Law Judges Research Articles

Legal Judgment and Cape Colonial Law

Judgment is a complex matter, with particular nuances in the context of juridical decision-making. The following commentary explores legal judgment at a particular juncture via a Cape colonial case in 1798 and through Foucault’s often overlooked essay, “Truth and Juridical Forms.” Noting the legacy of the test and the inquiry as knowledge formations that have significantly influenced judgment in European and colonial law, this discussion highlights how legal judgment might usefully be viewed as a shifting product of local and wider power-knowledge formations. Viewing a Cape record at some historical distance enables one to see colonial legal judgment as a process of its time and place. It also enables a more general, if admittedly exploratory, comment on judgment as an authorized, violent process that cuts and countersigns itself through complex transcriptions. As well, a performative contradiction attaches indecision to the heart of legal decisions, thereby disabling apodictic judgments and intimating a potential escape from totalitarian judgmental systems.

Evaluating the Entry Barriers to the Litigation Profession in India

In the summer of 2009 a survey of law students, advocates and judges was carried out by the Research Foundation for Governance in India. The survey brought to light a disturbing statistic that only 12% of lawyers and judges believe that “bright youngsters” are joining the litigation profession. In other words, the most interested, ambitious and talented graduates are avoiding a profession which is the foundation of the justice system, a profession which is in desperate need of the best graduates the country has to offer. Following this, further surveys were carried out focusing on the bridge between legal education and “Junior” level litigation. This article comprises an analysis of the results of these surveys, and considers the reasons why capable graduates are passing up a career as an advocate. It aims to show that, despite the fact that entrance to litigation is formally undemanding, there are certain informal “barriers” preventing and dissuading most of India’s top graduates from becoming advocates in the courts. The article identifies what these “barriers” are, and presents evidence to show that they are discouraging the most qualified graduates, that is to say those who have graduated from India’s National Law Schools, from entering the profession. The article then presents a comparison with the entrance to litigation in the UK and the USA, and finishes by presenting a number of recommendations as to how the system can be improved in India.

EU Competition Law Developments in the Aviation Sector

In the twelve-month period of August 2009 to July 2010, the General Court and European Commission have adopted a number of EU competition law (antitrust and merger control) judgments and decisions in the aviation sector. In the summer of 2010, the General Court gave judgment in the appeals stemming from the prohibited Ryanair/Aer Lingus merger, in which it fully endorsed the Commission’s approach. Against this backdrop of continued judicial approval, the Commission has cleared a number of aviation mergers and alliances, making some conditional upon remedies with slot divestitures as their central feature. Important procedural steps have also been taken and final decisions are awaited in a number of ongoing competition law investigations in the aviation sector within the Commission; these include merger, alliance and cartel cases. The General Court’s judgment is an important judicial endorsement of the Commission’s decisional practice in the aviation sector. The Commission decisions of the past year confirm important refinements to the Commission’s policy with regard to market definition, competition assessment and remedies which the Commission had started to develop in earlier decisions. In this article, we first summarize these judgments and decisions then review in more detail the importance of these from a policy point of view. In so doing we seek to identify and analyse the principal trends and developments in EU competition law (antitrust and merger control) as applied to the aviation sector. This article’s concluding remarks also consider some likely developments for the year to come.

A study on the Independence theory of Administrative Law Judge in America - Focusing on a Comparison of the Independence in our Hearing supervisors -

A study on the Independence theory of Administrative Law Judge in America - Focusing on a Comparison of the Independence in our Hearing supervisors -

