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Journal articles on the topic 'Case law decisions'
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1
Giladi, Rotem M. "The Practice and Case Law of Israel in Matters Related to International Law." Israel Law Review 31, no. 4 (1997): 803–53. http://dx.doi.org/10.1017/s002122370001551x.
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The case of the Canadian ambassador's residence has been the subject of several court decisions at various instances in Israel. These decisions (as well as others relating to the doctrine of sovereign immunity) have been reviewed in former issues of this section. On June 3, 1997, the Supreme Court, in its appellate jurisdiction, gave its judgment in this case and delineated the application of the international law doctrine of sovereign immunity in Israeli law. In a different case decided on the last day of 1996, the Tel-Aviv District Court was required to rule on the applicability of this doctrine to a civil suit brought against the government of the United States of America. This District Court decision now needs to be examined in light of the recent ruling of the Supreme Court in theEdelsoncase.
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Sagan, Adam. "The classification as ‘worker’ under EU law." European Labour Law Journal 10, no. 4 (November 11, 2019): 353–61. http://dx.doi.org/10.1177/2031952519886143.
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The paper discusses the concept of the term worker in European labour law, focusing on the decision of the Court of Justice of the European Union in the Matzak case. First, the facts that are essential to Mr Matzak’s qualification as a worker are presented. In a second step, the part of the Court’s decision which refers to the concept of ‘worker’ is analysed. The third and main part deals in detail with the current discussion of the concept of the term ‘worker’ in EU law. This analysis should make it possible to systemise the decisions of the Court. Finally, an attempt is made to classify the decision of the Court in the Matzak within its own case law and to assess its consequences for future decisions.
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Spohn, Cassia C., and Jeffrey W. Spears. "Gender and Case Processing Decisions." Women & Criminal Justice 8, no. 3 (February 27, 1997): 29–59. http://dx.doi.org/10.1300/j012v08n03_02.
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Groussot, Xavier, and Timo Minssen. "Res Judicata in the Court of Justice Case-Law." European Constitutional Law Review 3, no. 3 (October 2007): 385–417. http://dx.doi.org/10.1017/s1574019607003859.
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Forms of res judicata – Unwritten principle of EU law – National procedural autonomy v. EC supremacy – Revision of decisions v. state liability – Finality of administrative decisions v. judicial decisions – Higher respect for judicial decisions than for administrative decisions – Res judicata not absolute – ECJ itself under demands of legal certainty – Analogy between res judicata rules and rules of direct and indirect effect.
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Hartman, Brett. "Recent Case Developments in Health Law." Journal of Law, Medicine & Ethics 37, no. 2 (2009): 380–88. http://dx.doi.org/10.1111/j.1748-720x.2009.00382.x.
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In January 2009, the California Court of Appeal for the Fifth District held that an individual suffering from paranoid schizophrenia could be forcefed and medicated despite his refusal of consent. The patient was a prison inmate, who engaged in a hunger strike to protest imagined abuses by prison guards. The court, reconciling conflicting provisions of California law, upheld the appointment of a conservator to make treatment decisions because the patient could not participate in those decisions “by means of a rational thought process.” However, in tying mental capacity to the plausibility of a protestor’s claims, the court risks placing political dissent at the mercy of judicial discretion.
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Nicholson, Joanna. "The Role Played by External Case Law in Promoting the Legitimacy of International Criminal Court Decisions." Nordic Journal of International Law 87, no. 2 (June 7, 2018): 189–211. http://dx.doi.org/10.1163/15718107-08702005.
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International criminal courts and tribunals (ICTs) often refer to jurisprudence from other ICTs when reaching a decision. This can help increase the legitimacy of their decision-making. This article focuses on the International Criminal Court (ICC) and examines when the ICC may refer to the decisions from other courts; when it in fact does so; when it has chosen to deviate from the decisions of other ICTs; and how this has affected the legitimacy of its decisions. The ICC has generally been mindful in its approach towards referring to jurisprudence from other ICTs, but has not been afraid to deviate from it on occasion in decisions concerning both substantive and procedural law. The article argues that where possible the Court should interpret the law in line with other ICTs’ decisions. This will help increase the legitimacy both of the Court’s own decisions and the field of ICL as a whole.
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Lewis, Clive. "The Exhaustion of Alternative Remedies in Administrative Law." Cambridge Law Journal 51, no. 1 (March 1992): 138–53. http://dx.doi.org/10.1017/s0008197300016792.
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The application for judicial review is the primary means of challenging the legality of action taken by public bodies. Judicial review is not, however, the only avenue by which an individual may challenge a particular decision. Statute may create an appellate machinery to hear appeals against decisions of public bodies. There is a wide variety in the pattern of such schemes. There may be an appeal from a decision to a tribunal or other body, with a further right of appeal on a point of law or by way of case stated to the High Court or the Court of Appeal. Such mechanisms exist in a number of fields, most importantly in the field of revenue law, enforcement notices in planning law, decisions of inferior courts such as magistrates& courts, and social security law. There may be an appeal from a decision to an administrative tribunal or inferior court but with no right of appeal to the High Court, as in certain immigration cases where decisions may be appealed to an adjudicator and from him to the Immigration Appeal Tribunal. There may be an appeal from decisions to an administrative body such as a Secretary of State either with provision for appeal to the courts, as with appeals against refusals of planning permission by local authorities, or without any further right of appeal, as in the case of appeals against disciplinary decisions of chief constables.
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Esposito, Antonio K., and Christoph J. M. Safferling. "Report– Recent Case Law of theBundesgerichtshof(Federal Court of Justice) inStrafsachen(Criminal Law)." German Law Journal 9, no. 5 (May 1, 2008): 683–710. http://dx.doi.org/10.1017/s2071832200000067.
