Law Judges Research Articles

O contato com o público importa?

Este artigo apresenta os resultados parciais de uma pesquisa que o Núcleo de Estudos da Violência da Universidade de São Paulo vem desenvolvendo sobre a legitimidade das instituições no Brasil, dentre elas o Judiciário. Parte-se do conceito de procedural justice, de acordo com o qual a legitimidade é resultado da inter-relação entre os cidadãos e os servidores públicos, bem como da noção de auto-legitimidade, que considera a crença que os agentes possuem no direito de exercer sua autoridade. Neste trabalho, explora-se a auto-legitimidade construída por juízes de diferentes áreas do direito, a partir de entrevistas realizadas na cidade de São Paulo. As análises preliminares indicam duas concepções antagônicas sobre autoridade judicial, expressas nas posições elaboradas pelos juízes sobre a importância do contato entre eles e a população: uma – mais comum entre juízes da área cível – de que o direito é uma atividade técnica mediada por seus operadores e que prescinde do contato com o público; e outra – expressa por alguns juízes da área criminal – de que o contato com as pessoas envolvidas no processo e sua situação particular é importante para produzir decisões corretas e justas.

Assessment criteria in relocation cases: An exploratory study of Spanish family court Judges

This descriptive study determined whether Spanish family law judges (N = 30) use the criteria proposed in the scientific literature and jurisprudence to assess cases of the relocation of minors after the breakdown of their parents’ relationship. Our results showed that the judges consider the criteria to be relevant in guiding their decision-making process, the most valued criteria being the psychological ones (parents’ psychological adjustment; relationship between the minor and each parent; the right of the child to maintain personal relationships with both parents). However, we observed trends in the judicial resolutions, with a third of the judges tending to authorize relocation requests and another third tending to deny them, indicating the presence of biases or presumptions.

The Limits of the International Judicial Function of the Mexican Federal Judiciary

Mexican judges are increasingly acting as international law judges. Their international judicial function includes a basic understanding of a judicial function per se: dispute resolution through the application and interpretation of legal rules by an independent and impartial judicial body. The international character of this work depends on the recourse to international law as a legal basis for the dispute settlement of the particular cases brought to their jurisdiction. Mexican judges are performing an international judicial function when they interpret international law norms and principles, when they guarantee private persons’ rights and duties under international law, and when they assess the conformity of domestic legislation with the international law commitments of the Mexican state. However, at present, Mexican judges are not behaving as ordinary judges of all international law. The place of international law in the Mexican Constitution, the slow democratization of the Mexican presidential regime and the deference of Mexican judges to the executive in foreign affairs help explain the constraints upon the international judicial function as experienced by Mexican judges. The general context of the Mexican political regime impacts the role of the federal judiciary with regards to the promotion of respect for the rule of law, domestically and internationally.

Judicial Independence & National Judges in the Recent Case Law of the Court of Justice

Judicial independence did not only become more visible in the recent case law of the Court of justice but has also been analysed as a systemic parameter of the Union. This article discusses a sample of three cases, Associação Sindical dos Juízes Portugueses, Achmea, and L.M., to assess the notion of judicial independence as applying regarding the national judges in the judicial system of the Union. Judicial independence, as a notion of EU law, is primarily a constitutional requirement presumably deferent to Member States’ standards and pursuing the proper functioning of the Union’s judicial system, namely its effectiveness. However, the recent case law testifies the emergence of a common EU standard of judicial independence, which does not only apply as a minimum standard throughout the Union but also affects the national legal orders. Ultimately, the analyses of the paper point out a curious harmony regarding judicial independence between the principles of effectiveness of Union law and of effective judicial protection under that law without clarifying their articulation. Judicial Independence, Effective Judicial Protection, Rule of law, Structural Requirement, effectiveness, common standard, Judicial System of the Union, Constitutionalization of the EU.

Tinjauan Hukum Islam tentang Pembebanan Mut’ah dan Nafkah Iddah terhadap Suami yang Murtad (Studi Kasus Putusan Pengadilan Agama Nganjuk No: 1830/Pdt.G/2016/PA.Ngj)

