Judicial Case Law Research Articles

EVOLUTIVE INTERPRETATION WITH REFERENCE TO RECENT EUROPEAN COURT OF HUMAN RIGHTS CLIMATE CHANGE CASE LAW

Evolutive interpretation is one of the most important principles of interpretation that has enabled the Court to interpret the Convention in the light of present-day conditions, expanding the scope of protection under the Convention, and at the same time, raising the question of the permissible limits of interpretation. In the recent climate change case law, the Court has found a violation due to the failure of the respondent state to develop and implement a normative framework that would mitigate the consequences of climate change. The Court has applied evolutive interpretation considering that the Convention does not guarantee the right to a healthy environment or a similar right. The authors use the normative and casuistic methods to determine whether the Court’s recent climate change case law provides clearer parameters for the application of the evolutive interpretation. The research results indicate that judicial case law is not coherent with regard to these conditions, and consequently, the limits of the Convention’s evolutive potential remain unclear.

Basic approaches to understanding the objectives of administrative law

On the basis of a generalization of those dominant viewpoints on objectives of administrative law that are developed within Ukrainian administrative legal science, the author determined that they are united by the recognition of the following to be objectives of administrative law: (1) specifying and ensuring the implementation of human rights and freedoms in the public-legal sphere through the introduction of mechanisms administrative legal regulation and protection in the public administration domain; (2) determination of the standards for the exercise of public management functions by administrative authorities and the provision of administrative services by them, as well as the establishment and improvement of substantive and procedural tools for activities of administrative authorities, including the means of legal protection against violations on their part as well as mechanisms of civil control over their activities. According to the outcomes of the study of approaches to understanding of the tasks of administrative law in world scientific community, the article notes that according to the national tradition of the common law countries, which was adopted by many states that represent the civil law legal tradition, the fundamental objective of administrative law is recognized to be the determination of optimal (from the point of view of the rule of law and good governance) limits of the margin of appreciation of administrative authorities and providing private individuals with legal protection against abuse of administrative power. Moreover, it is particularly noticeable that a special emphasis is placed on guaranteeing the transparency and accountability of administrative authorities to civil society. Less important is the task of administrative law, which consists in establishing the principles, substantive rules and procedures for the performance of administrative functions by government authorities, as well as the accumulation in administrative practice and judicial case-law of the potential for increasing the effectiveness of administrative law.

Effectiveness of judicial protection methods of the rights of a corporate agreement parties: experience of foreign countries

The article is focused on studying the effectiveness of judicial protection methods of the rights of a corporate agreement parties in foreign legal systems. The author of the paper has analyzed legislative tendencies to reduce the list of possible methods of protecting the violated rights of a corporate agreement parties, defined by the latest corporate legislation compared to the previous Law of Ukraine “On Joint-Stock Companies”. New approaches in domestic judicial caselaw regarding choosing an effective method to protect the violated right by using the principle “the court knows the laws” have been studied. The author has formulated the factors that should be regarded while choosing the method of protection of the violated right, namely: a) it is necessary to use exclusively an appropriate method of protecting the violated right (established by law or a corporate agreement), which corresponds to the consequences of the violation and whose choice belongs to a plaintiff; b) such a method of protection must be effective. It has been systematized that the methods of protecting the violated rights of a corporate contract parties in foreign legal systems are divided into three groups: 1) mandatory (collection of penalties, damages, compensation), 2) corporate-binding (rescission of a contract) and 3) corporate (invalidation of a business entity decisions that violate the terms of the corporate agreement concluded by all participants). The author has analyzed such methods of protecting the rights of a corporate contract parties in foreign legal systems as compensation for damages, collection of penalties and stipulated damages, payment of compensation, enforcement of obligations in kind, etc. The necessity of harmonizing the national legislation in regard to a corporate agreement with a foreign method has been argued, in particular, the introduction of such a method of protecting the rights of a corporate agreement parties as compensation into Ukrainian legislation. It has been concluded on the basis of the conducted research that the list of the most effective methods of protecting the rights of a corporate agreement parties should be enshrined in the legislation, such as: compensation for damages, collection of penalties, collection of stipulated damages, payment of compensation, rescission of a corporate contract agreement or its certain parts, etc.

