Final Court Research Articles

Executive Order-Presidential Records

By the authority vested in me as by the Constitution and the laws of the United States of America, and in to establish policies and procedures governing the assertion of executive by incumbent and former Presidents in connection with the release of by the National Archives and Records Administration (NARA) pursuant to the Records of 1978, it is hereby ordered as follows: Section 1. Definitions. For purposes of this order: (a) refers to the Archivist of the United States or his designee. (b) refers to the National Archives and Records Administration. (c) Presidential Records Act refers to the Records Act, 44 U.S.C. 2201-2207. (d) refers to the NARA regulations implementing the Records Act, 36 C.F.R. Part 1270. (e) Presidential records refers to those documentary materials maintained by NARA pursuant to the Records Act, including Vice records. (f) Former President refers to the former during whose term or terms of office particular were created. (g) A question of executive privilege exists if NARA's disclosure of might impair national security (including the conduct of foreign relations), law enforcement, or the deliberative processes of the executive branch. (h) A final court order is a court from which no appeal may be taken. Sec. 2. Notice of Intent to Disclose Records. (a) When the Archivist provides notice to the incumbent and former Presidents of his intent to disclose pursuant to section 1270.46 of the NARA regulations, the Archivist, using any guidelines provided by the incumbent and former Presidents, shall identify any specific materials, the disclosure of which he believes may raise a substantial question of executive privilege. However, nothing in this is intended to affect the right of the incumbent or former Presidents to invoke executive with respect to materials not identified by the Archivist. Copies of the notice for the incumbent shall be delivered to the (through the Counsel to the President) and the Attorney General (through the Assistant Attorney General for the Office of Legal Counsel). The copy of the notice for the former shall be delivered to the former or his designated representative. (b) Upon the passage of 30 days after receipt by the incumbent and former Presidents of a notice of intent to disclose records, the Archivist may disclose the covered by the notice, unless during that time period the Archivist has received a claim of executive by the incumbent or former or the Archivist has been instructed by the incumbent or his designee to extend the time period for a time certain and with reason for the extension of time provided in the notice. If a shorter period of time is required under the circumstances set forth in section 1270.44 of the NARA regulations, the Archivist shall so indicate in the notice. Sec. 3. Claim of Executive Privilege by Incumbent President. (a) Upon receipt of a notice of intent to disclose records, the Attorney General (directly or through the Assistant Attorney General for the Office of Legal Counsel) and the Counsel to the shall review as they deem appropriate the covered by the notice and consult with each other, the Archivist, and such other executive agencies as they deem appropriate concerning whether invocation of executive is justified. …

The Status of Criminal Libel in Grenada After Worme v. Commissioner of Police

In January 2004, the Privy Council, the final court of appeal for all British Caribbean states, held that a criminal libel statute providing for the two-year imprisonment of publishers libeling government officials was constitutional and consistent with a democratic society. Over the years, the constitutionality of criminal libel laws in the United States has been attacked with only marginally greater success than the Grenadian law. This article provides a background to the development of criminal libel laws in the two regions; traces the 2004 decision, the threats and actions brought against the media by the Grenadian government in its aftermath; and discusses the likely effect that it could have on the law of libel in the British Caribbean.

The Caribbean Court of Justice: A New Judicial Experience

The inauguration of the Caribbean Court of Justice in April 2005 represented the culmination of aspirations in earlier years to establish a court of last resort for the Caribbean Region to replace the Judicial Committee of the Privy Council (The Privy Council) which was and still is for most Commonwealth Caribbean jurisdictions, the final court. These aspirations were endorsed by the legal profession through the Organisation of Commonwealth Caribbean Bar Associations (OCCBA) over thirty years ago, although the idea of such a court was not an original one having been contemplated early in the last century. The court was envisaged as a Caribbean Court of Appeal with an appellate jurisdiction hearing appeals from domestic appellate courts and an original jurisdiction to interpret regional treaties.

Trafficking of Minors in Croatia: Present Situation

The offence of trafficking in persons, as a modern form of slavery, was introduced in Croatian Criminal Code four years ago. During this time there have been nine criminal procedures running against perpetrators who were charged with trafficking of minors. According to the official criminal records of Croatian National Committee for the Suppression of Trafficking in Persons the Public Prosecutor desisted from prosecution after investigation in the 2006 case in front of the County Court in Zadar. In the same year the Public Prosecutor decided not to prosecute a case in front of the County Court in Zagreb bearing in mind the accused were already being prosecuted for the same offence in Italy. Seven cases are still pending. Taking into account the fact there have been no final court judgments, and therefore, that these cases could have various outcomes, the main aim of this article is to analyze pending cases and to determine the modalities for committing the offences. Consideration will be given to cases with excessive threats or use of force against the minors and cases in which minors were deceived by perpetrators. Special attention will be given to endogenous and exogenous causes of trafficking of minors in Croatia. Impact and possible consequences of the offences on victims will be detected.