When obligations do not work in a balanced manner in fostering a household, disputes and arguments often occurs which will result in the termination of a marriage. Divorce can occur by various factors in a marriage. One of the factors that divorce causesare one among apostate husbands or wives, which if the marriage continues to be maintained will cause loss. As a result of the divorce because the husband has lapsed into marriage, the marriage is immediately finished, and if the marriage is fulfilled, a wife will not get mut'ah and a living from her husband, but it is different from being practiced in a religious court whose husband is burdened with giving mut ' ah and livelihood iddah. So with the existence of these problems the author will review the judges' considerations in considering their decisions and reviewing Islamic law. This study aims to find out about the definition of Mut'ah, the livelihood of iddah and apostasy, to find out the legal basis used by the judge in deciding cases and what according to the views viewed from Islamic law.To answer these three problems, the researcher used a qualitative approach with field research that collected data directly from the source. In qualitative research, the researcher is faced directly with the respondent, namely a direct interview by the Judge in the Nganjuk Religious Court.Based on the research, even though the husband apostatized and married the husband was still obliged to give mut'ah and livelihood because even though the apostate's husband would not obstruct the husband's obligation to his wife, and the divorce divorce case was equated with ordinary divorce divorce. Judges use the basis of article 149, 117, with reasons for divorce article 116 letter (f) and (h) KHI (Compilation of Islamic Law) and the results of RAKERNAS MARI in 2005. and viewed from a review of Islamic law judges use volcanic jurisprudence II if the termination of marriage because of apostasy does not require a court decision or judge's decision and is immediately canceled and does not see the consequences of the apostasy.

Judge rules against IRS in harassment case

Title VII

When One Size Does Not Fit All: Modernizing the Supplemental Security Income Program

The federal Supplemental Security Income (SSI) program is an important part of the safety net in the United States, paying means-tested benefits to children with disabilities, nonelderly adults with disabilities, and elderly individuals. In this article, we describe the eligibility criteria for the program, how these have changed over time, and the impact of these changes on SSI enrollment. We also show that over time, SSI has grown to serve a heterogenous population, with an array of life experiences and needs. In this context, we discuss potential reforms intended to modernize the program and increase its ability to achieve its goals. These include a proposal to raise the generosity of benefits for elderly SSI recipients, increase the incentive to work among nonelderly adult SSI recipients, and harmonize disability decision-making across medical examiners and administrative law judges.

Smart Surveillance: Chapter 3 - Quantifying Criminal Procedure

Since the inception of our criminal justice system, law enforcement officers and judges have relied primarily on experience, training, intuition, and common sense in making their predictions about whether reasonable suspicion or probable cause exists in a certain case. In response, courts have crafted broad standards to accommodate these subjective judgments and allow for flexibility in application. The broad, flexible nature of these standards is no accident: they have been intentionally left imprecise by generations of courts. One reason is the nearly infinite number of different facts that could arise in any criminal case, which make hard and fast rules rather impractical. But the main reason these rules have been kept ambiguous is that police and courts have historically lacked the necessary tools to evaluate the accuracy of their predictions with any precision. Thus, state actors have been forced to rely on their own subjective beliefs and anecdotal evidence in making their predictions. All of that is now changing. Big data analysis is providing police and judges with tools that can predict future behavior with greater precision than ever before. These tools hold out the promise of increased fairness and greater objectivity at many of the critical decision points in our criminal justice system. They also will be able to quantify the benefits of various forms of surveillance, allowing us to predict with much greater precision the success rate for each of these methods. This chapter argues in favor of adopting precise legal standards for different levels of surveillance in order to harmonize the analytical world of big data with the legal world of criminal justice. This chapter provides a road map for a transition from intuitive descriptive standards to empirically tested quantitative standards. It first explains why a move to quantified legal standards is an improvement over the descriptive standards now used by courts. It then examines the current set of descriptive standards and attempts to determine what level of certainty courts are applying when they use these standards – in other words, it seeks to translate the current standards of reasonable suspicion and probable cause into quantitative terms. In doing so, it calculates the de facto probability of reasonable suspicion and probable cause that has been applied by judges, and also draws on original empirical research into the views of federal magistrates. The chapter proposes that ultimately these descriptive standards should be jettisoned altogether in favor of a fully quantified system that could adjust more precisely to the productivity of different types of surveillance.

IMMIGRATION PERSPECTIVE ON FOREIGN EXPERT IN INDONESIAN LAW OF CRIMINAL PROCEDURE


 
 The implementation of criminal law enforcement in Indonesia is based on criminal procedural law. Criminal Procedure Law is a formal law that is in the regulations regarding the provisions of the legal process. Proof processes as the legal means of proof based on Law Number 8 of 1981 shall be Witnesses Testimony, Expert Testimony, a Document, an Indication and Accused Testimony. Expert testimony has an important role in the Proof processes both from the level of investigation to the trial by the judge. In doing so, an expert can be a foreign national. Normative-empirical research by the method of legal research on legal instruments conducted to explain how the immigration perspective of experts who are foreign citizens. Experts who are citizens of foreign countries must have a residence permit stipulated in the Immigration Act, even though, it is a state order for someone who gives testimony as an expert in order to uphold the law as fairly as possible. To achieve this, as well as by not violating the immigration provisions for experts who are foreigner, the authors provide advice for law enforcers, both investigators, public prosecutors, judges and legal counsel to know and understand the immigration provisions that applied to foreigners as the experts in law enforcement process.
 
