Judicial Activism Research Articles

An Analysis of Inconsistent Methodology to Compute Permanent Future Nursing Care Costs in Personal Injury Claim

Restitutio in integrum has been the underlying basis of assessment for damages under the corrective compensation scheme of the law of tort. This doctrine commands restoration of the claimant to the pre-existing condition prior to the commission of the tort. While this basis of assessment has no apparent problem in respect of pecuniary part of the claimable damages in a personal injury claim, however, from another side of the spectrum, there is an inconsistent methodology as to how to precisely calculate the ‘price’ of pain or even future loss. As a result, judicial activism plays its part in promoting its creativity of solution to the problem, leading to inconsistent methodology on this spectrum of damages that bears diverse output. The objective of this paper is to highlight the flaws of the inconsistent methodology for the assessment of permanent future nursing care. The method used for this research is by tracing the relevant authorities that use the various methods of computing the multiplier and analysing the outcome of each method. The findings revealed anomalies of output as each method produces different output without any qualification on why a particular method is chosen. This flaw in the computation of the multiplier for future losses other than related to loss of earnings should not remain viable as there is no consistency of the output based on similar factual circumstances. One of the solutions for this debacle is to forgo lump sum payment altogether and move towards structured settlement payment.

Using a Hypothetical Case to Teach about Supreme Court Decision Making

This article presents a hypothetical set of facts that can be used as a device to analyze the workings of the Supreme Court, and the theories of judicial restraint, judicial activism and originalism. It also offers students an opportunity to analogize the facts of this case with Roe v. Wade and other Supreme Court decisions.

PUTUSAN KPPU SEBAGAI DASAR DALAM GUGATAN KELOMPOK (CLASS ACTION) ATAS PENGEMBALIAN KERUGIAN KONSUMEN AKIBAT PELANGGARAN PERSAINGAN USAHA TIDAK SEHAT

Abstract This study aims analyze the KPPU's decision as the basis for class action in court in demanding compensation for violations of unfair business competition, and the juridical obstacles in examining group claims based on the KPPU's decision. This is normative legal research using statutory and case approach. The results shows that the KPPU's decision can be used as the basis for a class action lawsuit in court in the context of demanding compensation for consumer losses caused by violations of business competition as long as the KPPU's deliberations and decisions include preliminary evidence of public (consumer) loss and meet the general requirements for a class action lawsuit. The juridical obstacles really depend on the level of understanding of the judges and also the documents and / or case files from the KPPU as evidence of consideration of consumer losses.

Pengujian Undang-Undang Oleh Mahkamah Konstitusi Ditinjau Dari Perspektif Politik Hukum

This study aims to determine the description of how the state, through its legal politics, give enormous authority to the Constitutional Court, which is the body (judicative) to interfere with parliamentary (legislative) and government (executive) affairs, which are not bene the three branches of government (legislative, executive and judicative). Rationally have the same position. This research method uses normative juridical research. Article 24C of the 1945 Constitution of the Republic of Indonesia establishes the Constitutional Court as one of the special judicial actors and the Supreme Court, with authority to examine laws against the Constitution, which is carried out at the first and last levels whose decisions are final. Giving too far lead head control power authority to the Constitutional Court to amend the laws made by the parliament (legislative) or to cancel what constitutes government (executive) policies would contradict the principle of distribution of power (tries politic) and the direct focus of checks and balances.

Risk-Oriented Justice

In the situation of growing uncertainty for the society of global risk, new management technologies based on the concept of risk management should penetrate all spheres of human activities, including the sphere of regulating legal relations and enforcement of law norms by courts. Risk-oriented justice is a new area for Russian jurisprudence, and the author aims to outline key approaches to analyzing the opportunities of using the concept of «risk» to optimize the process of adjudication. The author presents the scientific definition of risk, draws attention to the necessity of identifying, assessing risks, i.e., the possible dangers inevitably emerging in the criminal court activities. Risks are ranged depending on their source, and the necessity of differentiating the strategies of reacting to various risks is proven. The author defines the infrastructure of making a court decision in the conditions of risk, which includes the following: the existence and due normative regulation of the space for court risk; effective rules of adjudication; due information support of adjudication; clearly defined goals of risky court actions. It is shown that uncontrolled risks lead to wrong judgments, reduce the stability of sentences and create victims of unfair justice. The author suggests implementing the idea of risk-oriented justice based on the principles and techniques of risk management developed by the science of riskology, which minimize risks and their consequences.

