Principle Of Deference Research Articles

Legal consolidation and practice of law of the renvoi institute in the romano-germanic legal system

The article is devoted to the study of the renvoi doctrine on the example of the countries of the Romano- Germanic legal system: France, Germany and Italy. The author analyses in detail the decisions of the courts that have established precedents for the application of this doctrine. The author points out that France is considered to be one of the founding states of the renvoi doctrine and the term «renvoi» became world famous after the Forgo judgment. The author analyses the cases in which the French courts have applied the principle of deference to resolve conflicts of law. Examples of changes in French legislation that excluded the rules of deference for decisions in inheritance matters are given. The author analyses in detail the French statute on reference to the legislation of other states and the rules of interpretation of legislation in cases where it refers to France or other countries. The process of creation and implementation of the Code of Private International Law in France is considered.
 The author highlights the practical aspects of the use of deference in France and notes that, despite the existing doubts and problems, deference is becoming increasingly acceptable and widespread in the practice of private international law. The author analyses the peculiarities of German conflict of laws in the context of situations where a backward reference to the law of a third state which is not a member of the European Union (EU) is made.
 It is established that in the practice of German courts, the concept of implied deference is used to achieve justice and ensure predictability and stability in the resolution of international disputes. It makes it possible to preserve the principles of foreign law while using national law for this purpose.
 The author examines the issue of retroactive reference in Italian law, which requires that a court apply conflict of laws rules to a case on its own initiative. The article provides examples of a court decision in a case where the issue of application of the renvoi doctrine arises.

Indifference to Anti-Humean Chances

AbstractAn indifference principle says that your credences should be distributed uniformly over each of the possibilities you recognise. A chance deference principle says that your credences should be aligned with the chances. My thesis is that if we are anti-Humeans about chance, then these two principles are incompatible. Anti-Humeans think that it is possible for the actual frequencies to depart from the chances. As long as you recognise possibilities like this, you cannot both spread your credences evenly and defer to the chances. I discuss some weaker forms of indifference which will allow anti-Humeans to defer to the chances.

CONSTITUTIONAL AND LEGAL CHALLENGES IN THE ADMINISTRATIVE STATE

AbstractFollowing the Roosevelt administration’s implementation of New Deal programs in the 1930s, the federal courts began to interpret the Constitution in a way that accommodated the rise of the “administrative state,” and bureaucratic policymaking continues to persist as a central feature of American government today. This essay submits, however, that the three pillars supporting the administrative state—the congressional delegation of Article I powers to the executive branch, the combination of powers within individual administrative entities, and the insulation of administrators from political control—might be reconsidered by the courts in the near future. After showing that the constitutionality of the administrative state has come under recent judicial scrutiny, the essay turns to the administrative law principle of deference, and argues that a reassessment of the Chevron doctrine seems imminent. Finally, the essay examines federal courts’ heavy use of “hard look” review as a means of curtailing agency discretion during recent administrations, and concludes that this judicial practice stands in uneasy tension with republican principles.

Steadfast Views of Disagreement are Incoherent

Abstract In this paper, I argue that Steadfast Views of peer disagreement - a family of views according to which standing firm in the face of peer disagreement can be rationally permissible are incoherent. First, I articulate two constraints that any Steadfast Views of disagreement should endorse: (i) Steadfastness's Core (ii) The Deference Principle. I show that (i) and (ii) are inconsistent: they cannot both be true. My argument, briefly put, is that one cannot rationally treat one's peer's opinion as unconditionally relevant to a hypothesis, H, but conditional on the supposition of a disagreement, irrelevant to H. Because Steadfast Views endorse a set of mutually inconsistent propositions, I conclude that Steadfast Views are incoherent

Deference and Uniqueness

Deference principles are principles that describe when, and to what extent, it’s rational to defer to others. Recently, some authors have used such principles to argue for Evidential Uniqueness, the claim that for every batch of evidence, there’s a unique doxastic state that it’s permissible for subjects with that total evidence to have. This paper has two aims. The first aim is to assess these deference-based arguments for Evidential Uniqueness. I’ll show that these arguments only work given a particular kind of deference principle, and I’ll argue that there are reasons to reject these kinds of principles. The second aim of this paper is to spell out what a plausible generalized deference principle looks like. I’ll start by offering a principled rationale for taking deference to constrain rational belief. Then I’ll flesh out the kind of deference principle suggested by this rationale. Finally, I’ll show that this principle is both more plausible and more general than the principles used in the deference-based arguments for Evidential Uniqueness.