 

Taking Liberty Decisions Away from 'Imitation Judges'

Immigration detention is punishment. Therefore, time-honored proposed solutions to fix the immigration adjudication system, such as converting immigration judges (which some have called “imitation judges”) into Administrative Law Judges or even creating an Article I Immigration Court, are insufficient for liberty decisions. This article proposes that Congress strip “imitation judges” of their authority to review decisions about physical liberty. Rather, such decisions should be entrusted to a magistrate judge, with review by an Article III judge. The procedures are already in place; Congress need look no further than the Bail Reform Act, which applies when a person is held awaiting a criminal trial. Federal courts have borrowed heavily from criminal pretrial detention procedures, engaging in piecemeal oversight of the immigration detention system through habeas corpus review. These decisions reflect lower federal courts’ persistence in monitoring the rights of immigration detainees, even in the face of legislation that has aimed to limit their role. The work of these courts has been laudable, but a better solution that reaches every immigration detainee is necessary. The Trump administration has threatened immigration judges’ independence at every turn. Congress, therefore, should prevent such “imitation judges” from wielding the extraordinary governmental power to take away physical liberty.

Share price response to the SEC administrative proceedings against Chinese auditors

PurposeThe purpose of this study is to examines whether clients’ share prices responded to three events, including the Securities and Exchange Commission (SEC) launch of administrative proceedings against five Chinese accounting firms on December 3, 2012, for their failure to hand over audit work papers due to conflict of jurisdiction; the issuance of SEC Administrative Law Judge Elliot’s ruling on January 22, 2014; and the settlement of the administrative proceedings on February 6, 2015.Design/methodology/approachThis study uses the Schipper and Thompson approach.FindingsIt is found that share prices responded negatively around December 3, 2012, for USA-listed Chinese companies who were audited by Chinese auditors.Originality/valueThis study provides evidence on how share prices reacted to SEC enforcement actions against an affair of non-audit failure.

Judge rules against county in sexual harassment suit

Sexual harassment

Triangulating Intrusion in Privacy Law

Abstract This article concerns two interrelated, persistent problems for privacy law. The first is the failure of academic scholarship to get adequately to grips with the meaning of privacy. The second is the apparent inability of the English judiciary to resolve the common law lacuna in respect of intrusion-type privacy violations. The two problems are related in that the former is a significant contributor to the latter. Mainstream scholarship has long insisted on pursuing the One True Meaning of privacy, thereby overlooking valid alternative conceptualisations and creating a melange of theories that provides little assistance to judges. However, by adopting a novel, triangulation-based approach to understanding privacy of the sort proposed herein, it is possible to locate points of consensus between these rival theories in respect of particular privacy-violating activities. This consensus can provide the certainty common law judges require for the elaboration of further doctrine in this field.

Analisis Hukum Bunga Bank Ditinjau dari Perspektif Maqashid Syariah

The background of this research is the exixtance of the difference opinion between ulama and moslem scholars about the law of interest in Islam, which is until now still not discovered the solusion opinion and it make interesting for the researcher to make a research about the object more deep and more wide. But the researcher will not use Islamic law perspective as analysis basic, the researcher will use the objectives of sharia as analysis basic.This research is limited by several problems as following: (1) Why bank interest is needed by conventional banks? And (2) How is the law of interest if observed from the objectives of syariah (maqashid sharia)?This research is a library research. In this research the researcher choose to use a conceptual approach because the purposes which need to be achieved trouhg this research is to result an Islamic law thought about the law of interest which is not being bounded by the opinions or theories launched by majority of the moslem scholar. So this research can originally refer to the objectives of the sharia as what has been agreed by majority of ulama.The results of this research there are: (1) the interest is a money amount addition which have to paid by bank to the costumer based on the loan percentage that given by bank to their customer. Bank interest is used for the Bank's operational costs, if there is no interest instrument, it is likely that the Bank will not be able to survive. And (2) there are three opinions of ulama’s law judgments about the law of interest, it is forbidden (haram), permitted (halal) and dubious (shubhat). If this law opinions observed based on the objevtives of sharia, the researcher can make a conclusion that the opinion which is permit the interest is the most according to the objectives of sharia, and it is related to the concept of hifz al-nafs (take care of soul) and hifz al-mâl(take care of property) than the opinion whih has been forbid the interest. The permitted law of interest in the concept of hifz al-nafs (take care of soul) can be located in the dharuriyah, hajiyah and tahsiniyah degrees. While The permitted law of interest in the concept ofhifz al-mâl(take care of property)can be located in the dharuriyah and hajiyah degrees. Keywords: Interest, Usury, Maqashid Sharia, hifz al-nafs (Take care of soul), hifz al-mâl (Take care of Property).