NEITHER FISH NOR FOWL: ADMINISTRATIVE JUDGES IN THE MODERN ADMINISTRATIVE STATE

This article examines the role of administrative adjudication in the United States constitutional system. It begins by noting that such adjudication fits uncomfortably within a system of divided powers. Administrative judges, including administrative law judges [ALJs] (who have the highest level of protection and status), are considerably more circumscribed than ordinary Article III judges. Indeed, administrative judges are usually housed in the agencies for which they decide cases, rather than in independent adjudicative bodies, and they do not always have the final say regarding the cases they decide. In many instances, the agency can appeal an adverse administrative judge’s decision directly to the head of the agency, and the agency head retains broad power to overrule the administrative judge’s determinations. In other words, the agency can substitute its judgment for that of the administrative judge regarding factual determinations, legal determinations, and policy choices. As a result, many administrative adjudicative structures involve difficult tradeoffs between independence, political control, and accountability. This article examines issues related to the status and power of administrative judges, as well as the constraints that have been imposed on administrative adjudicative authority, and explores whether those constraints continue to serve the purposes for which they were originally imposed.Cet article examine le rôle du règlement de différends dans le domaine administratif dans le cadre du système constitutionnel des États-Unis. Il note d’abord qu’une telle façon de régler les différends cadre difficilement avec un système où les pouvoirs sont divisés. Les juges administratifs, y inclus les juges de droit administratif (qui jouissent du niveau le plus élevé de protection et de statut), sont considérablement plus restreints que les juges ordinaires sous l’Article III. En effet, les juges administratifs sont d’habitude logés dans les agences pour lesquelles ils décident les cas, plutôt qu’au sein d’organismes indépendants de règlement de différends, et ils n’ont pas toujours le dernier mot dans les cas qu’ils jugent. Dans bien des cas, l’agence peut porter en appel directement au chef de l’agence une décision défavorable d’un juge administratif, et le chef de l’agence possède de vastes pouvoirs pour annuler la décision du juge administratif. En d’autres mots, l’agence peut substituer son jugement à celui du juge administratif quant aux décisions de fait, aux décisions de droit et aux choix de politiques. Par conséquent, plusieurs structures de règlement de différends dans le domaine administratif comportent des compromis difficiles entre l’indépendance, le contrôle politique et l’obligation de rendre compte. Cet article examine des questions se rapportant au statut et au pouvoir de juges administratifs, ainsi qu’aux contraintes qui ont été imposées sur l’autorité de régler des différends dans le domaine administratif, et explore la question à savoir si ces contraintes continuent à servir les buts pour lesquels elles ont été imposées originellement.

Common Law and Economic Efficiency

This essay reviews the origins and development of the debate over the “efficiency of the common law hypothesis.” The essay begins with the earliest explanation for the observed tendency of the common law as proffered by Richard Posner. It then examines the Rubin-Priest and contemporary models of demand-side models of common law efficiency and critiques thereof. It then turns to a supply-side analysis of the efficiency of the common law hypothesis, focusing on the nature of the constraints imposed on common law judges and changes in those constraints over time. This essay also examines public choice analysis of the efficiency of the common law and the Austrian economics critique of the standard neoclassical model of analysis.

Slavery and the Magna Carta in the Development of Anglo-American Constitutionalism

If English and American constitutional thought rests on one shared foundation, it is the principle that executive power, in order to be legitimate, must be subject to law. In the thirteenth century, the English jurist Henry de Bracton declared that “the law makes the King”—rather than the King makes the law—and urged, “Let the King … bestow upon the law what the law bestows upon him, namely dominion and power, for there is no King where will rules and not law” (White 1908, 268). Bracton no doubt had in mind some of the recent provisions of the Magna Carta (1215), which provided a formal codification of this principle. The rebel barons who imposed the Magna Carta on King John were animated by a desire to limit arbitrary executive power, and, in Article 39, they secured a promise from the monarchy that “no free man shall be arrested or imprisoned, or disseised or outlawed or exiled or in any way victimised, neither will we attack him or send anyone to attack him, except by the lawful judgment of his peers or by the law of the land” (Turner 2003, 231). In the fourteenth century, Article 39 was redrafted by Parliament to apply not only to free men but also to any man “of whatever estate or condition he may be,” and this process of reinterpretation continued throughout the next several centuries as Parliament expanded “the Charter's special ‘liberties’ for the privileged classes to general guarantees of ‘liberty’ for all the king's subjects” (Turner 2003, 3).

