Dissenting Opinions Research Articles

Collegiality and Dissent in Polish Administrative Courts

This article addresses a gap in existing research by focusing on the often-neglected realm of judicial interactions and internal dynamics within specific courts concerning the phenomenon of votum separatum. We examine the forms and practices of collegiality within Polish administrative courts and their influence on judges' decisions to file dissenting opinions. Additionally, we investigate the reactions of fellow judges when a dissent is announced. Our qualitative research methodology relies on in-depth interviews to prevent the imposition of predefined categories. Participants were encouraged to recount their experiences related to composing or participating in decisions involving dissenting opinions. This approach led to the emergence of categories related to collegiality, its functions, and inherent tensions. Our findings reveal that collegiality manifests in various forms beyond panel deliberations. Notably, our research uncovers the existence of departmental meetings in provincial administrative courts where issues addressed in dissenting opinions are discussed. Furthermore, judges' perspectives indicate that the most common scenario leading to dissenting opinions arises when judges from different panels reach opposing decisions. This dilemma prompts judges to choose between adhering to the initial panel's decision or voting for a divergent position proposed by the second panel. Finally, our observations within courtrooms highlight that the ideal of the dispassionate judge does not exclude subtle expressions of surprise or disappointment. These findings enrich our understanding of judicial interactions, shedding light on the complexities of collegiality and dissent within the context of Polish administrative courts.

Epistemic Bubbles and Contextual Discordance

AbstractRecent work in social epistemology has drawn attention to various problematic social epistemic phenomena that are common within online networks. Nguyen (2020) argues that it is important to distinguish epistemic bubbles from echo chambers. An epistemic bubble is an information structure that merely lacks information or sources that would be relevant or important to the user. An echo chamber is a structure in which dissenting opinions are, not necessarily absent, but actively undermined, for example by instilling attitudes of distrust towards their adherents. Because of this, echo chambers are thought to be especially difficult to escape. In contrast, according to Nguyen, it is relatively easy to shatter an epistemic bubble: one simply introduces the missing information. In this paper, I argue that it is more difficult to shatter an epistemic bubble than has been recognised in the literature. The reason for this is the relationship between epistemic bubbles and interpretative resources. Despite their epistemic drawbacks, it is comparatively easy to gain knowledge from sources inside one's epistemic bubble because agents within a bubble share common ground. In contrast, it can be very difficult to gain knowledge from sources outside of one's bubble because interlocutors on the outside are less likely to have the shared context needed to facilitate communicative success. I argue that this problem suggests a different way to understand the nature of epistemic bubbles and our prospects for escaping them.

Dissenting opinions in international arbitration

Journal Article Dissenting opinions in international arbitration Get access John Fellas John Fellas fellas@fellasarbitration.com Search for other works by this author on: Oxford Academic Google Scholar Arbitration International, Volume 39, Issue 2, June 2023, Pages 217–225, https://doi.org/10.1093/arbint/aiad028 Published: 19 June 2023

Особое мнение судьи конституционного суда: институциональные характеристики

The institute of judicial dissenting opinions in the different fields of procedure law was actively studied from 2005 to 2021 in Russia. At the same time, dissenting opinions are regulated sparsely and fragmentarily in law. A content analysis of scientific articles about dissenting opinions helped to form a relevant selection of articles about the institute of dissenting opinions. A semantic analysis of the articles showed that dissenting opinions was studying mostly in the constitutional judicial procedure. The institutional characteristics of dissenting opinions were not studied separately. It has been proved that a dissenting opinion in a constitutional court has institutional characteristics which settled in the theory of law. The regulation of this institute is a homogeneous nature, the rules are systematically arranged, interrelated, isolated in separate articles of the law. Thus, these conclusions will help to find gaps and defects in the current regulation of dissenting opinions in constitutional judicial procedure.

