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The presumption of innocence is an important bastion against miscarriages of justice and abuse of power. It guarantees that individuals will not be punished without solid and legally established evidence of their guilt. It also guarantees the impartiality of the judicial system, avoiding biased determination of the outcome of a trial. In practice, the presumption of innocence means that the prosecution has the burden of proof, the accused is not obliged to prove his or her innocence, and any doubts should be in favour of the accused. The presumption of innocence is one of the fundamental principles of our judicial system. It balances the need to punish offences with the need to protect individual rights. Case law has established a number of requirements to ensure that the presumption of innocence is not distorted. These include the need to have sufficient and substantiated incriminating evidence, as well as to respect the fundamental rights of the accused during criminal proceedings. The author analyses the national case law which defines the stages of criminal proceedings and the main provisions of the presumption of innocence and ensuring proof of guilt. The court of its own internal conviction, based on a comprehensive, full and impartial examination of all the circumstances of criminal proceedings, guided by law, evaluates each evidence in terms of relevance, admissibility, reliability, and the totality of the evidence collected in terms of sufficiency and interconnection, based on the provisions of the presumption of innocence and ensuring proof of guilt, in particular, by virtue of Art. 62 of the Constitution of Ukraine and Article 17 of the CPC of Ukraine, the provisions of Article 6 of the Convention for the Protection of Human Rights and Fundamental Freedoms, according to which everyone charged with a criminal offence is presumed innocent until proven guilty according to law. [ABSTRACT FROM AUTHOR]

Shortly after Roth Greeting Cards was decided in 1970, its off hand reference to the "total concept and feel" of the cards at issue became the dominant standard in copyright law for determining whether two works were substantially similar. That is a remarkable achievement for a phrase that, in the words of the influential Nimmer treatise, "threatens to subvert the very essence of copyright." It nevertheless had enormous appeal for federal judges, and the reason extends well beyond copyright law. "Total concept and feel" appeared at a critical juncture for the federal judiciary, as an older model of decision-making, based on discretion and reason, yielded to a more formalized process. For a time, the phrase allowed judges in copyright cases to continue using their discretion and aesthetic judgment in a legal world that had grown cold to both of those things. The history of "total concept and feel" in copyright law thus opens a window on an important but underappreciated transition point in the law, one that occurred in the 1960s with reverberations that continue to the present day. The history related here shows how judges first attempted to pay tribute to formalism with capacious doctrine, a maneuver that allowed them to retain decision-making power in infringement cases at a time when jury trials were rare and summary judgment standards only loosely observed. But "total concept and feel" provided only fleeting respite from the rise of formalism. The same forces that pushed judges to adopt a new definition of substantial similarity eventually took that decision away from them entirely, placing it instead with juries, with anarchic results. This history demonstrates two things. First, while copyright scholars tend to view the development of infringement doctrine as an unbroken chain of events, in fact copyright precedents come from three distinct eras, each with its own method of decision-making. The ready availability of judicial discretion in earlier eras can no longer be presumed. But second, the use of informed discretion in resolving copyright disputes is not so easily forgone. Even now, after discretion became anathema at trial and then at summary judgment, it is nevertheless reappearing at the pleadings stage as courts increasingly grant motions to dismiss. This development suggests that it would be better to end the "total concept and feel" maneuver and give judges and juries the information they need to make better decisions. [ABSTRACT FROM AUTHOR]

This article builds on Paige Sweet's conceptualization of 'worthy survivors' in the United States context and adds a consideration of judicial discretion to define who were considered worthy survivors of domestic violence in the eyes of the Beijing courts in 2021 and 2022. After analysing judges' decisions in civil judgments and civil orders, the article concludes that worthy survivors were those who described how their abusers challenged legal authorities or disturbed public order, submitted multiple external documents with a clear description of the domestic violence, or mentioned children as direct survivors of physical child abuse committed in public. By contrast, survivors with limited capacity for civil conduct (generally due to schizophrenia) were marginalized and treated as 'unworthy'. This article contributes to our understanding by addressing how crafting stories in line with mainstream ideology in the specific society helped survivors to achieve institutional recognition. [ABSTRACT FROM AUTHOR]

The Supreme Court construed penal statutes in forty-three cases from the 2013 Term through the 2022 Term. In those cases, the Court tended to adopt narrow constructions, a preference consistent with several substantive canons of construction, such as the rule of lenity and the avoidance of constitutional vagueness concerns. Substantive canons were routinely included in party briefs, frequently raised during oral argument, and occasionally explicated in concurring opinions. Yet the Court did not rely on substantive canons in the vast majority of the narrow-construction cases. For example, the Court never firmly relied upon the rule of lenity—the substantive canon most often raised in briefs and at argument—to justify a narrow construction over the entire ten-Term period. Instead, the Court’s rationale in these cases tended to be “ad hoc,” in the sense that the Court based its narrow reading only on statute-specific ordinary-meaning analysis. That approach may be motivated by textualist suspicion of substantive canons or a desire to maximize interpretive discretion in future cases involving penal statutes. Whatever its cause, the Court’s ad hoc approach has large-scale implications that perpetuate the enactment, enforcement, and interpretation of penal statutes in an expansive manner—undermining the rule of law by systematically increasing discretion for various actors who administer criminal law. [ABSTRACT FROM AUTHOR]

