Exercise Of Judicial Discretion Research Articles

Doomed from the Let‐Go: Postincarceration Strategies for Managing Monetary Debt

Monetary sanctions are an integral and expanding part of the criminal legal system, even though most of the population under community supervision are indigent. Reentering citizens often leave imprisonment with considerable debt that accumulates from court costs and fees, supervision fees, child support arrears, motor vehicle, and other forms of debt. In this article, we examine how an indigent population of reentering citizens make sense of the totality of their debt, prioritize paying their debts, and develop strategies to increase their personal autonomy within the constraints of family dependence, debt, and state supervision. We track 30 men released from an Alternative Incarceration Facility in Cleveland, Ohio and use case studies to illustrate the strategies men adopted within a set of personal contingencies, including the nature of their debt, the extent of family support, their personal skills and resources, access to jobs, probation requirements, relationships with probation officers, and the exercise of judicial discretion. Our study demonstrates how risk‐taking is baked into the criminal legal system and how this keeps reentering citizens in a perpetual state of carceral vulnerability.

Judicial discretion: problematizing the ascertainment and application of customary law by formal courts and relevant theories (Nigeria and South Africa)

Conceptualizing legal education in Africa according to western legal thought and theories has been a major setback in the manner that indigenous African law has been theorized in legal scholarship. This affects how it has been interpreted and applied by courts in its exercise of judicial discretion which is a field that is yet to be adequately explored with respect to the application of indigenous law by courts in a pluralistic legal system. This paper presents, based on empirical data, a theoretical basis for the utilization of judicial discretion in the ascertainment and application of indigenous law by formal courts in Nigeria and South Africa and offers an analysis using relevant legal doctrines of centralism, realism and pluralism. At the core of the analysis is Hart’s extrapolation of the conception of law and the place of judicial discretion and how indigenous law fits into it despite its exclusion by Hart.

Juvenile transfer status and the sentencing of violent offenders: a test of the liberation hypothesis

ABSTRACT A small but growing body of research has explored how juveniles transferred to the criminal court are sentenced relative to adult defendants, but the findings from this literature have been complex and inconsistent. A noteworthy line of inquiry that to date has received only limited attention is how crime type might moderate these relationships. Theoretically, according to the liberation hypothesis, primary offense type corresponds closely with the exercise of judicial discretion, and court actors’ decision-making is most likely to be informed by extralegal offender-based attributions in the disposition of less serious cases. The goal of the present study is to extend this literature by exploring the main and interactive effects of juvenile status and crime type on adult court punishment outcomes among defendants sentenced for seven violent felony offenses. Using data from Florida circuit courts (N = 198,362), the findings show that, regarding sentencing to prison, transferred youth are consistently punished more severely than adult defendants among the three least serious crime types. However, juveniles receive shorter prison terms than adults for most violent offenses, and these disparities are greatest among murder, manslaughter, and robbery/carjacking cases.

Admissibility of confession evidence: Principles of hearsay and the rule of voluntariness

The common law test of voluntariness has come to be associated with important policy rationales including the privilege against self-incrimination. However, when the test originated more than a century ago, it was a test concerned specifically with the truthfulness of confession evidence; which evidence was at that time adduced in the form of indirect oral testimony, that is, as hearsay. Given that, a century later, confession evidence is now mostly adduced in the form of an audiovisual recording that can be observed directly by the trial judge, rather than as indirect oral testimony, there may be capacity for a different emphasis regarding the question of admissibility. This article considers the law currently operating in Western Australia, Queensland and South Australia to see whether or not, in the form of an audiovisual recording, the exercise of judicial discretion as to the question of the admissibility of confession evidence might be supported if the common law test of voluntariness was not a strict test of exclusion.

Exploring the unintended consequences of implementing electronic monitoring on sentencing in Norway

ABSTRACT Electronic monitoring (EM) allows for the tracking of individuals under correctional supervision as they reside in the community. In Norway, EM was implemented as a ‘front-end’ diversionary pilot programme in 2008. As in Sweden and Denmark, EM was a programme managed by the correctional service, not as a sanction delivered by the courts. Quasi-experimental evaluations of the intervention suggest that EM led to meaningful reductions in recidivism and costs in Norway. However, the extent to which the availability of a new, non-custodial correctional programme had unintended consequences for judicial sentencing practices is less apparent. We employ the Focal Concerns theoretical framework to examine why the exercise of judicial discretion may have changed after the implementation of the EM programme. We find evidence of an increase in the number of qualifying sentences to prison at the expense of fewer non-custodial sentencing decisions, suggesting that judges modified their sentencing practices to facilitate EM participation. Results show that as many as 750 people might have been incarcerated rather than being given a non-custodial sentence because of the availability of the EM programme. Considering this increased scope of impact for correctional programming, implications for individual offenders and future reform are explored.