Legally green

Sometimes, it's better to have more (as opposed to fewer) judges. Worldwide, the number of courts and tribunals that specialize in environmental issues has doubled over the past decade, primarily due to increasingly complex environmental regulations and growing concerns about damages to and depletion of natural resources. Recently, a joint study by the University of Denver and the World Resources Institute analyzed the dramatic international growth of environmental courts and tribunals (ECTs). The report cites some 354 ECTs, with about 170 created since 2005, in 41 countries. Indeed, many nations are revising their existing court structure to accommodate an environmental focus. Although designed to create new avenues of access to justice and environmental governance/protection, these specialized courts are not a new concept; courts earmarked specifically for environmental jurisprudence have been around for almost a century. For example, Denmark's Nature Protection Board of Appeal, focusing on the preservation of the “natural environment”, was created in 1917. Likewise, Sweden's Water Court, which concentrated initially on water rights issues, was established in 1918. Currently, ECTs fall into three general categories: (1) specialized courts with expert judges; (2) a segment of existing judicial systems with specialized expertise and functions (a so-called “green bench”); and (3) tribunals, which can be further divided into four subclasses: those operating independently (outside of environmental agencies), dependently (within an administrative agency), in solely a non-judicial administrative capacity (usually appealable to a court), and as special commissions. Although specialized local and state environmental bodies with some judicial and quasi-judicial functions have existed in the US since the 1970s, a comprehensive national system has yet to be developed. In 1990, the US Federal Courts Study Committee reported on a study of specialized courts within the Federal system, concluding that the existing Federal Court system was adequate for dealing with the volume and complexity of environmental cases. At the Federal level, one ECT – categorized as a tribunal – is the US Environmental Protection Agency's (EPA's) independent Environmental Appeals Board (EAB). Created in 1992, the EAB is composed of a four-judge panel that acts as the final EPA decision maker on administrative appeals concerning all major statutes falling under EPA jurisdiction. A case will not ordinarily reach the EAB until an EPA Administrative Law Judge or senior EPA official (or, in some permit cases, a state agency official with delegated authority to issue Federal environmental permits) has issued a decision on the matter and someone who is adversely affected by that decision submits an appeal. Thus, the EAB's caseload consists primarily of appeals connected with EPA permit and civil penalty decisions. Petitions for reimbursement of costs incurred in complying with cleanup orders – issued under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), which was enacted in 1980 – are included within the EAB's caseload as well. The EAB is also authorized to hear appeals from various administrative decisions under the Clean Air Act's (CAA's) acid rain program and appeals of Federal CAA Title V operating permits. In all cases, decisions of the EAB are appealable to the Federal Appeals Court system. Alternatively, at the state level, for instance, the Vermont Environmental Court is a trial court with statewide jurisdiction over environmental matters. In addition to appeals – stemming from permit decisions and other actions of the Vermont Agency of Natural Resources (ANR), as well as from municipal land-use zoning and planning decisions – the Court hears enforcement cases regarding municipal land use and related actions brought by the ANR and Natural Resources Board. Almost all cases are heard by one or two of the dedicated judges with an evidentiary trial, usually in the county court in which the case arises. In Illinois, one finds a state tribunal similar to the EAB – the Illinois Pollution Control Board (IPCB). Created in 1970, the IPCB is an independent agency responsible for deciding contested environmental cases and – in a departure from some states' programs – for promulgating Illinois' environmental regulations and rulemaking functions. There are also currently more than 25 US cities and counties that have environmental courts dedicated to local environmental matters of both a civil and criminal nature, including associated areas such as health, safety, and building/zoning violations. For instance, the NYC Environmental Control Board has, since 1975, handled assorted environmental and local health and safety issues. Similarly, Shelby County's (which includes Memphis, TN) Environmental Court has dealt with all manner of environmental civil and criminal matters since 1983. If we believe former Supreme Court Chief Justice Charles Evans Hughes' statement, “The United States is the greatest law factory the world has ever known”, then the development of specialized environmental courts seems a logical product of those processes.

Section 337 Patent Investigation Management Guide

The U.S. International Trade Commission has emerged as one of the most salient patent enforcement venues in the United States. Its fast-track procedures – typically producing determinations within 12 to 16 months of initiation of an investigation – and potent exclusion remedy have brought the ITC to center stage in patent enforcement over the past several years. The ITC now conducts more full patent adjudications on an annual basis than any district court in the nation. The ITC’s six Section 337 administrative law judges (ALJs) focus almost exclusively upon patent investigations, making the ITC the only specialized trial-level patent adjudication forum in the nation. Given the importance of international trade to high technology markets, the ability to exclude goods at the border provides a valuable strategic option for a growing number of patent owners. This guide, modeled after the Patent Case Management Judicial Guide, provides comprehensive analysis of the management of Section 337 investigations.