The Supreme Court relies increasingly on anticlassification rules to implement the Constitution’s various commands of evenhanded state treatment. These rules direct attention to whether an instance of a forbidden classification is present on the face of a challenged law. They contain two necessary steps. First, a court defines a general category of impermissible terms. Second, a court ascertains whether an instance of the category is found in enacted text—so triggering the familiar strict scrutiny analysis. So defined, anticlassification rules now dominate equal protection, free speech, “dormant” Commerce Clause, and even free exercise jurisprudence. The Roberts Court celebrates these doctrinal tests as “commonsense,” citing their administrability and mechanical quality as safeguards against problematic judicial discretion. This Article challenges this account of anticlassification rules as simple and transparent. It draws extensively on conceptual tools from the philosophy of language to elucidate the inherent complications and internal tensions of the doctrine. Defining and drawing bounds around categories such as “race” and “content discrimination,” for example, cannot be done without a theory of what philosophers of language call “natural kinds” and “social kinds.” Yet when courts identify instances of impermissible categories in legal text, they tend to fluctuate erratically between semantic and communicative theories of meaning. A careful examination of these, and other, hidden premises of anticlassification clarifies apparent doctrinal inconsistencies. Absent a systematic theorizing of such difficulties, anticlassification rules cannot be coherently or consistently applied. Reckoning with these difficulties suggests that the Court’s main normative justifications for anticlassification have a narrower reach than commonly appreciated. [ABSTRACT FROM AUTHOR]

This article examines the mechanisms for prosecuting and sentencing prisoners convicted of terrorism offences in Indonesia, using case studies to illustrate inconsistencies and discrepancies in legal processes. It begins by briefly outlining the legal processes for criminal sentencing and the realities of sentencing practices in the Indonesian context. Data on arrests, sentencing, and executions of terrorism suspects in the period 2003-2015 are analysed, revealing that over ninety percent of Indonesia's convicted terrorists were sentenced to ten years or less in prison, with only a small percentage receiving longer sentences or the death penalty. The article argues that while sentencing of terrorists is overwhelmingly lenient, the lack of sentencing guidelines, an emphasis on judicial discretion, absence of the doctrine of precedent, lack of access to previous decisions of lower courts, and opacity of sentencing outcomes in reported decisions all contribute to inconsistency in judicial reasoning and sentencing, ultimately denying natural justice to individuals who come before the courts. The second part of the article examines individual cases which illustrate particular aspects of terrorism sentencing, such as excessive lenience or harshness, inaccurate or opaque indictments/judgements, and the treatment of women and child terrorism offenders. [ABSTRACT FROM AUTHOR]

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This research dissects the phenomenon of judicial sentencing disparities, particularly sentences below the minimum criminal penalty for drug offenders. It reveals that these disparities are influenced by various factors, including the application of restorative justice, judicial discretion, the accused's role, and the type and quantity of narcotics, using a normative legal approach and qualitative content analysis of court decisions. Such disparities create legal uncertainty, diminish deterrence, and can hinder efforts to combat the illicit narcotics trade. The research recommends enhancing judges' understanding of punishment goals and restorative justice, improving the Public Prosecutor's thoroughness in indictments, developing clearer sentencing guidelines, strengthening rehabilitation capacity, and intensifying prevention efforts. It also proposes amending Law Number 35 of 2009 to mandate indictment under Article 127 when the accused tests positive for drug use, fostering a more rehabilitative approach and reducing potential sentencing disparities due to varying legal interpretations. [ABSTRACT FROM AUTHOR]

The article examines the question of the meaning of the term for accepting inheritance in Ukraine, the calculation procedure and the consequences of omission. The six-month period established by current legislation for submitting an application for acceptance of inheritance is sufficient for the heir to take legally significant actions regarding acceptance of inheritance. According to the civil legislation of Ukraine, the heir is obliged to take active actions to accept the inheritance, in particular, to submit an application for its acceptance to a notary, if he did not live with the testator. The passive behavior of the heir indicates a lack of desire to accept the inheritance and, accordingly, a rejection of the inheritance. In the civil legislation of the Republic of Poland, one can observe the opposite approach to acceptance or rejection of inheritance. However, in practice, there are often situations of missing the deadline for accepting the inheritance, which can lead to the loss of the right to inheritance, and in turn, raises problematic issues regarding the granting of an additional deadline for accepting the inheritance. The legislation of Ukraine provides for the possibility of the court granting an additional term for accepting the inheritance under certain conditions. The heir may submit an application for acceptance of the inheritance with the written consent of other heirs who have already accepted the inheritance. Also, the court can determine an additional deadline for submitting an application, if the deadline was missed due to valid reasons. Based on the analysis of judicial practice, the reasons for missing the deadline, which were recognized by the court as valid, were considered. These are the circumstances that objectively made it impossible to submit the application in a timely manner. Circumstances related to objective, insurmountable and significant difficulties for the heir in carrying out these actions are important reasons for missing the deadline for accepting the inheritance. The resolution of the issue of granting an additional term for acceptance of the inheritance depends on the specific circumstances of the case and belongs to the discretionary powers of the court, that is, it is decided at the sole discretion of the court. With this in mind, it is impossible to predict all possible circumstances that may be considered relevant. [ABSTRACT FROM AUTHOR]

