. The article argues that automation and digitalisation play a significant role in the centralisation of judicial power and increasing control and supervision over China’s courts. It aims to make courts more efficient and effective governance institutions by making judges more procedurally compliant and increasing the supervision over their work. In this sense, courts’ widespread embrace of artificial intelligence and machine learning technologies is part of a broader movement in the PRC towards algorithmic governance, permeated by a firm belief in the power of technology and distrust of human discretion.

In this paper I argue that courts should use their judicial discretion in granting bail and conditions imposed therein on a minimum interference standard (MIS). Under MIS the courts should only refuse bail when it is absolutely necessary in light of particular facts of the case. I argue that under MIS, we need to develop ‘trial as if innocent’ standard which would demand a higher threshold for depriving liberty unless absolutely necessary for fair trial or until guilt has been established. I introduce the concept of probable guilt bias to rationalise how presumption of innocence is understood in Indian bail jurisprudence. I’ve focused mainly on section 437 & 438 CRPC for doctrinal analysis.

This paper explores the ways that sentencing guidelines, properly constructed, can promote proportionality at sentencing. The essay uses the sentencing guidelines created in England and Wales to illustrate the potential benefits, and challenges, associated with this method of structuring judicial discretion at sentencing.

There are drug offenders sentenced under the outdated 100-to-1 powder-to-crack disparity. The ratio represents the amount of powder cocaine versus crack cocaine necessary to trigger the federal mandatory-minimum sentence. The First Step Act of 2018 (“FSA ’18”) makes the Fair Sentencing Act of 2010 (“FSA ’10”) guidelines retroactive. Under FSA ’10, the ratio is 18-to-1. FSA ‘18 provides retroactive relief for drug offenders who did not benefit from FSA ’10. Sentencing reduction under FSA ‘18 is important because the crack-cocaine disparity has had a negative impact on the African American community due to the disproportionate application to Black offenders. Sentencing before the Fair Sentencing Act was widely criticized as racially motivated and lacking empirical support. The progressive legislation is ineffective without proper exercise of judicial discretion. The author uses legislation, scholarly articles analyzing the legislation and its impacts, United States Sentencing Commission (“USSC”) reports, an informal interview with a prior offender, federal court cases, articles by reform advocates, and the appellate court decision in United States v. Corner. The legislation, USSC reports, and scholarly articles indicate lack of empirical support for the 100-to-1 rule. USSC reports continuously advocated for a decreased ratio and support the theory that the disparity is racially motivated. The prior-offender interview provides a first-hand account of the application of the outdated disparity. The reform-advocate articles support the conclusion that the disparity is a grave injustice that was racially motivated. All research indicates the importance of proper application of FSA ’18. The author concludes that the appellate court came to the correct conclusion in determining the level of judicial discretion in drug sentencing. In United States v. Corner, the Seventh Circuit Court of Appeals interpreted FSA ’18 and the discretion vested in district court judges considering sentence reduction. The court concluded that courts must determine offender eligibility and impose a new sentence under the new guidelines. The court held that district court judges maintain discretion to grant the sentence reduction.

This paper identifies the concomitants of legal formalism in Israeli Supreme Court decisions by analyzing 2086 opinions from 1950-2013. The paper is the first to present an empirical, multi-faceted approach to formalism, that examines patterns of legal rhetoric in relation to the nature of the case and the type of decision. Our findings suggest that reliance on legal rules still remains the most common expression of legal reasoning, although judicial rhetoric is constantly changing, and fluctuates in time and in relation to fields of law, as well as in reference to other textual elements. The deviation from formalist rhetoric in terms of references to judicial discretion, and rationales based on policy were more prevalent in public law cases handled by the High Court of Justice and in criminal appeals than in civil cases. In addition, we found an intricate interplay between the various aspects of formalism. It is the emphasis on formalisms, rather than a single binary view of formalism or its lack, and on a large number of predictors gleaned from a variety of empirical approaches, that is the unique contribution of this study.

In Bostock v. Clayton County, the Supreme Court held that Title VII of the Civil Rights Act of 1964, which prohibits sex discrimination in employment, covers discrimination on the basis of sexual orientation and gender identity. The dissenting Justices, following the reasoning of several Court of Appeals judges, embraced a series of subtractive argumentative moves in order to argue that the statute does not prohibit discrimination that is explicitly within its scope, and which is part of the mischief that the statute aims to remedy. This article catalogues and critiques the subtractive moves. One may focus on (1) the law’s prototypical referent, or (2) the categories of objects that it happens to bring to mind, or (3) distinctions that feel familiar but which do not appear in the statute, or (4) formalist exceptions that are unrelated to the law’s language, or (5) the general expectations that were part of the law’s cultural background. One may also (6) claim that the law, read in its cultural context, simply doesn’t mean what it literally says. Each of these reaches outside the statute in order to defeat the law’s literal command. This strategy maximizes judicial discretion and betrays the promise of textualism.

Identifying the correct carrier to sue is a perennial problem. The cargo claimant’s choice of whom to sue is made even more difficult where the carriage of goods involves transport intermediaries or a complex chain of charters. Stringent time bars and the need to issue proceedings against the right party, and in a competent forum, further raise the stakes and add to the urgency of the claimant’s choices. Three recent decisions of the High Court of England and Wales involving similar facts illustrate the potential pitfalls posed by the identity of carrier issue, as well as the possibilities of exercising judicial discretion to extend the time for commencement of arbitration proceedings where the carrier’s misleading conduct has contributed to the time bar being missed.

Medical professionals are treated as next to God. They provide humanitarian services and gives solace to individuals suffering from various diseases and disorders. Due to their great service to humanity, the doctors and medical professionals are treated with reverence and since the ancient times the medical profession has been considered as a noble profession. However with the passage of time, there has been a change in the doctor – patient relationship. During the last few decades a number of incidents have come to light in which the patients have suffered due to the error and inadvertent conduct of doctors. Due to the increasing conflicts and legal disputes between the doctors and patients, most of the legal systems have developed various rules and principles to deal with such inadvertent behavior of doctors. This has led to the development of a new branch of jurisprudence, i.e. medical negligence. Hence, any negligence on part of the medical professional would be treated as either a tort of negligence or a deficiency in service under Consumer Protection Act, 1986. In medical negligence cases either under tort of negligence or under Consumer Protection Act, 1986, the remedy is mainly damages. Generally assessing damages in case of negligence is an easy task. However assessing damages for the pain and other mental suffering is a herculean task. Generally, in medical negligence case there is an involvement of pain and mental suffering. The damages are assessed on the ground of loss suffered by the patient. Hence in every medical negligence case the patient is bound to prove the loss suffered by him due to the negligence of the defendant. It is to be noted that, under deficiency in medical service case a patient is not required to prove the loss. Thus in such cases assessing proper damages is not an easy task for consumer protection forums. The Supreme Court of India in a number of cases observed that, different courts and tribunals in the country after exercising judicial discretion in determining the amount of compensation in an inconsistent manner, which led to uncertainty and unpredictability, causing anxiety to the claimants and also leaving room for arbitrariness. The Court also emphasized about the need for a framework to identify just, fair, and adequate compensation in case of medical mishaps. Hence there is a need to have an appropriate framework and clear-cut rules to assess compensation in medical negligence cases. This paper examines the different methods of assessing compensation such as lump sum compensation; just and fair compensation and; multiplier method. It also tries to identify the problems involved in these methods of assessing damages and tries to propose a better framework for assessing damages in such cases.