Polish Administrative Court’s Dissenting Opinions in Excise Duty Cases

This article presents the results of the examination dissenting opinions submitted by judges of administrative courts in excise duty cases in the years 2004–2018. The analysis covers the judgments of all sixteen administrative courts in Poland issued in the abovementioned period. These criteria led to the selection of research material covering a votum separatum from 78 judgments issued by administrative courts on excise duty and 60 judgements issued by the Supreme Administrative Court as a result of filing a cassation appeal against administrative court judgments. By using quantitative analysis in the performed case studies, it has been determined that, for example, administrative court judges extremely rarely submit in cases of excise duty votum separatum – about five times per year. Between 2004 and 2018 out of 19,172 judgments issued only to 78 of them issued a dissenting opinion, which is more or less 0.5% of the total. In the course of case studies using qualitative analysis it has been observed, for example, that in the constituent part of the justification - the legal basis of the decision and its explanation – the SAC referred to the arguments expressed in a separate opinion in 41% of judgments.

The Impact of Retention Systems on Judicial Behavior: a Synthetic Controls Analysis of State Supreme Courts

Judicial selection methods have been reformed in many states over the 20th century. I will show how changing electoral institutions have influenced judicial behavior. To do this, I employ an original dataset and a causal inference methodology to estimate the impact of reforming a state’s selection system from partisan to nonpartisan elections on opinion writing behavior. I predict that justices, initially elected through partisan elections, will write more dissenting opinions once they face nonpartisan retention elections. The results suggest that electoral reform leads to justices authoring more dissenting opinions than they otherwise would have. Most who favor electoral reform posit that the removal of partisan labels increases the legitimacy of state supreme courts. However, if the demise of consensual norms on courts threatens their legitimacy, then electoral reform appears to have a counter-intuitive outcome. This article contributes to our understanding of how elections impact judicial behavior.

The Court of the Eurasian Economic Union: Challenges of Functioning

The Court of Eurasian Economic Union is envisaged by the Treaty on EAEC (Eurasian Economic Community) as one of the bodies of the Union. Its principal aim is to ensure uniform application of the Treaty and compliance of the agreements adopted by the Union member states as well as acts of the Union bodies with the Treaty.All member states, bodies of the Union and, in certain cases, economic entities has the right of appeal to the Court. The Court is empowered to adjudicate cases of disputes arisen within the framework of the Union as well as to issue advisory opinions. Court decisions are binding while advisory opinions are of suggestive nature. When hearing cases, the Court applies the Treaty on EAEC, international treaties of the states concluded within the framework of the Union and norms of international law.Established in 2015, the Court of EAEC appeared to be in demand among the states, economic entities and bodies of EAEC. The analysis of the activities of the Court and its legal framework enabled to identify a number of outstanding issues related to the status and organization of the activities of the Court. Thus, the competence of the Court as stipulated by the Statute does not reflect the power (as stipulated by the Treaty) of the Highest Eurasian Economic Union to appeal to the Court with a request. The limits of competence of the Court are not clearly and sufficiently denoted, the fact that might serve grounds for the unwarranted expansion thereof. The procedure for initiation of issuance of advisory opinions and termination of proceedings in such cases is not sufficiently regulated. There is no clarity as to the legitimacy of the collective dissenting opinions of judges.The analysis of the Court practice shows that in broad terms it fulfills its mandate. The decisions adopted by it enabled to elaborate critical legal positions and clarify many practical issues in such areas as functioning of the Customs Union and internal market of the Union, general principles and rules of competition, protective measures for internal market and transportation policy.