State Liability for Judicial Decisions Infringing EU Law – the Polish Experience

The liability of Member States for damages caused by the issuance of a judicial decision in breach of EU law has been shaped in the jurisprudence of the CJEU, as a mechanism to ensure effective legal protection of EU citizens. Its primary purpose is to ensure that in a situation where a court of a Member State causes damage to a citizen by violating EU laws by its ruling, the citizen has a legal remedy to obtain compensation for such a violation. Based on the principle of procedural autonomy of the Member States, such claims can be asserted on the grounds of national procedural rules under the substantive legal grounds laid down by the CJEU in its case law.Research conducted by the authors of the article indicates that despite more than 18 years of Poland’s presence in the European Union, it is extremely difficult to find rulings on liability for damages for breach of EU law by Polish courts. It seems that such a state of affairs may be caused by ambiguities and interpretative doubts that arise on the grounds of Polish procedure in the case of claims for damages for breach of EU law by the courts. Both in the doctrine and case law there are far-reaching divergences as to whether the pre-judgment provided for in the Polish Civil Code should apply to claims for breach of EU law, and if so, when it should be applied. These doubts are reflected in the scant judicial case law on the issue in question. It seems that the indicated procedural doubts and lack of clarity as to the proper procedure in pursuing such claims may deter parties from more frequent initiation of proceedings to obtain compensation for breach of EU law by a national courts in the Polish context.

Sale of Agricultural and Forestry Land in Enforcement Proceedings in Hungary

In Hungary, special, complex rules apply to the auction of agricultural and forestry land. The legislator highlighted the sale of land covered by the Land Transaction Act from the powers of the bailiff, and an administrative body implements the auction of land. In practice, this solution requires the joint application of several pieces of legislation. The aim of this study is to present the auction process of land and to analyse the problems that arise in case law. We will discuss the latest judicial case law related to this topic. We place special emphasis on the presentation of Decision No. 12/2022 (VI.2) of the Constitutional Court, which will result in a major change in the future among the persons entitled to auction land.

Qualification of information and images as advertising: criteria according to the legislation of Ukraine and judicial practice

Having studied the criteria for the classification of information and images as advertising, established by the law of Ukraine and its judicial case-law, the author comes to the conclusion that the purpose of a certain image or information to attract attention of consumers to specific economic benefits or a business entity that can provide them on a commercial basis (relation to the business activity) is the determinative criterion for distinguishing between advertising and information and images that are not of advertising nature. Advertising must indicate a specific, individually defined business entity, or a specific, individually defined product (service) with an indication of the name, quality properties, country of origin, manufacturer or other identifying features. Instead, for example, the image of a certain object with exclusively generic features, including as part of the design of the interior of the room, is not recognized as advertising. Moreover, information about the manufacturer of the product or service and/or about the very the product or service in places where this product or service is sold or provided to the consumer, as well as directly on the product itself and/or its packaging, is not considered to be advertisement as well. At the same time, the decision to recognize information or images as advertising could be made, in particular, if they either promote the product or its manufacturer outside the places of trade. Also, it should be taken into account that despite the fact that a sign or a plate with information about the registered name of a person, signs for goods and services belonging to this person, the type of his activity and working hours have the purpose of introducing or increasing the awareness of consumers about a business entity, this information is not considered advertising due to the fact that, among other things, it does not reflect an invitation to purchase goods or services from it.

Women Refugees and the Development of US Asylum Law: 1980-present

Abstract Over the past three decades, the US has developed a robust body of gender asylum law, including claims of women subject to sexual violence or other serious harm for reasons of gender. This body of law both reflects and has been a catalyst for larger shifts in US jurisprudence recognising the international treaty law basis of domestic asylum law. For years such progress was stymied by a dominant Cold War ideological decision-making paradigm and a woefully inadequate and politicised administrative bureaucracy. The growth of a domestic and international women’s rights movement, and more meaningful engagement by the US judiciary, have resulted in substantial changes. Although progress remains incomplete, today there is a significant body of administrative and federal judicial case law incorporating gender into the interpretation of key categories in refugee law, including gender-defined particular social groups (PSG) and gender-based claims under the political, race and religion grounds in the definition of refugee. These more principled developments have proven vulnerable to politics, particularly under the administration of President Donald J. Trump. However, a new approach, based in part on a clearer, regulatory articulation of doctrine, holds promise for the development of a more coherent and principled body of jurisprudence. This article places US gender asylum in the context of the larger political landscape (i.e., the Cold War, and post-Cold War politics). The article also attempts to draw the links between the development of gender asylum law and larger social and legal change movements, including a domestic and international women’s rights movements focused on issues of sexual violence and violence in the home or “domestic violence.”

