Law Adjudication Research Articles

Judicial review as a quasi-administrative jurisdiction

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.

National constitutional courts’ use of the ECJ's precedents: The case study of Czechia

This article interrogates how Member States’ constitutional courts make use of the case-law of the European Court of Justice. Instead of focusing on the extreme instances of open backlash, we put forward a data-driven methodological approach to the study of Europeanization of national constitutional courts. Drawing on the use of automatic text analysis, we suggest that searching for the formal citations of the rulings of the European Court of Justice in the constitutional courts’ case-law contributes to nuanced understanding of their role within the EU. By means of a case study of the Czech Constitutional Court's case-law (more than 71 000 decisions issued between the years 2004 and 2022), we demonstrate a way to explore the so far under-researched area of EU law adjudication where the majority of strategic behaviour might be taking place.

Contract Law When the Poor Pay More

Abstract Taking inequality as a key challenge of our time, this article aims to highlight consumer markets, and their underpinning legal ground rules, as important contributors to inequitable wealth distributions. It illustrates how product design, as manifested in contractual terms, can allow firms to evade competition and divert resources upwards along society’s wealth distribution curve. It then highlights the contestable legality of certain pricing practices, such as ‘contingent charges’, and the challenge they pose to fundamental principles of contract law. An in-depth view of the 2015 case of Beavis v ParkingEye argues that the UK Supreme Court has validated contingent pricing models in a manner unsupported by traditional contractual reasoning and unjustified by contemporary market failure analysis. The article asks contract law to confront the reality that it shapes market distributions in economically and politically significant ways, and appeals for greater scrutiny of the contribution of contract law adjudication to inequality.

Жасанды интеллектіні Арбитражда қолданудың перспективалары

The article is devoted to the possibilities and problems of application of artificial intelligence (AI) systems in the arbitration of the Republic of Kazakhstan, i.e.: in forensic examination, analytical and organizational work, adjudication, interpretation and analysis of law, as well as control over the adoption and execution of court decisions. In the course of the research the foreign experience of using artificial intelligence systems in the judicial systems of Great Britain, the USA and the Netherlands was analyzed. In addition, three main directions of application of artificial intelligence in judicial proceedings were identified. Based on the application of artificial intelligence in practice, it was determined that the use of the European Charter of Ethics in the legislation of judicial and law enforcement systems leads, as predicted by researchers, to positive and negative consequences of use. In addition, it was determined that the use of artificial intelligence in judicial proceedings can optimize the judicial system, prevent subjective attitudes, corruption and possible miscarriage of justice, and risk is necessary. These include: compliance with the ethical principles of artificial intelligence, the impossibility of ensuring transparency and verifiability of court decisions made by artificial intelligence, their legislative non-approval and non-compliance with the requirements of law, protection of personal information. In conclusion, recommendations are given to prevent the negative impact of the introduction of artificial intelligence in arbitration.

Giving voice: a public sphere theory of European private law adjudication

AbstractThis Article addresses the question of how to explain and justify the allocation of politically sensitive legal questions to civil courts in the European Union. It proposes a pluralist theoretical view on interactions of private law adjudication with legislative initiatives in the process of building a European political community. This is elaborated on the basis of a reconstruction of the interaction between judicial and legislative processes in three high-profile cases (concerning non-discrimination, housing and climate change) in light of three theoretical perspectives: social justice, constitutionalism and public sphere theory. The first two perspectives shed light on the legal-political dimension of private legal questions in the European Union and manners in which to handle the plurality of sources and institutions in this field. They do, however, not fully clarify the distinction and relation between Habermasian discourses of justification and discourses of application of law in European Private Law adjudication. The Article suggests that public sphere theory, with a basis in Fraser’s work on transnationalisation, can complement the theoretical understanding of the role of judges in European Private Law. It is submitted that the interaction between national and European levels of adjudication helps maintain transnational deliberative spheres in which the legal-political stakes behind private law can be discussed. This opens up space for the inclusion of different voices in democratic deliberations on questions of social justice. Private law adjudication may thus be considered to contribute to the initiation of discourses of justification which serve the re-imagination of a European political community.