Religious Courts in the Jurisprudence of the European Court of Human Rights

AbstractReligious courts have for centuries been part of the European legal landscape. Almost all churches and religious communities have their own judicial systems, often composed of courts or tribunals ordered hierarchically. The aim of this paper is to present cases from the jurisprudence of the European Court of Human Rights, in which a religious court was involved at the stage of domestic proceedings. The twelve cases in question originate from a number of European States, from Italy to Finland and from the UK to Turkey—and in one particular case, Israel. The applicants belonged to many denominations, predominantly Christian. The Court of Human Rights (and before that, the Commission of Human Rights) has been concerned, in the main, with religious courts in terms of compliance with the requirement for a fair hearing by an independent and impartial tribunal under Article 6 of the European Convention of Human Rights. The Court has come to various conclusions—for example, it accepted that courts of the Church of England comply with the requirement, it questioned whether the cathedral chapter of the Evangelical-Lutheran Church in Finland did so, and it indirectly criticized proceedings before the Roman Rota of the Catholic Church. The most recent judgment from September 2017, Nagy v. Hungary, and in particular many associated dissenting opinions, demonstrate that the matter is worthy of study, particularly in the contemporary context of religious freedom. Nevertheless, the cases are so different that it is difficult to discern a coherent line of jurisprudence, and the Court itself hardly ever refers to its own previous judgments in this field.

Stosowanie prawa a kontrola jego konstytucyjności zdania odrębne Profesora Leona Kieresa do wyroków Trybunału Konstytucyjnego

THE APPLICATION OF LAW AND THE CONTROL OF ITS CONSTITUTIONALITY DISSENTING OPINIONS FILED BY PROFESSOR LEON KIERES REGARDING THE JUDGMENTS OF THE CONSTITUTIONAL TRIBUNALThis article provides readers with information relating to dissenting opinions fi led by Prof. Leon Kieres regarding the judgments of the Constitutional Tribunal. The intention of the author is to present Professor’s views on the application of law in various contexts. Therefore, separate subsections present a review of his ideas on the following topics: the application of law and the ability to complain to the Constitutional Tribunal, the incorrect application of law/ignorance of law and the assessment of constitutionality, the application of the unconstitutional law and the need for control, the future practice of applying the law and its constitutionality.

The Dissents of the Berch Court

The Arizona Supreme Court issues a below-average number of dissenting opinions compared to other state supreme courts. This seeks to answer how rare these decisions are, why they are so uncommon, and whether the 2016 expansion of the Arizona Supreme Court from 5 to 7 members will decrease the ability of the court to issue unanimous decisions. The article examines the court under the last Chief Justice to preside over a 5-member court; Rebecca Berch (2009-2014). It examines dissenting opinions through two frameworks: ideology and salience. Two metrics are used to determine salience; citations and newspaper coverage. The paper concludes that there is an ideological division present in cases with split decisions, but that these cases are not statistically salient. In fact, they were less likely then unanimous decisions to be cited as precedence or receive front-page newspaper coverage.

The Enduring (Muted) Legacy of Lucas v. South Carolina Coastal Council: A Quarter Century Retrospective