Enhancing Legal Argument Mining with Domain Pre-training and Neural Networks

The contextual word embedding model, BERT, has proved its ability on downstream tasks with limited quantities of annotated data. BERT and its variants help to reduce the burden of complex annotation work in many interdisciplinary research areas, for example, legal argument mining in digital humanities. Argument mining aims to develop text analysis tools that can automatically retrieve arguments and identify relationships between argumentation clauses. Since argumentation is one of the key aspects of case law, argument mining tools for legal texts are applicable to both academic and non-academic legal research. Domain-specific BERT variants (pre-trained with corpora from a particular background) have also achieved strong performance in many tasks. To our knowledge, previous machine learning studies of argument mining on judicial case law still heavily rely on statistical models. In this paper, we provide a broad study of both classic and contextual embedding models and their performance on practical case law from the European Court of Human Rights (ECHR). During our study, we also explore a number of neural networks when being combined with different embeddings. Our experiments provide a comprehensive overview of a variety of approaches to the legal argument mining task. We conclude that domain pre-trained transformer models have great potential in this area, although traditional embeddings can also achieve strong performance when combined with additional neural network layers.

Kontrola operacyjna w systemie informatycznym (postulaty de lege ferenda)

<p>The article presents a proposal for changes in the regulations concerning broadly understood wiretapping. The dynamics of the development of crime using new technologies, in particular cybercrime, poses increasing challenges to the judiciary, law enforcement authorities and special services, which can only be met by introducing new legal solutions to enable the latest technological developments to be applied. At the same time, judicial case law imposes an obligation on the legislator to seek and create new legal solutions that would be able to reconcile the interests and rights of an individual with the common good. The question, therefore, arises whether a further revision of the rules is necessary in this regard, or whether a completely new approach is needed to look at the way of legal regulations concerning issues related to procedural and operational wiretapping. The article attempts to present this issue, taking into account, in particular, the changes in surveillance regulations due to the continuous and progressive development of the 5G network and the planning of the gradual implementation of the 6G network. In the authors’ opinion, the presented constructive comments <em>de lege ferenda</em> should be helpful in establishing a new law on operational control. The law that would comply with constitutionally guaranteed standards on civil rights while equipping the state and its law enforcement and special services with effective tools to combat new forms and manifestations of crime. The authors intend to present the issue of wiretapping – in the broad sense, against the background of modern technologies and new legal solutions, while respecting the principles of the Polish criminal trial and the expectations of practice in combating the most serious crimes effectively.</p>

Interpretation of the European Convention for the Protection of Human Rights and Fundamental Freedoms in the light of modern concepts of legal understanding

The article presents the results of theoretical and practical research of the interpretation of the European Convention for the Protectionof Human Rights and Fundamental Freedoms in the light of modern concepts of legal understanding.On July 17, 1997, Verkhovna Rada of Ukraine ratified the European Convention for the Protection of Human Rights and FundamentalFreedoms of 1950 (hereinafter – the Convention), which was the initial stage in the formation and development of Ukrainianlaw and legal science in general. From that moment, a new stage began – the introduction of legal practice and legal values of Europeinto Ukrainian law.The Convention for the Protection of Human Rights and Fundamental Freedoms, as a complex mechanism has a direct effectwithin the jurisdiction of the Ukrainian court system, the principles of interpretation of the Convention applied by the European Courtof Human Rights are valuable and special for judges in Ukraine. One of the main methods of interpreting the Convention is the principleof judicial precedent. Judicial case law is an important part of the legal system of common law states, and the increase in the boundariesof judicial precedent has been observed in Western Europe over the past century. The case law of the European Court of Human Rightsis an additional factor for the official recognition of judicial precedent as a source of law in the protection of human rights, which willhelp strengthen the independence of the judiciary in Ukraine.
 Nowadays, the use of the Convention for the Protection of Human Rights and Fundamental Freedoms in Ukraine makes it possibleto replace the prevailing positivist views on law, apply the latest principles of interpretation of human and civil rights, and developthe constitutional jurisprudence of fundamental human rights.The Convention opens a new horizon of tasks in the development of democracy in Ukraine, with the basic principles of whichvarious legal acts of the country must be monitored for compliance with fundamental human rights and freedoms.Through the interpretation and use of the Convention, our state has begun a rapid process of moving away from the positivistunderstanding of law, which has resulted in the emergence of the necessary for the further development of pluralism of legal understandingof law.