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Reporting on one year of theBundesgerichtshof's(BGH – Federal Court of Justice) jurisprudence in criminal affairs is always a delicate matter. We have decided to limit ourselves to report on a variety of cases, which are reported in the official records of the BGH and edited by members of the Court. The Court's official journal,Entscheidungen des Bundesgerichtshofs in Strafsachen(BGHSt), gives a fair mixture of decisions, which the judges themselves consider important enough to be included therein. However, the triage of decisions found there entails but a small portion of the BGH's work, chosen case-by-case without taking heed of producing a representative share. In order to come to a reasonable number of decisions to include in this report we had to leave aside several decisions notwithstanding their importance. We abstain from reporting on the case ofEl Motassadeq, who was charged with abetting in murder in 3066 cases in connection with the 9/11-attacks in the USA and was acquitted for lack of evidence. This case has been reported extensively elsewhere. We also desist from reporting on theGartenschlägercase, which deals with a special incident at the former German-German boarder. A survey of recent decisions of the BGH in the context of the former East-German regime was included in last year's report to the Annual for German and European Law (AGEL).
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Stajnpihler, Tilen. "The role of case law in judicial decision-making: A sociological perspective." Sociologija 57, no. 4 (2015): 593–619. http://dx.doi.org/10.2298/soc1504593s.
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The article attempts to verify a common conception that has by now become an integral part of legal culture in civil law jurisdictions, namely, the conception that despite its unresolved legal status, case law (i.e. the body of past judicial decisions) is widely used by the courts when they are justifying their interpretative choices. For this purpose, an exploratory empirical study of court citation practices was conducted. The study focused on a sample of the officially reported decisions of the Supreme Court of the Republic of Slovenia and the appellate (Higher) courts on civil matters in 2011 that were publicly accessible on the official internet database of the Slovene courts. The aim of the study, which provides the first systematic outline of the use of case law in the judicial decision making process within the Slovene legal system, was to verify whether case law in fact constitutes an important factor in judicial decision-making. It did so by focusing on the extent and the manner in which Slovene courts refer to case law, as these may be inferred from the reasoning of their decisions.
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GROSSMAN, GENE M., and ALAN O. SYKES. "WTO Case Law: The American Law Institute Reporter's Studies United States - Definitive Safeguard Measures on Imports of Certain Steel Products." World Trade Review 6, no. 1 (February 16, 2007): 89–122. http://dx.doi.org/10.1017/s1474745606003107.
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The Appellate Body decision in the steel dispute is the latest in a line of unsatisfactory decisions in the safeguards area. The problem stems from the fact that the treaty text regarding the preconditions for the use of safeguard measures is badly deficient. The Appellate Body with its usual emphasis on textualism has done little to resolve the puzzles that the text creates. WTO members are left with little guidance about the proper use of safeguards beyond some confusing and sometimes incoherent standards. We review these issues as they have arisen in prior decisions, and then discuss the details of the steel dispute. Our emphasis there is on the panel decision more than the Appellate Body report, as the latter breaks little new ground.
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Andrews, N. H. "Reporting case law: unreported cases, the definition of a ratio and the criteria for reporting decisions." Legal Studies 5, no. 2 (July 1985): 205–32. http://dx.doi.org/10.1111/j.1748-121x.1985.tb00609.x.
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An efficient system of law reporting is beneficial in a number of ways. First, accurate reports are necessary if the principle that like cases should be decided alike is to be achieved. Secondly and relatedly, a strict system of precedent, which renders most decisions binding on courts, requires all decisions which have precedential value to be recorded. Thirdly, full reports of what judges say, including dissents, enable subsequent courts to consider the complex of normative and practical arguments which has been articulated in previous decisions. This both adds to the richness of material guiding lawyers and citizens at large and improves the quality of judicial decision-making. Fourthly, reporting courts’ reasons for reaching a decision is important since it exposes judges to scrutiny by fellow judges, practitioners, academics and the public at large. Reporting therefore serves the principle of accountability.
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Biggs, Hazel. "From dispassionate law to compassionate outcomes in health-care law, or not." International Journal of Law in Context 13, no. 2 (May 12, 2017): 172–83. http://dx.doi.org/10.1017/s1744552317000106.
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AbstractHealth-care law presents numerous challenges to the conception of the law as a dispassionate arbiter of disputes or protector of rights. Issues relating to end-of-life care, the assessment of mental capacity and decision-making for those who lack capacity, amongst others, epitomise the complex nature of health-care law. They also raise globally applicable questions about discrimination, or equal protection, as well as concerns for relief of suffering, the assessment of best interests and the exercise of individual autonomy. This paper will evaluate the extent to which law's traditional objectivity (dispassion) is undermined by the introduction of concerns about compassion into judicial and executive decisions. Focusing primarily on the law in England and Wales, but with reference to multi-jurisdictional case-law and international instruments, it will consider whether the law provides compassionate approaches and outcomes in end-of-life decision-making, and the implications of compassion for legal certainty.
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Kuenzler, Adrian. "Competition law enforcement on digital markets—lessons from recent EU case law." Journal of Antitrust Enforcement 7, no. 2 (February 4, 2019): 249–78. http://dx.doi.org/10.1093/jaenfo/jnz001.
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Abstract This article is set against the Court of Justice of the European Union’s (CJEU) decisions in Pierre Fabre and Coty Germany GmbH, observing that in the digital economy, price is no longer the sole important parameter of competition and that competition law therefore has to reconstruct the theoretical background required to explain the tensions contained in the design of concentrated marketplaces. As the CJEU’s approach taken in Pierre Fabre and Coty shows, competition authorities and courts also need to consider the market’s distinct psychological properties when they contemplate the legal framework that governs it. The article thus explains the CJEU’s decisions not against the well-known debate about inter- and intrabrand competition but with reference to the notion of creating distinct types of ‘variety’ in the marketplace so as to enable consumers to choose not just between the alternative options that they face but also to enable them to make decisions that will shape the manner in which they think about whether they should consider alternative options at all. The article’s findings aim to advance debates about the overarching policy goals of the way in which digital markets ought to be regulated.
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Johnston, Carolyn. "Advance decision making – rhetoric or reality?" Legal Studies 34, no. 3 (September 2014): 497–514. http://dx.doi.org/10.1111/lest.12031.