This article enters into the modern debate between “constitutional departmentalists”—who contend that the executive and legislative branches share constitutional interpretive authority with the courts—and what are sometimes called “judicial supremacists.” After exploring the relevant history of political ideas, I join the modern minority of voices in the latter camp. This is an intellectual history of two evolving political ideas—popular sovereignty and the separation of powers—which merged in the making of American judicial power, and I argue we can only understand the structural function of judicial review by bringing these ideas together into an integrated whole. Or, put another way, we must expand the traditional conception of the “separation of powers” to include not just distinct institutional functions, but also the structured division of the sovereign prerogative itself, both within and without the institutions of government. It then becomes possible to read Article III as part of a larger effort to unbundle the metaphorical sticks of traditional sovereign power, and to vest what I call the revolutionary prerogative in an independent judicial branch. This prerogative establishes an institutional form through which the Court might invoke John Locke’s famous “revolution principle” on behalf of the sovereign People. It thus allows for what James Wilson celebrated—and what Sir William Blackstone could not conceive—the possibility of legalized revolution. In other words, the revolutionary prerogative allows for formal, independent appeal of the terms of the constitutional contract, by which the People delegated limited and contingent authority to their legislative and executive agents. Indeed, it is the final legal step before constitutional amendment or dissolution. Of course, the People retain the ultimate sovereign prerogative to declare the state of exception, but once constituted, the meaning of our fundamental law remains firmly, and solely, a matter of judicial discretion.

תקציר בעברית: בשנת 1998 ניתן פסק דינו של בית המשפט העליון בעניין א.ש.י.ר., בו נקבע כי דיני הקניין הרוחני אינם יוצרים, באופן עקרוני, "הסדר שלילי", כך שניתן לעיתים לזכות בסעד מכוח דיני עשיית עושר ולא במשפט בגין חיקוי תוצר רוחני גם כאשר לא מתקיימת הפרה של זכות קניין רוחני ספציפית. פסק הדין תואר כפסק דין דרמטי, ועורר ביקורת רבה. בפרט, הובע חשש כי ההלכה שנקבעה בו תוביל להרחבה בלתי מוצדקת של זכויות הקניין הרוחני ותיצור אפקט מצנן בתחום החדשנות. מאז מתן פסק הדין נשמעו קריאות רבות לביטול ההלכה, לרבות מצד היועץ המשפטי לממשלה בעמדה שהוגשה לאחרונה לבית המשפט העליון. מחקר זה מבקש להעריך באופן אמפירי את השלכותיה של הלכת א.ש.י.ר., באמצעות בחינה דו שלבית, כמותית ואיכותית. בשלב הראשון נבחנו כלל ההחלטות של בתי המשפט המחוזיים ובית המשפט העליון שניתנו במהלך עשרים השנים שחלפו מאז א.ש.י.ר, בהם הועלתה טענה לעשיית עושר ולא במשפט בהקשר של תוצרים רוחניים. בשלב השני בוצע ניתוח איכותי של המקרים "דמויי א.ש.י.ר", בהם ניתן סעד מכח עשיית עושר ולא משפט, בהעדר זכות קניין רוחני ספציפית. הממצאים העיקריים העולים מבדיקה זו הם כי בניגוד לתחזיות הקודרות, הלכת א.ש.י.ר., באופן בו יושמה על ידי בתי המשפט, לא גרמה ל"רעידת אדמה" בתחום הקניין הרוחני. מתוך מאות פסקי דין והחלטות שעסקו בקניין רוחני ועשיית עושר ולא במשפט, מסתבר כי המקרים "דמויי א.ש.י.ר" הם מועטים מאוד, וניתן לסווגם לכמה קטגוריות בולטות, שבהן קיים או היה קיים קושי ממשי בדיני הקניין הרוחני, ונדרש גישור בינם לבין המציאות. החשש לפריצת גבולות, שהעסיק את המבקרים, התממש לכל היותר במקרים ספורים. לעומת זאת, ובמקביל, נעשה לאחרונה שימוש מפתיע בדיני עשיית עושר ולא במשפט דווקא כאמצעי להגבלת זכויותיו של בעל הקניין הרוחני ולעידוד התחרות. ממצאים אלה מצביעים על כך שהלכת א.ש.י.ר מהווה בעיקר מכשיר ל"כיול" הדין ולמילוי פערים בהקשרים בהם נדרשים גמישות או גישור בין החוק לבין המציאות הדינאמית, ואינה פוגעת פגיעה קשה באיזונים שנקבעו על ידי המחוקק בתחום הקניין הרוחני. הדבר מחייב הערכה מחודשת של הקריאות לביטול ההלכה. English Abstract: In 1998, in the landmark case of A.SH.I.R., the Israeli Supreme Court ruled that the law of unjust enrichment applies alongside intellectual property law. Thus, a plaintiff can seek recovery against an imitator based on unjust enrichment even in the absence of a valid intellectual property claim. The judgement was described as a dramatic development in Israeli private law and triggered much controversy. One of the major concerns was that the ruling would result in an unjustified, indirect, expansion of intellectual property rights, beyond their recognized statutory limitations, and would yield a chilling effect in the field of innovation. Accordingly, there were numerous proposals to overrule the decision, including in a recent Attorney General position submitted to the Supreme Court. This study seeks to empirically evaluate the implications of A.SH.I.R., after the lapse of twenty years from the original decision. We first perform a quantitative analysis, and examine all Supreme Court and District Courts’ decisions rendered during the twenty years period, where an unjust enrichment claim was raised with respect to imitation of intellectual products. We then proceed to a qualitative analysis, focusing on "A.SH.I.R.-like" cases, where the unjust enrichment claim was upheld, despite the absence of intellectual property protection. We find that, contrary to the gloomy predictions, the A.SH.I.R. case, as applied by the courts, did not cause an upheaval in the field of intellectual property. Out of more than four-hundred decisions concerning intellectual property and unjust enrichment, the number of decisions where the unjust enrichment claim was upheld despite the absence of a specific IP right is very low. Moreover, these cases can be classified into several distinct categories, where there was a noticeable shortcoming in the Israeli intellectual property landscape. The major concern voiced by the critics, that courts would unduly expand the boundaries of intellectual property protection through unjust enrichment, was only observed in two or three cases. On the other hand, the law of unjust enrichment was recently used by one court in a ‘reverse’ manner, as a means to restrict intellectual property rights and promote competition. We discuss these findings against the notions of certainty, flexibility, and unintended consequences, and conclude that they necessitate a reevaluation of the calls to overrule the A.SH.I.R. decision.