Decided 25 years ago this spring, Lucas v. South Carolina Coastal Council, 505 U.S. 1003 (1992), departed from previous regulatory takings cases in pronouncing a concrete rule of takings liability — applicable in cases where an imposed restriction goes so far as to deny an owner all economically beneficial uses, or to render his or her property entirely valueless. Previously the Supreme Court had said that regulatory takings claims should be assessed under the amorphous balancing test set forth in Penn Central Transportation Co. v. New York City, 438 U.S. 104 (1978). And as late as the 1987 term, the Court had disavowed categorical rules. See Keystone Bituminous Coal Assn. v. DeBenedictis, 480 U.S. 470, 495 (1987). Accordingly, many commentators were critical of Lucas, on the view that the decision was fundamentally at odds with Penn Central’s much more flexible approach. Still, the most controversial aspect of Lucas’ new per se rule was in that it wholly discounted legislative judgments. This not only elicited strenuous dissenting opinions, but prompted near-vitriolic criticism from some scholars who expressed concern that the Court had placed private interests above the public interest, in a manner that might impede the government’s ability to address pressing public concerns through regulation. The most biting critics argued that Lucas had revived the ghost of Lochner v. New York, 198 US 45, 75 (1905). But as explained in this retrospective, these concerns have proven largely unfounded. Lucas did not seriously hamstring environmental regulation, let alone municipal land use planning. And, in any event, the Lochner analogy was improper from the outset because Lucas left undisturbed the general presumption, set forth in Village of Euclid v. Ambler Realty Co., 272 U.S. 365, 391 (1926), that land use restrictions will be upheld so long as they reasonably relate to the advancement of a legitimate state interest. Moreover, as discussed in greater depth within this article, subsequent developments have since placed both Lucas and Village of Euclid in their proper context. As would only be appropriate in a retrospective analysis, I consider the full implications of Lucas for the development of our modern regulatory takings doctrine. First, I explain that Lucas was a logical outgrowth of the Court’s seminal regulatory takings case in Pennsylvania Coal Co. v. Mahon, 260 U.S. 393, 413 (1922). Second, I evaluate subsequent developments that have minimized the practical impact of Lucas for landowners and land use planners. Yet, at the same time, I also suggest that Lucas was a significant step forward in the development a more sophisticated regulatory takings doctrine, especially in explaining that takings claims are assessed with reference to those rights enuring in the title to land — as defined by objective background principles ensconced in state law. Finally, I conclude that there remains a vital need for the Supreme Court to clarify lingering questions of essential importance in Lucas claims. Ultimately, I suggest that subsequent developments have underscored the need for more concrete guidance, and judicially manageable standards, for reviewing takings claims that do not fit squarely within the Lucas framework — i.e., “partial takings claims” wherein the authorities have imposed severe land use restrictions, while allowing the owner to retain some modicum of value in the land, or to maintain some modest development opportunity.

The unilateral appointment of co-arbitrators

Contractual practices and the applicable law on the composition of three-member tribunals normally provide for each party to select a co-arbitrator unilaterally. This procedure may make the co-arbitrators appear partial and may lead to improper dissenting opinions and premature resignations, which may ultimately threaten the confidence in arbitration and arbitral awards, but the procedure does not remain common for nothing. The arbitration community therefore needs to reconsider the appointment procedure on a solid and deliberate basis, and such a basis is what the article provides. A number of experienced arbitration practitioners have advocated against the procedure for some of the reasons above, whereas other experienced arbitration practitioners have defended the procedure because of its practical advantages and underlying rationales. Each of the previous contributions to the debate sheds light on some important aspects of the procedure but leaves certain aspects and arguments unconsidered. The article approaches the appointment procedure from a neutral position. It identifies and considers the relevant rules, practices, and arguments in order to discuss the procedure’s implications and the possible legal and contractual adjustments that may change these implications. The article thus provides a theoretical contribution of practical relevance to the arbitration community.

Same-sex marriage in US and European Court of Human Rights case law: A comparison

Developments in human rights have led to the legal recognition of the right to marry as a fundamental right. However, recent social changes have caused reconsideration of just what that means. The traditional right entitles opposite sex couples to get married; this is now criticized using innovative legal analysis. Supporters of this new analysis claim that the right to marry shall be reconsidered to extend this right to same-sex couples. By way of comparison of legal reasoning of two courts, this paper tries to answer a question on potential changes in the case law of the European Court of Human Rights (ECtHR), based on the recent case law developments of the Supreme Court of the United States and ECtHR. In particular, the paper analyzes two critical cases. In the US, the landmark case is Obergefell et al. v. Hodges Director, Ohio Department of Health , 2015 where the US Supreme Court delivered a majority opinion establishing a rule for public authorities in different states to issue marriage licenses and certificates to the same-sex couple applicants. It was accompanied by strong dissenting opinions. This ruling leaded to controversy in states which do not recognize the marriage equality. In the ECtHR case law, the point of interest is Schalk and Kopf v. Austria , 2010 where the Court hesitated to recognize the right to same-sex marriage. Comparing the legal reasoning of these two courts applied in these cases, both describes the current status quo and highlights potential forthcoming changes in the position of the ECtHR.