The article clarifies the actual issues of non-application of the law by the court on the grounds of its contradiction with the Constitution of Ukraine, in particular: the historical evolution of the legislative regulation of the possibility of non-application of the norms of the law on the grounds of their contradiction with the Constitution; peculiarities of modern regulation of this issue and key problems that arise in practice; proposals for improving legislation and judicial practice. It was concluded that one of the most typical forms of direct application of the provisions of the Constitution, along with the possibility of applying the Constitution in the absence of legislative regulation, is the possibility of law enforcement contra legem, i.e. law enforcement contrary to the law due to its (law’s) inconsistency with the Constitution. The fundamental possibility of not applying a law that contradicts the Constitution of Ukraine directly follows from the idea of the supremacy of the Constitution of Ukraine, the recognition of its provisions as norms of direct effect, and, ultimately, from the principle of the rule of law. Another issue is that such an opportunity should have an adequate procedural form of its expression, as well as be organically combined with the activities of the body of constitutional jurisdiction, the specialized body of constitutional control-CCU. Historically, initially, Ukrainian legislation required a stay of proceedings in case of doubt about unconstitutionality, however, the legislation itself was contradictory and conflicting, which made such a stay almost impossible in practice. At the same time, there was an approach that in the absence of doubt, that is, when there is a clear certainty of the unconstitutionality of the application of contra legem, it is possible and no suspension of the proceedings is necessary. Such ideas were partially embodied in the 2017 reform, when courts in all types of proceedings, except for criminal ones, received an explicit opportunity not to apply the law, at the same time turning to the Supreme Court (assuming that the latter would later turn to the CCU). At the same time, there was the problem of motivating such a conclusion, the actual practice of appeals to the Supreme Court, the role of the Supreme Court itself (which sends relevant submissions very rarely). In addition, the experience of foreign countries proves the need for courts to interact with the constitutional court without intermediaries. In practice, significant concerns about the possibility of non-application of the law arise in the field of social rights. [ABSTRACT FROM AUTHOR]

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.

Background: The authors of the article refer to the institution of separate opinions of the judges of the European Court of Human Rights (hereinafter referred to as the European Court, the Court or the ECtHR). They emphasise that this phenomenon has not been sufficiently studied in the legal literature. However, given the leading role of the European Court, its progressive views and authority - primarily on the European continent, where it serves as an umbrella for those who have not found protection at the national level - a judge's opinion should not merely be an appendix to the Court's decision. Instead, it should be regarded as the driving force for the development of the doctrine, warranting academic study, consideration by practitioners at the national level, and a possible reference point for forecasting and shaping future interpretations of the provisions of the European Convention on Human Rights in ECtHR future decisions. Methods: In the article, the authors present the points of view of scientists and practitioners on the phenomenon of separate opinions, illustrating specific examples of what they consider to be the most interesting separate opinions attached to the decisions of the European Court of Human Rights. Based on substantive analysis, they formulate conclusions, emphasising the prospective doctrinal importance for world science, law-making and law-enforcement perspective for national legal systems, as well as unconditional axiological importance, because they play the role of a catalyst for creative judicial search, contribute to the support of judicial independence and personal responsibility. The special importance not only of the decisions of the European Court of Human Rights but also of individual opinions, according to the authors, stems from the fact that those key problematic issues that bring citizens before the ECtHR are a priori difficult for the entire European community. The authors analysed separate opinions, such as that of ECtHR Judge Elósegui, which was expressed in the ECtHR case Mortier v. Belgium, regarding the ratio of the provisions of Article 2 "Right to Life" ECHR and euthanasia. The authors also focused on the key conclusions made by the Portuguese ECtHR Judge Paulo Pinto de Albuquerque, who, in his nine-year tenure, independently or with colleagues, formulated more than 150 separate opinions. The authors particularly explore his opinions in two well-known cases, Bărbulescu v. Romania and Svetina v. Slovenia. Notably, in the former case, although the judge remained in the section in the minority, his separate opinion later turned into the opinion of the majority of the Grand Chamber of the ECtHR. Results and conclusions: The authors consider the phenomenon of a separate opinion of a judge of the European Court as a result of independent and deep thinking, an expression of the judge's individual legal awareness. This perspective is based on the author's immersion in the problems that were the subject of consideration by the panel of judges and found or, on the contrary, did not find their expression in the court decision. In examining separate opinions, the authors also pay attention to the specifics of their structural construction often employed by ECtHR judges. These skillfully structured opinions can serve as a valuable example for national courts, many of which are still in search of their individual legal style. [ABSTRACT FROM AUTHOR]