The war on drugs promulgated drastic sentencing reform in the 1980s that has proven to be disastrous to the American criminal justice system. Decades-worth of mandatory minimum sentencing reveals the deleterious effects these provisions inflict upon the American population. Mandatory minimum sentencing undermines the criminal justice system by eroding fundamental fairness, tying judges’ hands, and discriminating against defendants’ distinctive cases. These laws arbitrarily and disproportionately impact minorities, overcrowd prisons, and incur unconscionable expenses. This article argues for the abolition of mandatory minimum sentencing for drug offenses and the restoration of judicial discretion. This article proposes that Congress take legislative action to resolve the multitude of issues associated with mandatory minimum sentencing. Abolishing mandatory minimum sentencing and restoring judicial discretion is paramount to rectifying the deleterious effect of the war on drugs and rehabilitating the criminal justice system. Taking action in this way has the capability to deter excessive plea deals, decrease the number of low-level offenders in prison, curb racial disparity, reduce recidivism, lessen mass incarceration, and save taxpayers thousands of dollars annually. Part I of this article highlights an array of problems associated with mandatory minimum sentencing. Part II argues for the legislature to abolish mandatory minimums to resolve the shortcomings addressed in Part I. Part III explains how abolishing mandatory minimums will positively affect the criminal justice system and expounds upon the issues and the resolution proposed in Part I and II, respectively.

Purpose Recently scholars have noted a limitation with current sentencing research is that the distinct contributions of prosecutorial and judicial discretion to sentence length have not been quantified. The current study seeks to calculate the proportion of sentence length disparities across gender and race/ethnicity that can be attributed to prosecutorial-initiated departures and sentencing decisions. Methods Using data on federal narcotics offenders, the current study employs recently developed causal mediation analytic methods to decompose the direct and indirect influences of gender and race/ethnicity on sentence length. Results Results indicate the decisions of judges and prosecutors contribute both to gender and racial/ethnic disparity in outcomes; however, judicial decisions are mainly responsible for gender disparities in sentence length whereas prosecutorial and judicial discretion contribute more equally to racial/ethnic disparities. Conclusions Reducing extra-legal disparity requires evaluating decisions of actors at different decision points. Abatement of gender disparities necessitates a primary focus on judges, but some attention to prosecutorial decisions is still warranted. Addressing race/ethnic differences in sentence length requires focus on both the decisions prosecutors make in granting departures and the ultimate sentence that judges decide to levy against the defendant.

In Carpenter v. United States, the Supreme Court reaffirmed the continuing vitality of the privacy framework Katz v. United States established in 1967 for identifying Fourth Amendment searches. Justice Neil Gorsuch, in dissent, critiqued Katz as indeterminate and inconsistent with democratic values. In this article, I analyze Justice Gorsuch’s proposed alternative framework, which he described as the “traditional approach” to determining Fourth Amendment interests. Instead of grappling with the indefinite and textually and historically unfounded “reasonable expectations of privacy” framework of Katz, Gorsuch asserted, this traditional test would require judges to focus on whether a “house, paper, or effect was yours under law.” Although Gorsuch offered preliminary thoughts on this rubric, his opinion left open important questions, including the sources of law to which the Court should look in identifying property interests; the breadth of the definitions of “papers” and “effects” and the kinds of property closely enough associated with the person for potential implication of Fourth Amendment rights; and the ways in which government conduct impinging on such property interests might trigger Fourth Amendment protection. Several passages in Justice Gorsuch’s opinion suggest that he would take a broad, flexible approach to each of these issues. Overall, whatever ambiguities exist in Gorsuch’s dissent, it is certain that his property model would be more expansive than the pre-Katz trespass test that the Court rehabilitated in 2012. If that is the case, however, then the results that courts would be likely to reach under this framework might closely resemble outcomes under a principled privacy-based analysis. Additionally, because a broad property rubric would involve a significant degree of judicial discretion, it would replicate Katz’s indeterminacy. Thus, while Gorsuch’s approach might carry forward the benefits associated with Katz’s flexibility, it would also reproduce Katz’s associated flaws, including manipulability and democratic illegitimacy. Nonetheless, Justice Gorsuch might favor a flexible “traditional approach” over Katz because its explicit attention to the language of the Fourth Amendment is more conceptually elegant and, at least aesthetically, more consistent with Gorsuch’s originalist sympathies.

This essay responds to a recent article by Professor Lawrence Solum in the Northwestern University Law Review which describes alleged differences between Originalism and Living Constitutionalism. I argue that even under Solum's own criteria, and his specific discussion of and critique of my work, there is no meaningful difference between Originalism and Living Constitutionalism, and this merger is important for current political and legal debates about the proper role for the Supreme Court in our system of government. The original promise of Originalism was that only by combining strong judicial deference with the search for original intent or meaning could judges be meaningfully constrained when resolving many of our country’s most difficult social, political, and legal issues. As more and more Originalists drop the deference aspect of the theory, however, and tell judges to apply the original meaning of the constitutional text differently as relevant facts (and values) change, then judicial discretion will be maximized. Whereas most Living Constitutionalists concede judges inevitably have that discretion, Originalists today still often claim that only their theory can limit the power of runaway federal judges. That claim, however, is simply false given the wide swath of discretion judges have under current originalist theory to pick and choose which facts are relevant and which ones have changed since the text at issue was originally ratified. The only meaningful theory of constitutional interpretation that can in practice privilege the Constitution's original meaning is one which includes strong judicial deference to other government officials.