PENGUJIAN PERATURAN KEBIJAKAN DALAM SISTEM PERADILAN DI INDONESIA

The policy regulation is one of the government instruments or tools and means used by the government, including state administration officials in criminal justice in carrying out government tasks and other judicial actions. The existence of this policy regulation is a consequence of the welfare law state which imposes a very broad task, namely for the attainment of the people's welfare in accordance with the objectives of the welfare state itself. However, in the development of policy regulations that were originally intended and needed in carrying out governmental duties, in fact their implementation cannot be separated from the problems of conflicts with other legal norms and other legal problems. This paper wants to answer an important question, namely; "What is the basis for government action to issue policy regulations and why policy regulations, theoretically and in practice, cannot be categorized as statutory regulations?". The conclusion that can be drawn from this paper is related to the large "space for movement" held by the government and the positions in the judicial field to make policy regulations. For this reason, it is necessary to recommend Supreme Court to issue a Supreme Court Regulation which regulates technical proceedings related to the review of policy regulations. Delegating the authority to review policy regulations to become the authority of the State Administrative High Court (PT TUN) is a strategic step that can be developed by the Supreme Court of the Republic of Indonesia.
 Keywords: Testing, Policy Regulations, Regulations, Contradictions of Norms, Government Administration.

Delegation at the Founding

This article refutes the claim that the Constitution was originally understood to contain a nondelegation doctrine. The founding generation didn’t share anything remotely approaching a belief that the constitutional settlement imposed restrictions on the delegation of legislative power---let alone by empowering the judiciary to police legalized limits. To the contrary, the overwhelming majority of Founders didn’t see anything wrong with delegations as a matter of legal theory. The formal account just wasn’t that complicated: Any particular use of coercive rulemaking authority could readily be characterized as the exercise of either executive or legislative power, and was thus formally valid regardless of the institution from which it issued. Indeed, administrative rulemaking was so routine throughout the Anglo-American world that it would have been shocking if the Constitution had transformed the workaday business of administrative governance. Practice in the new regime quickly showed that the Founders had done no such thing. The early federal Congresses adopted dozens of laws that broadly empowered executive and judicial actors to adopt binding rules of conduct for private parties on some of the most consequential policy questions of the era, with little if any guidance to direct them. Yet the people who drafted and debated the Constitution virtually never raised even policy objections to delegation as such, even as they feuded bitterly over many other questions of constitutional meaning.

Deliberative Democracy, Social Rights and the Modulation of Judicial Review

Roberto Gargarella has infused into constitutional theory a deliberative approach to constitutional review and rights adjudication. By this, he has enriched our understanding of deliberative democracy as a political system in which the judiciary can play a central role, especially through the institution of constitutional review. Furthermore, he has provided us with crucial insights into the deliberative potential of this institution, shedding light on the different ways in which it may serve to secure the essential conditions of democratic deliberation. The article centers on this twofold, crucial contribution of Gargarella – to constitutional theory and to deliberative democratic theory – with a focus on the relationship between social rights and constitutional review. First, it presents the main controversial issues raised by this relationship, concerning both social rights justiciability and adjudication. Second it highlights the resources provided by Gargarella to understand and address both orders of issues, based on his account of deliberative democracy and constitutional review. Third, the article addresses the resulting view of the action of courts on social rights. In particular, it inquires into the idea of a “third way” for judicial action, requiring to modulate judicial review so as to mediate between judicial inertia and activism.