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The Mental Capacity Act 2005 introduced a statutory framework for advance decisions, thus promoting autonomous healthcare decision making in advance of loss of capacity. In order to be valid and applicable, and so binding on healthcare professionals, advance decisions refusing treatment (ADRT) must specify treatments to be refused and the circumstances of refusal. Recent case-law indicates that a high level of specificity is required for advance refusals of life-sustaining treatment and, in contrast to a presumption of capacity for contemporaneous decisions, in some circumstances capacity must be demonstrated at the time of making the advance decision. In comparison with the ‘stringent’ requirements for ADRT, the more generic Advance Care Planning (ACP) is gaining more prominence in end of life decision making. The paper explores recent case-law and its impact on the effectiveness of ADRT in practice and compares with ACP.
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Poole, Melissa. "International Instruments in Administrative Decisions: Mainstreaming International Law." Victoria University of Wellington Law Review 30, no. 1 (June 1, 1999): 91. http://dx.doi.org/10.26686/vuwlr.v30i1.6015.
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This article considers the development of the role of international instruments in administrative decisions. It compares the changes in New Zealand after the Tavita case with the developments which followed the Teoh case in Australia. The article then proposes the basis for a new attitude to international instruments which would result in the "mainstreaming" of international law.
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Carroll, Lucy. "Definition and Interpretation of Muslim Law in South Asia: the Case of Gifts To Minors." Islamic Law and Society 1, no. 1 (1994): 83–115. http://dx.doi.org/10.1163/156851994x00165.
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AbstractBecause the personal law applicable to Muslims in South Asia is almost totally uncodified, it is almost totally to be found in the decisions of the Courts which discover and apply it. Development of law on a case-law basis provides scope for both error and evolution. This paper focuses on the question of gifts to minors by looking at a pivotal Privy Council decision of 1928; the restrictive interpretation placed on that decision by the Courts of British India; and the manner in which the decision of the Privy Council has been distinguished, ignored, or superseded by the Courts of post-Partition India and Pakistan in decisions resurrecting pre-1928 case-law and invoking the authorities which underlay, and the textbook comments which reflected, the earlier position.
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Layard, Antonia. "Law and localism: the case of multiple occupancy housing." Legal Studies 32, no. 4 (December 2012): 551–76. http://dx.doi.org/10.1111/j.1748-121x.2012.00229.x.
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This paper investigates how planning regulation constructs the local, encapsulating a locality and prioritising local decision making over regional and national scales. It draws on a case study of the regulation of multiple occupation to make three interrelated points. First, the analysis emphasises the plurality of ‘locals’ and the interrelationships between them. Secondly, the paper explains how the juridification of the local is required to make a locality legally visible. This operationalisation and construction of the local (legally, spatially and socially) must take place before the political logic of localism, the prioritisation of local decision making over other scales of governance, can take legal effect. Thirdly, the paper explains how, once the ‘local’ is legally constructed and can make decisions, this prioritisation of apparently neutral local expertise and knowledge can act to enclose the spatial and social with sometimes powerful exclusionary and regressive effects.
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Gindes, Daniel. "Judicial Postponement of Death Recognition: The Tragic Case of Mary O'Connor." American Journal of Law & Medicine 15, no. 2-3 (1989): 301–31. http://dx.doi.org/10.1017/s0098858800009850.
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A recent New York Court of Appeals decision seriously impedes the ability of incompetent patients to control their medical care. In the case of Mary O'Connor, the court virtually eliminated an incompetent's rights to bodily integrity and privacy. The court relied on formalistic evidentiary arguments to vitiate the patient's refusal of death-prolonging treatment. This Case Comment examines both the doctrine and policy underlying the O'Connor decision, suggesting that the court erred in its holding and reasoning.An alternative framework is presented, arguing that courts should honor competently expressed patient decisions concerning medical treatment. New York's highest court, instead, posited an incompetent patient who becomes competent for a moment to render a decision. This legal fiction is nothing more than a thinly masked technique for imposition of the judges’ values on the patient. This Case Comment argues that in the absence of clear direction from the patient, family and loved ones generally should make care decisions for the patient.
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Ilkov, Vasyl. "The Supreme Court's decision in the model case as a judicial precedent in the legal system of Ukraine." Slovo of the National School of Judges of Ukraine, no. 4(29) (February 11, 2020): 5–16. http://dx.doi.org/10.37566/2707-6849-2019-4(29)-1.
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The publication deals with the concept and features of the Supreme Court's decision in the model case as a judicial precedent. The judicial precedent in the legal system of Ukraine is the Supreme Court's decision in an exemplary case, which contains conclusions on the application of the rules of law and a formulated rule. After the adoption of the new version of the Code of Administrative Judiciary of Ukraine and the direct introduction of the mechanism of decision-making in the model case and the actual systematic review by the courts of first instance of numerous typical cases on the basis of the model case, it can be concluded that in the legal system judicial precedent becomes a source of law in the administrative proceedings. In the countries of the Anglo-American system of law, the Supreme Court ensures the unity of the case law at the highest level. The precedent system is vertical and requires judges to adhere to the decisions of high courts. Today in Ukraine, belonging to the countries of the Romano-German legal family, one can already speak about the official use of precedents in the administrative process, namely the informal application of precedents in the decisions the Supreme Court in model cases. The main features of judicial precedent are the fact that it is created when considering a particular case, combines individual-legal and normative-legal features, dynamism and a high degree of specification of the legal norm, which is objectified in the judicial precedent. Such decisions are always reasoned, authoritative and public. A model decision contains the circumstances of a model case, which determine the typical application of substantive law and the procedure for applying such rules by courts and the subject of power, as well as the decisions in exemplary cases substantially optimize, refine and facilitate the judicially procedure in typical cases by a regional courts. Key words: court precedent, model case; a typical case; Supreme Court decision in an exemplary case, source of law.
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Britvić Vetma, Bosiljka, and Ivan Malenica. "Izvršenje u francuskom upravnom sporu." Zbornik Pravnog fakulteta u Zagrebu 70, no. 6 (February 2, 2021): 721–53. http://dx.doi.org/10.3935/zpfz.70.6.01.