Jim Bolger

This article analyses the contribution made to New Zealand’s independence by Prime Minister Jim Bolger (1990-98). Bolger’s contribution encompassed six significant direction-setting policies; the building of 'Our Place,’ Te Papa;his reform of the honours system; his expressing confidence in our judiciary by advocating that our final court of appeal should be a New Zealand one, not the Privy Council, a reform later enacted by the Clark government; his government’s significant advancement of the Crown’s responsibility to right past injustices against Maori; his preparatory leadership in relation to MMP; and his sign-posting of the inevitability of New Zealand becoming a republic. A seventh element that underpins these considerable achievements, Jim Bolger’s character,reinforces the crucial interaction between ideas, people and leadership that characterises any independence journey and its important milestones. Criticism of 'The Statute of Westminster Act 1931', adopted in 1947, as an independence keystone is made and the British Nationality and New Zealand Citizenship Act 1949 is viewed as a comparably significant constitution and independence milestone. A future New Zealand republic, central to Jim Bolger’s independence achievements and legacy, is also discussed within the context of how New Zealand can conduct a nationwide discourse over becoming a republic, a discourse characterized by civility, mutual respect and mutual compromise.

Gewaltenübergreifende Bindungswirkung. Zur Maßgeblichkeit von Gerichtsentscheidungen für Behörden

In Germany, government agencies are fully bound by statutory law. However, they are only partially bound by court decisions interpreting that law. The most important binding factor that agencies face in this context derives from the concept of <italic>res judicata</italic>. <italic>Res judicata</italic> means that court decisions have binding effect only on those parties that were involved in a given court proceeding, e.g. the government agency and the citizen vindicating his rights. If, after a final court ruling, the agency starts a new administrative proceeding, either on its own initiative or pursuant to a request of another citizen, <italic>res judicata</italic> does not apply. According to German legal doctrine, this is true even if the new administrative proceeding concerns the identical right an individual just defended successfully against the government agency in court. Cases like this occur, for example, after a company successfully sued the Trademark Office to register one of the company's trademarks. If a competitor then challenges the merits of that registration, conventional wisdom has it that the Trademark Office is permitted to decide anew and unrestrictedly whether the trademark is to be deleted from the register, despite the court's previous ruling that ordered the agency to register that very trademark. We, in contrast, claim that court decisions have a binding effect on agencies if three conditions are met: (1) the new administrative proceeding is conducted by the agency bound by the previous ruling; (2) both the underlying facts and legal circumstances remain unchanged; and (3) the (new) applicant does not claim any right of his own that he did not have the opportunity to defend in the previous court proceeding. We call this a binding effect “across the branches” <italic>(gewaltenübergreifende Bindungswirkung)</italic>, as the executive branch, represented by the government agency, is bound by the judicial branch, represented by the court. We derive this binding effect from two fundamental principles, separation of powers and the rule of law. While separation of powers grants administrative agencies initial authority to interpret relevant statutes, courts remain the ultimate arbiters. Additionally, the rule of law mandates that courts' decisions be final.

Judicial Accountability and Judicial Independence: An Empirical Study of Individual Case Supervision

This article explores the tension between judicial independence and judicial accountability in China, by examining the development, advantages and disadvantages of supervision of final court decisions by people's congresses, the procuracy and the courts themselves. Based on a systematic empirical study, the article concludes that while major reforms are required, eliminating individual case supervision (ICS) at this point would deny justice to tens of thousands of people every year. The politics of whether to eliminate or reform ICS - and if so how - illustrate the difficulties of China's legal reform project, why reforms in developing countries all too often fail, and why reforms based on transplants of foreign models frequently fail to take root.

Court fines entomologists for illegal collecting in India

Court fines entomologists for illegal collecting in India

Exercising political power reasonably

For liberal political philosophers the notion of ‘reasonableness’ has provided a moral and legal standard for judging the acceptability and, by extension, legitimacy of government behaviour. In order for a government directive to constitute a legitimate obligation on citizens, it must be compatible with the dictates of reason and treat all citizens in a reasonable manner. Arguably, such an approach achieves its most powerful presentation (to date, at least) in the theories of ‘political’ liberals, who typically assert that reasonableness must be the ‘final court of appeal’ in relation to decisions concerning matters of public import – i.e., those that place demands upon all citizens of the polity. According to political liberals, only by adopting and maintaining a governance framework that assigns primacy to reasonableness is it possible to obtain and preserve the desired protection against the abuse of political power. The purpose of this essay is to offer a brief review of the ‘reasonableness’ paradigm promoted by political liberals (in particular), and in the course of doing so, identify and assess a number of difficulties that would seem to undermine its ability to achieve its stated goal.