Portuguese Abstract: Por intermedio da presente pesquisa, sumarizar-se-a as concepcoes da interpretacao do direito na sociedade ao redor da historia, contudo preocupando-se em destrinchar qual o papel do juiz, assim como se e cabivel, a ele, fazer uso de uma discricionariedade para adequacao das normas ao caso concreto. Assim, compreendendo a atividade exercida, e o porque de ela existir, este trabalho divide as concepcoes sobre a interpretacao do direito em duas categorias (positivismo e pos-positivismo), ressaltando, em cada, dois de seus principais bastioes e defensores – assim como suas percepcoes e concessoes (ou nao) ao discricionarismo. No caso do positivismo juridico aqui se apresentam Hans Kelsen e Hebert Hart, enquanto ao pos-positivismo se apresentam Robert Alexy e Ronald Dworkin. Assim, por meio desses autores, estabelecer-se-a a relacao, para eles, entre direito e moral (se e que pode haver alguma) dentro de um sistema juridico de interpretacao de normas e sua aplicabilidade ao caso concreto – apresentando-se, adicionalmente, eventuais criticas gerais a cada uma das duas vertentes formuladas e como tais jusfilosofos percebem o papel da discricionariedade dentro da interpretacao do Direito. Apos esse arcabouco teorico e, sobretudo, historico, debrucar-se-a sobre a recepcao, em territorio brasileiro, de teorias positivistas e pos-positivistas, assim como a atuacao da suprema corte brasileira (Supremo Tribunal Federal) na aplicacao dessas teorias em duas de suas recentes decisoes, e suas eventuais consequencias. Ao fim ha a exposicao de uma possivel solucao – e de maneira justificada –, a luz do pos-positivismo juridico, ao problema interpretativo de normas – e de posturas discricionarias –, assim como uma ponderacao sobre se e possivel uma eventual tentativa de vinculacao do Direito e da moral dentro do ordenamento juridico brasileiro. English Abstract: Throughout this research, it will be summarized the conceptions of Law interpretation in the society around history, nevertheless unraveling the role of the judge, as well as if it is appropriate to him the use of a discretionary posture to adjust the Law to a case. Thus, understanding the activity performed, and why it exists, this work splits the theories of Law interpretation into two categories (positivism and post-positivism), but emphasizing, in each, two of its main bastions and defenders – as well as their perceptions and concessions (or not) to discretionary. For a positivist perspective, Hans Kelsen and Hebert Hart are presented, while, for a post-positivism perspective Robert Alexy and Ronald Dworkin are presented. Thereby, through these scholars, it will be established their perspectives on a possible relationship between Law and morality (if any at all) within a legal system of interpretation of norms, and its applicability case to case. Also, it will be pipelined the general critics drafted toward each of the two aspects of interpretation of Law and how each one of these scholars perceive the role of discretionary within it. So, after a theoretical and historical framework, it will be addressed the reception of positivism and post-positivism in Brazil, as well an analyses of recent decisions portrayed by the Brazilian supreme court (Supremo Tribunal Federal) in the application of both theories – and its consequences. In the end, it will be exposed to a possible solution, guided by the legal post-positivism, for the problem surrounding the interpretation of Law – and discretionary postures – as well as the possibility (or not), to link Law and morals within the Brazilian legal system.

From my vantage point, judges’ individual control over their courtrooms remains largely stable. Updated but similar versions of the problems encountered (and created) by Judge Julius Hoffman now confront our newer, younger, and perhaps better qualified judges. While federal judges may be less likely to encounter radical, overtly political defendants and government officials trying to wrest control (and public opinion) from them in court, they are more likely to see minority defendants along with accompanying “courtwatchers” who want inequities in the criminal justice system noticed in individual cases. I will first describe the Chicago Eight (soon to become the Chicago Seven) trial and then explain the new courtwatchers in Part I. On the other hand, I have witnessed federal judges having lost, primarily since the mid-1980s, much of their earlier control over the criminal justice process in general, but in particular over charging and sentencing decisions. Judicial discretion and control over a criminal trial is obviously less important when 97.2 percent of federal felony sentences are imposed by the district judge pursuant to a guilty plea negotiated between the government and the defendant, and only 2.8 percent of the sentences that judges impose are after a jury or bench trial. The power players in the criminal justice system are the folks who determine whether to offer a plea and what plea terms to include. We live in a world of guilty pleas controlled by prosecutors. Federal prosecutors determine whom to investigate, whom to charge, and how much punishment to impose. However, the pendulum has begun to swing back, and federal district judge discretion over criminal sentencing is now on the rise. I will support these observations, as well as offer some good sentencing news post-Booker, in Part II. Finally, in Part III, I will raise a relatively new phenomenon — federal district court judges imposing nationwide temporary restraining orders against the federal government. Though this last trend is not limited to or primarily about criminal trials, I think it fairly covered by the topic for today — most of these injunctions involve controversial policies that can, like with the Deferred Action for Childhood Arrivals case, lead to criminal charges. This legal device allows a single federal judge in a single judicial district to determine federal policy for the entire country, at least until the matter can be resolved by the Supreme Court. This is one of the few areas where I have seen federal district judicial authority expand over the last few decades. The Supreme Court has taken very recent notice of this trend, and will likely have something to say about the matter soon.

The blunt nature of statutory based indefeasibility regimes are not by nature, sensitive the vulnerabilities of the particular parties before the court. Given this, courts sometimes stretch the various exceptions stated in the statute to accommodate difficult cases. Where this occurs, uncertainty arises as to both the nature and the breadth of the indefeasibility protection offered by the statute. In this regard, the Land Registration Act 2002 and the various Australasian Torrens regimes include “fraud” as a stated exception to the indefeasibility protection given by the relevant legislation. The paper questions what the nature of this fraud exception is, and asks how it should operate in conjunction with “in personam” exceptions to the indefeasibility. If some form of judicial discretion is necessary to soften the blunt nature of indefeasibility protection, it is argued this should instead come about through legislative change. In this regard, the New Zealand Law Commission has recently recommended the enactment of a concept of “manifest injustice” as an exception to indefeasibility.

The question of when an error will be sufficiently “material” to justify the quashing of a tainted decision has prompted some discussion and debate on the High Court of Australia in two important recent cases: Minister for Immigration and Border Protection v SZMTA [2019] HCA 3 and Hossain v Minister for Immigration and Border Protection [2018] HCA 34. This is a difficult issue, which causes conceptual confusion and obscures important underlying issues. By reference to material drawn from Australia, Canada, England, Ireland and New Zealand, I argue that there are three distinct types of materiality. First, materiality can be used to denote whether an error is sufficiently serious to count as jurisdictional. Second, materiality can be used to denote a causal link between the error complained of and the decision under review. Third, materiality can be used to denote judicial discretion to refuse relief. I suggest that distinguishing between these types facilitates clearer analysis and debate about the appropriate place of “material” error in judicial review of administrative action.

The Supreme Court will shortly consider whether Title VII of the Civil Rights Act of 1964, which prohibits sex discrimination in employment, covers discrimination on the basis of sexual orientation and gender identity. The lower courts are split on whether such protection is granted by the plain language of the statute. The judges who reject the discrimination claim argue that the statute does not prohibit activity that is explicitly within its scope, and which is part of the mischief that the statute aims to remedy. Their subtractive strategy, an innovation in statutory interpretation, comprises a number of different argumentative moves, with a common aim: to draw upon the cultural context at the time of enactment to avoid an unwelcome implication of a statute’s plain language. This strategy however maximizes judicial discretion and betrays the promise of textualism.

We evaluate the impacts of adopting algorithmic predictions of future offending (risk assessments) as an aid to judicial discretion in felony sentencing. We find that judges' decisions are influenced by the risk score, leading to longer sentences for defendants with higher scores and shorter sentences for those with lower scores. However, we find no robust evidence that this reshuffling led to a decline in recidivism, and, over time, judges appeared to use the risk scores less. Risk assessment's failure to reduce recidivism is at least partially explained by judicial discretion in its use. Judges systematically grant leniency to young defendants, despite their high risk of reoffending.This is in line with a long standing practice of treating youth as a mitigator in sentencing, due to lower perceived culpability. Such a conflict in goals may have led prior studies to overestimate the extent to which judges make prediction errors. Since one of the most important inputs to the risk score is effectively off-limits, risk assessment's expected benefits are curtailed. We find no evidence that risk assessment affected racial disparities statewide, although there was a relative increase in sentences for black defendants in courts that appeared to use risk assessment most.We conduct simulations to evaluate how race and age disparities would have changed if judges had fully complied with the sentencing recommendations associated with the algorithm. Racial disparities might have increased slightly, but the largest change would have been higher relative incarceration rates for defendants under the age of 23. In the context of contentious public discussions about algorithms, our results highlight the importance of thinking about how man and machine interact.

