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In two related decisions in Chamber of Commerce of the United States of America v. Securities and Exchange Commission (SEC), the District of Columbia Federal Court of Appeals ruled that the SEC had not fully complied with some provisions of the Administrative Procedures Act when it required that the boards of investment companies managing mutual funds have at least 75% of their membership and the Chairman be independent directors. In preparation for renewed rule making, the Office of Economic Analysis of the SEC prepared a Power Study to respond to an industry-sponsored report claiming that the returns of funds with independent boards and chairs are not superior to funds with boards dominated by management. The Power Study concluded that the available studies on the effectiveness of independent board members do not have sufficient statistical power to detect a meaningful difference in the returns of the two types of funds. This paper demonstrates that the method used by the SEC in their power calculation is not correct, unless a very restrictive condition that rarely occurs in practice holds. When the appropriate power formulas are used, the expected power of studies of the same size as the ones examined by the SEC is actually lower than the corresponding results of the SEC. Thus, the results in the paper actually strengthen the argument that the SEC is advocating. The relevance of both the SEC and the industry studies to the main issue in the case is also questioned in the discussion. [ABSTRACT FROM PUBLISHER]

The concept of balancing is of central importance in the assessment of legislative choices and in constitutional review. In conformity with the global tendency, balancing is increasingly used in judicial practice as an argumentation technique for solving legal disputes; more and more, judges of all levels ground their decisions on the balancing of individual rights, interests, principles, needs, and values. Legal science has formulated theoretical and formal models to explain the argumentation structure of balancing and the criteria governing the argumentation process, but, in the absence of a conceptual model that encompasses all elements in play and enables a comparative mechanism to be abstracted, mapping instances of judicial practice to abstract theories is still difficult. In this context, the objective of the project described here is to allow the logic of judicial practice emerge from cases, verifying from the bottom up the assumptions of theoretical models. Starting off from a broad analysis of Italian cases, the paper aims at analysing the object of this operation, i.e. what is `balanced' and what is the nature of this process. The research was conducted by analysing the so-called `massime' (case law abstracts) of the Italian High Courts (Constitutional Court, Supreme Court, Council of State) of the administrative courts (Regional Administrative Tribunals) and of a selection of lower court decisions. The methodology is divided into an initial phase of documentary collection and storage, a second phase of conceptual modelling and a third phase of data analysis. [ABSTRACT FROM PUBLISHER]

This paper argues that, in spite of recent judicial practice contributing to the integration of environmental considerations in human rights adjudication, progress in this field remains limited. This is so because of the prevailing ‘individualistic’ perspective in which human rights courts place the environmental dimension of human rights. This results in a reductionist approach which is not consistent with the inherent nature of the environment as a public good indispensable for the life and welfare of society as a whole. The article, rather than advocating the recognition of an independent right to a clean environment, presents a plea for a more imaginative approach based on the consideration of the collective-social dimension of human rights affected by environmental degradation. [ABSTRACT FROM PUBLISHER]

In this paper, I shall essentially lay our five interpretive principles that the Hong Kong judiciary should observe. First. the Hong Kong judiciary can disable themselves from giving effect to National People's Congress (NPC) Acts that are inconsistent with the Basic Law. Second, the Court of Final Appeal has a duty to make a reference to the NPC's Standing Committee (NPCSC) when it needs to adjudicate over two conflicting Basic Law provisions, one whose affairs fall within the Central Government's concerns and the other which falls within the limits of Hong Kong's autonomy. Third, in reading the text of the NPCSC Interpretation narrowly while observing its central tenor, the Court would be respecting the plenary interpretive mandate conferred on the NPCSC while retaining its role as the primary interpreter of the Basic Law. Fourth, so far as a Mainland National Law has been formally incorporated into the Basic Law, it cannot be deemed in violation of another constitutional clause. Finally, I would argue that not all constitutional affairs falling within the limits of Hong Kong's autonomy are automatically justiciable; where there is a textual commitment to a coordinate branch of government, the Court may only interfere with the decisions made by the political branches on traditional grounds of judicial review, i.e. illegality, irrationality or procedural impropriety. [ABSTRACT FROM AUTHOR]

This paper is a study of the process of drafting of decisions of the International Court of Justice from the standpoint of the Registry, showing on the basis of the author's personal recollections how the Registry contributes to the process. The question of the legal propriety of such contribution is examined, on the basis of a distinction between the task of decision, and that of expression of the decision. Some remarks are also offered on drafting techniques. [ABSTRACT FROM AUTHOR]