Interpretation of the European Convention for the Protection of Human Rights and Fundamental Freedoms in the light of modern concepts of legal understanding

The article presents the results of theoretical and practical research of the interpretation of the European Convention for the Protectionof Human Rights and Fundamental Freedoms in the light of modern concepts of legal understanding.On July 17, 1997, Verkhovna Rada of Ukraine ratified the European Convention for the Protection of Human Rights and FundamentalFreedoms of 1950 (hereinafter – the Convention), which was the initial stage in the formation and development of Ukrainianlaw and legal science in general. From that moment, a new stage began – the introduction of legal practice and legal values of Europeinto Ukrainian law.The Convention for the Protection of Human Rights and Fundamental Freedoms, as a complex mechanism has a direct effectwithin the jurisdiction of the Ukrainian court system, the principles of interpretation of the Convention applied by the European Courtof Human Rights are valuable and special for judges in Ukraine. One of the main methods of interpreting the Convention is the principleof judicial precedent. Judicial case law is an important part of the legal system of common law states, and the increase in the boundariesof judicial precedent has been observed in Western Europe over the past century. The case law of the European Court of Human Rightsis an additional factor for the official recognition of judicial precedent as a source of law in the protection of human rights, which willhelp strengthen the independence of the judiciary in Ukraine.
 Nowadays, the use of the Convention for the Protection of Human Rights and Fundamental Freedoms in Ukraine makes it possibleto replace the prevailing positivist views on law, apply the latest principles of interpretation of human and civil rights, and developthe constitutional jurisprudence of fundamental human rights.The Convention opens a new horizon of tasks in the development of democracy in Ukraine, with the basic principles of whichvarious legal acts of the country must be monitored for compliance with fundamental human rights and freedoms.Through the interpretation and use of the Convention, our state has begun a rapid process of moving away from the positivistunderstanding of law, which has resulted in the emergence of the necessary for the further development of pluralism of legal understandingof law.

A Plea to Apply Principles of Quarantine Ethics to Prisoners and Immigration Detainees During the COVID-19 Crisis

An important topic has been neglected in the discussion of ethical issues related to the current Pandemic: unsafe conditions experienced by those who are incarcerated in state or federal prisons or confined in immigration facilities. I argue that principles of Quarantine Ethics addressing the health and safety of those subject to involuntary quarantine should be applied to mitigate the risk that COVID-19 poses to inmates and detainees. These individuals are presumed to have been lawfully detained, thereby excluding the question of the necessity and validity of an order requiring the compulsory quarantine as would apply to an ordinary citizen. However, human rights law remains applicable notwithstanding their status as inmates or undocumented immigrants. Accordingly, these individuals are entitled to safe conditions of confinement to reduce the high risk of their exposure to infectious disease. Judicial caselaw addressing these facilities’ obligations to provide medical care is insufficient. I offer recommendations for improving conditions of confinement based on recognition that neither penal nor immigration policies are furthered by unreasonable risk of exposure to the virus. The disproportionate incarceration of people of color makes the topic yet more urgent.