The law often lays down mandatory rules, from which the parties may deviate in favor of one party but not the other. Examples include the invalidation of high-liquidated damages and the unenforceability of excessive noncompete clauses in employment contracts. In these cases, the law may substitute the invalid term with a moderate arrangement, with a punitive arrangement that strongly favors the protected party, or with a minimally tolerable arrangement (MTA), which preserves the original term as much as is tolerable. This article revisits the choice between the various substitutes. Based on theoretical analysis and five new empirical studies (N = 2,089), it argues that the incidence of MTAs should be rather limited. It demonstrates that people find moderate substitute arrangements more attractive than the alternatives. It also points to two overlooked incentive effects of the substitute arrangement (in addition to its impact on the drafting of contracts). First, the applicable substitute strongly influences customers’ inclination to challenge excessive contract terms once a dispute arises. Second, when the invalidation of an excessive term is discretionary, the applicable substitute can affect decision makers’ inclination to invalidate excessive clauses in the first place.

In April 2017, the U.S. Supreme Court, in Jesner v. Arab Bank, denied terror victims in Israel access to U.S. courts, holding that foreign corporations may not be sued under the Alien Tort Statute (ATS). The petitioners alleged that Arab Bank, a Jordanian financial institution, had facilitated acts of terrorism by maintaining bank accounts for known jihadists, and that it had used its New York branch to clear Dollar transactions and launder money for a US-based charity said to be affiliated with Hamas. The Majority argued that courts should not use the ATS to create new private rights of action, but should leave this task to the legislator. The decision is said to deal the deathblow to U.S. Human Rights litigation, but as this article argues, seems a logical consequence of the Supreme Court’s latest restrictions on personal jurisdiction over foreign corporate defendants and a growing concern to respect the sovereignty rights of foreign states. It confirms a trend towards more judicial reticence and, in this regard, suggests an increasing convergence of U.S. and foreign attitudes towards judicial discretion as well as international jurisdiction rules. However, on substance, the decisions leads to significant jurisdictional gaps to hold multi-national corporations accountable for the violation of international human rights. Based on a comparative analysis of EU procedural and substantive rules, this article makes suggestions for a harmonized legal regime to judge foreign corporations’ liability for human rights violations before domestic courts.

Artificial intelligence (AI), and machine learning in particular, promises lawmakers greater specificity and fewer errors. Algorithmic lawmaking and judging will leverage models built from large stores of data that permit the creation and application of finely tuned rules. AI is therefore regarded as something that will bring about a movement from standards to rules. Drawing on contemporary data science, this Article shows that machine learning is less impressive when the past is unlike the future, as it is whenever new variables appear over time. In the absence of regularities, machine learning loses its advantage and, as a result, looser standards can become superior to rules. We apply this insight to bail and sentencing decisions, as well as familiar corporate and contract law rules. More generally, we show that a Human-AI combination can be superior to AI acting alone. Just as today’s judges overrule errors and outmoded precedent, tomorrow’s lawmakers will sensibly overrule AI in legal domains where the challenges of measurement are present. When measurement is straightforward and prediction is accurate, rules will prevail. When empirical limitations such as overfit, Simpson’s Paradox, and omitted variables make measurement difficult, AI should be trusted less and law should give way to standards.

This Article reports on the first controlled empirical examination of what happens when judges exercise their broad discretion to resolve non-dispositive pretrial disputes. Experimental studies of judicial decision-making are rare, and experimental studies of pretrial dispute resolution by predominantly state court judges are non-existent. Data was collected from the presentation of nine simulated disputes about discovery and litigation management in 166 chambers conferences before 61 volunteer judges. The study results indicate that judges faced with the same facts usually fracture in deciding the dispute. This variation is not attributable to groups of judges deciding in a consistent way for some parties. Very few judges showed marked tendencies to defer decisions or rule for one type of party. Nor did judicial characteristics, such as gender, experience or measures of ideology, explain the simulation results. These results are surprisingly consistent with another experimental study on district court judicial decision-making in criminal sentencing which found a similar pattern of fractured outcomes. The study results also challenge the conventional wisdom that the addition of factors or presumptions produces more predictable and consistent decision-making, instead finding that the disputes guided by the vaguest of standards created more agreement among judges than when the relevant rule contained a multiple factor test or even a presumptive outcome. Given the varying results when judges exercise their discretion to determine disputes, changes to the civil procedure rules to limit judicial discretion advocated by some scholars would require an upheaval in current judicial decision-making practice.

China is building a Same Type Case Reference system (STCR) which makes legal precedents binding by creating a national database of judgments and requiring judges to follow prior similar cases. This makes STCR having the same central characteristic, i.e. stare decisis, as the common law. However, instead of upholding democracy and separation of powers like the common law, STCR functions to strengthen supervision over ordinary judges and restrict judicial discretion. Thus, STCR provides an opposite case to show that the stare decisis characteristic of the common law is not intrinsically associated with the democratic function of the common law. After studying STCR’s artificial intelligent (AI) programs, this article argues that currently these machines need human supervision and intervention and cannot be deemed to replace human judiciary. Nonetheless, it is possible to replace humans in some judicial decision-making tasks. The article provides a machine-centered taxonomy, dividing judicial work into readily machine-resolvable (RMR), possibly machine-resolvable (PMR) and impossibly machine-resolvable (IMR) tasks. It argues that substituting machines in place of a human judiciary in RMR and PMR tasks should be encouraged because these cases involve simple and repetitive fact patterns; the substitution occurs only when machines provide suggestions constantly accepted by experienced human judges; and machine judges can follow precedents and respond to changes. The specification characteristic of algorithmic logic is not exclusive of legal vagueness, judicial discretion or incremental changes. AI machines may be used to help the judiciary match other political powers in the information era and should not be perceived as a threat to the human judiciary. The law should facilitate the judiciary’s participation in the process of developing AI machines and should be creative in utilizing AI to resolve legal issues, prevent and correct machine errors, and provide fair remedies.

The Vienna Convention on the Law of Treaties sets the rules of treaty interpretation in articles 31-33. Yet these rules are quite vague, and they leave a lot of room for judicial discretion. The European Court of Human Rights (ECHR) has developed its own version of these rules of interpretation — a version that tracks the three traditional approaches to treaty interpretation: the textual approach, the subjective approach, and the teleological approach. Looking at the practice of the ECHR through the lens of these three traditional approaches highlights the logic of some of the court's interpretive choices, including its doctrine of deference: the Margin of Appreciation.

