Search

The scope of the powers of the Public Protector was one of the main questions for determination by the Constitutional Court in the landmark case of Economic Freedom Fighters vs Speaker of the National Assembly. This note critically examines that case, especially in relation to its finding that the remedial actions of the Public Protector have a binding effect. The note argues that the court erred by ignoring the text and history of the Constitution in its interpretations of the powers of the Public Protector. We argue that the Court got it wrong when it dismissed an argument that the powers of the Public Protector should be sourced from the Public Protector Act and not directly from the Constitution. In its critical analysis of Economic Freedom Fighters vs Speaker of the National Assembly , the note engages with two other related decisions from lower courts. [ABSTRACT FROM AUTHOR]

The article explore the crucial idea of autonomy and its relation to consent. It acknowledges the ambiguity and uncertainty surrounding the concept of consent, which can refer to both a subjective state of mind and a legal or moral justification for an act. It also highlights that consent often involves some form of communicated manifestation.

The litigated dissolution of international distribution relationships severely hampers exchange partners' international efforts. Although relationship dissolution through litigation is a central issue in international business, limited research has been conducted to understand this process, thus leaving academics and practitioners with an incomplete theoretical or practitioner understanding of issues involved in this process. This study uses a systematic analysis of legal cases over the 1985-2005 period to better understand this issue from a longitudinal perspective. Using legal case data, the authors develop a process framework, which includes formalized propositions, to denote two separate litigation dissolution processes: proactive and reactive. The legal case analysis indicates that the two types of relationship dissolution processes have unique triggers and outcomes, which suggests differences in theoretical models and managerial actions. The authors present academic and practitioner implications. [ABSTRACT FROM AUTHOR]

Statistics are increasingly playing a crucial role in criminal cases. As the articles in this Special Issue illustrate, they can form the principal basis for expert testimony (e.g., with respect to risk assessments), heavily influence decisions about policy (e.g., constitutional doctrine governing police stop-and-frisk practices), and help courts evaluate the admissibility of expert testimony (e.g., via proficiency testing). Unfortunately, courts have not always been up to the task of analyzing the value of statistical analysis. In the course of introducing the articles in this issue, this article provides some examples of how statistical information can be misconstrued and suggests several reasons why judges may be reluctant to engage with such information. [ABSTRACT FROM AUTHOR]

This article presents the findings from a quantitative study of 249 judicial environmental decisions. The study finds that the courts find against claimants challenging administrative environmental law decisions by a higher margin than in other areas of administrative law (though the margin varies from court to court). The article argues that the main reason for this is found in the interactions between the nature of environmental law and the strict legal focus inherent in judicial supervision. Often environmental law confers express statutory authority on administrative decision-makers, requiring them to balance competing interests against one another. When encountering these dynamics, courts are likely to defer to administrative decision-makers at a higher rate. The article also finds that the variation between courts is potentially narrowing and that the rate of success enjoyed by claimants varies depending on which public authority they seek to challenge. Having presented the quantitative findings of the study, the article briefly sketches out the relevance of the type of quantitative work presented here in relation to ongoing debates on role of the courts in environmental law whilst also identifying future avenues for additional follow-up research. [ABSTRACT FROM AUTHOR]

The article discusses several environmental court cases in the European Union (EU) in 2018. The General Court ruled that cities have the power to challenge the European Commission's acts that affect their regulatory powers. The Court of Justice of the European Union (CJEU) released its decision on a case about the preparation of environmental legislation by EU institutions. The court also made a ruling about the requirement in Article 11(4) of the Environmental Impact Assessment Directive.

In previous articles, I have promoted concurrent interpretation, also called characterization, as good judicial practice in preference to attempts at prospective interpretation made in advance of application to the facts of the case. I now consider a suggestion that concurrent interpretation does no more than describe what actually happens in adjudication and the consequent challenge to my contentions that there is a difference between concurrent and prospective interpretation, and that such difference matters. This challenge provides an opportunity to re-orientate my critique of prospective interpretation. I argue that in the process of prospective interpretation the object of interpretation may become a different object and that this different object becomes the subject of application. I describe how this happens and discuss the implications. But first I establish a platform for my argument. [ABSTRACT FROM AUTHOR]

