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The article focuses on the curation, narration, and erasure of cases in the U.S. Supreme Court's 2023 term, using the case Acheson Hotels, LLC v. Laufer as a starting point for reflection. Topics include the Court's selective case review process, the impact of its decisions on national law, and the broader consequences of judicial discretion in shaping the legal landscape.

This article challenges the idea that judicial review is purely judicial and adversarial in nature. Instead, I argue that recent doctrinal and remedial changes to judicial review suggest that courts hold a quasi-administrative jurisdiction. By a quasi-administrative jurisdiction, I mean one that prospectively, and retrospectively, aids and advises on the execution of public administration. For example, the Federal Court in Canada (Citizenship and Immigration) v Mason suggested that federal tribunals should start using the advisory reference procedure found in section 18.3(1) of the 1985 Federal Courts Act to resolve 'dueling administrative interpretations' of their home statutes. Canadian courts have also started to remit cases back to administrative decision makers with specific instructions explaining how they are to proceed upon redetermination, thereby structuring and advising on the proper exercise of discretion. The existence of these quasi-administrative remedies requires us to rethink Lon Fuller's contention that the form of adjudication is inherently bilateral, adversarial, and retrospective. Fuller's contention was based on the claim that arguments in court are ordinarily presented in the form of claims of right in the disputant's favour. However, I argue that, in public law adjudication, arguments are presented in the form of claims of legitimate authority in the public interest. This establishes judicial review on what I term a multilateral, collaborative, and prospective form of adjudication. This form suggests that the court is in fact suited to exercising quasi-administrative functions. [ABSTRACT FROM AUTHOR]

This article challenges the idea that judicial review is purely judicial and adversarial in nature. Instead, I argue that recent doctrinal and remedial changes to judicial review suggest that courts hold a quasi-administrative jurisdiction. By a quasi-administrative jurisdiction, I mean one that prospectively, and retrospectively, aids and advises on the execution of public administration. For example, the Federal Court in Canada (Citizenship and Immigration) v Mason suggested that federal tribunals should start using the advisory reference procedure found in section 18.3(1) of the 1985 Federal Courts Act to resolve 'dueling administrative interpretations' of their home statutes. Canadian courts have also started to remit cases back to administrative decision makers with specific instructions explaining how they are to proceed upon redetermination, thereby structuring and advising on the proper exercise of discretion. The existence of these quasi-administrative remedies requires us to rethink Lon Fuller's contention that the form of adjudication is inherently bilateral, adversarial, and retrospective. Fuller's contention was based on the claim that arguments in court are ordinarily presented in the form of claims of right in the disputant's favour. However, I argue that, in public law adjudication, arguments are presented in the form of claims of legitimate authority in the public interest. This establishes judicial review on what I term a multilateral, collaborative, and prospective form of adjudication. This form suggests that the court is in fact suited to exercising quasi-administrative functions. [ABSTRACT FROM AUTHOR]

In R (on the application of Imam) v London Borough of Croydon, the Supreme Court considered the relevance of a local authority's resources on the curial discretion as to remedy in judicial review. This question was addressed in the context of a breach of the authority's duty under section 193(2) of the Housing Act 1996 to secure suitable accommodation for a person with priority need who is not intentionally homeless. Not only is the case a rare example of the Supreme Court examining remedial discretion and mandatory orders at length, but it also signals the importance of legal reasoning about remedy in judicial review. Remedies form the space where courts often determine what effect, if any, unlawfulness may have. This case note presents an analysis of the Supreme Court's reasoning, drawing attention to its implications for certain received views concerning the legal effect of mandatory and quashing orders, and the pragmatic character of its analysis of the relevance of resources. [ABSTRACT FROM AUTHOR]