Unpacking the SEC’s new disgorgement powers

PurposeTo analyze the impact of recent legislation that amended the Securities Exchange Act of 1934 to expressly empower the U.S. Securities and Exchange Commission (SEC) to seek disgorgement in federal district court proceedings and to codify applicable statutes of limitations.Design/methodology/approachThis article provides an overview of the authors’ prior work analyzing courts’ treatment of SEC disgorgement and summarizes how the scope of the remedy has evolved since Kokesh v. SEC (2017). Then, the article analyzes the changes to the Securities Exchange Act of 1934 contained in Section 6501 the 2021 National Defense Authorization Act (NDAA), which statutorily empowered the SEC to seek and obtain disgorgement in federal court actions. Finally, the authors discuss the impact of the legislation on the Supreme Court’s decisions in Kokesh and Liu v. SEC (2020).FindingsThe availability and appropriateness of SEC disgorgement have been the subject of vigorous debate. Just as courts began to iron out the contours of SEC disgorgement in the wake of Kokesh and Liu, Congress intervened by granting to the SEC explicit statutory authority to seek a remedy traditionally obtained at equity. In passing this legislation, Congress answered some questions that remained after Liu but also raised many new ones. These new questions will likely take years to resolve through subsequent litigation and potentially additional legislation.Originality/valueOriginal, practical analysis and guidance from experienced lawyers in financial services regulatory and enforcement practices, many of whom have previously worked in the SEC’s Division of Enforcement.

The view of judicial activism and public legitimacy

The underlying legitimacy issue that underpin sentences related to issues of drug use remains unexplored. It is this relationship between legitimacy and Indonesian judges' accountability when sentencing that this article explores. Judicial activism, and the perceived public legitimacy when sentencing minor drug offenders is presented. To gain an insight into the judicial aim of sentencing minor drug offenders, 31 judges were qualitatively interviewed. Drawing together the findings of judicial activism and public legitimacy, the report concludes that judicial activism is influenced by Islamic culture. Moreover, it finds that Islamic culture is more sympathetic, in comparison with the central government, which is more punitive, with regards to the ways in which the Indonesian judge utilises Islamic culture to support the rehabilitative problem-solving sentences. This report discusses a direct accountability mechanism that is not dissimilar to political accountability in the Anglo-Saxon legal scheme.

Appointment with Destiny: Selecting WTO Judges in the Future

AbstractNothing has done more to shake confidence in the World Trade Organization, and create uncertainty in rules‐based international trade, than the demise of the WTO’s Appellate Body (AB). Given the design of the WTO Dispute Settlement Understanding (DSU), in the absence of a functioning Appellate Body, members cannot have confidence in the finality or enforceability of panel rulings. Thus, a fundamental premise of the legal commitments under WTO treaties is undermined. The collapse of the AB is due to a decision of the Trump Administration systematically to block new appointments to fill vacancies. This move, unprecedented in US trade policy in the WTO era, and not supported by any other WTO member, has completely failed as means of pressing the Administration’s complaints about ‘judicial overreach’ in the Appellate Body. This single Trump decision can easily be reversed by the Biden Administration stating that it is prepared to participate in good faith in a new process for selecting AB members. In this article, I suggest how the Appellate Body appointment process might go forward in the current context, addressing concerns of the US and some others about the past performance of the AB.

Business E-NeGotiAtion: A Method Using a Genetic Algorithm for Online Dispute Resolution in B2B Relationships

An opportunity to resolve disputes as an out-of-court settlement through computer-mediated communication is usually easier, faster, and cheaper than filing an action in court. Artificial intelligence and law (AI & Law) research has gained importance in this area. The article presents a design of the E-NeGotiAtion method for assisted negotiation in business to business (B2B) relationships, which uses a genetic algorithm for selecting the most appropriate solution(s). The aim of the article is to present how the method is designed and contribute to knowledge on online dispute resolution (ODR) with a focus on B2B relationships. The evaluation of the method consisted of an embedded single-case study, where participants from two countries simulated the realities of negotiation between companies. For comparison, traditional negotiation via e-mail was also conducted. The evaluation confirms that the proposed E-NeGotiAtion method quickly achieves solution(s), approaching the optimal solution on which both sides can decide, and also very importantly, confirms that the method facilitates negotiation with the partner and creates a trusted result. The evaluation demonstrates that the proposed method is economically efficient for parties of the dispute compared to negotiation via e-mail. For a more complicated task with five or more products, the E-NeGotiAtion method is significantly more suitable than negotiation via e-mail for achieving a resolution that favors one side or the other as little as possible. In conclusion, it can be said that the proposed method fulfills the definition of the dual-task of ODR—it resolves disputes and builds confidence.