The Role of Courts in the Evolution of Standard Form Contracts: An Insurance Case Study

Standard form contracts are a pervasive feature of modern commercial life, for ordinary consumers and big businesses alike. Yet remarkably little is currently known about how and when these contracts evolve in response to judicial decisions that interpret and apply them in individual disputes. Homeowners insurance policies offer a particularly fertile ground for studying this issue due to both the prominence of the insurance law doctrine that ambiguities are interpreted against the drafter and the historic standardization of insurance policies across different insurers. Utilizing a unique hand-collected dataset, this Article empirically investigates the links between innovation in the dominant “ISO HO3” homeowners policy and published caselaw interpreting that contract. The results demonstrate that judicial caselaw has indeed played a vital role in the evolution of homeowners insurance policies over the last fifty years, forcing insurers to spell out their obligations more precisely and clearly. Notably, judicially prompted changes to policy language have often expanded coverage, suggesting that judicial scrutiny can empower regulators and market intermediaries to secure drafting concessions in revisions to homeowners policies. Normatively, these results provide strong support for insurance law’s central doctrine that ambiguities are interpreted against the drafter. When considered in light of prior research demonstrating that some homeowners insurers have recently begun departing from the ISO HO3 policy in ways that systematically restrict coverage, this Article’s results also suggest that states should strongly consider requiring homeowners policies to provide coverage that is no less generous than the ISO HO3 policy. With respect to contract law more generally, the Article’s findings suggest that contractual innovation, particularly when prompted by caselaw, operates quite differently in different market and regulatory settings.

Evidence of the opinion of the scientific institute (article 290 of the code of civil procedure) in the light of judicial case-law – selected issues

Evidence of the scientific or research institute’s opinion shall be provided in civil proceedings when there is a need to obtain special knowledge of the highest standard. Judicial case-law indicates that it may be useful to instruct the institute to give an opinion if the expert opinions drawn up on the matter are inadequate or contradictory. According to the choice of the jurisprudence cited in the article, the opinion of the institute is issued by at least two staff members of this research institute, and the conclusions expressed in the report should reflect the dominant position of the institute. In this context, particular attention is paid in judicial practice to the need for the scientific institute to justify its opinion in an accessible and comprehensible manner so that it can be assessed by persons who do not have special knowledge. The study also presents the jurisprudence views related to the evidentiary force of the institute’s opinion

Court Decisions Specific to Public School Responses to Student Concussions

This article provides an up-to-date and comprehensive canvassing of the judicial case law concerning the responses to students with concussions in the public school context. The two categories of court decisions are (a) those concerning continued participation in interscholastic athletics, referred to under the rubric of "return to play” and (b) those concerning the legal obligations in facilitating the continued educational progress of the student, referred to under the rubric of "return to school." The case law in the first category primarily addresses state common law claims of negligence and federal constitutional claims under the Fourteenth Amendment due process clause. The court decisions in the second category primarily address the successive issues of child find, eligibility, and "free appropriate public education" (including but not necessarily limited to accommodations) under Section 504 of the Rehabilitation Act and the Individuals with Disabilities Education Act. The outcomes of the court decisions thus far have been largely in favor of the district defendants, but the case law is far from crystallized and complete.

Shall Wagnerism have no Dominion?

The Wagner Act Model has formed the basis of Canada’s collectivebargaining regime since World War II but has come under intense scrutiny inrecent years because of legislative weakening of collective bargaining rights,constitutional litigation defending collective bargaining rights and decliningunion density. This article examines and assesses these developments, arguingthat legislatively we have not witnessed a wholesale attack on Wagnerism, butrather a selective weakening of some of its elements. In the courts, it brieflyappeared as if the judiciary might constitutionalize meaningful labour rights andimpede the erosion of Wagnerism, but recent judicial case law suggests theprospects for this outcome are fading. While the political defence of Wagnerismmay be necessary when the alternatives to it are likely worse, holding on to whatwe’ve got will not reverse the long-term decline inunion density. The articleconcludes that at present there are no legal solutions to the labour movement’sproblems and that innovative efforts to represent workers’ collective interestsoutside of formal collective bargaining provide a more promising alternative.

El derecho al trabajo: en tránsito del despido libre al derecho constitucional garantizado

Tras presentar la evolución del derecho de estabilidad laboral en el Perú, se precisan los alcances públicos y privados del derecho al trabajo, que permitieron al Tribunal Constitucional redefinir el régimen del despido (estabilidad laboral de salida), en general, y comenzar a precisar el régimen de contratación temporal (estabilidad laboral de entrada). Se analiza la redefinición del marco jurídico del despido a partir de la jurisprudencia constitucional y judicial, poniendo en relieve los temas resueltos y los pendientes.