The judicial application of digital evidence in criminal cases (criminal digital evidence) is an inevitable trend for the digital transformation of criminal proceedings in the macro context of the digital economy. It is characterized by digitization, diversification, and traceability. The application of criminal digital evidence can be divided into two main scenarios: the vertical scenario involving phases such as filing, prosecution, and trial; the horizontal scenario related to specific types of crimes. Criminal digital evidence is primarily applied to handling non-contact crimes, such as cybercrimes. However, the application of such evidence may infringe upon the basic rights of suspects, including their rights to privacy, rights to know, and rights to defense. Furthermore, the diversified and nonsystematic nature of digital evidence may lead to challenges in applying the law, particularly with algorithmic "black boxes," which can result in judicial discrimination and other drawbacks. Therefore, it is necessary to formulate or improve the regulatory framework for criminal digital evidence to ensure its lawful and standardized application. Additionally, judicial authorities must strengthen collaboration in case handling to ensure smooth coordination in collecting and applying digital evidence, thereby realizing its efficient litigation value. Furthermore, it is essential to check and balance the algorithm-based conviction and sentencing to protect the legitimate rights and interests of the parties involved, achieving high-quality human rights protection. [ABSTRACT FROM AUTHOR]

It was established that the concept of discretionary powers of the court regarding the application of judicial control over the execution of court decisions in civil cases should be understood as such powers when, within the limits defined by law, the court that issued a decision in a civil case that is subject to execution has the opportunity independently (on own discretion) to choose one of several options for a specific lawful decision regarding the activities of the public or private executor to whom such execution is entrusted, regarding his actions or inaction, on the basis of a complaint filed by a party to the enforcement proceedings. In turn, the parties to enforcement proceedings have the right to appeal to the court with a complaint if they believe that their rights or freedoms have been violated by the decision, action or inaction of the state executive or private executive during the execution of the court decision. This provides an opportunity to intervene at one's own discretion (judicial discretion) within the limits of the powers of the state executor or private executor. The complaint is considered within a ten-day period in a court session with the participation of the debt collector, the debtor and the state executor or other official of the state executive service body or private executor whose decision, action or inaction is contested. However, when applying judicial discretion when applying this or that rule of law during judicial control, the judge must focus on achieving the goals and objectives of civil proceedings, as well as executive proceedings. Discretionary powers should not be used arbitrarily, and the court should control the decisions made on the basis of the exercise of discretionary powers as effectively as possible. At the same time, the powers of a judge must fulfill both the tasks set before a specific court (judge) during the administration of justice (correct and timely consideration and resolution of cases, fair judicial consideration of cases by an independent and impartial court), and the tasks set by the domestic legislator before the entire judiciary by the authorities (execution of justice), as well as tasks of the international level (guaranteeing and implementing the principle of access to justice and the principle of fair trial. [ABSTRACT FROM AUTHOR]

It is indicated that the rapid development of information technologies and their introduction in all spheres of social life determines the need for their use in civil proceedings as well. Digitization of civil proceedings has a number of advantages that allow to improve qualitative and quantitative indicators in achieving the tasks of civil proceedings. However, along with the advantages, digitalization also has certain limitations, the consideration of which is necessary for the correct formalization of the relevant legal norms regulating digitalized court procedures. Thus, for the proper implementation of such procedures, it is necessary to define the rules of formalization of the relevant legal norms. The article is devoted to the examination of the process of digitalization in civil justice, its impact on the efficiency of justice, and the specific features of formalizing legal norms that regulate digitized judicial procedures. The introduction of information technologies into the judicial process contributes to improving access to justice, ensuring timely case consideration, and reducing the influence of human error in decision-making processes. The main focus of the paper is on how digitalization allows for the achievement of both quantitative and qualitative improvements in the judicial process by simplifying certain procedural matters. Automated procedures, such as the use of the Unified State Register of Court Decisions and the e-Court system, ensure transparency and predictability in judicial decisions. This is crucial for legal certainty, as parties can more accurately anticipate the consequences of their actions. However, despite the numerous advantages, the digitalization process also has certain limitations. Automation cannot replace judicial discretion in cases requiring the assessment of evidence and the final adjudication. In such instances, the judge's role remains irreplaceable. Moreover, it is essential to consider cybersecurity risks, as the storage and transmission of digital data must be safeguarded against potential threats. The article also notes that further technological development will increase the level of digitalization in the judiciary. This necessitates a well-grounded approach to the formalization of legal norms that govern such procedures. [ABSTRACT FROM AUTHOR]