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Court decisions are mandatory for the party who must execute them. Similarly, the party may seek that the administrative court “order” the public legal entity to execute court judgements within a specific timeframe. In the case of a refusal to execute a decision, the administrative court can punish the public legal entity. To be more specific, in administrative court adjudication, the Republic of France’s procedural methods used in the case of non-execution of administrative court decisions range from incentive to repressive measures. An immense contribution to effective execution of administrative court decisions has been made by two institutions: the Department for Reporting and Studies of the State Council and the Public Ombudsman.
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Fouret, Julien, and Dany Khayat. "International Centre for Settlement of Investment Disputes (Icsid) Case Law Review." Law & Practice of International Courts and Tribunals 12, no. 3 (2013): 475–530. http://dx.doi.org/10.1163/15718034-12341265.
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Abstract The purpose of the ICSID case law review is to present and discuss all awards, decisions and orders published by ICSID arbitral tribunals during a given period of time. This ICSID case law review covers a selection of awards, decisions and orders published during the second, third and fourth trimester of 2012 with the analysis of a total of six awards, eleven decisions and one order.
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Tovkun, Igor, and Viktoriya Slivnaya. "Problematic issues of corporate governance of companies (analysis of case law)." Law and innovations, no. 4 (32) (December 15, 2020): 68–73. http://dx.doi.org/10.37772/2518-1718-2020-4(32)-10.
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Problem setting. Corporate governance of a company presupposes the existence of a higher, as a rule, self-governing body - the general meeting. The organization of this body is mainly determined by the statute and other internal acts of the company, but not always the status of the general meeting, the legal significance of their decisions, as well as other important aspects of their existence are fully disclosed by local rules. Because of this, the importance of this work is that as of 2020, a large percentage of corporate disputes considered by commercial courts relate to certain problematic issues of the general meeting of companies. Therefore, it is important to determine the activity of solving these problems by analyzing the existing case law. Target research. The purpose of the work is, firstly, to analyze the case law that has developed to date and relates to various important aspects of the organization and activities of the general meeting of companies, including their management decisions; secondly, to identify the main problems underlying court decisions and conclusions on this issue; thirdly, to suggest different options for their solution. Analysis of recent research and publication. Сorporate governance of a company is often a topic that is actively raised by well-known authors and scholars. Thus, the works of Zhornokuy V.G., Maksymchuk K.S., Lutsya V.V., Voloshchenko T.M., Gulyk A.G., Dobrovolsky V.I., Slivinska A.V., Shcherbina O.V., Slipenchuk N.A., Lukach I.V. etc. are devoted to certain issues related to the organization and activities of higher bodies of companies, including the general meeting. Article’s main body. The article is devoted to the disclosure of the main issues of corporate governance in companies. The main purpose of the general meeting and the nature of their decisions based on the rules of economic legislation are determined. Problematic issues related to the decisions of the general meeting and their appeal in commercial courts, based on existing case law, are researched. Conclusions and prospect of development. As a result, we can conclude that the activities of the general meeting is important in determining the activities of the company and in resolving its current issues. Therefore, the acts adopted by the meeting require clear legislative regulation. Due to the large number of corporate disputes in commercial courts, today there are certain problematic aspects in the decision-making procedure of the general meeting. As a result, a number of established legal positions on these issues have been established at the Supreme Court level. But it is not enough for the courts to explain this issue alone. Therefore, one option to solve this problem is to establish a list of grounds and other procedural elements for recognizing the decisions of the general meeting invalid in the model statutes of companies. Another option may be to enshrine in law the provisions of the case law.
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Tovkun, Igor, and Viktoriya Slivnaya. "Problematic issues of corporate governance of companies (analysis of case law)." Law and innovations, no. 4 (32) (December 15, 2020): 68–73. http://dx.doi.org/10.37772/2518-1718-2020-4(32)-10.
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Problem setting. Corporate governance of a company presupposes the existence of a higher, as a rule, self-governing body - the general meeting. The organization of this body is mainly determined by the statute and other internal acts of the company, but not always the status of the general meeting, the legal significance of their decisions, as well as other important aspects of their existence are fully disclosed by local rules. Because of this, the importance of this work is that as of 2020, a large percentage of corporate disputes considered by commercial courts relate to certain problematic issues of the general meeting of companies. Therefore, it is important to determine the activity of solving these problems by analyzing the existing case law. Target research. The purpose of the work is, firstly, to analyze the case law that has developed to date and relates to various important aspects of the organization and activities of the general meeting of companies, including their management decisions; secondly, to identify the main problems underlying court decisions and conclusions on this issue; thirdly, to suggest different options for their solution. Analysis of recent research and publication. Сorporate governance of a company is often a topic that is actively raised by well-known authors and scholars. Thus, the works of Zhornokuy V.G., Maksymchuk K.S., Lutsya V.V., Voloshchenko T.M., Gulyk A.G., Dobrovolsky V.I., Slivinska A.V., Shcherbina O.V., Slipenchuk N.A., Lukach I.V. etc. are devoted to certain issues related to the organization and activities of higher bodies of companies, including the general meeting. Article’s main body. The article is devoted to the disclosure of the main issues of corporate governance in companies. The main purpose of the general meeting and the nature of their decisions based on the rules of economic legislation are determined. Problematic issues related to the decisions of the general meeting and their appeal in commercial courts, based on existing case law, are researched. Conclusions and prospect of development. As a result, we can conclude that the activities of the general meeting is important in determining the activities of the company and in resolving its current issues. Therefore, the acts adopted by the meeting require clear legislative regulation. Due to the large number of corporate disputes in commercial courts, today there are certain problematic aspects in the decision-making procedure of the general meeting. As a result, a number of established legal positions on these issues have been established at the Supreme Court level. But it is not enough for the courts to explain this issue alone. Therefore, one option to solve this problem is to establish a list of grounds and other procedural elements for recognizing the decisions of the general meeting invalid in the model statutes of companies. Another option may be to enshrine in law the provisions of the case law.