DEVELOPMENT DIRECTIONS OF THE SPECIAL JUDICIAL PROCEDURE

The complicated application of the special judicial procedure significantly reduces the procedural savings achieved in criminal proceedings. In this regard, the question arises of compliance with modern realities of the complicated procedure for decision-making on the application of the considered form of court proceedings. Purpose: to develop proposals for improving the criminal procedure legislation in order to make it possible to simplify the application of the special judicial procedure. Methods: the author uses the methods of analysis, synthesis, legal interpretation as well as systemic and logo-legal methods; the methodological basis of the research is a dialectical method. Results: it is reasonable to conclude that the change in the role of the court in proving when applying the special judicial procedure, expressed in imposing on it the obligation independently, on the basis of written materials of the case and some judicial investigative actions, to establish the factual circumstances of the criminal case, will simplify the procedure for applying the considered procedural form by refusing to agree with the representatives of the prosecution.

Judicial Activism and Constitutional Challenges in India

Courts in India intervened in policy matters; education, environment, property rights, and cleanwater are some of the areas in which precedents have been established. Supreme Court has become a final interpreter of the constitution. It even checked the amendments made by parliament. A weaker political system provided a feeding ground for the judiciary to intervene in the matters of the executive and legislatures. By noticing the checkered history, the emergency of the 1970s has weakened the judiciary which has been compensated in the last few decades. Powers belong to those who utilized them. The unconstitutional dismissals provided a vacuum for the judiciary to play its role. The judicial review,interpretation of fundamental rights, environmental issues, constitutional amendments and appointment of judges, have broadened the jurisdiction of courts in India.

Hate crime and racial discrimination in Ecuador: The case of Michael Arce in ESMIL

For the first time in Ecuador a hate crime was tried in court and led to a conviction. This was the case of Michael Arce, a young Afro-Ecuadorian former cadet who won the trial against Captain Fernando Encalada of the Eloy Alfaro Military School (ESMIL). ESMIL belongs to the Ecuadorian Armed Forces, a state institution considered to be of great prestige and a guarantor of citizens’ rights and democracy, but not for all. Arce suffered in ESMIL 2 months of humiliation and torture. Through a socio-legal analysis this article demonstrates the normalization of racial stereotypes and prejudices, and the sometimes subtle existence of structural and institutional racism in the education and judicial systems. This case represents a pioneering judicial action in Ecuador that legally established and defined new pretrial and trial proceedings in regard to litigation concerning violation of human rights, racial discrimination and hate crimes.

Judicial Activism and Constitutional (Mis) Interpretation

In this article, the authors explore the concept of judicial activism and its application in the Australian domestic cases of Australian Capital Television Pty Ltd v Commonwealth and Love v Commonwealth, and in the US case of Obergefell v Hodges. The article highlights the devastating effects of judicial activism on legal interpretation, arguing that such activism compromises the doctrine of separation of powers and affects the realisation of the rule of law, resulting in a method ofinterpretation that incorporates personal biases and political opinion, thus ignoring the original intent of the framers of the Australian Constitution. Moreover, the article highlights that implementing a federal Bill of Rights might further exacerbate these ongoing problems concerning judicial activism in Australia.

Fight for Right to Clean and Healthy Environment in the Judicial Context of Sri Lanka with an International Perspective

Today Society’s interaction with nature is so extensive that environmental issues have assumed proportions affecting all humanity. With the industrial and technological development, mankind have not only improved economic conditions but also influenced the natural ecological balance. So the is degrading at rated never seen before and this is one such question that has created a discourse on the protection of the in global level. The realization that environmental problems have serious consequences for human health and well-being and could even threaten the very existence of human life on earth, had led to the dialogue on a to healthy and clean environment. While the highest human accorded to a human being is the to life, that could become meaningless if the in which he is living is degrading day by day. Right to life is meaningful if only to clean and healthy is legally guaranteed and enforceable. One can argue that could be due to the lack of an enforceable to a healthy meaning that no one has a to claim for a healthy environment. The to a clean is not a purely individual right. Rather, it has a collective facet, belonging equally to such groups as future generations and indigenous peoples whose cultures depend on the for their existence and perpetuation. Internationally, the concept of a group of of developing countries, solidarity rights, also called of third generation, is attributed to the French lawyer Karel Vasak, who enumerated right to environment as one of them. The Fundamental Rights chapter found in the 1978 Constitutions of the Democratic Socialist Republic of Sri Lanka does not contain any provision for protection of ecological rights and while the directive principles recognize the importance of and corresponding duties of the citizens of the country to protect and safeguard it, it is however not legally binding in a Court of law. The objective of this literature research is to find out how Right to clean and healthy is internationally and nationally recognized, to analyze on Judicial Activism of Sri Lanka regarding the interpretation of said and to elucidate the international obligation of Sri Lanka to protect, promote and respect the to clean and healthy environment. In order to highlight the significance of wholesome while achieving the above objectives doctrinal research method is being used. For these doctrinal study primary and secondary legal resources has been referred.