We trace the origins of shareholders' rights to judicial appraisal to determine the purpose - to avoid expropriation by majority shareholders. We then trace the meandering path of judicial appraisal in Delaware, which has exhibited a deep distrust of market valuations in favor of broad judicial discretion. While recently the Delaware Supreme Court has begun to attach importance to the deal price arrived at in good faith in mergers, it has continued to ignore the statutory injunction to exclude value added through anticipation or realization of gains through the merger. Instead, too often courts have been swayed or confused by dueling experts to reach values well above deal prices, or occasionally below, without serious consideration of pre-announcement market prices. Only recently has the Chancery Court used an efficiently developed market price to determine value in a manner consistent with the law.

Prepared for a symposium celebrating the groundbreaking career of Jay Westbrook, this paper examines recent evidence of fear of abuse of the benefits of consumer bankruptcy and the gradual abatement of that fear in modern consumer insolvency law reform. It marshals evidence of a recent and accelerating retreat in both the judicial discretion that Westbrook in the mid-1990s attributed to lawmakers’ fear of abuse, as well as other more direct techniques to avoid abusive recourse to consumer discharge. Fear of abuse appears to be diminishing with accumulated experience, as indicated by recent liberalizing reforms in Denmark, Slovakia, Poland, Austria, Russia, Croatia, and Romania. At the same time, evidence from countries that have only begun to develop policies on personal insolvency and discharge (Bulgaria, China, and Saudi Arabia) indicate that fear, or at least resistance to discharge relief, clearly persists.

This article explores the primary determinants of internal judicial independence in three Latin American countries. Considering the relative absence of research focused on this dimension of judicial life, this article is innovative in demonstrating how it is affected by two variables: the quality of judges' training and respect for their judicial careers as criteria for promotions or transfers. While these variables explain why some countries enjoy greater internal judicial independence than others, this article also shows – contrary to popular wisdom – that judicial activism does not have a strong influence on internal judicial independence. Conducting a comparison of the courts in Chile, Peru, and Ecuador using surveys and semi-structured interviews, this study also shows that judges' autonomy from politicians does not necessarily follow the same path as the lower-court judges' independence from their hierarchical superiors.

Traditional political-economy wisdom implies that independent judicial review is a commitment device, used by politicians to credibly validate policies they sell to special-interest groups. This study suggests a somewhat opposite thesis, whereby independent judicial review allows politicians to credibly commit to destabilizing the validity of such policies. Due to the probable judicial intervention—as a result of the independent judicial review process—the expected policy in force will align more closely with general-interests, insofar as constitutional standards are so oriented. Thus social welfare increases and the politician gains electoral benefits which are otherwise unattainable in equilibrium.

This case presents the question of whether the civil appellate deadline of Rule 4(a)(5)(C) is jurisdictional. In this blissfully short brief, I make two arguments advanced by neither party. First, I argue that a rule's jurisdictional character is not dependent upon labels or distinctions with "claim-processing rules." Rather, a rule is jurisdictional when -- and only when -- it addresses a boundary between adjudicative bodies. Appellate jurisdiction, original jurisdiction, and personal jurisdiction all qualify because they address boundaries of authority among different adjudicative bodies. By contrast, a limit on court authority is nonjurisdictional when it speaks only to that court's authority, independent of other adjudicative bodies. Statutes of limitations, limits on punitive damages, statutory coverage, fee-shifting rules, inherent-power limits, and the like are nonjurisdictional because they speak only to a court's authority in isolation from other courts. Under this definition, the appellate deadline in Rule 4 is jurisdictional. Second, I argue that a rule's jurisdictional character does not determine its effects. The rote belief that a jurisdictional limit is nonwaivable, nonforfeitable, and inexcusable is simply wrong. A rule has whatever effects the rule and other law provide. The jurisdictional deadline to appeal in Sec. 2107(c), for example, may be extended according to judicial discretion, party conduct, and equitable circumstances: "The district court MAY, UPON MOTION filed not later than 30 days after the expiration of the time otherwise set for bringing appeal, extend the time for appeal upon a showing of EXCUSABLE NEGLECT OR GOOD CAUSE." Thus, Rule 4(a)(5)(C)'s jurisdictional status does not mean that it cannot be forfeited by an appellee or extended for equitable reasons. Those questions, instead, must be answered by resort to ordinary principles of rule interpretation; they cannot be answered simply by resort to the Rule's jurisdictional character.

We propose a new determinant of covenant strictness in syndicated loan contracts: the degree of creditor friendliness of Chapter 11 bankruptcy practices. This new channel dictates that the more debtor(creditor)-friendly the bankruptcy practice is, the more creditors will seek to increase(decrease) their level of loan monitoring outside of bankruptcy through an adjustment in covenant strictness. Borrowers would agree on stricter covenants in exchange for a lower loan spread, and vice-versa. We first theoretically illustrate our claim by providing a framework linking creditor control inside and outside of bankruptcy. We next empirically show that judicial discretion is the primary driver of bankruptcy outcomes. This finding allows us to use several debtor or creditor-friendly Chapter 11 bankruptcy practice proxies as instruments in order to test our channel, with a focus on the U.S. manufacturing sector. Using both covenant tightness and covenant intensity as proxies for covenant strictness, we show that our legal channel not only impacts covenant strictness but also ultimately accounts for a significant fraction of the total cost of credit.

The book review of Antonin Scalia, A Matter of Interpretation (1997), suggests that Justice Scalia’s commitment to textualism and originalism may be rooted as much in a scruple against judicial discretion as in claims of democratic legitimacy. In particular, Justice Scalia structured A Matter of Interpretation around a criticism of the “common law” method, which he saw as vesting excessive discretion in judges. He went on to argue that interpretive approaches such as statutory purposivism and living constitutionalism raise concerns, in large part, because they invite judges to behave as common law judges. Connecting this theme with some of Justice Scalia’s well known opinions, the book review adds that Justice Scalia’s “anti-discretion principle” also explains some other aspects of his judicial behavior, such as his tradition-based approach to substantive due process, his general antipathy to balancing tests, and his views on stare decisis. The book review concludes by identifying some puzzles arising out of Justice Scalia’s “anti-discretion principle” and offers some preliminary thoughts about why his approach may have gained traction despite those puzzles.