The article explores the 1958 “Harvard” conception of legal reasoning presented by the British philosopher and jurist Herbert Hart, within the context of a contemporary reinterpretation by American jurist and historian of legal thought, Gerald Postema. Postema’s interpretation, labeling Hart’s view as “settled-meaning positivism”, posits it as a unity that encompasses both the delineation of distinct types of argumentation in the realms of “core” and “penumbra” (linguistically mediated clear and controversial cases of law enforcement) and the reduction of law and legal reasoning to the “core” of rules and their established linguistic meanings. The article aims to analyze Postema’s perspective in the broader context of the evolution of Hart’s views on legal indeterminacy and judicial decision-making. The relevance of this topic lies in the necessity for a more comprehensive and balanced reconstruction of Hart’s theory, which is paradigmatic for modern positivism and Anglophone jurisprudence, in the light of the contentious and narrow character of its assessments. The authority of the Postema’s interpretation, seen as providing new insights into the work of the British jurist, adds to the relevance of this analysis. The research uses diverse, primarily hermeneutical, methods, drawing from Postema’s paper and the available body of Hart’s writings, as well as the representative biographical and scientific literature. The article examines the historical context of the 1958 essay’s creation and the doctrine of judicial reasoning contained within it. Ultimately, while recognizing the stimulating role of Postema’s re-description of the 1958 doctrine, the article finds some of its key assertions (including Hart’s understanding of the nature of legal indeterminacy and judicial choice, the attribution of “settle-meaning positivism”, and a doctrine of the rule of law) to be contentious or unwarranted.

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]

The article focuses on the U.S. Supreme Court's decision in Concepcion v. United States, addressing a circuit split on considerations during sentencing modification proceedings under the First Step Act of 2018. Topics include the Court's ruling allowing judges to consider both changes in law and fact, concerns about potential racial bias, and the need to narrow the scope of judicial discretion to maintain fairness and address historical sentencing biases.

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]

The article analyzes whether the Daubert standard govern admissibility of expert witness testimony in civil and criminal proceedings under the Florida Administrative Procedure Act. Topics discussed include applicability of the rule of sequestration in Fla. Indus. Power Users Grp. v. Graham, reliability of expert testimony in the SDI Quarry case against a mining company for compensatory damages to a man-made lake, and discretion of administrative law judges to apply Daubert in several cases.

In bankruptcy appeals, the judge-made prudential doctrine Of "equitable mootness" allows appellate courts to dis miss an appeal as moot when granting the requested relief would undermine the Jinality of a substantially consummated plan of reorganization. As applied, however the doctrine of equitable mootness is neither mootness nor equitable. On the former; equitable mootness is not mootness because even if a mootness-like jurtsdictional exception is necessary to avoid "unscrambling the eggs" of a confirmed plan, in practice, equitable mootness has become the norm in bankruptcy appeals rather than the exception. On the latter; equitable mootness is not equitable because plan confirmation appeals are presented to appellate courts in a manner that systematically incentivizes them tojind equitable mootness as often as possible. 'The result, in turn, fs an appellate system that presently cannot guarantee appellate rights of the kind that litigants expect and that the constitutional bounds of bankruptcy junsdiction require. In response, this Note proposes an amendment to Federal Rule of Bankruptcy Procedure 3020(e) that restores meaningful appellate review by limiting the bankruptcy court's discretion to deny a stay pending appeal. [ABSTRACT FROM AUTHOR]

The article examines the peculiarities of theoretical approaches to understanding the category of «abuse of law» in the countries of the Anglo-American legal family, primarily in Great Britain and the United States. In particular, by using a set of philosophical and worldview, general scientific, special scientific methods (primarily, comparative legal, historical legal, normative, functional) and principles of scientific knowledge: the evolution of theoretical ideas about the abuse of law, their consolidation in legislation and practical implementation in individual states of the Anglo-American legal family; the peculiarities of the legal terminology used in the legislation and judicial practice of Great Britain and the USA to determine the abuse of the right are revealed; the characteristic features and general trends of the theoretical understanding and legislative consolidation of the category of «abuse of law» in the specified states have been established. It is argued that the principle of good faith is inherent in the entire legal system of Great Britain as a whole and is reflected in its individual provisions, and the duty to establish the facts about the presence or absence of abuse of the law corresponds to judicial or other competent authorities. It has been established that the doctrine of good faith is important in US judicial practice, but there is no description of the criteria of good faith in US law, their definition is left to the discretion of the court. It is proved that both English and American legislators do not provide a clear definition of the term 'abuse of law' in the provisions of legislation. The content of this concept is defined and disclosed in judicial practice and legal doctrine, which are closely interrelated and are based on the assessment of such actions from the standpoint of reasonableness, good faith and fairness. Depending on the branch of law and the legal system of the state, abuse of law is most often understood as damage or loss. Damage is the destruction or diminution of material goods. Losses are understood as real losses and lost profits. It is concluded that despite the fact that the problem of abuse has not been comprehensively resolved, in practice the judicial system of the United Kingdom and the United States is quite effective in combating manifestations of abuse of law. [ABSTRACT FROM AUTHOR]

The US Supreme Court resolved a conflict among federal circuit courts of appeal in Starbucks Corp. v. McKinney, determining the standard for federal district court judges when the National Labor Relations Board seeks an injunction ordering immediate reinstatement of workers dismissed for union organizing activity. The Court decided in favor of Starbucks, establishing a single national standard for injunction cases under the National Labor Relations Act Section 10(j). The case was sent back to the district court to reconsider the injunction in light of the Supreme Court's opinion, while the unfair labor practice case is ongoing. [Extracted from the article]