The Normative Dimension of the Conception of the Individual Presented in Opinions of Judge Antonio Augusto Cançado Trindade of the ICJ – Fundamental Elements

The subject matter of this paper is a brief presentation of the primary elements comprising the normative conception of the individual which arises out of the views expressed by Judge Antonio Augusto Cancado Trindade from the International Court of Justice. They are contained in his dissenting and individual opinions to a range of rulings handed down by the Hague-based tribunal. Their directness, clarity and judicial merit, accompanied by the rejection of the central role of the state as the primary regulator of international public law, characteristics that result from analysis of the substantive layer of his statements, can serve at the present stage of development of international law as a starting point for a range of further considerations regarding the essence of international law, its condition, and the role it can play within the international community, alongside that of the role of international justices in shaping the international legal order.

Toleration Without Hate Speech: The Keegstra Decision, American Free Speech Exceptionalism and Locke's Letter

AbstractThis paper re-examines the issue of hate propaganda under the Canadian Charter of Rights and the US Bill of Rights. It also reconsiders the significance of Locke's Letter Concerning Toleration. What the paper attempts to show is that one strand of Locke's famous argument supports First Amendment exceptionalism and Justice Holmes's dissenting opinions in Abrams and Schwimmer, but another strand buttresses the Keegstra and Butler decisions and the Report of the Special Committee on Hate Propaganda in Canada. In the contemporary context of the debate over free speech and its limits, Lockean toleration has communitarian as well as libertarian dimensions, and the control of hate propaganda in Canada's multicultural and multinational polity becomes more clearly an important part of the liberal tradition.

Innovation in top management teams: Minority dissent, transformational leadership, and radical innovations

Research among lower level teams suggests that minority dissent stimulates team innovation. We consider the role of CEO transformational leadership in the dissent–innovation relation and study this in Top Management Teams (TMTs). We propose that transformational leaders create a psychologically safe team climate, in which dissenting opinions are used effectively to create radical innovations. Members of 36 TMTs (N = 196) completed a questionnaire to assess minority dissent, transformational leadership, and participative safety. CEOs provided data about the innovations implemented by the team. Results showed that minority dissent was positively related to the number of innovations implemented by TMTs. However, only under high levels of transformational leadership were these innovations radical. It was further found that transformational leadership had this effect because it was positively associated with participative safety. These results indicate that minorities stimulate innovativeness and that through transformational leadership CEOs can create a climate in which minority input is transformed into radical innovations. Implications for TMT performance and team innovation are discussed.

Unveiling the EU Courts’ Internal Decision-Making Process: A Case for Dissenting Opinions?

The author examines in-depth the arguments speaking pro and contra admitting dissenting (and also concurring) opinions by the judges members of the courts of the European Union. He puts into context the present “opacity” of the EU courts, which decide on the basis of an almost absolute secrecy of their deliberations, which can however be seen as a guarantor of judicial independence insofar as it balances the relatively short term of office and the possible interest of judges in their reappointment. Other aspects considered are the effectiveness of judicial procedure or the internal decision-making process, which might loose speed, persuasiveness and general acceptance if dissenting opinions are admitted. The call for allowing dissenting opinions is perhaps less strongly felt at the level of the ECJ where Advocates General’s conclusions complement the judgments.