What We Talk About When We Talk About the Duty of Care in Negligence Law: The Utah Supreme Court Sets an Example in Boynton v. Kennecott Utah Copper

Abstract Every day, state common law courts define the duty of care in negligence law. There is no formula for how courts should determine duty. Yet when judges are charged with important decisions about whether to open or shut the courthouse doors to whole categories of claimants, judges need some framework for decision. This article commends as an exemplar, the Utah Supreme Court’s decision in Boynton v. Kennicott Utah Copper, a take-home asbestos exposure case. The power of Boynton is not only the answer it provides, but also the coherent framework for analysis that Justice Constandinos Himonas’ opinion sets forth. The opinion’s framework incorporates established principles as well as important tort policies such as harm prevention. Boynton’s structure at once provides the stability and consistency of precedent befitting common law adjudication while also incorporating the public policy and pragmatic concerns that have long guided tort law’s development. Boynton’s framework achieves a similar result to the one in the Third Restatement—creating duty and no-duty rules with possibility of exception based on principle and policy factors. However, Boynton does so through traditional terminology that has aquired meaning through repeated historical application. Courts, scholars and students would be well advised to examine the Utah Supreme Court’s approach to duty analysis.

Climate Change and Statutory Construction: Administrative Law Expertise and “New” Emergencies

Responding to climate change requires multi-faceted and long-term public action, particularly in the administrative sphere. The centrality of statutory construction in climate change administrative law adjudication reflects this fact. This article is a study of how statutory construction arguments are figuring in these cases in common law jurisdictions. Arguments relate to direct and indirect climate change legislative provisions and legislative obligations concerning environmental assessment. A study of these different arguments underscores how climate change is giving rise to complex legal questions – a legal reality often overlooked in discourses about these cases as forms of strategic litigation. That legal reality points to the need to foster administrative law expertise in relation to both statutes and climate change. Such fostering requires the evolution of legal imagination.

ARBITRATION AT MUSLIM RELIGIOUS COMMITTEE COUNCILS IN SOUTHERN THAILAND

This paper analyses the function of arbitration at Patani Muslim Religious Committee Council (PMRCC) and offers mediation mechanisms as an alternative way of solving the matrimonial disputes among the Muslims in the Malay-Muslims majority areas. Conceptually, dispute resolution is being recognized as an effective way in the field of adjudication in Islamic law. Although there have been attempts to implement dispute resolution mechanisms in the Muslim Religious Committee Councils (MRCCs), no attempt so far has been made to upgrade them. To a large extent, dispute resolution has been implemented gradually since the beginning of the establishment of the councils. This paper intends to investigate the current trend and the future direction for the implementation of dispute resolution in PMRCC by exploring the available alternatives to the continued pursuit of the process of dispute resolution in PMRCC while at the same time strengthening the existing structures. Finally, the author will provide some suggestions as to how dispute resolution in PMRCC might operate. The author will also highlight the strength and weaknesses of arbitration under Thai civil law with a view toward a better legal provision for arbitration.

The Curious Case of Judicial Interpretation and Labour Flexibility in India

Abstract The economic liberalisation of the 1990s in India led to calls for increased labour flexibility. As achieving legislative reform proved difficult, the focus shifted to judicial interpretation of existing labour statutes. We present evidence that Indian courts changed their interpretations of labour laws over time, favouring flexibility at the expense of the protective purposes underlying the legislation. Our study is based on analysis of a sample of 196 judgments of senior appellate courts between 1999 and 2019 on protective provisions of the Contract Labour (Regulation and Abolition) Act 1970. The tendency of the Indian courts to support interpretations consistent with the goal of labour flexibility may be said to illustrate the role of the judiciary in promoting market-led economic development, but it also suggests a degree of bias in the courts’ approach to questions of labour law adjudication.

