Judicial Court Research Articles

Análise jurisprudencial da economia social de mercado na Colômbia

Objective: the most relevant decisions of the Constitutional Court of Colombia regarding the social market economy are analyzed, in order to establish the level of development and guarantee of this model of economy by the aforementioned Judicial Court. Method and/or methodology: The text is supported by the documentary method and is organized as follows: itinitially addresses some conceptual considerations, and then develops the analysis of the social market economy based on the jurisprudence of the Constitutional Court on the matter, and closes with the respective conclusions.

Modern solidarity and administrative repression

Modern society is based on the predominance of organic solidarity over mechanical solidarity and, consequently, on the predominance of the law, which ensures cooperation between autonomous subjects from repressive law, which sanctions, through penalty, any deviation from the standards of the common conscience. Modern society is “civilized”, i.e. it is firstly and foremost based on “civil” law, the repressive law only being exceptional, which translates into three principles: that of the subsidiarity of criminal law, that of the necessity and legality of offences and penalties, and that of the additional protection of individual freedom when the subject is criminally charged. The consequence thereof is that, in modern liberal democracies, all repressive law is criminal, that any charge which may lead to the application of a repressive sanction is a criminal charge and that the law-maker cannot assign to the administration the competence regarding the application of repressive sanctions. Under these circumstances, the transformation of some repressive norms into norms of administrative law is a violation of the fundamental principles that structure the legal order of modern liberal states. Nonetheless, this type of practice is becoming more common. In order to ensure individual freedom, this tendency must be corrected. As politicians are not willing to do so, naturally this is a task for the judicial courts, that can rely for this endeavour on the European Court of Human Rights’ constructive jurisprudence.

Come at the king, you best not miss: criminal network adaptation after law enforcement targeting of key players

ABSTRACT This paper investigates the impact of the targeting of key players by law enforcement on the structure, communication strategies, and activities of a drug trafficking network. Data are extracted from judicial court documents. The unique nature of the investigation – which saw a key player being arrested mid-investigation but police monitoring continuing for another year – allows to compare the network before and after targeting. This paper combines a quantitative element where network statistics and exponential random graph models are used to describe and explain structural changes over time, and a qualitative element where the content of wiretapped conversations is analysed. After law enforcement targeting, network members favoured security over efficiency, although criminal collaboration continued after the arrest of the key player. This paper contributes to the growing literature on the efficiency-security trade-off in criminal networks, and discusses policy implications for repressive policies in illegal drug markets.

International Outsourcing of Quality Healthcare Through Tele-Medicine: Binding Arbitration Makes Tele-Medical Dream a Reality

The development of communication technologies has a dramatic influence on culture. The internet, cell phones and e-mail are different domains, and if health care professionals want to join this space, they will be careful to do so. Telemedicine has medical-legal implications for aspects of identification, licensing, insurance, protection, privacy and confidentiality, as well as other risks related to online healthcare communication. The International Advisory Group of the World Health Organization (WHO), which met in Geneva in 1997, identified telemedicine as providing healthcare services, where distance is a critical factor, to health care providers, who use the information and communications technologies to exchange relevant information for the diagnosis, treatment and prevention of diseases and injuries, and to continue to do so. In the context of the COVID-19 Pandemic Lockdown, the Indian Government has authorized telemedicine legal status. The Governing board, established by the Government at a meeting of the Indian Medical Council with the Ministry of Health and Family Welfare’s approval, published a notice dated 25 March 2020 (‘Amendment’) modifying Guidelines of the Indian Medical Council 2002 on telemedicine in India. The amendment introduced ‘Telemedicine consultation’ to the law. A basic knowledge of how medical negligence compensation is calculated and adjudicated in the judicial courts of India. The paper concludes with an assessment of the rules. This paper will seek to determine whether binding arbitration is the best possible solution to resolving malpractice disputes, or whether traditional litigation, while costly, is the safest choice. To do this, the paper will examine both the advantages and the disadvantages associated with using arbitration as opposed to litigation

Mapping out the path ahead for corporate criminal procedure law in People´s Republic of China

The tale of procedural fairness is, by now, familiar and well worn. People ́s Republic of China criminal system of justice, which is currently gearing towards the pathway of procedural fairness, has (for the better or for the worse) attracted a wide global gaze. Irrespective of the underlying fairness (or the lack thereof) of the grievances brought forth by a worldwide phalanx of critics, China is steadily toiling towards the path of procedural justice, which is rooted firmly in the Rule of Law. Whilst procedural justice and procedural fairness map seamlessly on to the context of corporate criminal procedure law, there is bevy of critical questions that are in dire need of being consistently addressed nonetheless. One which is whether and to what extent politically- charged tools, which seemingly belie the western-borne concept of separation of powers (as the Supreme People ́s Procuratorate Guiding Cases and, to some degree, Supreme People ́s Court Judicial Interpretations) are amenable to forge the path ahead to meeting the fundamental tenets of due process in corporate criminal procedure law in Mainland China. Against this background, this paper aims to answer two sweeping research questions. Firstly, the degree to which corporate governance (and corporate compliance) subdues (and foremost trumps) corporate criminal liability. Secondly, whether and to what extent SPP Guiding Cases have catalyzed a seismic shift in People ́s Republic of China criminal procedural law. Conversely,one central contention of this paper is that a set of fairness-fraught corollaries can be withdrawn from SPP Guiding Cases with a view to map the path forward to fulfilling the baseline standards of both procedural fairness and procedural justice in People ́s Republic of China corporate criminal procedure law.