Expert testimony is offered at the overwhelming majority of trials conducted in the United States. In many of these cases, it is absolutely essential for the plaintiff or prosecutor to introduce such testimony. The plaintiff may need expert testimony to prove general causation in a toxic Tort case, and similarly the prosecutor may need to resort to expert testimony to establish the accused's identity as the perpetrator of the charged crime. For decades, the proponents of expert testimony have mounted campaigns to lower the evidentiary barriers to expert testimony. For most of the 20th century, the governing American test for the admissibility of expert testimony was the Frye general acceptance standard. The courts espousing the standard characterized it as a conservative test that was needed to compensate for lay jurors' tendency to ascribe excessive weight to new scientific theories and techniques. However, the proponents of expert testimony were astute enough to realize that the reach or scope of a test can be every bit as important as its rigor or strictness. Given Frye's rationale, the proponents of expert testimony persuaded most Frye jurisdictions to narrow the substantive scope of the test to novel, instrumental, purportedly scientific testimony. Consequently, many courts exempted traditional forensic techniques, soft science, and nonscientific expert testimony from scrutiny. In its celebrated 1993 Daubert decision, the Supreme Court announced that the enactment Federal Rules of Evidence in 1975 had impliedly overturned the Frye test. Instead, the Court derived a new reliability/validation test from the expression, "scientific ... knowledge," in the text of Federal Rule 702. In addition, the Court listed a number of factors such as error rate that judges could consider in deciding whether the methodology the expert proposed relying on was sufficiently reliable. As in the case of the Frye test, the proponents of expert testimony endeavored to limit the substantive scope of the new test. The proponents pointed out that Rule 702 refers in the alternative to "scientific, technical, or other specialized knowledge." They seized on that language as the basis for contending that the reliability test applied only to scientific testimony. In its 1999 Kumho decision, the Supreme Court rejected that contention. On the one hand, the Court reached the sensible conclusion that trial judges might have to apply the reliability differently to various types of expertise. The factors listed in Daubert might be inappropriate for assessing the reliability of non-scientific expertise; and in assessing non-scientific expertise, a judge might have to apply "reasonable measures of reliability" that were not listed in Daubert. However, the Court ruled that the basic requirement for a showing of reliability derives from the term "knowledge" in Rule 702 and that the requirement applies across the board to all types of expert testimony. After failing to persuade the Court to narrow the substantive scope of Daubert, the proponents of expert testimony have shifted to the procedural front. This front, especially the pretrial phase, is critical because the vast majority of civil and criminal cases-over 95% in both arenas-are disposed of short of trial. Some lower courts have used broad language to the effect that Daubert is largely inapplicable to bench trials and pretrial proceedings such as class certification and summary judgment hearings. However, an analysis of the Federal Rules of Evidence and Civil Procedure demonstrates that with the solitary exception of the permissibility of using hearsay affidavits and declarations at summary judgment hearings, there are no exemptions from the Evidence Rules for bench trials or these pretrial proceedings. The article then analogizes to Kumho and argues that with one exception, when the judge is the decisionmaker at these proceedings, the judge may apply Daubert flexibly in a relaxed fashion. To be sure, a belief in the judiciary's epistemic exceptionalism can be carried too far. However, as a repeat player at trials where expert testimony is almost always presented, the typical trial judge is likely to have a much better sense of the potential weaknesses of expert testimony than the average juror possesses. The article advances the policy argument for such differential treatment and illustrates how a judge might apply several of the Daubert factors more liberally at such proceedings than he or she would at a jury trial. However, recurring to the text of Federal Civil Rule 53 governing summary judgment motions, the article concludes that when any trial after a summary judgment hearing would be a jury trial, at the summary judgment hearing the judge must enforce the Daubert standard every bit as rigorously as he or she would at a jury trial. Civil Rule 53, Evidence Rule 702, and Daubert/Kumho demand nothing less. [ABSTRACT FROM AUTHOR]