This Article takes United States v. Texas, a case about the legality of President Obama’s “Deferred Action for Parents of Americans” (DAPA) immigration initiative, as an entry point for analyzing a significant and publically-salient, yet undertheorized, problem in constitutional law: executive discretion in enforcing the law. Although Republican and Democratic administration alike have long asserted a constitutionally-inherent power to decline to enforce civil and criminal laws, former-President Obama’s recent high profile exercises of this authority, including his enforcement policy on federal marijuana law and immigration law, have led to increased attention to enforcement discretion among popular and scholarly commentators. Surprisingly, however, academic commentators have almost completely ignored the relevance of a canonical separation of powers precedent to the constitutional debate surrounding executive nonenforcement: Youngstown Sheet & Tube Co. v. Sawyer. This Article is the first to systematically apply Justice Jackson’s famous Youngstown concurrence to the puzzle of the executive’s constitutional discretion in law enforcement. By doing so, the Essay provides a common lexicon within which commentators can debate the constitutionality of presidential nonenforcement in particular contexts, including DAPA. The Article's second contribution is to offer a positive theory of constitutionally-inherent enforcement discretion, including the power to supervise and prioritize law enforcement activities. I derive this theory from constitutional text, including the Executive Power Clause, the Take Care Clause, and the Due Process Clause. This inherent power, however, is malleable and defeasible rather than fixed and absolute. Congress can either explicitly or implicitly confer executive enforcement discretion to the constitutional maximum (Youngstown Category 1). Likewise, Congress can explicitly or implicitly cabin executive enforcement discretion, reducing it to the constitutional minimum (Youngstown Category 3). When the Executive is faced with Congressional silence, he acts in Youngstown Category 2. In the second category’s “zone of twilight,” however, executive enforcement discretion is limited to the President’s inherent constitutional powers. Based on my positive theory of constitutionally-sanctioned enforcement discretion, I argue that, in Category 2, the Take Care Clause does not preclude the Executive from exercising enforcement discretion, including the power to coordinate categorical enforcement priorities. Finally, I argue that, even in Category 3, the President’s inherent power of enforcement discretion ensures that he always retains at least some discretion to decline enforcement in individual cases, especially in the criminal context. Furthermore, in light of the powers concomitant to his constitutional duty to supervise, including the power to coordinate and prioritize enforcement, I argue offer a novel argument that the President’s inherent enforcement discretion power may extend beyond individualized discretion to countenance the creation of categorical civil enforcement priorities, even in Category 3. The Article concludes by applying the Youngstown framework and my positive theory of executive enforcement discretion to the question whether DAPA violates the Constitution. I conclude that DAPA most comfortably falls in Category 2, and that its provisions do not exceed the Executive’s inherent enforcement discretion under the Constitution.

During the lifetime of the Prophet Muḥammad and the expansion of the young Islamic empire immediately after his death, a number of land tracts were distributed to his Companions and Family members. One of them was a fertile farm called Yanbuʿ, located northwest of Medina. Having acquired the land, the Prophet’s cousin, son-and-law, caliph-to-be ʿAlī b. Abī Ṭālib discovered a spring that he named Bughaybigha, which fed what was to become a much-coveted date-palm orchard. He immediately turned it into a charitable endowment to be managed by his heirs. But when ʿAlī was killed in a struggle for the caliphate, chaos and confusion ensued—one feature of which was a generations-long battle over the land. For the next one hundred fifty years, Umayyad and ʿAbbāsid rulers episodically wrested the land from ʿAlī’s descendants each time the latter succeeded in securing its return. At one point in the midst of the political contestation, the affair ended up in court. There, the case turned on the judge’s creative interpretation of and choice between conflicting procedural rules. The outcome was a split decision that gave only a partial win to the caliph and a partial win to the ʿAlid descendant who had been cultivating the land. Judicial discretion and procedure, it turns out, was instrumental to resolving hotly contested issues of Islamic law, land, and legitimate rule. In fact, the case vividly displays how judges like the one at the center of this case helped construct Islamic law through their interpretive approaches to such issues that lay at the heart of disputes like Bughaybigha.

This article develops an ideal of sentencing discretion as consisting in sufficient dispositional flexibility for the trial judge to set, on behalf of the polity, reasonable terms for the continuance of relations with the offender in view of his crime. This ideal requires trial judges to have what may be termed “substantial” sentencing discretion: discretion that is exercised with direct reference to the values and goals penal sanctions are expected to serve, and where it is this quality of value-based engagement that provides the justification for the decision. The article engages with empirical research into sentencing that helps us address the strength of the case for and against substantial sentencing discretion, and ultimately defends substantial sentencing discretion on functional as well as ethical-political grounds.

In this article, we study judicial behavior at the Judicial Committee of the Privy Council (JCPC). British judges in general, and British high court judges in particular, are perceived to be independent and isolated from political pressure and interference. Furthermore, these judges tend to show a particularly high rate of consensus. This has led many scholars to consider that, contrarily to what holds for several other courts around the world (such as the US Supreme Court), the attitudinal model does not find support when British higher court judges are considered. In this paper we assess whether similar conclusions might be drawn from the JCPC, another British court of last resort. We create a unique dataset to study empirically decisions of the JCPC and investigate the extent to which judges exhibit different judicial behavior depending on the type of appeal being brought to the court, i. e., Commonwealth, devolution and domestic appeals. Our results indicate a higher polarization of judicial behavior in the context of devolution appeals (as measured by separate opinions). We discuss these results in the context of the comparative judicial behavior literature and the role of courts in the common law world (with particular reference to human rights).

תקציר בעברית: סעיפים 44 ו-45 לפקודת הראיות מתווים סוג מיוחד של חסיונות: לטובת המדינה ולטובת הציבור. חרף האינטרס העצום שבבסיסם, חסיונות אלו הם יחסיים ובני הסרה. חיסיון לטובת המדינה ניתן להסרה בבית המשפט העליון וחיסיון לטובת הציבור ניתן להסרה בערכאה שדנה בתיק. הסרת החיסיון כרוכה באיזון שיפוטי בין אינטרס ציבורי לבין זכות הנאשם להליך הוגן. מנגנון ההסרה של החיסיון לטובת המדינה הוא מוקד המאמר. המאמר מצביע על קשיים וליקויים במנגנון הדיון בעתירה להסרת חיסיון וגורס שהאיזון המשפטי שלגביו היה בעייתי ובלתי-הוגן לפני תיקון החוק בשנת 2016 ונותר כזה גם אחריו. בתוך כך, מוצגת סקירה של כלל העתירות שנידונו בבית המשפט העליון מאז שנכנס התיקון לתוקף. המאמר מראה כי מצד אחד, ההליך הקיים מעודד בקשות סרק להסרת חיסיון מצד ההגנה, לא בשאיפה אמיתית לחשוף אמת אלא בתקווה לייצר לחץ על התביעה להגן על סודות ואינטרסים ציבוריים במחיר נסיגה מהאישום וזיכוי הנאשם. מצד אחר מוטעם כי גם כשיש אמת וצדק בעתירת ההגנה, לאינטרס הביטחוני עדיפות מובנית על האמת והצדק, בעיקר בהליך שבחלקו המהותי אינו אדברסרי. המאמר ממשיך לבעיה מרכזית: הבקרה הדלה על שיקול הדעת השיפוטי בסוגיה, וגורס כי אין גורם שיוכל אפקטיבית "לשמור על השומרים", דוגמת התקשורת והאקדמיה. מרגע שבית המשפט העליון מחליט שלא להסיר חיסיון לטובת המדינה, לא רק הדלת השיפוטית בנושא נסגרה לנצח, אלא גם דלת הביקורת, וזאת בגין היעדר כלים עובדתיים או פרוצדורליים נאותים לביסוס הטיעון. המאמר מסכם ומציע כיוונים לצמצום הבעיה תוך סקירה של דין משווה, הן בהיבט הפרוצדורלי של עורכי הדין המייצגים, המותב והערכאה שידונו בעתירה; והן בהיבט המהותי המצריך הכרה בבעיה עצמה ובצורך לאזן את נחיתות הנאשם בהליך. English Abstract: The Israeli Evidence Ordinance outlines unique privileges of secrecy for the benefit of the state and of the public. Despite the immense importance of these secrecy privileges, they are relative and can be dismissed. Dismissing these privileges involves a judicial balance between a public interest and the defendant’s right to due process. This article focuses on the privilege for the benefit of the state, which can be removed only by The Supreme Court. The article suggests that the judicial balancing mechanism is problematic and unfair. On the one hand, the process encourages futile motions by the defense, aspiring not to reveal the truth but to gain leverage on the prosecution, causing it to retract the state's case. On the other hand, even when the defense’s petition is true and just, the interest of security has inherent priority over truth and justice, especially in a procedure that is not fully adversarial.Another najor problem is the absence of any review of the judicial discretion in the process: there is no suitable factor to guard the guards, such as the media and academia. Once the court denies the defense’s petition, there is no way to review or criticize its decision, in the absence of sufficient factual or procedural tools to substantiate an argument. The article proposes directions towards mitigating the problem, both in the procedural aspect of the balance mechanism; and the substantive aspect that requires acknowledging the problem itself as well as the need to balance the defendant’s inferiority in the process.