Responding to public health crises

This paper examines how the cognitive framework of collective mindfulness complements tenets of user experience in public health crisis communication. Collective mindfulness attunes an organization into preemptively identifying and avoiding potential failures that can have adverse safety and public relations outcomes. To illustrate the connection between this cognitive framework and user experience, this article shares findings from a case study with the 2014 Johns Hopkins Medicine Ebola Crisis Communications Team, whose primary goals were to improve the usability of Ebola personal protective equipment protocols and to prepare healthcare providers for a U.S. Ebola crisis. Based on a grounded theory investigation, this article suggests that the collective mindfulness principles of deference to expertise, resilience, and refusal to simplify complex procedures informed the team's ability to avoid a catastrophic communication failure. Additionally, these principles allowed the team to attune to key user experience principles, including addressing user context and user limitations.

The Simple Solution to Auer Problem

This Article provides empirical answers to several pressing questions in the ongoing debate over the Auer doctrine — i.e., controlling judicial deference to an agency’s interpretation of its own regulations. The study is based on an original dataset of variables attendant to 1,118 agency interpretations across 1,048 published U.S. Courts of Appeals opinions. The dataset includes all federal circuit court decisions that invoked Auer or related cases from 1993 to 2013. In order to allow for a comparative analysis, the author employed simple random sampling to create samples representative of populations of U.S. Courts of Appeals opinions that invoked the other two primary deference principles: controlling Chevron deference to an agency’s interpretation of its own enabling statutes and non-controlling Skidmore respect. For each interpretation, the author recorded identifying information and whether the government’s interpretation was accepted by the court. Also, each interpretation was put into one of twelve categories of administrative procedure. The results of this study point to the following notable conclusions. First, the data indicate that Auer deference has narrowed in U.S. Courts of Appeals over the last decade, in the wake of a number of Supreme Court opinions that were critical of the doctrine. Second, U.S. Courts of Appeals give Auer deference to interpretations falling across the continuum of administrative procedure in a surprisingly balanced manner. Overall, federal circuit courts applied Auer deference to virtually the same number of interpretations resulting from administrative processes that carry the force and effect of law as they applied the doctrine to processes that do not. Finally, the data allow for a simple modeling of the administrative burden of reforming Auer deference. Under conservative assumptions, implementing an Auer Step Zero would lead to an estimated difference in the government’s win rate amounting to a single interpretation per U.S. Court of Appeals every eight years across 66 administrative agencies identified in the study. These results belie claims that disrupting the doctrine would lead to chaos in regulatory agencies and federal courts.

Steadfastness, deference, and permissive rationality

Recently, Levinstein (Philos Phenomenol Res, 2015) has offered two interesting arguments concerning epistemic norms and epistemic peer disagreement. In his first argument, Levinstein claims that a tension between Permissivism and steadfast attitudes in the face of epistemic peer disagreement generally leads us to conciliatory attitudes; in his second argument, he argues that, given an ‘extremely weak version of a deference principle,’ Permissivism collapses into Uniqueness. However, in this paper, I show that when we clearly distinguish among several types of Permissivism (what I call Permissivism\(_{1}\), Permissivism\(_{2}\), and Permissivism\(_{3}\)), we can see that any type of Permissivism fits well with steadfast attitudes. Further, even though Levinstein’s ‘extremely weak version of a deference principle’ does rule out a possibility for some types of Permissivism (Permissivism\(_{1}\) and Permissivism\(_{2}\)), it is still compatible with the other type of Permissivism (Permissivism\(_{3}\)), so we may regard at least that version of a deference principle as a viable position in connection with that particular type of permissive rationality.

Judicial Review of Regulatory Expert Models

Scientific, statistical, and economic models are crucial inputs to regulatory agencies' decision making. Examples of areas where this is the case include environmental regulation, financial regulation, economic regulation, and antitrust. However, competing models yielding different inferences may represent the same phenomenon. On that basis, interested parties may challenge the regulator’s choice of model in courts making the models subject to judicial review. The standard of review may be more or less intense according to the principle of deference. In this article, principles for judicial review adaptable to various standards of review are discussed. It is argued that the Daubert-criteria, known from US legal procedure, can be applied to reliability check models under the principle of deference. In choosing the level of deference in the review of inferences, and conclusions, it is argued that a court should take into account those elements that justify the principle of deference. The core issue here will be a trade-off as to whether the judicial review by a less precise court overall will produce a better result than a potentially biased regulator.