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For as long as contract law has been a discipline, it has been talked of as a science: a rigid, knowable set of rules that only need to be understood and applied correctly. Moreover, making contracts is exclusively in the control of the parties to them. Therefore, if parties want to guarantee a particular result, all they have to do is study the rules of contracting and draft a contract that does what they want. This is reflected in various phrases that courts frequently use: courts tell us that they “do not make contracts for the parties,” and are simply applying “generally applicable principles of contract law.” This Article argues that this view of contract law is false. Courts do make contracts for the parties. Therefore, we are not in perfect control of our contracts. Moreover, courts make contracts in different ways. The phrase “generally applicable principles of contract law” does not accurately reflect the reality of contract law. Not only do courts make contracts, but they lead us to believe that contracts are all subject to the same rules-when they are not. All this suggests that our contracts are much less predictable than courts imply they are. But there is more. The structure of the court system itself militates against predictability. The discretionary nature of high court judicial review in various jurisdictions, such as California and New York, allows a divergence between how contract law is expounded and how it is actually applied. And jurisdictions with non-discretionary high court review are not any likelier to have a more precise contractual jurisprudence. This Article argues that we would be better off if it was acknowledged that the contracts we enter into are, to some degree, inherently unpredictable. Doing so would align the rhetoric of contract law with its reality and make it more likely that contracting parties actually obtain the results they seek. [ABSTRACT FROM AUTHOR]

We can find both concentrated and diffuse models of judicial review in Czech law; there are also borderline situations where both models can be conceivably activated. The main advantage of the diffuse review is operative resolution of the norm conflict in an individual case and, accordingly, the expeditious protection of the parties' rights. On the other hand, legal certainty is regarded to be the principal advantage of the concentrated review in the continental legal system. The article tries to relativise this notion, mostly for the event of partial or marginal incompatibility where the diffuse review is less invasive in terms of legal stability. Especially in these cases, it is therefore thinkable, for example, that ordinary courts apply an international treaty concerning human rights. Finally, the article argues in favour of wider judicial discretion regarding the selection of the model of review. [ABSTRACT FROM AUTHOR]

The Hungarian legal system and especially the administrative law is in the state of permanent change. This constantly transforming environment is a challenge for the rule of law. Every significant field of administrative law is impacted by these changes – even the judicial review model of the administrative decisions. The author analyzes the impact of these changes – especially from the last three years – on the application of administrative law. The issues raised in the article are focused on the transformation of the procedural rules, in particular on the impact of the new Act I of 2017 – Code of Administrative Court Procedure and its amendment in 2019. Two major institutions are analyzed further. First, the work analyzes the impact of the reform on the system of legal remedies in the administrative law, i.e. the reduction of the intra-administration remedies, the administrative appeal. Secondly, the extent of the judicial review was examined, in particular debates, codifications and amendments of the cassation and reformatory jurisdiction of the courts. The courts are currently the major interpreter of administrative law, whose change can be interpreted as a paradigm shift of the approach of the application of administrative law.

There were no such clear words in the Tribunals, Courts and Enforcement Act 2007, and as such unappealable decisions of the Upper Tribunal could be subject to judicial review. Section 29A(1)(b) provides the court with the power to permanently remove or limit any retrospective effect of a quashing order, thus enabling a court to validate an unlawful measure and to modify the retrospective effect of a quashing order on a bespoke basis. 1. The Judicial Review and Courts Bill (the Bill) was presented to Parliament on 21 July 2021. In summary, it gives the court a discretion to suspend the effect of a quashing order until a date specified in the order and enables a court to remove or to limit any retrospective effect of the quashing. [Extracted from the article]