The distinction between easy and hard cases is well known from the work of Ronald Dworkin. Dworkin focuses primarily on the challenges posed by hard cases. Easy cases, by contrast, remain relatively under-theorized. This article begins by exploring how judges decide easy cases by relying on holistic intuitive judgments. I then build on this analysis by introducing a third category of cases, which I call not-so-easy cases. I argue that easy, not-so-easy and hard cases are distinguished by the extent to which the judge's intuitive judgments about the factual and legal context for the case yield a clear and determinate outcome. Easy cases are fully resolved at an intuitive level and merely require judges to articulate their decisions; not-so-easy cases are tentatively resolved at an intuitive level but require judges to explain their decisions; and hard cases are unresolved at an intuitive level and require judges to justify their decisions. I offer an account of the decision procedures involved in each type of case. I further contend that most cases heard by appellate courts are not-so-easy cases. The primary task of such courts is therefore best understood as one of explanation (rather than justification). This finding holds important implications for the nature and legitimacy of the judicial role. [ABSTRACT FROM AUTHOR]

The article discusses several court cases decided by the Utah Supreme Court, Utah Court of Appeals, and the United States Tenth Circuit Court of Appeals. The district court denied a petition of modifying an alimony award in the case MacDonald v. MacDonald. The Utah Supreme Court based its decision on the case State v. Fullerton on the standard associated with evaluating the involvement of a person in a custodial interrogation.

United States courts are demanding that businesses break foreign laws at an exponentially increasing rate. A practice that was virtually unheard of only 30 years ago is now so widespread that U.S. courts are ordering foreign lawbreaking in the most trivial discovery matters. When a court receives a discovery request that violates a foreign law, it applies the 5-part Aérospatiale balancing test--a test where 4 of the 5 factors are left to the subjective decisions of the judge. By ordering foreign law breaking, our courts--often biased in favor of United States discovery rules--are encouraging abusive litigation tactics, undermining the rule of law, and causing friction with foreign nations. In this article, I update my original work on court ordered law breaking by analyzing these orders over the last three years, and I conclude that the Supreme Court needs to resolve the circuit split regarding the proper way to handle requests for information that violate foreign laws. [ABSTRACT FROM AUTHOR]

The article examines why the administration of U.S. President Donald Trump cannot win the Medicaid work experiment cases. Topics discussed include the case Stewart v. Azart wherein a federal court vacated the Trump administration's decision to the approve the Medicaid work experiment Kentucky HEALTH, the Medicaid's appropriation provision, and the U.S. Supreme Court's decision in National Federation of Independent Business v. Sebelius.

The article discusses the impact of the 1215 Magna Carta on the U.S. Supreme Court throughout history from 1790 through the 2010. An overview of the citations of the Magna Carta in Supreme Court judgments and opinions for actions and defense cases, including in the Supreme Court case "Kerry v. Din," is provided.

What moral readings characterize contemporary U.S. Supreme Court opinions on discrimination by race; ethnicity; religion; gender; sexuality; and disabilities? John Rohr and the Constitutional School of Public Administration scholars have analyzed the Supreme Court’s decisions for moral insights in public affairs. The authors sought to take a modest step with analysis based on a more nuanced, empirical moral reading of the Court’s cases. First, the authors critiqued the case-study method of the Constitutional School, comparing these with moral readings of the Court’s opinion, including moral justifications that are teleological and nonteleological. Second, the authors analyzed selected opinions by the contemporary Supreme Court on discrimination by race; ethnicity; religion; gender; sexuality; and disabilities. Third, the authors analyzed patterns of teleological (utilitarian or virtue) and nonteleological (deontological) moral justifications and concluded the Supreme Court ordinarily uses ethical arguments, often teleological (utilitarian), with nonteleological (deontological) justifications in cases of perceived injustice. Virtue moral justifications are rare: only with a nonvirtuous litigant. Thus, the authors meld a more nuanced, empirical moral reading with the traditional case-study method of the Constitutional School of Public Administration, without assuming appeal to some universal moral faculty—instead deferring to each person in accepting or rejecting these moral justifications. [ABSTRACT FROM AUTHOR]

This study examined the influence of nine case characteristics on the outcomes of federal court cases involving sexual harassment. Case characteristics that were related to the courts' decisions were the severity of the behavior involved, the presence of witnesses and documents, whether complainants had notified their companies of the harassment before filing charges, and whether the organizations had taken action. We compared findings to the results of a previous study involving harassment charges filed with the Equal Employment Opportunity Commission. [ABSTRACT FROM AUTHOR]