Boundaries of the Investigative Power of the Legislative Council Under an Executive-Led Government in Hong Kong: Table 1:

Parliaments in many countries possess the power to conduct investigations which include compelling the attendance of witnesses before it. The limit of such power varies from jurisdiction to jurisdiction and must be determined having regard to the unique features of the relevant parliamentary system. Given that Hong Kong was previously a British colony, its parliamentary system has been influenced by the United Kingdom’s Westminster system. In addition, Hong Kong has adopted a ‘separation of powers’ governmental model and, to this extent, its governmental system resembles that of the United States of America. At the same time, the government of the Hong Kong Special Administrative Region is executive-led and operates under the principle of ‘One Country, Two Systems’. Within this context and by reference to both foreign experience and the peculiarities of the local system, this paper seeks to establish the boundaries of the investigative powers of Hong Kong’s Legislative Council through an examination of (i) the conferral of parliamentary investigative powers; (ii) the ancillary nature of parliamentary investigative powers; (iii) the impact of the principle of deference; and (iv) the role of the courts in adjudicating challenges to investigative powers.

Human rights and international investment arbitration

Recent investment arbitration disputes have raised several human rights related issues, which do not form part of the traditional scope of investment treaties. Obligations in investment treaties can impair human rights if interpreted too broadly during arbitration. Therefore, it is necessary to determine whether investor-state dispute settlement (ISDS) tribunals are adequately equipped to resolve treaty disputes where the human rights obligations of states clash with a state’s investment treaty obligations. In some states, such as South Africa, there are competing interests between the state’s constitutional rights obligations and treaty-imposed investment obligations. In seeking to balance these competing interests and to ensure that the constitutional rights as well as responsibilities of the state are not undermined, this article proposes an interpretive approach in ISDS tribunals that applies a hybrid approach that considers both domestic and international law. The paper argues that the use of global administrative law principles, particularly the principle of deference, can achieve the consideration of both domestic and international law. In building this argument, the author explores the emerging trends in ISDS, such as new rules on transparency and public participation and the scope of their application, which has led to the claims that ISDS arbitration is undergoing a legitimacy crisis. This paper proposes an alternative approach where ISDS tribunals defer to domestic law when determining the content and scope of treaty obligations.

Deciding to Defer: The Importance of Fairness in Resolving Transnational Jurisdictional Conflicts

The crossborder movement of people, goods, and information frequently results in legal disputes that come under the jurisdiction of multiple states. The principle of deference – acceptance of the exercise of legal authority by another state – is one mechanism to manage such jurisdictional conflicts. Despite the importance of deference in international law and cooperation, little is known about the causes of variation in its use. In this article, we develop a theory of deference that focuses on the role that domestic institutions and norms play in assuring procedural and substantive fairness. We test this theory in an original dataset concerning accession practices in the Hague Convention on International Child Abduction. Our findings offer considerable support for the idea that states evaluate partners on the likelihood that they can offer a fair legal process. Exploring empirically the efforts against parental child abduction, we offer a nuanced account of the link between domestic institutions and norms and international cooperation. This account suggests that greater attention should be paid to the use of deference as a mechanism to manage the conflicts posed by globalization.

Deciding to Defer: The Importance of Fairness in Resolving Transnational Jurisdictional Conflicts

AbstractThe cross-border movement of people, goods, and information frequently results in legal disputes that come under the jurisdiction of multiple states. The principle of deference—acceptance of another state's exercise of legal authority—is one mechanism to manage such jurisdictional conflicts. Despite the importance of deference in international law and cooperation, little is known about the causes of variation in its use. In this article, we develop a theory of deference that focuses on the role that domestic institutions and norms play in ensuring procedural and substantive fairness. We test this theory in an original data set concerning accession practices in the Hague Convention on International Child Abduction. Our findings offer considerable support for the idea that states evaluate partners on the likelihood that they can offer a fair legal process. Exploring empirically the efforts against parental child abduction, we offer a nuanced account of the link between domestic institutions and norms and international cooperation. This account suggests that greater attention should be paid to the use of deference as a mechanism to manage the conflicts posed by globalization.