NUEVA JUSTICIA LABORAL Y EL REEMPLAZO EN LA HUELGA

This article analyzes jurisprudence of the so called internal replacement of strikers, comparing criteria of the Supreme Court with those used by judges in the new Chilean Labor Law.

A Common Heritage: EU Environmental Law and National Judges

AbstractEnforcement of EU environmental law is one of the most prominent challenges in the field of environmental policy. In this respect, national judges have to play a key-role for ensuring that EU environmental law is correctly applied. They have to guarantee that protection of environment as provided by EU law is a reality for more than 500 millions citizens. The recent new initiatives of judges and the Commission for developing co-operation among judges in Europe are demonstrating that, more than before, national judges are open to compare and discuss practises in different Member States.

Confronting Government After Welfare Reform: Moralists, Reformers, and Narratives of (Ir)responsibility at Administrative Fair Hearings

Almost 40 years ago, the Supreme Court, in the landmark case Goldberg v. Kelly (1970), provided welfare participants with a potentially potent tool for challenging the government welfare bureaucracy by requiring pre-termination hearings before welfare benefits were discontinued or reduced. In 1996, with the passage of the Personal Responsibility Work Opportunity Reconciliation Act (PRWORA), the rights talk of Kelly was officially replaced with the discourse of individual responsibility. Using observational data of administrative hearings and interviews with administrative law judges and appellants, this study explores how fair hearings have been affected by this official reconceptualization of rights. I find that hearings are not a panacea for challenging the more punitive aspects of welfare reform, but nor are they devoid of the possibility of justice. While hearings can replicate in style and substance the inequities, rigid adherence to rules, and moral judgments that characterize welfare relationships under the PRWORA, they can also be used as a mechanism for creating counternarratives to the dominant discourse about welfare. This study identifies two types of judges—moralist judges and reformer judges—and examines how their differing approaches determine which narrative emerges in the hearing room.

Case C-303/06 Coleman v. Attridge Law and Steve Law Judgment of the ECJ 17 July 2008; Judgment of the Employment Tribunal, London, 30 September 2008

Who should bear the economic (and very human) costs of caring for a disabled child? Is this something that should be shouldered by parents alone, even if this means they cannot effectively particip...

Trade Mark Protection, Public Health and International Investment Law: Strains and Paradoxes

This article aims at exploring the antinomies and paradoxes of trade mark protection in international investment law. The negative impact of trade mark protection on public health seems counterintuitive or even paradoxical. Strong trade mark protection is usually associated with positive effects on consumer protection and, more generally, there is a sort of mystical thinking about trade marks. Brand names are deemed the keystone of a competitive economy, where individuals are encouraged to do the best they can and make their products recognizable to the public, who will determine their eventual success. However, it is a common criticism that in recent years law makers and judges have expanded the rights of trade mark owners too far, at the expense of the common weal. In some cases, trade marks have been used in an aggressive fashion by corporations in order to chill public health regulation. At the international level, this expansion ultimately determines the emergence of antinomies between intellectual property law and other branches of public international law. This article critically assesses international trade mark protection in order to verify whether such a paradox and the consequent systemic antinomies may be resolved. It also puts forward some legal mechanisms which may help policy makers and adjudicators to reconcile trade mark protection and public health in international investment law.

Domestic violence and child custody: are family court professionals' decisions based on erroneous beliefs?

If child custody decisions are based on erroneous beliefs, family courts may not be acting in the best interests of children. This study examined family court professionals' beliefs about family violence. Respondents (N = 410) of diverse professions, including child custody mediators, evaluators, and therapists, family law attorneys and judges, victim advocates and university students, completed a 10‐item multiple‐choice quiz. Results revealed low rates of correct responding, with respondents correctly answering approximately three out of 10 items on average, based on current research in the field. Overall, response rates were highly consistent with the discredited patriarchal paradigm. Shelter workers and victim advocates had the lowest average score, and men were found to have slightly higher scores than women. More troubling, students' scores were not significantly lower than those of family court professionals. Implications are discussed with respect to decision‐making in the context of child custody disputes.