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Miscevic, Tanja. "Influence of decisions of some typical international organizations to the development of international law: The case of the united nations." Medjunarodni problemi 68, no. 4 (2016): 390–416. http://dx.doi.org/10.2298/medjp1604390m.
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In the theory and practice of international law has long been present a debate on the ability of international organizations to influence the decisions in the process of creating international law. It is undisputed that the decisions of international organizations have an increasingly important position, but the debates about the law constituting role of these organizations in the contemporary international law are still alive. There is no consent, and certainly, the widest debates are provoked by the decisions of the international organization of a universal character - the United Nations. A key task of our research will be to analyze the decision-making practice within the United Nations and to determine, by the comparison of the different arguments of international law schools of thought, the impact that this organization has on the creation of international law. Also, we will try to investigate whether the decisions taken in the framework of international organizations carry within them a little more than ?moral and political force?, but also to check the achievements of the so-called soft law (soft law).
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Murray, Bruce K. Mac. "Prosecutorial Decision Making and Case Attrition for Child Sexual Abuse: A Qualitative Approach to Case Rejection Decisions." Prison Journal 68, no. 2 (October 1988): 11–24. http://dx.doi.org/10.1177/003288558806800204.
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Finch, John. "Best interests decisions: why Britain needs Charley's law." British Journal of Neuroscience Nursing 17, no. 1 (February 2, 2021): 44–46. http://dx.doi.org/10.12968/bjnn.2021.17.1.44.
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John Finch examines the quality of justice meted out by the UK's highest court in relation to best interests decisions and questions whether its decisions represent some kind of justice in the case of patients seeking alternative treatment interventions.
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Nafziger, James A. R. "International Sports Law as a Process for Resolving Disputes." International and Comparative Law Quarterly 45, no. 1 (January 1996): 130–49. http://dx.doi.org/10.1017/s0020589300058681.
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International sports law is more than a static set of rules and principles: it is better described as a process for avoiding and resolving disputes. Recent cases highlight its significance. TheSwiss Equestriancase,1decided by the Swiss Federal Tribunal, demonstrates the efficacy of using this process in cases involving issues of eligibility for competition. By contrast, theReynolds case,2decided by US federal courts, shows the folly of ignoring non-judicial remedies prescribed by international sports law. As a result,Reynoldsbecame a sort of Dickensian struggle involving three years of litigation and some nine decisions before the case was finally dismissed. The courts could have, and should have, reached the same result by simply enforcing decisions of the appropriate international sports federation and the arbitral tribunal that had upheld the federation's decision. The Harding case,3which was also decided in the United States, demonstrates that adjudication outside the prescribed process of international sports law is fundamentally unstable.
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Zirkel, Perry A. "Students with Prader-Willi Syndrome: Case Law under the IDEA." Physical Disabilities: Education and Related Services 36, no. 2 (December 30, 2017): 35–44. http://dx.doi.org/10.14434/pders.v36i2.24267.
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Prader-Willi Syndrome (PWS) is one of the low-incidence physical disabilities that the literature has not addressed in relation to the Individuals with Disabilities Education Act and its case law applications. To help fill the gap, this relatively brief article provides (a) an introduction of PWS from legal sources; (b) an overview of the IDEA, including and its primary components and alternate decisional avenues; (c) a synthesis of the case law to date, which amounts to a limited variety of administrative and judical decisions; and (d) a brief set of conclusions from an impartial legal perspective.
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Fouret, Julien, and Dany Khayat. "International Centre for Settlement of Investment Disputes (ICSID) Case Law Review." Law and Practice of International Courts and Tribunals 11, no. 1 (2012): 137–98. http://dx.doi.org/10.1163/157180312x631967.
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Abstract The ICSID case law review aims at discussing all the decisions published during a given period of time. This review covers the first semester 2011 with the analysis of three orders, eight decisions and six awards.
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Grant, James A. "REASON AND AUTHORITY IN ADMINISTRATIVE LAW." Cambridge Law Journal 76, no. 3 (August 8, 2017): 507–36. http://dx.doi.org/10.1017/s0008197317000599.
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AbstractIn judicial review of administrative action, the pivotal distinction between decisions about “jurisdiction” (for the reviewing court) and “the merits of the case” (for the administrative decision maker) is a source of much confusion. This article argues that jurisdiction should be understood as the scope of legitimate authority, the best theory of which is Joseph Raz's service conception of authority. As well as explaining how to determine jurisdiction, this article explains that a legitimate authority's intra-vires decision “pre-empts” the reviewing court's judgment on the merits, and that the concept of jurisdiction precludes any standard of reasonableness for reviewing a legitimate authority.
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Dotan, Yoav. "Judicial Review and Political Accountability: The Case of the High Court of Justice in Israel." Israel Law Review 32, no. 3 (1998): 448–74. http://dx.doi.org/10.1017/s0021223700015740.
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The inter-relation between government policies, public opinion and court decisions are the subject of intense discussion in academic literature. Constitutional theorists maintain that courts are required to defend individual rights, especially minority rights. Courts are also expected to refrain from excessive interference in decision-making processes conducted by the other two branches of government. Both these themes are derived from the assumption that courts, unlike the legislature and the executive branch, are not representative institutions. They are not required to reflect the preferences of the majority in their decisions. Rather, the reverse is expected: to confront decisions which endanger the rights of minorities. The “success” of courts in maintaining their institutional autonomy — according to this view — is evaluated by their ability to withstand political pressures and effect their counter-majoritarian role.Political scientists, on the other hand, are concerned with the extent to which courts in fact fulfill this counter-majoritarian role. Some argue that the counter-majoritarian function of the court is no more than a doctrinal aspiration, perhaps even a myth. Constitutional courts, they argue, serve more to legitimize socio-political reforms and broader cultural propensities which were previously endorsed by the political establishment and public opinion, than to confront majoritarian decisions. Others maintain that, while courts are not wholly insulated from public opinion, they still manage, on many occasions, to retain their institutional autonomy vis-à-vis political pressures.
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Fouret, Julien, and Dany Khayat. "International Centre for Settlement of Investment Disputes (ICSID) Case Law Review." Law and Practice of International Courts and Tribunals 12, no. 1 (2013): 113–61. http://dx.doi.org/10.1163/15718034-12341246.