The case against joint enterprise

This article examines the need to reform the UK law of joint enterprise, the scope of which has been expanded over recent years through judicial case law. It describes how joint enterprise has become a specific weapon used by the police and the courts to target both political protest and ‘gang’ violence, in particular in black and working-class communities. The main evidence and recommendations of the House of Commons Justice Committee inquiry into joint enterprise held in 2011 are summarised, with specific reference to how the complexity and inconsistency in application of the law, its use as a dragnet against gangs through police and prosecutorial over-charging, and convictions based on ‘foresight’ rather than criminal intent, can all lead to miscarriages of justice. The particular problems associated with the use of joint enterprise in relation to murder are described. The article concludes by examining the response of the UK authorities to the Justice Committee report, with specific reference to new draft prosecutorial guidance issued by the Director of Public Prosecutions, which fails to clarify the law and in fact confirms the need for new legislation in this area.

Infections nosocomiales en médecine de ville : inéquité pour les victimes

The system used for compensating victims of nosocomial infections resulting from the laws of March 4 and December 30, 2002 is very positive, both in terms of the rules used to define the liability regimes and the procedure used by CRCIs (Regional Commissions for Conciliation and Compensation for Medical Accidents, Iatrogenic Disorders and Nosocomial Infections). However, it seems necessary to make some adjustments. Recent laws bound healthcare facilities and healthcare professionals to a different liability regime. While judicial case law prior to the law of March 4 bound clinics and independent practitioners to the same objective liability regime for a breach of duty in providing a safe outcome, infections occurring following care given in medical practitioners’ offices are now excluded from the ex officio liability regime laid down in Article L. 1142-1 of the public health code, and fall under the fault-based liability regime. A victim of healthcare-associated infection contracted during an intervention carried out in an independent clinic can only receive compensation if said victim can establish the occurrence of a breach, while the same victim would have received ex officio compensation if the same intervention had been performed in a healthcare facility. Bearing in mind that certain invasive medical acts do not require hospitalization, this difference in the treatment of victims who have undergone the same act raises the question of the need to widen the ex officio liability regime to infections contracted in practitioners’ offices.

Taxation of Internet Sales - Where in the Cyberspace is Nexus?

The advent of the Internet in the 1980’s revolutionized the world of computers, information technology and communication. The Internet, with its international broadcasting capabilities, is an instrument for broadcasting information and a medium for partnership and interaction between persons and their computers without regard to geographic setting. Its viral capability has reinvented the way the world works, communicates, and deciphers information. Because of the Internet’s instantaneous abilities, news spreads like wildfire around the world, keeping secrets is virtually impossible, and persons and companies now have direct and immediate access to their target audience. With the dawn of the Internet age, the corporate world also found a new and efficient way of doing business – via e-commerce. In the U.S. alone, e-commerce retail sales grew from $995 billion in 1999 to $2,385 billion by 2006. A 2009 study estimated that e-commerce transactions are anticipated to rise from $3 trillion in 2010 to $4 trillion in 2012. This study further predicted that while $45.9 billion dollars in sales taxes will be due by the states cumulatively in 2012, only $34.5 billion of that amount will actually be collected, resulting in an anticipated overall U.S. sales tax loss of $11.4 billion dollars in 2012 alone. Amidst these staggering numbers, can states do anything more to collect sales tax emanating from e-commerce sales? The answer to this question lies at the heart of the query: Where in the cyberspace is nexus? While this article does not attempt to define a solution to this question, its purpose is to present an overview of statutory rules currently in place pertaining to sales and use tax, with particular attention paid to the area of e-commerce sales; examine the Constitutional mandates in place regarding “nexus” and “physical presence”, with heavy emphasis placed on federal and state judicial case law; scrutinize the current situation between deficit-stricken state taxing jurisdictions and cyber-retailers seeking shelter under the umbrella of the Due process and Commerce Clauses; and provide observations for the need to create uniformity among the states in dealing with e-commerce transactions.