The article argues that over the years a series of gradual developments has taken place in the judicial review policies of Israel's Supreme Court, whereby the Court expanded its ad hoc discretion in determining the constitutional limits that apply to primary legislation. Israeli constitutionalism has become judiciary-centered. The article suggests that judicial discretion that the Israeli Supreme Court tends to exercise in constitutional matters is of two types: substantive judicial discretion, which concerns the interpretation or application of the law; and adjudicative discretion, which includes both the discretion to deny in limine petitions in which the Court does not deem it necessary to grant relief according to considerations such as standing or delay; and the Court's discretion in the manner of the hearing. The article suggests three illuminations of Israeli judiciary-centered constitutionalism: expenditure of the justices' awareness of their discretion; the decline of the rules structuring judicial discretion; and a re-rise of the justices' recognition of legitimacy of adjudicative discretion due to the expansion of substantive judicial discretion. [ABSTRACT FROM AUTHOR]

In the admissibility framework of the Rome Statute, the Prosecutor's discretion as to whether to initiate an investigation into a situation includes the application of the open-textured requirement of 'sufficient gravity' specified in Article 17(1)(d). Pre-Trial Chamber oversight is designed to discipline the exercise of this discretion, but, in the absence of statutory guidance, the Pre-Trial Chambers are left themselves to articulate the standards of review of the Prosecutor's admissibility assessments under relevant provisions, namely Articles 53(3)(a) and 15(4) of the Statute. The confused body of Pre-Trial Chamber practice to date poses the question as to what ought to be the standard of review of the Prosecutor's admissibility assessment under each provision. This article teases apart and scrutinizes the standards of review that the Pre-Trial Chambers have applied in practice. By disaggregating the procedural contexts in which the Prosecutor's admissibility assessments are made and analysing in each context the underlying interests at stake, it seeks to arrive at the appropriate standard of judicial review of the Prosecutor's gravity assessment under each provision. [ABSTRACT FROM AUTHOR]

This paper examines a principle of particular relevance for administrative action and the concept of good administration, namely the principle of reasonableness, at the EU level, from the point of view of the Italian administrative doctrine, and jurisprudence of the Council of State. Specific attention will be paid to the many faces and functions of reasonableness, in administrative proceeding as well as in judicial review of discretion, and its connection with the idea of proportionality. Moreover, this article will discuss the influence and effects of the application of general principles of EU law on the Italian legal order. Finally, it will describe the EU principle of reasonableness has influenced the Italian administrative (case) law. This article aims to show that on the one hand the European principles of reasonableness and proportionality seem to be smoothly absorbed in the Italian administrative case law; on the other, the Europeanisation process still encounters resistance from a part of the Italian doctrine that persists in categorizing reasonableness as a principle different from proportionality. [ABSTRACT FROM AUTHOR]

The article discusses the appellate procedures used in judicial disqualification review in the U.S. and proposes some mechanisms to standardize appellate review in the U.S. Other topics include the history and constitutional basis of judicial disqualification in federal courts, discretionary appeals, collateral orders, abuse of discretion or De Novo review, and post-recusal appellate review.

The article focuses on the U.S. Food and Drug Administration (FDA) has statutory authority to regulate compounded lethal drugs, it has consistently refused to do so. It mentions FDA can refuse to regulate these drugs because the law insulates its inaction from judicial review and FDA's inaction as an exercise of unreviewable enforcement discretion. It also mentions general benefits discrete look brings to administrative law.

The article discusses issues on the use of tiered or multilevel scrutiny review by the courts in the U.S. in resolving lawsuits, and offers a tiered scrutiny substitute based on the rule of law. Also cited are the proposed judicial accommodation of constitutionally fundamental rights, the rule of judicial deference to legislative policy judgments, and how tiered scrutiny hinders judicial discretion and subjectivity.

The main aim of this paper is to investigate a quite unexamined area: the relationship between political question doctrine and local governments in Hungary. The research focuses on the decisions of Hungarian courts and the Constitutional Court made on this matter. The paper takes under investigation some local governmental acts which have not been reviewed by any court. The main purpose of the research is to find out whether it is possible to take local governmental acts under efficient judicial review in Hungary? [ABSTRACT FROM AUTHOR]

Copyright of Espaço Jurídico: Journal of Law is the property of Espaco Juridico: Journal of Law and its content may not be copied or emailed to multiple sites or posted to a listserv without the copyright holder's express written permission. However, users may print, download, or email articles for individual use. This abstract may be abridged. No warranty is given about the accuracy of the copy. Users should refer to the original published version of the material for the full abstract. (Copyright applies to all Abstracts.)