Foundational Principles and the Rule of Law in the European Union

In the seminal cases C-156/21 and C-157/21 (‘Budget Conditionality Cases’) the Court of Justice of the European Union demonstrated a shift in the perception of the operational functionality of foundational values of the EU, establishing that the rule of law is a founding value of the Union which represents a legal norm and imposes an obligation on the Member States to comply with its constituent elements. Such an interpretation of the CJEU, however, raises a few questions about the possibility of adjudicating the foundational values enshrined in Article 2 TEU and their extended role in the EU constitutional framework. Given the latest developments in the Court’s case law, can all the foundational values under Article 2 TEU then acquire the status of legal norms and become ‘foundational’ or ‘founding’ principles? Does the attainment of this status happen automatically, or does a value need to fulfil specific criteria in order to obtain the necessary normativity, that would in turn make it enforceable? And how will the answer to that question affect our understanding of the role and function of the Court in EU law adjudication? In our contribution, we are going to attempt to address these very questions on the basis of four different premises. In Part I, the first premise –the possibility of the values of the EU becoming normative principles – will be discussed though theoretical and practical prisms. In Part II, the notion of ‘foundational (or ‘founding’) principles and their relation to values will be explicated in light of the Budget Conditionality Cases and as EU principles of the highest constitutional rank. In Part III, and still in light of the Budget Conditionality Cases, the principle of solidarity will be analysed and presented as a foundational and legal principle of EU law. In Part IV, the idea of the CJEU as a ‘deontic’ Court will be outlined and then challenged on its grounds. This will be followed by some concluding remarks.

Las caras del derecho administrativo transnacional

Both rulemaking and adjudication of administrative law, as well as the very situations and activities that it deals with, are no longer circumscribed by the elements that define the sovereignty of States. To describe this transformation, concepts such as ‘global law’, ‘global governance’ or ‘transnational law’ have been coined. The purpose of this article is to explore the various meanings that can be enclosed in the expression‘transnationality’, the uses to which it can be put when integrated into the syntagm ‘transnational law’ and, finally, the various ways in which the notion of ‘transnational administrative law’ can be understood

The Heathrow Case in the Supreme Court: Climate Change Legislation and Administrative Adjudication

In R (on the application of Friends of the Earth Ltd and others) v Heathrow Airport Ltd the UK Supreme Court allowed an appeal against the Court of Appeal's decision that there had been a series of legal errors in the designation of the Airport National Policy Statement. This case note analyses the case from an ‘internal’ doctrinal perspective and argues that the Supreme Court could have engaged more explicitly with the legal issues that arise from climate change legislation for administrative law adjudication. For courts to adjudicate well in such circumstances they need to be prepared to develop administrative law doctrine, particularly in light of the issues of integrating climate change into public decision‐making and of scientific/policy uncertainty which lie in the background of climate change legislation.

A Jurisprudential Attempt at Rule of Law Creation: An Analysis of Theoretical Assumptions for Compulsory International Adjudication and Realistic Challenges

The concept of the rule of law, at least as understood in the discourse on national law, includes the element of compulsory adjudication. At the same time the formulated norm on universal compulsory adjudication is missing in general international law, as well as in the particular regional order regulating relations of European states. Although this gap between the concept and practice could be perceived as an intriguing theoretical and practical problem which attracts thoughtful analysis, this is not the case in contemporary debates. In the practical discourse on the development of general international law there has been no progress regarding the implementation of the concept for centuries. The progress of the European order, even if it manifests signs of an emerging norm on compulsory international adjudication, still has to be confirmed by formulated norms. The reluctance to resolve this gap between the concept and practice causes practical problems e.g., tensions between states. In the theoretical discourse the problem already exists by the very fact of insufficient scientific attention given to this problem. The central issue for a consistent legal theory is the explanation of international law without compulsory adjudication. The purpose of this contribution is to analyse the arguments in favour of compulsory adjudication in international law. The arguments are presented by following the insights on this issue provided by Kelsen and Lauterpacht. Theoretical questions to be answered are the following: a) what are the theoretical assumptions on which the concept of compulsory international adjudication is grounded; and b) what are the objections to these assumptions from the realistic approach to law.