Тенденции развития законодательного регулирования апелляционного обжалования в гражданском процессе

The article is devoted to the directions of improvement of appeal proceedings in the civil process, identified in the analysis of legislation and practice of its application, in connection with the reform of the judicial system. The author not only considers the questions of implementation of the court of appeal of its powers, justifies the need for disclosure of criteria allowing the direction of the court of appeal the case for a new trial in the court of first instance, the limits of choice in the exercise of judicial discretion outside of the petition of appeal, the improvement of term of making a petition of appeal, eliminate of the term “appeal determination”, enshrined in the law of procedure of familiarization with the act court of appeal and its further complaints, but also indicates ways of solving them.

Judges and Lawmaking Authority: The New Brazilian Civil Procedure Code and the Limits of How a Civil Law Judge Could Act As a Common Law Judge

This article intends to compare two distinguished legal systems, by the perspective of the role of judges and how this officer of the court applies and interprets the law. This paper focuses on how and when judges are allowed to create the law within their judicial decisions. In this sense, we analyze how application and interpretation of the law fit within the legal concept of discretion and, in case of adopting the possibility in which the judicial authority carries out this prerogative. Also, it is taken into account how different judicial discretion comes from legislative and administrative discretion. Taking law application and interpretation as an exercise of judicial discretion is a key element to allow us to identify the way the judges create the law in civil law and common law systems. This reasoning will lead us to find elements to understand the purpose and length of a trend seen in countries in Latin America such as Brazil and its new Civil Procedure Code, which focuses on importing means from common law system to increase the efficiency of Judiciary Power, in order to attend social needs.

Judges and Lawmaking Authority: The New Brazilian Civil Procedure Code and the Limits of How a Civil Law Judge Could Act as a Common Law Judge

This article intends to compare two distinguished legal systems, by the perspective of the role of judges and how this officer of the court applies and interprets the law. This paper focuses on how and when judges are allowed to create the law within their judicial decisions. In this sense, we analyze how application and interpretation of the law fit within the legal concept of discretion and, in case of adopting the possibility in which the judicial authority carries out this prerogative. Also, it is taken into account how different judicial discretion comes from legislative and administrative discretion. Taking law application and interpretation as an exercise of judicial discretion is a key element to allow us to identify the way the judges create the law in civil law and common law systems. This reasoning will lead us to find elements to understand the purpose and length of a trend seen in countries in Latin America such as Brazil and its new Civil Procedure Code, which focuses on importing means from common law system to increase the efficiency of Judiciary Power, in order to attend social needs.

Judicial Discretion in Light of the New European Rules on Jurisdiction in Civil and Commercial Matters: Reform or Continuity?

The free movement of judgments can be presented as a necessary corollary of the European internal market where goods, people, services and capital move freely. The first step towards the adoption of harmonized private international law provisions was made in 1968 with the conclusion of the Brussels Convention on Jurisdiction and the Recognition and Enforcement of Judgments in Civil and Commercial Matters. In 1999, the entry into force of the Treaty of Amsterdam transferred the competence to legislate in the field of judicial cooperation in civil matters from the Member States to the European Union. This led to the transformation of the 1968 Brussels Convention, an instrument of inter-governmental cooperation, into a Regulation: Regulation (EC) 44/2001 on Jurisdiction and the Recognition and Enforcement of Judgments in Civil and Commercial Matters, colloquially known as ‘Brussels I’. Subsequently, a Recast (reform) of the Regulation was agreed in 2012 which substantially amended Brussels I, and will replace it from 10 January 2015. This paper evaluates the extent to which the new jurisdiction rules of the Brussels I Recast impact on the exercise of judicial discretion by courts in the EU. This question is closely linked with the nature of Brussels I as a civilian instrument. Part I will consider how the activism of the European Court of Justice (now Court of Justice of the EU) had reinforced the civilian imprint of the Brussels I Regulation. Part II will assess whether the Recast is breaking away from what has been, for a period, considered the ‘systematic dismantling of the common law of conflict of laws’ by the EC (now EU). The article concludes that under the Brussels I Recast, the domain of both anti-suit injunctions and forum non conveniens has, if anything, been even further reduced. However the Recast has not only corrected some of the unwelcome consequences of an overly civilian interpretation of the Brussels I Regulation but simultaneously introduced, on the whole territory of the EU, a harmonised mechanism of jurisdictional regulation based on judicial discretion (which was hitherto available only in a few Member States). On this aspect, the Recast has the great merit of promoting (at least on paper) a better coordination between European and third States procedures, and one that may be easier to anticipate in third countries.