A variety of new information technologies have emerged that clearly can improve the efficiency and effectiveness of marketing programs. However, the use of technologies such as computer matching or automatic order-entry systems to support marketing programs also can lead to legal and societal difficulties. The authors review the types of problems that marketers could encounter when using new information technologies. Particular attention is paid to the possibilities of being charged with (1) participating in collusive information exchanges, (2) maintaining an illegal "essential facility," (3) storing or transmitting inaccurate and harmful information, and (4) violating the privacy rights of individuals. They offer ideas about how marketing managers and researchers can reduce the chances of facing these types of problems. [ABSTRACT FROM AUTHOR]

The recent decision in Sindell v. Abbott Laboratories et at established a new doctrine of causation in product liability, "market share liability." Under this doctrine the manufacturers of the drug DES, if found guilty of the charges of negligence filed against them, would be assessed damages in proportion to their market share even though the plaintiff, Judith Sindell, cannot identify which of those manufacturers produced the drug causing her injury. [ABSTRACT FROM AUTHOR]

The article offers information on exigent circumstances and searches incident to arrest in the state of New York. It reflects on the decision by the U.S. Supreme Court in United States v. Robinson and discusses the relationship between the cases People v. Smith and People v. Gokey. The application of the Gokey rationale by courts in handling such cases is discussed, as well as suggestions for the U.S. Court of Appeals on how to eliminate the rationale's inconsistency.

The article provides an analysis of the Arizona Supreme Court during the tenure of Chief Justice Rebecca Berch. It explores the diverse possible reasons for the infrequency of dissenting opinions during Berch's tenure, including the possible role of political ideology in the split decisions and the subject-matter of cases in question. Also discussed is the impact of ideological diversity on the court's judicial decision-making.

The article analyzes the single-subject rule included in most state constitutions in the U.S. It examines the use of the rule by state courts to invalidate questionable law, highlighting state supreme court single-subject cases interpreting the rule. The significance of the rule's failure to fulfill its goal to revamp state legislative processes is discussed.

The article discusses global refugee court cases as of January 2018. The Court of Justice of the European Union ruled that an asylum applicant is granted refugee status if he/she is below 18 at the time of entry. The French Council of State ruled that a Syrian air force asylum applicant was not involved in a demonstration crackdown and called for a new decision. The Home Department State Secretary ruled that asylum can only be given if the applicant is present when the decision is made.

The article examines the use of the Code of Ethics for Arbitrators in Commercial Disputes in resolving disputes in the U.S. through arbitration. It presents several court cases which applied the code, including the Supreme Court case Commonwealth Coatings Corp. v. Continental Casualty Co. and the Court of Appeals for the Ninth Circuit case Schmitz v. Zelveti. The impact of an arbitrator's failure to investigate on evident partiality is discussed.

The article analyzes the use of tools for discovery management in arbitration in the U.S. It explains the notion of the tools that parties may choose to focus and streamline discovery processes in their arbitration clause. Also discussed is the efficacy of the tools in raising the predictability of discovery obligations in arbitration and in reducing disputes about the application of proportionality rules.

The article discusses several European Court of Human Rights (ECHR) cases related to health care law. The ECHR cases discussed are X v. Russia which deals with involuntary admission of a patient with schizotypal personality disorder to a psychiatric hospital, Mehmet Günay and Güllü Günay v. Turkey which deals with physician negligence, and Mockutė v. Lithuania which deals with deprivation of liberty at a psychiatric hospital.

The article provides information on the Federal Sentencing Guidelines which were originally imposed by the U.S. Congress in the Sentencing Reform Act of 1984 (SRA). Topics discussed include the creation of the U.S. Sentencing Commission to establish the actual definitions and sentencing structure to be used under the SRA, how a sentencing range is determined under the Guidelines, and significant cases impacting the SRA.

The author presents a reflection on historical legal procedures and their impact on contemporary law in Latin America. She features her experience of pursuing a Master of Arts in Public Policy and Administration with an emphasis in Global Policy at Northwestern University in Illinois. She identifies the primary source documents she used, including onsite and online visits to some archives and several cases from the General Indian Court.