The article is devoted to the issue of the dissenting opinion of a judge, which is relevant to modern law enforcement practice and legal theory and which may be expressed when a judge who participated in a collegial consideration of a case does not agree with the position of the majority of the panel of judges. The authors analyse the existing approaches to the institution of dissenting opinions in different legal systems, the factors that negatively affect the existence of dissenting opinions in the justice system, provide examples of dissenting opinions of Ukrainian judges expressed in different jurisdictions, their significance for law enforcement practice and the public outcry they caused. It addresses the procedural issues that may potentially arise during the judicial proceedings and the formation of a dissenting opinion of a judge. The authors conclude that the institution of dissenting opinion is of undoubted value for justice and the authority of the court in the State and emphasise that the specifics of the text of a judge's dissenting opinion against the background of lapidary normative regulation by the rules of procedural law may indicate the genre independence of the content of a dissenting opinion in judicial discourse as compared to a court decision. The authors propose the concept of dissenting opinion, by which they mean an official legal position of a judge which is formed during collegial consideration of a case as a result of an internal conviction which does not coincide (partially does not coincide) with the position of the majority of judges in terms of reasoning or final conclusion, and which is formalised in a procedural document which is an act of competent (professional) and doctrinal judicial casual interpretation. In addition, the authors present synthesised features which characterise a judge's legal opinion as a dissenting opinion, including the statement that it is undoubtedly a phenomenon of a democratic society; it has the features of an institution of law, albeit with lapidary normative regulation; it is issued by a judge within his/her competence as a result of judicial discretion and inner conviction; has a prognostic and forward-looking character, since it sometimes serves as a means of overcoming outdated views that impede progressive legal development, evolution of sustainable approaches, and as a basis for the formation of a new legal position, which in the future may be transformed into a majority position and become a sustainable practice; besides, it is derivative, optional, as it is not binding, unlike a court decision, and is not an act of justice, as it is not issued in the name of the state and is not a mandatory part of a court decision. [ABSTRACT FROM AUTHOR]

Decisions at the pretrial stage have been shown to affect later case processing decisions, increasing the risk of incarceration to prison and resulting in longer sentences. Traditionally, pretrial decisions relied heavily on judicial discretion. Pretrial reforms have increasingly diverted and diversified the decision-making process. In light of these changes, this article synthesizes prior research on judicial decision-making and examines how judicial decision-making has been influenced by reform efforts. We examine the role of legal variables, defendant characteristics, psychological variables, and organizational influences on judicial decision-making in the absence of reforms. We then discuss how pretrial reform efforts have sought to curtail judicial discretion in pretrial decision-making through various mechanisms. Finally, this article considers the implications of this evolution in pretrial decision-making for future research, policy, and practice. [ABSTRACT FROM AUTHOR]

Section 79(2) of the Family Law Act 1975 (Cth) provides that the court shall not make an order altering property rights unless it is just and equitable to do so. This article argues that s 79(2) is required by the constitutional foundations upon which the power to alter property rights rests. The discretion of trial judges may be wide, but it is constrained by the parameters of constitutionality and by the purposes for which Parliament may authorise the alteration of property rights. Because existing legal and equitable titles are the starting point for consideration in family property proceedings, courts must always ask whether there is a sufficient justification for stripping a party of their legal or equitable rights. The fact of relationship breakdown is insufficient. While the broad discretion given to courts to alter property rights was originally seen as a means of providing justice for women who took on the role of homemaker and parent, the practice of the family courts of giving little weight to legal title has often worked a profound injustice to women. An understanding of the constitutional constraints on judicial discretion is also very important to give effect to the assumptions that underpinned the marital relationship. [ABSTRACT FROM AUTHOR]

Restorative practices are a set of values and skills that professionals can use during their dayto-day interactions with the people for whom they deliver services.2 They can be applied across the ‘human services’,3 including in criminal justice agencies such as policing and prisons, social work, schools and universities, among other settings. Professionals working in these services have significant discretion to decide how to allocate benefits and sanctions on behalf of the State, and how they interact with the people over whom they have authority, and for whose welfare they are responsible.4 Advocates argue that restorative values and skills can help professionals orient their practices towards building and maintaining positive relationships, ensuring people feel treated fairly and involved in decisions, and addressing and repairing harm and resolving conflict constructively. [ABSTRACT FROM AUTHOR]

Copyright of Revista de Derecho Privado (0123-4366) is the property of Universidad Externado de Colombia, Departmento de Derecho Civil 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.)

Copyright of Bulletin of the L.N. Gumilyov Eurasian National University. Law Series is the property of L.N. Gumilyov Eurasian National University 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.)

The article examines the treatment of mandatory minimum sentences (MMS) by the Canadian Supreme Court and appellate courts when subjected to Charter challenges during the administration of Prime Minister Stephen Harper from 2008 to 2015. Topics discussed include federal government's judicial discretion for sentencing, MMS jurisprudence at the Supreme Court, constitutionality of MMS, institutional role of courts and legislatures in sentencing, and relationship between legislature and judiciary.

Copyright of Al-Manahij: Jurnal Kajian Hukum Islam is the property of UIN Saizu Purwokerto 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.)