Persistence of the ‘Codeless Myriad’: The Indian Contract Act and a Puzzle Surrounding Common Law Codification

Abstract The drafters of the Indian Contract Act, 1872 modelled the code after the will theory and deviated from the English law in a number of areas where it ran counter to the will theory. However, when one fast-forwards by a century, one finds that the Indian courts ended up construing the Act a way that it has come to be virtually indistinguishable from English contract law, warts and all. This article seeks to examine—with a study of provisions related to consideration, privity, and stipulated sums in the Indian Contract Act—the causes for dissonance between the case law and the code. It hypothesizes that the troubles for codification—which manifest in the trajectory taken by the Indian contract code—stem from certain underlying jurisprudential features of common law adjudication which neither the adherents nor the opponents of the codification project seem to have fully grasped. These features make adjudication track the antediluvian common law rather than the ‘code’ which it is supposed to supplant. At the heart of the common law is a form of normativity (normless normativity) that at odds with the conception of normativity presupposed by a code (normativity with rules).

The Limits of Behavioral Economics in Tort Law

Abstract Skeptics of rational choice theory have long predicted that behavioral economics would radically transform the legislation, adjudication, and analysis of law. Using tort law as an exemplar, this Article maps out the narrow set of conditions where substantive law can be modified to accommodate irrational decision-makers. Specifically, this Article demonstrates that if injurers are systematically biased, and the due care standard can be expressed quantitatively, and victims are unable to take meaningful precautions, then imposing punitive damages can induce irrational injurers to exercise efficient precautionary care. In all other cases, it is better that the law adopt a presumption of rationality, regardless whether individuals behave rationally in fact.

International Economic Law Tribunals and Global Social Justice

AbstractInternational courts play a key role in the attainment of global social justice objectives. The core contributions of international adjudication to global social justice are, not surprisingly, in line with the core functions of adjudication: the enforcement of substantive rights in a setting of fair procedures. Fully realizing the potential for justice inherent in this role is limited, however, by certain institutional and structural features unique to international adjudication. This article analyzes these opportunities, challenges, and background conditions in the context of international economic law (IEL) adjudication, where the results are mixed. For example, one can see in the case of the World Trade Organization (WTO) evidence of institutional and doctrinal evolution, albeit uneven, toward more substantively progressive outcomes. In the case of the foreign investment regime, however, one can see evidence of this regime retarding global social justice rather than advancing it. This makes it all the more important that all judges and arbitrators in IEL adjudications consider carefully the interpretive, remedial, and progressive roles that principles of justice can play in adjudication, particularly in the face of any deficiencies in procedural or substantive justice in the law or forum within which they operate. The work of IEL adjudication offers a number of possible sites for interpretive practices according to principles of justice, such as the resolution of disputes involves difficult interpretive questions centered around fairness and unfairness; equality and inequality of treatment; the scope of exceptions; and the meaning of evolutionary terms. Capitalizing on these opportunities and moving IEL adjudication toward global social justice requires what effective judging always requires: a vision of the goals of the institutions and regimes in question; an understanding of the social issues the regime either was created to address or touches incidentally through its actions and externalities; careful attention to the relationships among the relevant actors and their expectations; and a sophisticated understanding of the legal context and legislative history of the law in question.

Can Supranational Law Enhance Democracy? EU Economic Law as a Market-Democratizing Project

Abstract This article focuses on the economic regulatory component of the current backlash against liberal democracy and supranationalism in the European Union (EU). I identify a style of economic regulation that seeks to govern markets in the interest of insiders who are framed as vulnerable to the challenges of economic globalization – what I call rearguard economic regulation. While such regulation may be useful to reinforce national cultural attachments and a sense of belonging, it also has an anti-pluralist character that threatens markets’ emancipatory orientation. By identifying this challenge, the article seeks to defend a vision of markets as contributing to the promise of democracy, by fostering a plurality of options in each sphere of life. In the European context, I argue, EU economic law may be understood as advancing the realization of such a vision of markets. Viewed in this light, supranational and, specifically, EU economic law appear not so much as ordo- (or neo)-liberal straightjackets on national democracy but, instead, as providing mechanisms for democratization of the economy and society. Such democratizing potential is attributable to (i) the pluralist outlook of the law of EU integration, which forces member states to confront the plurality of forms of economic and social life existing within the polity and being further diversified by globalization as well as (ii) the deliberative and open-ended character of EU law adjudication, which may allow for progressive re-articulations of national market regulation.