Public Litigation and the Concept of "Deference" in Judicial Review

The Constitutional Court is the highest court in all constitutional matters and thus decides appeals from other courts in disputes involving natural and juristic persons and the state, including criminal matters, if the matter is a constitutional matter or an issue connected with a decision on a constitutional matter. The Court may hear any matter, if the Constitutional Court grants leave to appeal because the matter raises an arguable point of law of general public importance that ought to be considered by that court. The Constitution makes it clear that courts are independent and subject only to the Constitution and the law. All persons to whom and organs of state to which a court order or decision applies are bound by it. It is important that the courts employ a standard of judicial review that is compatible with constitutional principles and values. The Constitutional Court subscribes to a standard of “deference” in judicial review. This principle recognises the need to protect the institutional character of each of the three arms of government in a manner that will prevent their ability to discharge their constitutional role being undermined. The principle of deference concerns the function of the judge in mediating between the law and legislative and executive politics. Around the world, litigation or judicial review has become immensely popular as a treatment for the pains of modern governance. South Africa is no exception to this phenomenon. This activism by litigation consists of efforts to promote, impede, or direct social, political, economic, or environmental change, or stasis. Organisations and individuals often disregard or distrust the political process and approach the courts to advance their own interest and to protect their own rights. Litigants seek to enforce constitutional principles and values that affect others as directly as them and that are valued for moral or political reasons and are independent of economic interests. The relief claimed aims to restructure the public organisation or conduct by the legislature and/or executive to eliminate a threat to constitutional principles and values enshrined in the Constitution. The South African Constitution has provided the public litigant with the freedom to bring matters before the courts not possible in terms of the common law. This has led to a departure from the traditional conception of litigation and consequently the remedies that courts have to offer. Courts have the duty to intervene in constitutional violations, but they have a prerogative to decide when and to what extent to intervene when such a violation occurred within the domain of other branches of government. The decision on whether to intervene and then, to what extent, will depend on the standard of judicial review the courts employ. Davis proposes a culture of justification for judicial review that takes into account the democratic prerogative of the elected arms of government to fashion and implement public policy within the framework of the Constitution. This culture accepts that the role of judicial review is to foster a culture of democracy, and that the judiciary must commence from a standpoint that it operates within a governmental system that is based upon a doctrine of separation of powers. Although Davis’s work is meant as only as a framework for a coherent theory of judicial review, the question of justification and participation advances other constitutional values such as openness, non-discrimination, accountability and participation to judicial scrutiny. It is submitted that the culture of justification meets the tenets of judicial review as set out by both Mureinik and Dyzenhaus and finds application in an objective interpretation of constitutional provisions and values. The culture of justification ensures that the government justifies its decisions to the governed; it promotes transparent government and allows the citizens to participate in decisions affecting them.

Changes in Agenciess Interpretations of Their Own Regulations and Auer Deference

Perez v. Mortgage Bankers Association, a case that is currently pending before the Supreme Court, involves the validity of a D.C. Circuit rule relating to the Administrative Procedure Act notice-and-comment requirements for rulemaking. Under the APA, substantive rules are subject to the notice and comment requirements but interpretative rules are not. Under this D.C. Circuit rule, if an agency has adopted an interpretation of one of its own substantive regulations in a guidance document that would not itself otherwise be a substantive rule, the agency must nevertheless use notice-and-comment procedures to change the interpretation. Although the D.C. Circuit has not done so, this rule can be justified based on the Auer deference principle under which agency interpretations of their own regulations are given deference similar to the deference that is given under Chevron to agency statutory interpretations. Under Auer, an agency interpretation of its own regulation can be viewed as having the force of law, and as a result should be viewed as itself a substantive rule, since a substantive rule is a rule with the force of law. As a substantive rule, notice-and-comment procedures are required.

Standard of Review in WTO Dispute Settlement

What does the term of means in regards to WTO Dispute Settlement Understanding? What are the various approaches to the standard of review in regards to DSU? How principally the deference principle, the de-novo principle and the objective assessment test, differ from each other so far as standard of review in WTO DSU is concerned? What is the underlining jurisprudence behind Article 11 of the DSU?These are some of the moot questions which the Researcher will attempt to answer in this research paper.

U.S. Supreme Court Amicus Brief of Law Professors in Support of Respondents, Conkright v. Frommert, No. 08-810

Amici curiae law professors filed this brief to urge the U.S. Supreme Court to affirm the decision of the Second Circuit Court of Appeals and not to import inappropriate administrative law deference principles into ERISA denial of benefit claims under Section 502(a)(1)(B). The brief argues that the Court should reject Petitioners' effort to engage in serial attempts to reinterpret its pension plan and also reject Petitioners' attempt to introduce administrative law deference into the ERISA benefit claims process. Such an approach would be inconsistent with the language and intent of ERISA and Supreme Court precedent.