REANALYSING INSTITUTIONAL AND REMEDIAL CONSTRUCTIVE TRUSTS

AbstractIt is often said that English law does not impose “remedial” constructive trusts because it is manifestly inappropriate and fundamentally unjustified to impose trusts through the exercise of judicial discretion and with retrospective effect. This paper observes the definitional deficiencies in this understanding, and reanalyses constructive trusts in terms of the rights which they give effect to. This understanding reveals that English law sets its face against the exercise of discretion in relation only to some “remedial” constructive trusts and not others, and that the perceived difficulties with remedial constructive trusts are often exaggerated. It ends by noting some crucial implications of the re-analysis for the future development of the law.

Permitting Voluntary Euthanasia and Assisted Suicide: Law Reform Pathways for Common Law Jurisdictions

End of life law and policy reform is the subject of much discussion around the world. This paper explores the pathways to permissive legal regimes that have been tried in various common law jurisdictions. These include legislation, prosecutorial charging guidelines, court challenges, jury nullification, the exercise of prosecutorial discretion in the absence of offence-specific charging guidelines, and the exercise of judicial discretion in sentencing. In this paper, I describe these pathways as taken (or attempted) in five common law jurisdictions (USA, UK, Australia, New Zealand, and Canada) and reflect briefly on lessons that can be drawn from the recent experiences with law reform in Canada. Through its bird’s eye view, it highlights the remarkable number and variable nature of past attempts at law reform and suggests a shifting tide. It debunks some common myths that have either limited or stymied reform in the past. Finally, it illuminates jurisdictional similarities and differences and lessons learned by those who have gone before so as to inform choices about pathways to pursue for those who will seek to advance a law reform agenda in the future.

Permitting Voluntary Euthanasia and Assisted Suicide: Law Reform Pathways for Common Law Jurisdictions

<p><em><span style="font-family: Times New Roman; font-size: medium;">End of life law and policy reform is the subject of much discussion around the world. This paper explores the pathways to permissive legal regimes that have been tried in various common law jurisdictions. These include legislation, prosecutorial charging guidelines, court challenges, jury nullification, the exercise of prosecutorial discretion in the absence of offence-specific charging guidelines, and the exercise of judicial discretion in sentencing. In this paper, I describe these pathways as taken (or attempted) in five common law jurisdictions (USA, UK, Australia, New Zealand, and Canada) and reflect briefly on lessons that can be drawn from the recent experiences with law reform in Canada. Through its bird’s eye view, it highlights the remarkable number and variable nature of past attempts at law reform and suggests a shifting tide. It debunks some common myths that have either limited or stymied reform in the past. Finally, it illuminates jurisdictional similarities and differences and lessons learned by those who have gone before so as to inform choices about pathways to pursue for those who will seek to advance a law reform agenda in the future.</span></em></p>

The Exercise of Judicial Discretion in Relation to Applications to Enforce Arbitral Awards under the New York Convention 1958

The Exercise of Judicial Discretion in Relation to Applications to Enforce Arbitral Awards under the New York Convention 1958

Judicial Discretion and the Problem of Dirty Hands

H.L.A. Hart’s lost and found essay ‘Discretion’ has provided new insight into the issue of how legal systems can cope with indeterminacy in the law. The so-called ‘open texture’ of law calls for the exercise of judicial discretion, which, I argue, renders judges susceptible to the problem of dirty hands. To show this, I frame the problem as being open to an array of appropriate emotional responses, namely, various senses of guilt. With these responses in mind, I revise an example from Michael Walzer’s original analysis in a way that highlights purely personal sacrifices in solutions to dirty hands situations. I then turn to an account of moral emotions in legal decision-making and show how judges—in failing to advance all interests—might be left with a unique sense of guilt. With an application of this account to Hart’s legal positivism, it can be seen that a judge’s hands are often dirtied in resolving borderline cases. If discretion leaves judges in situations where they must do wrong in order to do right, Hart’s endorsement of a closure view of wrongdoing will lead to difficulties in how he can explain the presence of moral remainders in jurisprudence.

Securing Children’s Best Interests While Resisting the Lure of Simple Solutions

The best-interest-of-the-child standard for child custody policy and decisions has benefits and hazards, the latter related to the exercise of judicial discretion in custody disputes. This article examines alternatives to the status quo, including the primary parent presumption, the approximation rule, shared parenting, an exact even split of custodial time, sole custody for couples labeled as in high conflict or those with young children, the friendly parent presumption, and decisions that defer to children’s stated preferences. Each alternative promises simpler paths to securing children’s welfare, but some have more support than others in the social science literature.