Two questions for private law theory

ABSTRACT This article claims that private law theorists ought to bear in mind the distinction between wholesale questions about the best interpretation or justification of legal institutions, and retail questions about their internal operation – in other words, the distinction between questions about legal institutions and questions within them. This distinction has been obscured in part of recent private law theory, as recent discussions involving monism, pluralism, and private law adjudication show. The article explores these theoretical discussions and identifies some of their shortcomings. It also argues that, given the institutional character of private law, the distinction is plausible, and that – while it already underlies some contemporary discussions – it should be given much more salience, given the important contribution it could make to an adequate methodology in private law theory.

Quo Vadis Patent Litigation: Ascendis Animal Health (Pty) Limited v Merck Sharpe Dohme Corporation 2020 1 SA 327 (CC) - In Search of the Bigger Picture on Patent Validity

In October 2019 the Constitutional Court (CC) handed down judgment in the matter of Ascendis Animal Health (Pty) Limited v Merck Sharpe Dohme Corporation 2020 1 SA 327 (CC). This is its first judgment dealing with the validity of a patent and, as it concerns issues that go the heart of patent law, the judgment potentially has far-reaching implications for patent litigation in South Africa.
 At issue was the question of whether a court's finding of patent validity on one ground in a revocation hearing ought to have a bearing on a subsequent infringement hearing on the same patent, to the extent that the alleged infringer is barred from raising a different ground to attack the validity of a patent. In essence, did the attempt to do so offend the principle of res judicata? This was a direct appeal to the Constitutional Court after the High Court ruled that it did so offend, and the Supreme Court of Appeal refused leave to appeal. The Constitutional Court was deadlocked on this issue, with the result that the decision of the High Court refusing Ascendis' application to amend to introduce a new ground of attack stands, and the res judicata objection was upheld.
 The decision raises important questions about the application of the principle of res judicata in such cases where the Patents Act allows dual proceedings for revocation and infringement actions, the meaning of provisions of the Act as they relate to the certification of patent claims, and the broader public interest considerations implicated in patent law adjudication.
 This note observes that while the outcome sends a strong signal about the courts' displeasure at attempts to prosecute "repeat litigation", an unsatisfactory outcome is that patents can apparently be validated on the basis of merely one of the mandatory requirements for patent validity as required by the Act. It argues that such an outcome is undesirable and does not serve the public interest. This is because it closes the door to further challenges while potentially thousands of patents, which would not have passed the validity test had they been subjected to substantive examination, remain on the patent register.

A Formalist Theory of Contract Law Adjudication

Formalism has a bad name. It is often seen as a naive and unsophisticated approach to the adjudication of legal disputes. This negative view of formalism is widespread in American legal culture and has been particularly influential in contract law. This Article challenges this prevailing view and argues that a formalist theory of adjudication is the best approach to resolve contractual disputes. The argument of this Article starts from the assumption that contract law is not morally justified because of its enforcement of promissory rights or some other dimension of interpersonal morality. Instead, like contemporary law and economics, this Article assumes as its starting point that the law of contracts is an instrumentally justified legal institution (i.e., an institution justified because of its valuable social consequences). Starting from this assumption, this Article asks what approach to the adjudication of contractual disputes facilitates the achievement of contract law’s instrumental goals. Against the common assumption, the answer is that a formalist approach—the specific contours of which are set out below—would be instrumentally best. This is because formalism, with its commitment to an ex-post, rule-bound, doctrinalist, and modest approach to legal adjudication, has important instrumental benefits. Formalism contributes to simple, generalizable, and cost-effective decision-making; it is consistent with the institutional competence of courts; reduces the risks and overall costs of legal mistakes; and increases predictability, protecting contractual parties’ legitimate expectations. Moreover, formalism is an adequate means to deal with value pluralism and is consistent with the main values served by the law of contracts, such as autonomy and efficiency. Thus, encouraging judges to make socially optimal decisions in contractual disputes might not be the optimal strategy. The overall socially optimal outcome might, instead, be achieved through a decision procedure that directs judges to decide by applying pre-existing doctrine and expanding it incrementally. If that is the case, then, despite their disagreement about contract law’s foundations, instrumentalist and formalist theorists might agree about the narrower question of how judges should decide contractual disputes.