Judge dismisses retaliation claim

Retaliation

‘Recall of Order’ and Section 44 of the Indian Evidence Act, 1872

A judgment, decree or order obtained by playing fraud on the court, tribunal or authority is a nullity and non-est in the eye of the law. Such a judgment, decree or order- by first court or by the final court- has to be treated as nullity by every court, superior or inferior. It can be challenged in any court, at any time, in appeal, revision, writ or even in collateral proceedings. It is settled principle of law that if any judgment or order is obtained by fraud, it cannot be said to be a judgment or order in law. Fraud avoids all judicial acts, ecclesiastical or temporal. Section 44 of the IEA enables a party otherwise bound by a previous adjudication to show that it was not final or binding because it is vitiated by fraud. It is always competent to any court to vacate any judgment or order, if it be proved that such judgment or order was obtained by manifest fraud.

İSLAM HUKUKUNA GÖRE EVLİLİK ÖNCESİ YAPILAN TIBBİ TAHLİLLERİN HÜKMÜ

Healthy societies base on healthy families, and healthy families base on healthy individuals. If Islamic principles and advices are observed while founding a family institution, a healthy and happy family can be founded. Islam religion has recommended caring about spouses’ healthy as much as their morals and prayerfulness while choosing them. In the recent years, some Islamic states to require that the medical report be taken before the marriage. Some states recommend it. The persons who meet the decisions taken by the state decid to get married or not depending on the outcomes of these analysis. The scholars who consider the loss and benefits of medical analysis before marriage on society, have discussed the islamic law judgment and the question if it will be obligate by state or not. In this study, the judgment of medical analysis before marriage in regard to Islamic law, and advantages and diasadvantages of employing a this method have deliberated. In our research, we applied both classical jurisprudence sources and books about the subject in our age. It is concluded that it is permissible for the persons to analyse medical tests before the marriage, provided that the secrets that should be kept confidential are not disclosed and the results of the tests are not shared with others.

The 'Protection of the Competitive Process' Standard

The antitrust law should return to a standard more realistic and suited to the legal system — the “protection of the competitive process.” It posits a basic question for law enforcement and judges. Given complained-of conduct, is that conduct actually part of the competitive process, or is it a sufficient deviation as to be unlawful? In this view, antitrust law aims to create a body of common-law rules that punish and therefore deter such disruptions — hence “protecting the competitive process.”

Judge denies employee claim of sexual harassment

Retaliation

Psychological Analysis of Informational Materials: Establishing a New Type of Forensic Psychological Evaluation and a New Forensic Science Specialty

The need for the imposition of the new expert specialty stems from the law enforcement agencies’ demand for psychological research of informational materials in cases involving extremism and terrorism display, indecent assaults on the Internet, corruption offences, inducement and instigation of suicide, propaganda of nontraditional sexual relations among minors, propaganda of Nazi symbols and emblems and many others. Formation particularities of the new type of forensic psychological expertise and the new expert specialty ‘Psychological research of informational materials’ in the Russian Ministry of Justice forensic institutions are contemplated. The defnitions of subject and objects of this type of expertise as well as of the term ‘informational material’ are given. In the context of experts’ further vocational retraining problem it is underscored that during the public forensic experts’ preparation for the Russian Federal Centre of Forensic Science of the Russian Federation Ministry of Justice system an innovative author’s further vocational training programme in expert specialty ‘Psychological research of informational materials’ is used. Meanwhile some non-State organizations, the so-called non-proft organizations, providing educational and certifcation services in the forensic feld apply the same specialty description furnishing non-original content. As a result, the members of law enforcement agencies and judges appointing an expertise form a misconception about the qualifcation of the experts having such certifcates. The unifcation of experts’ training programmes for state and non-state organizations can change the situation and improve the quality of services in forensic psychology as well as the implementation of mandatory experts’ certifcation, training programmes and materials licensing and the governmental control of the certifying organizations.