Inclusion of Waste Pickers Into Municipal Waste Management Systems: A Comparison Between Colombia and Brazil

This article aims to identify and comprehend the challenges and strengths behind public policies on integrating waste pickers (WPs) within waste management systems in Colombia and Brazil. In both, WPs started to come together and found organisations and external agents such as NGOs began to support organised groups of WPs. After 10 years of judicial court actions in Colombia, WPs organisations were finally recognised in legislation, while in Brazil, they were recognised in 2007 in one of the national policies through lobby. Today, there are almost 700 WPs organisations formalised in Colombia and 1700 in Brazil. Their public policies’ main achievements and challenges are exposed to supply knowledge to other countries interested in this theme. A Roadmap for the organisation and formalisation of WPs within waste management systems was created. This constitutes a source of information for policymakers in other emerging economies to address this in their territories.

Floods, communal conflict and the role of local state institutions in Sub-Saharan Africa

Does the occurrence of flood disaster increase the risk of communal conflict and if so, does trust in state political institutions mitigate the adverse effect? This study addresses these questions by studying the intervening effect of trust in local governmental institutions at a sub-national level. The effect of flood disasters on the risk of communal violence is expected to be contingent on peoples’ trust that local political structures are able to address potential disputes between groups. Violent conflicts, in that sense, are neither inevitable nor directly determined by the occurrence of disasters. They largely depend on the context of a given society and political response to these external shocks. To test this expectation, the study uses survey data on trust in local state institutions in Sub-Saharan Africa from the Afrobarometer (2005–2018), combined with geo-referenced communal conflict and flood data. In line with theoretical expectations, results suggest that flood disasters are associated with communal violence only for administrative districts that are governed by distrusted local state institutions. Conversely, flood disasters tend to be negatively associated with the risk of communal clashes in the presence of highly trusted local government councils and (especially) trusted judicial courts. Changing model specifications and estimation techniques produces similar results. An out-of-sample cross-validation also shows that accounting for political variables, in addition to flood disasters, improves the predictive performance of the model.

Jury Instruction on Criminal Responsibility Defenses Involving Voluntary Intoxication

In Commonwealth v. Dunphe , 153 N.E.3d 1254 (Mass. 2020), the Supreme Judicial Court of Massachusetts held that there was a significant risk that the jury misunderstood a model jury instruction on criminal responsibility. With this, justice demanded that the defendant's conviction be vacated and the

TED DeCOSMO v. BLUE TARP REDEVELOPMENT, LLC A RICHARD SCHUSTER AND ANOTHER v. WYNN RESORTS HOLDINGS, LLC, AND OTHERS SJC-13031 SJC-13060 Supreme Judicial Court, Boston, Massachusetts April 7, 2021–June 3, 2021

Gaming Law ReviewVol. 25, No. 7 CasesTED DeCOSMO v. BLUE TARP REDEVELOPMENT, LLC A RICHARD SCHUSTER AND ANOTHER v. WYNN RESORTS HOLDINGS, LLC, AND OTHERS SJC-13031 SJC-13060 Supreme Judicial Court, Boston, Massachusetts April 7, 2021–June 3, 2021Published Online:13 Sep 2021https://doi.org/10.1089/glr2.2021.29033.tdbAboutSectionsView articleView Full TextPDF/EPUB Permissions & CitationsPermissionsDownload CitationsTrack CitationsAdd to favorites Back To Publication ShareShare onFacebookTwitterLinked InRedditEmail View articleFiguresReferencesRelatedDetails Volume 25Issue 7Sep 2021 InformationCopyright 2021, 2021 Mary Ann Liebert, Inc., publishersTo cite this article:TED DeCOSMO v. BLUE TARP REDEVELOPMENT, LLC A RICHARD SCHUSTER AND ANOTHER v. WYNN RESORTS HOLDINGS, LLC, AND OTHERS SJC-13031 SJC-13060 Supreme Judicial Court, Boston, Massachusetts April 7, 2021–June 3, 2021.Gaming Law Review.Sep 2021.320-329.http://doi.org/10.1089/glr2.2021.29033.tdbPublished in Volume: 25 Issue 7: September 13, 2021Online Ahead of Print:August 27, 2021PDF download

Institute of the judicial supervision and the provision of methodological assistance to judges in Ukraine