The recognition of unenumerated rights, rights implied from the text of the constitution, is a political battlefield waged through law with profound implications for all Americans. Generally, there have been two prongs for an inquiry into an unenumerated constitutional right under the Fourteenth Amendment. One is to ask whether the right to be found is objectively deeply rooted in this Nation's history and tradition. The other is to ask whether the right to be found is fundamental to this Nation's scheme of ordered liberty. The current Supreme Court has effectively done away with this present-day liberty analysis, saying it is too vague and invites too much judicial discretion. Under the Court's current direction, the past alone, without thought given to present-day conditions, provides the scope of the inquiry into the existence of an unenumerated right under the Fourteenth Amendment's Due Process Clause. This Note argues that the liberty prong, alongside the history and tradition prong, is essential to any substantive due process inquiry. To address the current Court's concerns, this Note prescribes a two-part tweak to the traditional Lawrence-styled liberty analysis to reinvigorate the commonsense notion that present-day conditions should factor into an inquiry questioning the existence of a present- day right. [ABSTRACT FROM AUTHOR]

American purposivists and textualists have both invoked the authority of the English statutory interpretation tradition to give their respective approaches pedigree and credibility. But both sides have misunderstood this history. The search for the purpose of the statute’s authors does not date to the sixteenth century, as Hart and Sacks suggested. Neither did the English courts categorically ban “legislative history” as an aid to interpretation in the 1760s, as Scalia claimed. The seminal case of Pepper v. Hart (1992), finally, did not mark the death knell of English textualism or the return of purposivism—at least as that term is usually understood. This Article aims to correct the record. It begins in the early nineteenth century, with the appearance of new evidentiary sources that made it possible, for the first time, to try to peer into the mind of Parliament. This triggered decades-long disagreement about whether the intentions of past legislators were relevant to statutes’ meaning—and whether, in turn, evidence of those intentions should be admissible in court. Late-Victorian judges ultimately rejected intentionalism for an approach centered on the “plain meaning” of the statute’s text. That formalistic method aimed to discipline construction and cabin judicial discretion, but its failure to do so led to its collapse in the late twentieth century. What emerged in its wake— the approach dominant in England today—was a novel kind of purposivism, one that centers the objective purpose of the statute and generally ignores evidence of the subjective intentions of its authors. The English courts’ contemporary approach, in other words, presents an alternative to the kind of congressional-intent purposivism dominant on the federal courts today. American purposivists and textualists have both invoked the authority of the English statutory interpretation tradition to give their respective approaches pedigree and credibility. But both sides have misunderstood this history. The search for the purpose of the statute’s authors does not date to the sixteenth century, as Hart and Sacks suggested. Neither did the English courts categorically ban “legislative history” as an aid to interpretation in the 1760s, as Scalia claimed. The seminal case of Pepper v. Hart (1992), finally, did not mark the death knell of English textualism or the return of purposivism—at least as that term is usually understood. This Article aims to correct the record. It begins in the early nineteenth century, with the appearance of new evidentiary sources that made it possible, for the first time, to try to peer into the mind of Parliament. This triggered decades-long disagreement about whether the intentions of past legislators were relevant to statutes’ meaning—and whether, in turn, evidence of those intentions should be admissible in court. Late-Victorian judges ultimately rejected intentionalism for an approach centered on the “plain meaning” of the statute’s text. That formalistic method aimed to discipline construction and cabin judicial discretion, but its failure to do so led to its collapse in the late twentieth century. What emerged in its wake— the approach dominant in England today—was a novel kind of purposivism, one that centers the objective purpose of the statute and generally ignores evidence of the subjective intentions of its authors. The English courts’ contemporary approach, in other words, presents an alternative to the kind of congressional-intent purposivism dominant on the federal courts today. [ABSTRACT FROM AUTHOR]

What explains the initiation and escalation of International Criminal Court (ICC) involvement in a situation? In light of growing charges of bias against the court, understanding the determinants of ICC involvement is critically important. Building upon research on bounded discretion at international courts, we argue that two potentially competing forces influence the court. While prioritizing impartiality should lead the court to target perpetrators of the gravest violations of human rights in states with domestic impunity, prioritizing powerful states' interests suggests that the court may avoid involvement in powerful states and those with close ties to powerful countries. We test these arguments using original data on ICC involvement and a novel estimator that accounts for the sequential nature of ICC activity. We find that the court acts more in accordance with the legal mandate when initiating preliminary examinations, but power politics play a more dominant role at the formal investigation stage. These findings have several implications for academic and policy work on both the ICC and international courts more generally. [ABSTRACT FROM AUTHOR]