Depoliticizing Administrative Law

A large body of empirical evidence demonstrates that judicial review of agency action is highly politicized, in the sense that Republican appointees are significantly more likely to invalidate liberal agency decisions than conservative ones, while Democratic appointees are significantly more likely to invalidate conservative agency decisions than liberal ones. These results hold for both (a) judicial review of agency interpretations of law and (b) judicial review of agency decisions for arbitrariness on questions of policy and fact. On the federal courts of appeals, the most highly politicized voting patterns are found on unified panels, that is, on panels consisting solely of either Democratic or Republican appointees. On the Supreme Court, politicized administrative law is also unmistakable, as the more conservative justices show a distinctive willingness to vote to invalidate liberal agency decisions, and the more liberal justices show a distinctive willingness to vote to invalidate conservative agency decisions. Indeed, it is possible to rank justices in terms of the extent to which their voting patterns are politicized. The empirical results raise an obvious question: What might be done to depoliticize administrative law? Three sets of imaginable solutions have promise: (1) self-correction without formal doctrinal change, produced by a form of debiasing that might follow from a clearer judicial understanding of the current situation; (2) doctrinal innovations, as, for example, through rethinking existing deference principles and giving agencies more room to maneuver; and (3) institutional change, through novel voting rules and requirements of mixed panels. An investigation of these solutions has implications for other domains in which judges are divided along political lines, and indeed in which nonjudicial officials show some kind of politicized division or bias.

Living in the Past: The Kelo Court and Public-Private Economic Redevelopment

This Article analyzes the Supreme Court’s most recent foray into redevelopment - the controversial case of Kelo v. City of New London. Over angry dissents by the Court’s conservatives, an unenthusiastic Justice Stevens validated New London’s condemnation of single-family homes for a mixed-use commercial development. The case ignited afirestorm of opposition. Property rights advocates, moving beyond the dissenters’ arguments, introduced legislation in most states and in Congress which would terminate the use of condemnation to assist economic redevelopment for any purpose. This Article critiques both the majority opinion and dissents in light of the modern practice of public private economic redevelopment. It argues that the majority opinion fails to elucidate the economic and social activity involved, and that the facts in Kelo are unrepresentative of modern redevelopment - a productive and necessary cure for land use market failure in center cities. This public-private collaboration catalyzes the revitalization of downtowns, facilitates infill development, and produces much of the nation’s affordable housing. Where such redevelopment requires the use of eminent domain, its exercise is essential against economically motivated owners who refuse to participate in the redevelopment and hold out for untenable prices. The exercise of eminent domain rarely involves condemnation of residential uses, and when so directed, now requires relocation and produces compensation that usually exceeds fair market value. This Article proposes that modern public-private economic redevelopment commingles public and private uses, public and private ownership, and public and private gain in ways that renders inapposite and un-administrable both the majority’s view of land use and the dissenters’ proposed litmus tests for acceptable use of eminent domain. Finally, this Article contends that Justice O’Connor’s dissent clashes inexplicably with principles of deference she herself articulated in the Court’s last pronouncement on redevelopment, that the dissenters’ policy complaints are decades out-of-date, and that the America the Justices would reinstate lies in the irretrievable past.

Human Rights Protection in Australia: Interpretation Provisions and Parliamentary Supremacy

In Ghaidan v Mendoza,1 the English Court of Appeal held that s 3 of the Human Rights Act 1998 (UK) c 42 required that a previously enacted UK statute be interpreted so as to preclude express or implied discrimination against same-sex couples, consistently with art 14 of the European Convention on Human Rights.2 The Court considered that s 2(2) of the Rent Act 1977 (UK) c 42, which referred to a person living with the original tenant 'as his or her wife or husband', should not be read to exclude same-sex couples. Buxton LJ stated that the principle of deference to the will of Parliament did not assist in deciding the case.3 Section 2(2) was interpreted as applying to a person living with a tenant 'as if they were his or her wife or husband',4 despite the fact that the UK Parliament intended it to be restricted to partners of the opposite sex. The position would be different, however, if the Commonwealth Parliament enacted a provision similar to the one under consideration in Ghaidan v Mendoza, despite the enactment of internationally recognised rights in the Sex Discrimination Act 1984 (Cth).5 The traditional doctrine of parliamentary supremacy would require Australian courts to give effect to the later Act, even if it abrogated rights contained in the Sex Discrimination Act. These different approaches to legislation that affects the