The Caribbean Court of Justice and the Legal Profession: Promoting a Caribbean Jurisprudence*

The author submits that the main purpose in the establishment of the Caribbean Court of Justice (CCJ) is to promote the development of a Caribbean jurisprudence, based on the Commonwealth Caribbean's common historic, political, economic and cultural experiences and mutual history. * This is an adaptation of an address given to the Eastern Caribbean Bar Association on 21 September 2007, in Grenada. ** Justice Adrian Saunders is a Judge of the newly established Caribbean Court of Justice. He is a graduate of the University of the West Indies and the Hugh Wooding Law School in Trinidad. He was called to the bar in St. Vincent and the Grenadines in 1977 and practiced in that country as a Barrister and solicitor. He was the senior partner in the firm of Saunders & Huggins when, in 1996 he was appointed a Judge of the Eastern Caribbean Supreme Court (ECSC). The article examines the role of final appellate courts, noting that judges of such courts must often choose between alternatives which are perfectly capable of being defended as rational, reasonable and consistent with ‘the law’. Factors such as life experiences, socialisation, and backgrounds all play a role in determining the choices that are ultimately made. This is why, the author underscores that ‘it is so important to have a diverse Bench, to have Judges from different backgrounds’. For judges to come close to steering the right course they must have an understanding of the society that gives rise to the legal disputes. They must be grounded in that society. In this respect, the author argues, it is remarkable that the evolution of certain landmark judgments relating to human rights, particularly capital punishment, have been rendered by British judges, sitting and residing in England. The article, which draws on a wealth of jurisprudence, proceeds to examine the original jurisdiction of the CCJ and the role of the Bar in defending the integrity of the Court and the justice system as well as in enhancing the quality of judgments. Finally, it emphasises the need to promote Caribbean jurisprudence and access to local judgments. In this regard, it is lamented that many truly outstanding judgments of Caribbean judges do not receive the recognition they should because, if there is an appeal, they become almost automatically buried beneath the judgments of the higher court.

Reshaping Commonwealth Caribbean Jurisprudence: From Pratt and Morgan to Joseph and Boyce

This contribution reopens the discourse on Pratt and Morgan v R from the perspective of the changing jurisprudence in the Commonwealth Caribbean. We note a new attitude, perhaps a slight shift towards greater acceptance of international human rights norms in assisting to define our constitutional laws. The tendency to construct Commonwealth Caribbean constitutions in terms of the existing common law has already been noted. The jurisprudence is changing and the Privy Council is developing constructs which allow it to accommodate itself to the change. Not the least significant is that the Caribbean Court of Justice in AG and Others v Joseph and Boyce has had an opportunity to make its contribution to this debate, and has given a very important indication of where the jurisprudence is heading. Those who had expected the new Caribbean Court of Justice to lead the charge in support of the death penalty will no doubt be sorely disappointed. As appointments to the US Supreme Court have demonstrated over the years, judges with security of tenure can be remarkably free of any expectation the political directorate may have had of them. It is a question of some importance whether or not a judge's security of tenure can be effectively protected if the existence of the court to which he belongs is not protected. The Judicial Committee of the Privy Council answered that question in the negative, and it was on that answer that Jamaica's attempt to establish the Caribbean Court of Justice as its final court foundered. Nevertheless, what we have seen from the Caribbean Court of Justice's first outing is a bold court willing to take on the difficult issues.

Considering Reasonableness

Despite the relative ease and regularity with which it is used by policymakers and the functional role that it often plays in the policy development process, the concept of reasonableness has essentially been overlooked by public policy scholars in their analysis of the factors influencing the development of public policy. However, the maintenance of the analytical status quo is likely to prove increasingly difficult. As the issues that governments must address become increasingly complicated and controversial and it becomes correspondingly more difficult to identify easily or clearly the most appropriate response to associated problems, policymakers will inevitably be forced to place greater reliance on the concept of reasonableness as the final court of appeal when seeking to determine the attractiveness and acceptability of policy decisions. Accordingly, it seems ‘reasonable’ to suggest that greater, explicit consideration be given to the concept of reasonableness and the role it does and should play in the development of public policy. This article simultaneously offers both a brief overview of the current situation with respect to the meaningful consideration of the concept of reasonableness by public policy scholars and practitioners and a preliminary argument for a reconsideration of the analytical status quo.