Courts should not apply originalism in freedom of expression cases. Originalists claim that originalism prevents judges from imposing their own views. It does not--not in theory and not in practice. Instead, as the treatment of hate speech bans suggests, it is not principles but outcomes that determine whether and which version of originalism is used. Moreover, a true originalist First Amendment would likely lead to impoverished free speech protections. Part I provides background on original public meaning originalism, the iteration of originalism currently favored by scholars. It also explains how the theory falls short of its original promise of limiting judicial discretion and instead tends to entrench the privilege of historically powerful groups. Part II explains why originalism as a theory particularly fails when applied to free speech cases: because the original meaning of the First Amendment is notoriously elusive, it enables judges to select an interpretation that yields their desired outcome. Moreover, what little we can confidently conclude about the original meaning suggests a cramped view of free speech protections at the Founding and at Reconstruction. Part III demonstrates that free speech originalism in practice is an opportunistic affair. Actual judging provides at least two additional occasions to exercise discretion: deciding whether to use originalism and which version to use. Part III starts by exploring how sometimes the Supreme Court applies originalism to speech cases but more often it does not, especially in its deregulatory "free speech Lochnerism" decisions. Part III next demonstrates that different types of originalism applied to hate speech bans can yield different outcomes, further demonstrating how originalism provides cover for motivated results--results that too often favor the powerful at the expense of the marginalized. Although there exists an extensive literature on both originalism and hate speech, this Article makes several novel contributions: surprisingly few scholars have considered free speech originalism and fewer still, if any, with an eye toward questions of power and privilege. The analysis of original meaning extends beyond the Founding to include Reconstruction, an era regularly overlooked. Finally, the originalist analysis of hate speech is the first of its kind. [ABSTRACT FROM AUTHOR]

The Hague Convention on the Civil Aspects of International Child Abduction aims to restore the "status quo" for children who were wrongfully removed or retained by a parent in another country. The Convention achieves this by returning the child to their original home, referred to as their "habitual residence." The Convention did not define habitual residence, but the U.S. Supreme Court case Monasky v. Taglieri clarified the habitual residence analysis in 2020. Monasky standardized an open-ended "totality of the circumstances" test. This guidance concerned family law lawyers who believed that it gave district courts too much discretion and could result in inconsistent outcomes in cases with similar facts. This Note identifies one such instance: when a pregnant parent travels to the United States to give birth and is subsequently petitioned by their partner for the return of the newborn child. This Note proposes a method of analysis for this circumstance. Previously, an infant's habitual residence has been largely based on the parents' intentions for the child's location. This Note argues that those intentions should imbue at the time of the child's birth and that parental intentions that only existed prenatally should not weigh heavily in the analysis. It also calls on the Special Commission on the Practical Operation of the 1980 Child Abduction Convention to provide guidance on similar cases. [ABSTRACT FROM AUTHOR]

The common argument to explain codification of criminal sanctions is departing from arbitrary sentencing. By limiting judicial discretion, sentencing codification should reduce disparity. By a simple theoretical model, we show that strategic judicial behavior can actually undermine statutory sentencing, thus producing more rather than less variance in severity of punishment. [ABSTRACT FROM AUTHOR]

This article analyses how South African courts have decided the applicability of the de minimis non curat lex maxim and, more broadly, considered the de minimis concept in tax law. A doctrinal research methodology is employed with the focus on an analysis of predominantly reported judicial decisions. The applicability of the maxim is found to be decisive in only one tax case: the Diageo SA (Pty) Ltd v Commissioner for the South African Revenue Service case of 5 July 2023. Consequently, this study thus also reviews judicial precedent in respect of the applicability of the maxim in other areas of the law with consideration of the relevance to tax law. Further, several tax cases that refer to the broader de minimis concept or to trivial or trifling matters are examined. As there is no one definitive test to determine the applicability of the maxim, the courts have used several factors to guide their determination. Through inductive reasoning, the following conclusions are drawn. (i) In respect of statutory interpretation: First, the primary factor in the determination of the applicability of the maxim is the purpose of the provision. This is aptly demonstrated in the Diageo judgment. Secondly, where the statute sets a clear, objectively verifiable limit or amount, there is essentially no room for the application of the maxim in interpreting the statute. Where, however, no such verifiable basis is provided, a purposive interpretation is paramount – which may in fact require the application of the maxim. (ii) The use of the de minimis concept in tax law appears to depend on whether the matter is one of principle (substance) or practicality (administrability). In the former case, the amount (the factor of extent or value) is irrelevant whereas in the latter, the de minimis concept has been applied.

The article explains the grounds for decision on the merits in the context of an extraordinary writ petition. Issues discussed include entitlement to a second or third opportunity for the same relief by the same writ in a different court in Jenkins v. Wainwright, unelaborated denial of an extraordinary writ petition and the principles of res judicata and collateral estoppel in Topps v. State, difference between judicial finality and discretion, and per curiam affirmed decision.

The judicial act of dismissal in discrimination cases involving diasporic or minority populations is part of a larger cultural approach to diasporic subjects. Racial dismissal includes judicial as well as larger cultural forms of dismissal, whereby an authority judges a speaker's grievances as implausible or unworthy of consideration, often due to cases of misrecognition or illegibility to a hegemonic culture or authority. Here the author draws on Kristie Dotson's notion of epistemic silencing, which illustrates that grievances from diasporic subjects are dismissed because they fall outside settler-colonial norms, and are apprehended as trivial or illegitimate. Hence, dismissal is based on a sustained and protected misrecognition of diasporic populations. [ABSTRACT FROM AUTHOR]