It is well established in the literature that an independent judiciary can act as a signal of credibility by a sovereign state and also as a guarantor of creditor rights. However, to date there has been little systematic work analyzing how an independent judiciary reacts to fiscal stress and public sector default. This article addresses that very question by evaluating how and if judicial independence effects default rates using U.S. municipal data through the nineteenth century. Overall, the results do indicate that greater judicial independence is associated with a significantly lower likelihood of default. This channel largely occurs through the method by which a member of a state’s court of last resort is selected (either appointment or popular election) and also term length.

Elections for local judges are parodies of democracy, and yet family court judges are tasked with making a series of value judgments in the course of exercising their broad discretion. Those idiosyncratic value judgments determine who gets custody and under what conditions. They determine who deserves more of the marital property and how much of it there is. Over the last thirty-five years, reformers have asked state legislators and appellate courts to cabin judicial discretion by imposing top-down rules that govern these issues. These reforms have uniformly failed. This Article outlines a reform strategy that is novel along two dimensions. First, it turns the attention of reformers downward, not upward. The future of family law reform is local. Second, it introduces family law reformers to a new space along the rules-standards continuum: rules of thumb. Although each of these two innovations — localism and rules of thumb — could be pursued independently, the combination yields important synergies. Empowering cities and school boards to weigh in on family law issues provides them with a new and muscular voice that can amplify the impact of communities that are excluded from existing power structures at the state level. Local influence over family law also generates much-needed policy experiments, creates new opportunities for expressive sorting, and has the potential to reinvigorate citizen engagement with local politics. Channeling this influence through local rules of thumb eliminates over and under inclusion problems and significantly mitigates fears that local politicians will be able to oppress local minorities.

This manuscript responds to scholars who believe that dignity-based claims can lead to a more expansive racial justice doctrine. Although several Supreme Court decisions invoke dignity to promote equality and other values, there are many reasons to remain guarded about the successful usage of dignity claims by racial justice plaintiffs. Dignity is an amorphous concept, which allows for judicial discretion and ideology to impact the outcome of cases. Furthermore, in existing precedent, the Court has invoked the dignity of whites and of states to invalidate race-based remedies and civil rights policies. Accordingly, the assertion that a new theory of equality - rooted in dignity - could advance racial justice requires serious scrutiny.

We argue that the judicial statistics that are currently collected are inadequate for understanding and solving the problem of judicial delay. We propose a new approach to collecting data, which will lead to useful insights about delays. We apply this approach to a dataset, and find that about half the time taken by cases is lost to delays. Most delays are due to the petitioners asking for more time to file documents.

Propensity evidence has long been generally inadmissible, but in 1994, Rule 413 was enacted to admit evidence of prior “sexual assaults” committed by a defendant in a current sexual assault case for any purpose. Rule 413(d) contains several different definitions of “sexual assault,” or certain “crime[s] under federal or state law,” including (4): “deriving sexual pleasure or gratification from inflicting death, bodily injury, or physical pain on another person.” Unlike other enumerated definitions, the definition in subsection (4) is the only one that does not contain a “non-consent” qualifier, meaning that even consensual sexual activities can be “crimes” under the Rule. Despite the lack of scholarly attention to this issue, the constraints on judicial discretion to preclude such evidence, combined with the particularly prejudicial nature of sexual act evidence, can have devastating and unintended effects on civil and criminal defendants. Here, I propose a simple amendment to Rule 413 that makes clear that a “sexual assault” is only an act performed without consent, and provides an appropriate definition of “consent” in a newly-added subsection (e). I also critique the underlying proposition—that prior BDSM acts are relevant or probative of propensity to commit sexual assault—thereby undercutting any rational justification for the rule as presently written.

There is no general theory of the grounds of judicial review (e.g., the rule against bias, the doctrine of legitimate expectations, unreasonableness). Here I try to fill the gap. My theory draws on ideas from the philosophy of law and the philosophy of action, but it’s a simple theory. Officials make decisions for the community. Their decisions are subject to requirements of instrumental rationality. Ideally, officials would figure out for themselves how to live up to these requirements. Because officials aren’t perfect, the law also has “Plan B”, which is for judges to ensure that officials do what rationality requires of them. The grounds of judicial review are simply the grounds on which it’s rational for officials to reconsider, retain, suspend, or apply their decisions. The “Plan B theory”, as I call it, doesn’t account for every detail of judicial review. Even so, the theory is powerful, parsimonious, fruitful, and sharply at odds with almost everything else written about judicial review.

Synopsis How do principles or notions concerning fairness of proceedings tend to play out in Australian rape trials? We look at two types of legislative provisions pertaining to evidence in chief and cross-examination that have been altered in the last three decades in Australia. They were enacted to eliminate or minimise questions about the victim's sexual history and/or reputation, alter what is considered proper questioning and provide procedures to better protect victim witnesses' rights to safety. We examine what appear to be the limitations of law reform to mitigate the trauma of the trial for victims, to produce more accurate and consistent evidence and to increase prosecution and conviction rates. The implications of reducing judicial discretion in this context are also considered.

Unlike the US Chapter 11, the Belgian reorganization legislation requires that distressed firms remain temporarily under court-supervision during the post-confirmation stage. Using a hand-collected sample of firms, we analyze the likelihood of business failure and the time to failure during this period. Less viable firms are more likely to fail and do faster so, indicating relatively effective reorganization proceedings. Firms that are indebted to highly secured banks or owe high sums of unpaid taxes are more likely to fail. Judicial discretion affects the likelihood of failure only in a subsample of sole proprietorships.