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Abstract The ICSID case law review aims at discussing all decisions published by ICSID arbitral tribunals during a given period of time. This review covers the last semester 2011 and the first trimester 2012 with the analysis of one order, nine decisions and four awards.
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SÁCOUTO, SUSANA, and KATHERINE CLEARY. "The Katanga Complementarity Decisions: Sound Law but Flawed Policy." Leiden Journal of International Law 23, no. 2 (April 27, 2010): 363–74. http://dx.doi.org/10.1017/s0922156510000087.
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AbstractOn 25 September 2009, the Appeals Chamber of the International Criminal Court (ICC) issued a seminal decision on the subject of complementarity in the case Prosecutor v. Germain Katanga. The outcome of the Chamber's decision is that, even if a state has initiated an investigation or prosecution against an individual, the ICC may prosecute that individual for the same crimes or even a more selective range of crimes, so long as the state is willing to close the ongoing investigation or prosecution at the request of the ICC Prosecutor. While this decision is defensible under the language of the Rome Statute, this article concludes that, absent vigilance on the part of the ICC's Office of the Prosecutor, the decision could produce consequences inconsistent with the principle that the ICC is intended to act as a court of last resort. These potential consequences, in turn, suggest that the prosecution's policy of ‘positive complementarity’ – that is, encouraging genuine national proceedings whenever possible – should be at the core of its case selection strategy. At the same time, in those instances when the ICC prosecution determines that, despite activity by a national system with respect to a particular case, it is appropriate for the ICC to take over the case, the prosecution should clearly and publicly explain the factors that led to its decision.
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Williams, Marian R. "The Effect of Attorney Type on Bail Decisions." Criminal Justice Policy Review 28, no. 1 (July 25, 2016): 3–17. http://dx.doi.org/10.1177/0887403414562603.
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The U.S. Supreme Court has indicated that defendants are entitled to effective assistance of counsel. Despite this, many research studies and anecdotal evidence suggest that defense counsel, particularly appointed counsel, struggles to provide effective assistance, especially with regard to case outcomes. These studies suggest that having appointed counsel negatively affects case outcomes, such as conviction and sentencing, in that those with appointed counsel are more likely to be convicted and/or sentenced to longer incarceration terms. Previous research has largely ignored earlier stages of a case and the effect of type of counsel on these earlier case outcomes. The current study examines the effect of counsel—public defender versus retained—on bail decisions in Florida. Previous research has indicated that bail decisions have an effect on the outcome of a case, so the importance of bail decisions cannot be overlooked.
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Blokker, Niels. "Decisions of international organizations: the case of the European Union." Netherlands Yearbook of International Law 30 (December 1999): 3. http://dx.doi.org/10.1017/s016767680000088x.
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Jehle, Jörg-Martin, Paul Smit, and Josef Zila. "The Public Prosecutor as Key-Player: Prosecutorial Case-Ending Decisions." European Journal on Criminal Policy and Research 14, no. 2-3 (August 1, 2008): 161–79. http://dx.doi.org/10.1007/s10610-008-9078-3.
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Stetsyk, Nazar. "CASE-LAW PRACTICE: ON THE ISSUES OF CORRELATION WITH RELATED NOTIONS." Visnyk of the Lviv University. Series Law 71 (December 18, 2020): 24–32. http://dx.doi.org/10.30970/vla.2020.71.024.
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The article substantiates the need for research and formation of a complete and comprehensive concept of case-law practice, which should take into account the tendency of convergence and functional similarity of legal phenomena in modern legal systems. The formation of such a concept implies the needs to define the notions related to case-law practice as well as to designate a correlation with them. Attention is drawn to the importance of defining such related notions, the use of which can lead to terminological confusion and differences in their understanding. Therefore, the correlation with such related notions as judicial practice, case law, judicial precedent is identified. In the broad meaning of the term «judicial practice», which denotes the notion of activity or results of activity of all judicial bodies, it will correlate with the term «case-law practice» as a species notion that is included into the generic notion of judicial practice. In addition, the author takes into account the meaning of the term «judicial practice», used in the Civil law doctrine («jurisprudence constante», «ständige Rechtsprechung», «prajudice», «judicature» etc.), according to which judicial practice is not a set of any decisions in specific cases, but repetitive and stable, as well as not of any judicial bodies, but only of the supreme courts in the leading cases, and which become de facto binding on the lower courts. In this meaning, case-law practice will be the broader notion that includes judicial practice. Case law is also a notion related with case-law practice. Case law covers legal norms formed in the decisions of the supreme courts, and is used primarily in Common law as opposed to statutory law. Case law does not include all decisions and not of all judicial bodies, but only such decisions of the supreme courts that contain legal norms, i.e. binding judicial precedents. Case law does not cover convincing persuasive precedents of the lower courts, which have a recommendatory nature. Therefore, case law is the part of case-law practice, which in addition to case law also includes judicial precedents of the lower courts. It is substantiated that case-law practice is a collective notion that covers a set of judicial precedents, just similarly as the notion of legislation is a collective concept of laws. The distinction between these notions, despite the fact that in most cases the ambiguity of such terms that denote them, is removed by the context of their usage, allows us to clarify the features and nature of case-law practice. Key words: judicial precedent, judicial practice, unity of judicial practice, judiciary, supreme courts, court decision, comparative jurisprudence
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Dhar, Upinder, and Santosh Dhar. "The Case Method in Legal Education." Asian Journal of Legal Education 5, no. 2 (May 31, 2018): 182–85. http://dx.doi.org/10.1177/2322005818780754.
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Each doctrine has a history. In the case of law, Langdell has argued that students would be better educated if they were asked to draw their own conclusions about the meaning of judicial decisions. Case studies provide students with an overview of the main issue; background of the institution, industry and individuals involved; and the events that had led to the problem or decision. Faculty may assign questions prior to class to facilitate the students to focus on certain important issues. Principles of law are taught by making the students analyse abridgments of appellate cases in combination with the Socratic method.