China’s Uniform Provisions of Evidence of the People's Court and the Convergence of Civil Law and Common Law

With recent judicial reforms in both civil and common law jurisdictions, the distinctions between the two systems are lessening. As these reforms continue, the civil law/common law categories are loosing meaning and, except as an historical construct, may become irrelevant. One hallmark of the civil law system has been the judge who frames issues and calls and questions witnesses. Other civil law characteristics include a reliance upon written evidence, minimal use of precedent, and an indistinct trial process. Conversely, common law systems grant attorneys great control over the trial process, have complex codes controlling the introduction of evidence, rely heavily upon precedent, and have a distinct trial process. Now in many civil law countries, attorneys are taking a lead role in calling and questioning witnesses. At the same time, common law judges are becoming more active in framing issues and controlling the litigation process. China, a traditionally civil law country, is in the process of developing and adopting rules of evidence that are partially inspired by the evidence rules in place in the United States, a common law country. In developing and implementing the Uniform Provisions of Evidence, China’s reform effort mirrors the merger in civil law and common law countries that is taking place in so many other countries. This article focuses on the historical distinctions between civil and common law countries, the merger that is taking place between the two systems, and China’s Draft Uniform Provisions of Evidence as an example of this harmonization of the civil and common law systems.

Accountability and Independence: Administrative Law Judges and NLBR Rulings

There is an inherent tension in the delegation of authority to bureaucratic agencies between accountability and independence. Authority is delegated to agencies because elected representatives typically do not possess the level of expertise to make detailed policy decisions. The reliance on this expertise leads to a great deal of independence for agencies. However, too much independence can lead to a lack of accountability to the democratic representatives of the people. While the normative debate might never be resolved, we examine the degree of accountability and independence of Administrative Law Judges of the National Labor Relations Board by examining their decisions from 1991 to 2006. Using ordered logit we examine the influence of policy preference, law and political control to determine the extent of ALJ independence and accountability. We find elements of accountability and independence present. We find that ALJ’s are comparable to Federal District Court judges in that they use ideology in their rulings and are also subject to hierarchical control by higher courts. In addition we find that they exhibit bureaucratic tendencies in that they are subject to control by some elements of the political system, particularly Congress.

Contitolaritŕ del rapporto di lavoro nel gruppo cartatterizzato da "unicitŕ di impresa"

- In the groups of companies, whenever determinate factors denote the existence of a "single economic entity", labour law judges, traditionally, disregard the general rule of separate personalities of companies. However, the fraus legi can no longer be regarded as an adequate key to understand this judicial mechanism, which, on the contrary, seems to be used by judges for the scope of general regulation. This paper, based, to some extent, on comparison either with company law or with the U.K. and Spanish legal systems, suggests a different interpretation of the aforementioned judicial mechanism, which appears to be more consistent with a regulatory approach. The conclusion is that, with regard to group of companies constituting a single economic entity, the legal concept of employer should be redefined in the light of the concept of joint-employment.Key words: Groups of companies; Single economic entity; Ascription of legal responsibilities; Joint-Employers; Solidarity; Labour law, Commercial and Company law.Parole chiave: Gruppi di imprese; Unicitŕ di impresa; Impresa di gruppo; Imputazione dei rapporti di lavoro; Contitolaritŕ; Solidarietŕ; Rapporti fra diritto del lavoro e diritto commerciale.

Abstraction and the Rule of Law

This article tackles two issues: the nature of law's judgment and what, if anything, might be said in its favour. As to the first issue, the article reminds lawyers of the obvious, namely, that law's judgment is abstract, elucidating both what this entails and why it may be thought problematic. The main burden of the article is to consider what might be said in favour of law's abstract judgment. Only one family of arguments, part of a wider but still not all-encompassing class, are considered here: arguments from the rule of law ideal. Three different arguments from the rule of law are examined, the conclusion being that two of three cannot provide unproblematic and unambiguous support for law's abstract judgment.

The Hidden 'Judiciary': An Empirical Examination of Executive Branch Justice

Administrative law judges attract little scholarly attention, yet they decide a large fraction of all civil disputes. In this Article, we demonstrate that these executive branch judges, like their counterparts in the judicial branch, tend to make predominantly intuitive rather than predominantly deliberative decisions. This finding sheds new light on executive branch justice by suggesting that judicial intuition, not judicial independence, is the most significant challenge facing these important judicial officers.