Roncarelli’s Green Card: The Role of Citizenship in Randian Constitutionalism

This article investigates the distinct character of Randian constitutionalism and how it may have been inspired by American discourse on constitutional values. More specifically, the author examines how Justice Rand’s brand of constitutionalism is distinguishable from the more dominant strain of Diceyan constitutionalism that was prominent among Canadian jurists during the twentieth century. The author argues that the difference between Randian and Diceyan constitutionalism can be explained largely by the central role that “citizenship” played in Justice Rand’s understanding of the Canadian constitutional order. The author further argues that Justice Rand did not invent his conception of citizenship, but borrowed it from American constitutional jurisprudence regarding the Fourteenth Amendment to the Constitution of the United States. Accordingly, Justice Rand’s opinion in Roncarelli and other cases shows how his constitutional vision was shaped by a series of strong dissenting opinions concerning the now-defunct Privileges or Immunities Clause in the Fourteenth Amendment. By doing so, Justice Rand sought to install in Canadian public law the same fundamental principles of equality and non-discrimination that the American Congress intended to establish by adopting the Fourteenth Amendment.

DiscussionFoucault, Agamben, and Arbour J.’s Dissent inGosselin

InGosselin v. Quebec, the Supreme Court of Canada considered whether the Quebec legislature violated the Canadian Charter of Rights and Freedoms by failing to provide unemployed adults under the age of 30 (young adults) with the level of social assistance provided to other unemployed adults. A majority of the Court concluded that the underinclusive legislation in question was not unconstitutional. The case gave rise, however, to one of the most progressive and intriguing dissenting opinions in Canadian constitutional history-a dissent made all the more interesting by the fact it was written by a judge who would later become the United Nations High Commissioner for Human Rights: Louise Arbour. Her dissent focused on the proper interpretive approach to s. 7 of theCharter, which states: “Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.” She argued that the “right to life” contained in s. 7 entails a number of positive rights, including the right to a minimum level of social assistance. This paper argues that Arbour J.’s dissent inGosselinreveals an inherent flaw with the very concept of rights; namely, that they presuppose the state’s authority to exclude whole populations from the protection of law. The argument has four parts. Part I reads Arbour J.’s approach to the constitutional questions raised inGosselinas broadly sympathetic to Foucault’s understanding of power in the modern era. Part II claims that Arbour J.’s judgment presumes that formal legal regulations, and not other, informal mechanisms of power, chiefly bear the burden of governing life. Part III examines Agamben’s critique of Foucault to show why Arbour J.’s privileging of state governance of well being is problematic; in particular, that the greater the formalization and centralization of the mechanisms by which life is governed, the greater the prospect of exclusion of groups and classes from rights regimes altogether. Finally, Part IV explains that Arbour J.’s concession to juridification is driven by an inherent problem with rights, and that the difficulties she runs into cannot be avoided; that exclusion from the rights framework is built into the very concept of rights.

The 2003 Freshfields - Lecture Dissenting Opinions in International Commercial Arbitration: The Good, the Bad and the Ugly

The Freshfields/Queen Mary College Lecture for 2003 looks at dissenting opinions in international commercial arbitration. Such opinions are not discouraged. Indeed, under some rules of arbitration they are expressly permitted. Yet they risk breaching the confidentiality of the tribunal’s deliberations. They also risk undermining the authority of the tribunal’s award and in the process add little or nothing to the reputation of international commercial arbitration. An increasing number of international commercial disputes are being referred to arbitration;1 and they are likely to be referred not to a sole arbitrator, but instead to a tribunal of three arbitrators – unless the sums involved are not sufficient to justify this.2 Accordingly, there will generally be a link between the parties and the members of the tribunal: the parties themselves will each nominate or appoint one of the members of the tribunal as ‘their’ arbitrator3 and only the third arbitrator will be appointed ‘independently’. In addition, all three arbitrators will have their fees and expenses paid by the parties, either directly or through an arbitral institution. Arbitrators in international arbitrations are expected to behave like judges, in the sense that they are expected to be impartial and independent of the parties.4 But there is a sharp distinction between arbitrators and judges, both in the way in which they are appointed and in the way in which they are paid. It may be said (hopefully as a joke) ‘Why pay a lawyer, when you can buy a judge?’ – but the essence of a reputable judicial system is that judges are not appointed by the parties and are not dependent upon those parties for payment. At the end of an arbitration, the arbitrators are required to give their decision in the form of a written award which sets out the …