Pertanggungjawaban Pidana Pelaku Tindak Pidana Penganiayaan yang Direncanakan (Studi Kasus Putusan Pengadilan Negeri Bangli Nomor 19/pidB/2019/PNBLI)

Maltreatment is an act that causes injury or pain to someone which is done on purpose. The maltreatment consisted of light maltreatment and severe torture. This study aims to determine the criminal sanctions against the planned perpetrators of maltreatment and to analyze the considerations of the judge's decision against the perpetrators of the planned maltreatment. This type of research is normative legal research using a statutory approach. The technique of collecting legal materials is done by interviewing techniques. The results of the study show that the criminal sanction against the perpetrator of the planned maltreatment is a maximum of four years in prison as regulated in Article 353 paragraph 1 of the Criminal Code, while in the case of decision Number 19 / pidB / 2019 / PNBLI, the perpetrator I Made Merta is subject to imprisonment for four months according to Article 353 paragraph 1 of the Criminal Code where the elements contained therein are all fulfilled. Then, the judges' considerations in the perpetrators of the planned maltreatment included considerations of a juridical nature, namely things that were burdensome and things that were mitigating, whereas in the case study decision Number 19 / pidB / 2019 / PNBLI the judge considered more about the history of the defendant, namely the defendant. polite and admit that his actions in court have never been convicted and there has been peace between witnesses victim I Gede Jasa, so the judge sentenced Article 353 of the Criminal Code, which is four (4) months.

Judicial Activism and Its Implications for Good Governance: A Case for Judicial Reforms in Pakistan

Judicial activism plays an important role in shaping various countries' political contexts with different political systems and regime types. Academic literature and debates are divided among various groups in favour and against judicial activism. This work reviews range of available data to probe case of judicial activism in Pakistan from 2005 to 2013. Judicial activism in Pakistan seemed to be short-lived and selective in nature. The Supreme Court of Pakistan (SCP) exercised activism without limits in cases against representative parliamentarians who were already constrained in many matters by other unconstitutional powers. No doubt, it reviewed various malpractices of the executive in the domain of public policy and governance, which enhanced its legitimacy and popularity. A vibrant media further contributed to the Court's popularity. But the transgression of institutional boundaries by the apex court for 'pious' objectives failed to introduce judicial reforms and eradication of corruption in the lower judiciary. Selectivity in the SCP activism was visible in its limitation to implement some of its verdicts against ex-military officers. This paper discusses these contradictions within the activism by the higher judiciary in Pakistan, and suggests various recommendations in the latter part of the paper.

Judicialização da saúde: uma revisão sistemática de literatura das iniciativas de diálogo institucional intersetorial

Objetivo: levantar as iniciativas de diálogo institucional intersetorial no escopo da judicialização da saúde, estabelecidas desde a criação do Fórum da Saúde pelo Conselho Nacional de Justiça, em 2010. Metodologia: foi realizada uma revisão sistemática de literatura por meio da aplicação dos critérios do Preferred Reporting Items for Systematic Reviews and Meta-Analyses (PRISMA) entre 2010 e 2018. Resultados: foram selecionados sete artigos científicos que apontaram para a existência de diversas iniciativas exitosas no diálogo institucional e intersetorial, repercutindo de forma relevante sobre a redução das ações judiciais em saúde e sobre a mitigação da judicialização da saúde. Conclusão: depreende-se que o fenômeno da judicialização da saúde, por sua complexidade e pela multiplicidade de atores e interesses circunscritos a ele, pode ser manejado e mitigado por vias que favoreçam a interdisciplinaridade entre Direito e Saúde.