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Herget, James E. "Ratio Decidendi: Guiding Principles of Judicial Decisions, Volume 1: Case Law." American Journal of Legal History 49, no. 4 (October 2007): 508–9. http://dx.doi.org/10.1093/ajlh/49.4.508.
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Díaz Crego, María. "Cuando Parot llegó a Estrasburgo = When Parot arrived to Strasbourg." Teoría y Realidad Constitucional, no. 31 (January 1, 2013): 579. http://dx.doi.org/10.5944/trc.31.2013.10322.
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En febrero del año 2006, el TS modificaba la forma de cómputo de la redención de penas por el trabajo, regulada en el ya derogado Código Penal de 1973. Esa modificación tenía consecuencias muy importantes para algunos de los condenados bajo el imperio de ese Código, que vieron cómo se alargaba su tiempo de permanencia en prisión hasta en 15 años. Las relevantes consecuencias derivadas de la aplicación de la llamada «doctrina Parot» llevaron a muchos de los reclusos afectados ante el TC y el TEDH. Sin embargo, los pronunciamientos de estos dos tribunales han sido divergentes: si bien el TC ha estimado muy pocos de los recursos de amparo interpuestos, el TEDH parece haber rechazado de forma frontal la doctrina introducida por el TS. En este marco, el presente trabajo analiza las decisiones de estos dos tribunales y trata de determinar cómo deben actuar las autoridades españolas tras la condena a España en el caso Del Río Prada, a fin de resolver el problema de fondo planteado por la aplicación de la doctrina Parot a una gran cantidad de reclusos.In February 2006, the Spanish Supreme Court modified its case-law regarding some provisions of the abrogated Criminal Code of 1973 that allowed the early release of prisoners if they worked while serving their sentence and they demonstrated good conduct. This change in the Spanish Supreme Court case-law had relevant consequences for some convicted prisoners as it meant an important extension of imprisonment years. Many of the prisoners affected by this new case-law appealed against the decisions extending their time in prison before the Spanish Constitutional Court and, after that, before the European Court of Human Rights. In this context, the main aim of this paper is to analyse the decisions adopted by these Courts while reviewing the Spanish Supreme Court case law, and to determine what the Spanish authorities must do after the European Court decision in «Del Río Prada», the sole case in which the European Court has examined the Spanish Supreme Court case-law.
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Goodwin, Edward J. "State Delegations and the Influence of COP Decisions." Journal of Environmental Law 31, no. 2 (April 1, 2019): 235–63. http://dx.doi.org/10.1093/jel/eqz007.
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Abstract This article concerns the likelihood that decisions adopted at conferences of the parties (COPs) to multilateral environmental agreements will influence the behaviour of States Parties. Relying upon a theory emphasising the importance of rational persuasion of decisions and the legitimacy of decision-making processes, this article explains how choices concerning the preparation of delegates and then participation of delegations at plenary meetings of the parties to environmental treaties might enhance the likelihood of those decisions having a positive effect upon the actions of States Parties. This is done using a case study of the UK delegation to a meeting of the parties to the 1971 Ramsar Convention on Wetlands of International Importance. That case study also provides examples of potentially positive modalities adopted by the UK, while also revealing suspected concerns for the future surrounding retention of experienced delegates and the impact of Brexit.
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Křiváčková, Jana. "The Principle of Foreseeability of Judicial Decisions as a Component of the Right to a Fair Trial." International and Comparative Law Review 12, no. 1 (June 1, 2012): 69–79. http://dx.doi.org/10.1515/iclr-2016-0079.
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Abstract The article focuses on the principle of foreseeability of judicial decisions in civil court proceedings, as one of the components of the right to a fair trial in the Czech Republic. The principle of foreseeability of judicial decisions has to be understood as a general term including several requirements on judicial process in civil court proceedings the purpose of which is to avoid surprising decisions which can be seen as one of possible forms of violation of the right to a fair trial. Predictable decision is a decision that follows from a predictable procedure of the court in which the court proceeds strictly according to procedure code using all of the special institutions such as the duty to instruct the participants concerning their procedural rights and duties. The second requirement is to respect the legitimate expectations of the parties regarding the application of law on their case. Participants have the right to expect that their case will be decided accordingly to a legal opinion expressed in a case already decided before the courts. This aspect of the foreseeability of judicial decisions then puts high demands on the ability of courts to deal with situations in which they decide a case differently from the existing case law and thus the decision may be surprising for the participants. This article concentrates on the legal regulation of the principle of foreseeability of judicial decisions on the level of constitutional and civil procedural law. The article also deals with the legal regulation in this area in the Slovak Republic and Germany. The purpose of the article is to compare the legislation on national and international level as well as to compare Czech, German and Slovak legal regulation of the principle of foreseeability of judicial decisions.
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Ruffert, Matthias. "The Stability of Administrative Decisions in the Light of EC Law: Refining the Case Law." Review of European Administrative Law 1, no. 2 (December 1, 2008): 127–35. http://dx.doi.org/10.7590/real_2008_02_07.
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Bricker, Andrew Benjamin. "Is Narrative Essential to the Law?: Precedent, Case Law and Judicial Emplotment." Law, Culture and the Humanities 15, no. 2 (January 21, 2016): 319–31. http://dx.doi.org/10.1177/1743872115627413.
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Storytelling pervades almost every aspect of the law. Many narrativistic legal elements, however, have in fact been little more than historically transitory. Given the precarious status of narrative at law, I argue we should focus instead on one of the most historically consistent acts of legal storytelling: the judicial opinion. Here I examine in particular the invocation of precedent in legal opinions, what I call “judicial emplotment,” as an almost archetypal act of formalized storytelling. As I go on to argue, the courts justify legal outcomes by invoking precedent, thereby placing decisions within a specific and heavily formalized legal-narrative structure.
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Ristawati, Rosa, and Radian Salman. "Judicial Independence vis-à-vis Judicial Populism: the Case of Ulayat Rights and Educational Rights." Constitutional Review 6, no. 1 (June 2, 2020): 110. http://dx.doi.org/10.31078/consrev614.