For many years, similarities have been noticed between the motivations for, and the methods of, controlling the exercise of discretionary powers on the one hand, in public law and, on the other hand, in contract law. There has, however, been much disagreement about how far the two processes should aligned, and whether the grounds of review in public law should be extended into the contractual domain. In Braganza v BP Shipping Ltd [2015] UKSC 17, the UK Supreme Court sought a high degree of alignment through the adoption, in a contractual dispute, of public law standards of reasonableness. This article offers a critique of the Court's arguments in the case and its consequences for contract law. [ABSTRACT FROM AUTHOR]

On its tenth anniversary, a great deal can be said about the decision in Dunsmuir v New Brunswick and the way that it and its progeny have impacted how courts approach judicial review in Canada. The grounds upon which decisions may be quashed have expanded, and reviewing courts now must consider the facts and circumstances underlying a decision under review as well as their impact on the Charter interests of a party challenging a decision. Nevertheless, the rules governing evidence admissible on judicial review have not been changed in any meaningful way since the nineteenth century. Those rules, generally speaking, still limit the admissibility of so-called 'extrinsic' evidence to situations involving alleged 'jurisdictional errors' or a breach of the duty of fairness. While perhaps not as exciting as other current issues in administrative law, it is one of tremendous practical significance to parties seeking to challenge the decisions of public authorities. The rigid evidentiary rules can mean that parties are not practically able to make the arguments that they would otherwise be entitled to make on review, and the task of the reviewing court can be frustrated. Operating from the thesis that the rules of evidence on judicial review should move in tandem with changes to the substantive law of judicial review, the authors propose a general rule permitting parties to adduce evidence necessary to the arguments they are permitted to make, subject to the courts' discretion to exclude such evidence where there is a meaningful opportunity or expectation that the evidence be put before the decision maker at first instance. The issue of 'what is the record' is increasingly a live one on judicial review, particularly when non-adjudicative or policy decisions are under review. This is unlikely to change when the Supreme Court of Canada revisits Dunsmuir, unless the rules of evidence are modified in tandem. [ABSTRACT FROM AUTHOR]

The general, but false, perception of migrant smuggling through Indonesia, a large, archipelagic country, is that smugglers operate entirely on their own. In fact, the more complex smuggling operations rely on broad networks of foreign organizers as well as local intermediaries and ground staff. In 2011, the Indonesian legislature introduced a severe minimum sentence for any involvement in migrant smuggling with the expectation that the judiciary would apply the sentence in all future cases. However, some judges proceeded to hand down sentences below the statutory minimum, arguing that the punishment is not commensurate to the relatively minor roles played by locals. This article examines how judges at all levels of the judiciary did so in ten related cases. In conclusion, it argues that statutory sentences are not mandatory in Indonesia and that, by applying below-minimum sentences, judges not only maintain judicial independence; they also effectively exercise a judicial review function. [ABSTRACT FROM AUTHOR]

Copyright of Analisi e Diritto is the property of Edizioni ETS s.r.l. and its content may not be copied or emailed to multiple sites or posted to a listserv without the copyright holder's express written permission. However, users may print, download, or email articles for individual use. This abstract may be abridged. No warranty is given about the accuracy of the copy. Users should refer to the original published version of the material for the full abstract. (Copyright applies to all Abstracts.)