The Influence of Personal Values on Legal Judgments

The non‐legal factors that influence judicial decisions have been the subject of extensive debate. Theoretical and empirical work has focused on factors including political ideology, activism, attitudes, and demographics. Personal values are related to these factors and are central to decision making. The study described in this article translated theories and techniques from psychological research to examine the role of personal values in judicial decision making. A novel method of assessment of value expression in legal opinions revealed a different pattern of values expressed in the majority and minority opinions of a case that divided the Supreme Court. An empirical study of legal academics extended this analysis and highlighted the significant influence of personal values on legal decisions. The value:decision paradigm provides a new framework to analyse judicial decision making, judicial division, and judicial discretion and has significant implications for judicial diversity.

THE LAW OF DAMAGES IN MALAYSIA: HAS THE LAW ON THE MULTIPLIER FOR THE LOSS OF DEPENDENCY BEEN SETTLED?

The law applicable in a claim for loss of support by the dependants of a deceased victim in Malaysia is found in the relevant provisions contained in the Civil Law Act 1956, amended in 1984. It would have been thought that with the passing of these statutory amendments, the legislature had removed the judicial discretion, if any, with finality in the law being established. However, that was not how the courts interpreted these amendments to be and the resulting conflicting judicial approaches that evolved was observed to have created confusion in the application of these enacted provisions. The article examines the position of the law in Malaysia and in particular, the appropriate multiplier to be adopted when calculating the loss of support and how the law evolved through the exercise of judicial discretion observed from the number of reported judgments since the amendments. The article concludes that the recent judgments of the Federal Court may not have resolved these concerns observed in this area of the law.

Judicial Discretion in ECCC Decisions on Pre-trial Detention against the Backdrop of the Case-law of the International Criminal Tribunals

AbstractThis article examines the issue of the exercise of judicial discretion in deciding motions for pre-trial release at the Extraordinary Chambers in the Courts of Cambodia (ECCC) through a comparative prism of other existing and past International Criminal Tribunals (ICTs). The issue of pre-trial detention has been one of the most contentious in international criminal justice, with many questioning the ICTs' insistence on abiding by the self-imposed principle of "detention is the rule, pretrial release is the exception". This article offers an answer to the question of the extent to which the relevant statutory pronouncements have led to the creation of the foregoing principle, and the extent to which such has been achieved by the statutorily prescribed or the extra-statutory exercise of judicial discretion. Further, this article examines the extent to which the relatively newly established ECCC have followed the patterns of judicial discretion in deciding motions for pre-trial release created by its predecessors.

Judicial Enforcement of the Right to Protection from Arbitrary Eviction: Lessons from Mandelaville

A case study of the exercise of judicial discretion in the enforcement of the right to protection from arbitrary evictions in s 26(3) of the Constitution of the Republic of South Africa, 1996. The article analyses analysing the implementation and impact of court-sanctioned forced eviction and relocation of Mandelaville, a community of some 6000 informal settlers in Johannesburg, during early 2002. The analysis emphasises the adverse impact of the relocation on access to livelihoods and social services in the relocated community. It is argued that the forced relocation could have been prevented, or its impact ameliorated, had the judge ordering the eviction exercised his discretion in a manner which took more seriously the needs and vulnerabilities of South Africa’s urban poor. Enormous power is assigned to judges in adjudicating applications for the eviction of large numbers of very poor people. That power needs to be exercised with a deep sensitivity to the particular needs of South Africa’s poor.

Gender Dynamics and Judicial Behavior in Criminal Trial Courts: An Exploratory Study

In this study, we explore the role of gender in the exercise of judicial discretion in local criminal trial courts. We studied the courtroom behavior of men and women judges in four states and the District of Columbia, attempting to determine whether gender plays a meaningful role in judicial behavior A large body of theoretical literature posits the existence of a so-called feminine voice that conditions women’s perspectives on social reality and moral questions and their attempts to resolve conflicts. In short, we sought to uncover the potential workings of this theoretical proposition in trial courts. We arrive atfour central findings. First, male and female voice traits were exhibited by both men and women judges. Second, women judges were more likely to rely on the prosecutors in issuing their rulings, while men judges were more likely to side with the defense. Third, women were likely to employ inclusive and procedural judicial styles. And fourth, men were more likely to employ both the consensual and the authoritarian styles.