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Judicial populism may occur when judicial branches are much more influenced by the interest of people majority. In this context, it is when justices deliver decisions according to what the people wanted and not what it has to be decided by laws. The Constitutional Court of the Republic of Indonesia (MKRI) has the pivotal role to protect the Constitution, democracy, and the rule of law principles by adhering judicial independence in the decision making process. This paper aims to briefly find out whether the MKRI decisions on the particular issue of economic and social rights show the tendency of judicial populism and defending judicial independence. A brief conclusion would be drawn from the analysis of the two MKRI’s landmark decisions on the relevant issues of economic and social rights, in particular issues of Ulayat rights and educational rights (Case Number 35/PUU-X/2012 on the judicial review of Law No. 41 of 1999 on the Forest and Case Number No. 13/PUU-VII/2008 on the judicial review of Law No. 16 of 2008 on the Amendment of the Law No. 45/2007 on the State Budget). In a short analysis of both landmark decisions, the MKRI tends to defend its independence in delivering its decision. The Court also shows its consistency in protecting the Constitution by strictly upholding the constitutional values laid down in the Constitution and against the judicial populism. The Court in both decisions shows its constitutional commitment to preserving democratic values of minority-marginalized protection against the dominant-majoritarian interest. In the particular issue of education rights, the Court hinders the fulfilment of educational rights from the elite interest by preserving the constitutional purpose of making priority 20% for the education budget. In general, the MKRI has to guard preventing the Constitution and the rule of law principles, specifically on the issue of the protection of economic-social rights. It upholds judicial independence and put asides judicial populism.
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Pavlich, George. "Legal Judgment and Cape Colonial Law." Law, Culture and the Humanities 8, no. 2 (November 25, 2010): 207–18. http://dx.doi.org/10.1177/1743872110378707.
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Judgment is a complex matter, with particular nuances in the context of juridical decision-making. The following commentary explores legal judgment at a particular juncture via a Cape colonial case in 1798 and through Foucault’s often overlooked essay, “Truth and Juridical Forms.” Noting the legacy of the test and the inquiry as knowledge formations that have significantly influenced judgment in European and colonial law, this discussion highlights how legal judgment might usefully be viewed as a shifting product of local and wider power-knowledge formations. Viewing a Cape record at some historical distance enables one to see colonial legal judgment as a process of its time and place. It also enables a more general, if admittedly exploratory, comment on judgment as an authorized, violent process that cuts and countersigns itself through complex transcriptions. As well, a performative contradiction attaches indecision to the heart of legal decisions, thereby disabling apodictic judgments and intimating a potential escape from totalitarian judgmental systems.
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Djundic, Petar. "Decisions in the field of international private law in the practice of the Novi Sad court of cassation between two world wars." Zbornik Matice srpske za drustvene nauke, no. 125 (2008): 121–30. http://dx.doi.org/10.2298/zmsdn0825121d.
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This article analyzes decisions in the field of International Private Law of the Novi Sad Court of Cassation, the highest court in Vojvodina during the period between two world wars. Decisions of the Court concerned with the conflict of laws issues were extremely rare during this period. Available case law contains literary one decision dealing with the choice of law problems in cross-border disputes. On the other hand, internal conflicts of laws were much more common as a result of the fact that The Kingdom of Serbs, Croats and Slovenes (from 1929 onwards - The Kingdom of Yugo?slavia) was the country with seven different systems of civil law in force in its territory. Choice of law rules were scant and underdeveloped. Case law of the Court is somewhat more developed when it comes to decisions concerned with international jurisdiction of the courts, recognition and enforcement of foreign decisions and issues of international civil procedure. However, one should bear in mind that many of the disputes with cross--border implications originated not from the will of the parties, but rather as a result of the change of sovereignty over the territory of Vojvodina after World War I.
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Langenbucher, Katja. "Argument by Analogy In Europian Law." Cambridge Law Journal 57, no. 3 (November 1998): 481–521. http://dx.doi.org/10.1017/s0008197398003031.
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ARGUMENT by analogy is one of the oldest methods of decision making. Whenever the similarity between two situations induces someone to decide one case like another, an analogy is drawn. Argument by analogy also forms an integral part of legal reasoning. Arguably, every legal tradition employs some version of it to justify judicial decisions. European law has only just started to develop its own distinct jurisprudence. As the various judicial systems present in the European Union struggle for recognition of their legal heritage, the way in which arguments by analogy will be used on an European level is likely to combine different approaches.
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Lightbourne, Muriel. "Mutagenesis, ‘essentially biological processes’ and patent exceptions." Queen Mary Journal of Intellectual Property 11, no. 2 (May 27, 2021): 219–42. http://dx.doi.org/10.4337/qmjip.2021.02.05.
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Recent developments in the field of European law, in relation to subject-matter consisting of living material, raise a string of basic issues as to the legal qualification of certain techniques used in agriculture and medicine, such as CRISPR-Cas9, and regarding their appraisal under European patent law. The present article reviews a series of decisions, including the decision of the Court of Justice of the European Union in case C-528/16, the decision issued on 7 February 2020 by the French Council of State and the Opinion of the European Patent Office Enlarged Board of Appeal of 14 May 2020 on Referral G 3/19.
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Grubač, Momčilo. "Study of the case law of the European Court of Human Rights in criminal law matters." Glasnik Advokatske komore Vojvodine 79, no. 9 (2007): 371–95. http://dx.doi.org/10.5937/gakv0712371g.
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This study includes certain number of decisions of the European Court of Human Rights that relate to the criminal procedural matters, primarily those constituting the right to a fair trial provided in Article 6 of the Convention for Protection of Human Rights and Fundamental Freedoms. These decisions were analyzed and interpreted in order to establish the practice of the Court in these procedural matters and to enable us to evaluate whether domestic criminal procedural law and its application are in line with this practice. The author dealt with the issues of prohibition to institute legal action twice for the same cause of action (ne bis in idem), immunities and privileges, right to court access, exclusion of inadmissible evidence from the criminal case files, right to the impartial court and right of defense to call and interrogate witnesses.