Igneous Textures: On the Kinetics behind the Words

That igneous textures can be collectively described, classified, and related to magma composition, style of emplacement, and spatial position speaks deeply to the existence of a specific set of fundamental kinetic processes controlling all magma crystallization. Textures record magma life history, telling the most recent, local conditions of cooling and also where the magma has been. Yet it is largely a mystery how silicate melts crystallize, how they become what they are, and, especially, how the final texture relates to the early transient textures more closely linked to the governing kinetics of nucleation and growth. These rich and intriguing processes can be understood by deciphering textures. This is done by first dismantling and quantifying them, then by rebuilding them and simulating magma crystallization and transport, and last by taking the results to the final court of appeal, the rocks themselves.

What Explains Dissent on the High Court of Australia? An Empirical Assessment Using a Cointegration and Error Correction Approach

This article examines the factors influencing the annual dissent rate on the High Court of Australia from its first full year of operation in 1904 up to 2001 within a cointegration and error correction framework. We hypothesize that institutional factors, socioeconomic complexity, and leadership style explain variations in the dissent rate on the High Court of Australia over time. The institutional factors that we consider are the Court's caseload, whether it had discretion to select the cases it hears, and whether it was a final court of appeal. To measure socioeconomic complexity we use the divorce rate, urbanization rate, and real GDP per capita. Our main finding is that in the long run and short run, caseload and real income are the main factors influencing dissent. We find that a 1 percent increase in caseload and real income reduce the dissent rate on the High Court of Australia by 0.3 percent and 0.6 percent, respectively, holding other factors constant.

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New Final Appellate Courts in the Commonwealth and the Doctrine of Precedent*

All those participating in this conference share the common heritage of the common law of England and English legal institutions. There was a time when imperial law was imposed on our countries by ...

Improving credibility by delegating judicial competence—the case of the Judicial Committee of the Privy Council

It is argued that government credibility is an important resource and that it can be improved by delegating decision-making competence beyond the nation-state. It is hypothesized that such delegation should result in higher income and growth. Some former British colonies retained the Judicial Committee of the Privy Council as their final court of appeals even after independence. This court is thus taken as a natural experiment to test our hypothesis. It turns out that retaining the jurisdiction is indeed significant for explaining economic growth.

Improving Credibility by Delegating Judicial Competence - The Case of the Judicial Committee of the Privy Council

It is argued that government credibility is an important resource and that it can be improved by delegating decision-making competence beyond the nation-state. It is hypothesized that such delegation should result in higher income and growth. Some former British colonies retained the Judicial Committee of the Privy Council as their final court of appeals even after independence. This court is thus taken as a natural experiment to test our hypothesis. It turns out that retaining the jurisdiction is indeed significant for explaining economic growth.

Pravno nevaljani dokazi u krivičnom postupku - iskaz okrivljenog i tehnički snimci činjenica

The most important action of the criminal court is presentation of evidence and it may be undertaken during the whole criminal procedure. This was the main reason why this court action was placed in the part of the new Criminal Procedural Law of Montenegro related to general issues, instead of placing it in the part with investigation like in earlier solutions. The reasons for those changes as well as for repeal of some previous solutions/articles of the Criminal Procedural Law, in accordance with which some illegally presented evidences could have been used in the criminal procedure even for rendering the final court decision, were based on the fact that it was necessary to implement some solutions from modern criminal procedural law of the European countries as well as to implement relevant solutions from European Declaration on Human Rights, in order to improve human rights and to reach European human right standards. Therefore, all illegal evidence cannot be used anymore in rendering court decisions, have to be excluded from the case file and to be used never again under any circumstances. This paper pays special attention to the statement of the accused and technical records (audio-video) of criminal facts, which are the two most important sources of illegal evidence.

Making it through the Criminal Justice System: Attrition and Domestic Violence

This article explores the process of attrition, where domestic violence cases fail to make it through the criminal justice system and do not result in criminal conviction. The article draws on the hitherto most detailed study of such attrition in the UK. The research, carried out across the Northumbria Police Force area, explored the quantitative attrition of domestic violence cases, from reporting to the police to final court outcome, contextualising this via the experiences of individuals (mainly women) victimised by domestic violence as well as the perspectives and practices of the police, prosecutors, the courts and non-criminal justice agencies.