Supporters of the substantive rule of law state that the concept is compatible with the demands of the formal notion of the rule of law. Indeed, they affirm that those demands represent the basis upon which the substantive concept is built. Basically, those formalities demand that the law must be able to: (a) effectively limit the discretion of public authorities and (b) guide the decision-making processes of citizens. However, elements of the substantive notion of the rule of law, such as the existence of bills of rights directly enforceable by courts, create tensions with the imperatives of legality. This is particularly true concerning judicial discretion. In this context, the author concludes that those who support the substantive notion of the rule of law must either: (a) rethink the concept seeking mechanisms to alleviate the identified tensions within the concept, or (b) build the notion upon different grounds. [ABSTRACT FROM AUTHOR]

Cost-benefit analysis can be a valuable tool when deployed at the Securities and Exchange Commission's discretion to improve its rulemaking process and the overall quality of SEC rules. However, when a cost-benefit analysis obligation is imposed externally--whether from an explicit statutory command or from a de facto requirement enforced through judicial review--the costs of that mandatory cost-benefit analysis can be quite substantial. This Article identifies and explores the qualitative costs that that have already been incurred, and are bound to continue, if the adequacy of the SEC's cost-benefit analysis remains subject to extensive judicial scrutiny. These costs will only intensify if Congress amends the federal securities laws to add a host of new and onerous cost-benefit analysis requirements. [ABSTRACT FROM AUTHOR]

In recent decades, there has been a wide-ranging global movement towards constitutional review. This development poses important puzzles of political economy: Why would self-interested governments willingly constrain themselves by constitutional means? What explains the global shift toward judicial supremacy? Though different theories have been proposed, none have been systematically tested against each other using quantitative empirical methods. In this article, we utilize a unique new dataset on constitutional review for 204 countries for the period 1781–2011 to test various theories that explain the adoption of constitutional review. Using a fixed-effects spatial lag model, we find substantial evidence that the adoption of constitutional review is driven by domestic electoral politics. By contrast, we find no general evidence that constitutional review adoption results from ideational factors, federalism, or international norm diffusion. (JEL: K00, K19, K49) [ABSTRACT FROM PUBLISHER]

Judicial deference to administrative agencies is often viewed as a dichotomous choice between full deference and no deference, ignoring considerations of institutional and political context. I argue that a court's decision on whether to defer to an administrative agency is more complex and is conditional on the political salience of the substantive issue in the case. I test this theory in the context of the U.S. Courts of Appeals using a sample of cases decided between 1961 and 2002. The results show that when dealing with non-salient cases, the level of deference to agencies is static, but in salient cases the level of deference is strongly related to the ideological congruence between the court and the agency. [ABSTRACT FROM AUTHOR]

The article critiques the borrowing of private law concepts to develop doctrines of judicial review in public law. Topics discussed include constraining political discretion through judicial review based on the model of private fiduciary duties, problem of faction in legislative and administrative decision making and the promises and pitfalls of translating between public and private law. Also discusses the work of the scholar Francis Lieber, on the issue.

The article discusses the New Jersey Supreme Court's ruling in the case State In re V.A. which deals with judicial review and discretion in relation to the state's juvenile waiver process, focusing on the history of transfer laws and the legal ability to try juveniles in adult courts in New Jersey. Juvenile rehabilitation and a call for legislative changes are addressed, along with the standard of review for reviewing prosecutors' decisions to waive juveniles into adult criminal courts.

The article discusses the tension between the two conflicting fundamental propositions of administrative law in Great Britain as well as the lawful actions under the rule of law and the application of judicial review. It explains the difference between jurisdiction and remedial discretion. It highlights the origins of judicial control over inferior courts and administrative bodies. It also notes a Supreme Court case outlining the voidness of invalid acts squeezes out remedial discretion.

The article discusses several reportedly unresolved issues regarding the standard of review in cases involving Canadian judicial reviews of administrative actions as of November 2013. Other topics include precedent, judicial discretion in Canada, and Canadian Supreme Court judgments in relation to alleged violations of the nation's Income Tax Act. Various legal cases are examined, along with information on expertise and Canadian labour arbitrators.