The paper is devoted to analysis of the current concerns of the judicial supervision and significance of the provision of methodological assistance to judges considering the historical experience. It is indicated that provision of the methodological assistance to judges is particularly important under current conditions as it ensures administration of fair and impartial justice. Every person’s right to fair trial based on supremacy of the law is achieved via accomplishing certain powers both procedural nature and out-of-court procedures. Procedural powers of the court are realized during consideration of a case by the corresponding judicial jurisdiction while the out-of-court powers are accomplished when ensuring so-called functions which main objective is to provide for the unified judicial practice. Formation of the unified judicial practice can be achieved provided a similar application of all norms of the law of substance and procedural law only because the law should equally apply to everybody under similar circumstances. The paper states that delegation of powers to the court of appeal, as regards provision of the methodological assistance to local courts in administration of legislation, preconditions certain activity of the court and its chairman aimed at accomplishing this authority and presence of the levers to respond to problems arising in the judicial practice. Practical exercise of powers by the court of appeal, as regards provision of the methodological assistance to local courts, may not be connected with the institute of supervision only because there exist other kinds of such assistance provision. It is emphasized in the paper that the terms “supervisor” and “supervision” may not refer to the activity of courts and judges as regards the meaning, and do not meet the constitutional principle of the independence of judges. The authors indicate that filing a disciplinary complaint against judges in connection with the results of the methodological assistance which the supervising judges provide contains signs of the supervision powers and external influence that doesn’t meet the requirements of the effective legislation of Ukraine concerning judicial machinery and status of judges. The conclusions state a necessity of the legislative regulation of the methodological assistance which the higher judicial courts provide to the lower level courts to improve quality of court judgments and court activity in this sphere. Keywords: methodological assistance, court supervision, powers of judges, forms of the methodological assistance.

Clauses 1 and 2 of the Judicial Review and Courts Bill

Clauses 1 and 2 of the Judicial Review and Courts Bill

Travelling with Judges: Brief Reflections on the Roadmap on Comparative Law Developed by the Network of Presidents of the Supreme Judicial Courts of the European Union

This article accompanies a Roadmap on the judicial use of comparative law, which was developed by judges from different European supreme courts. This document is published in this issue of Utrecht Law Review. Brief reflections on relevant scholarly aspects help the reader to appreciate the meaning and value of this Roadmap for contemporary judicial functioning in Member States of the European Union. Addressed aspects concern the legitimacy of judicial comparativism and the methodological quality of the Roadmap. This analysis leads to a conclusion about the Roadmap’s potential to enhance the quality of judicial decision-making and support dialogues of courts with their foreign counterparts as well as with other legal and societal audiences.

Roadmap on Comparative Law in the Case-Law and Practice of the Supreme Courts of the EU

This document was developed following research and debates of the Network of Presidents of the Supreme Judicial Courts of the European Union. The document is intended to support the courts in this network in a practical way when considering and implementing the use of comparative law in the decision of a case pending before their court. Without pretention of completeness or scientific reliability, it summarizes the decisions to be made and the dilemmas to be solved by the Supreme Courts in this process. It mentions viewpoints which may be relevant when making choices at crossroads in the decision-making process. In addition, it gives practical information for this process, inspired by useful practices amongst the member courts of the network.

Прагмалингвистический анализ законодательного жанра (на материале текстов немецких законов)

As a rule, legal genres are subdivided into three large thematic groups: “Legislation” (laws, regulations, instructions, acts, orders), “Case law” (judicial decisions, appeals, protocols, court orders and court inquiries), “Official documentation” (official correspondence, reports, contracts). This research focuses on the pragmalinguistic and linguo-stylistic analysis of German legislative texts. The authors describe the characteristics of legislative genres and single out their general and special language functions. The relevance of the article is based on the fact that in Russia and abroad there are few linguistic papers on the analysis of legislative genre and law texts. In the meantime, the given research direction is highly prospective for interdisciplinary studies. The authors argue that the function of nomination, the function of message, the function of influence and the function of communication are vividly manifested in legislative genre via multilevel language means. A pragmatic analysis of the legal norms of the German legislative texts shows that the latter are characterized by imperative and dispositive legal norms, while recommendatory legal norms for the texts of German laws are less typical. The methodological base of research includes contextual and functional analysis, linguo-stylistic techniques as well as descriptive and linguo-pragmatic methods of analysis.

Admissibility of Statements Made in Forensic Interviews

In Commonwealth v. Rodriguez , 484 Mass. 677 (Mass. 2020), Christian Rodriguez appealed his conviction of murder in the first degree to the Massachusetts Supreme Judicial Court on the theory of extreme atrocity or cruelty for the beating death of his roommate, Roosevelt Harris. Mr. Rodriguez argued

Length of Emergency Department Confinement for Psychiatric Patients

In Massachusetts General Hospital v. C.R. , 142 N.E.3d 545 (Mass. 2020), the Massachusetts Supreme Judicial Court reversed the decision of the Appellate Division of the Boston Municipal Court. The appeal pertained to two separate provisions under Mass. Gen. Law ch. 123 § 12 (2018). The first

A interconexão do processo de contas com o processo judicial a partir da Operação Lava Jato

Este trabalho visa analisar a interconexão entre o processo de controle externo e o processo judicial, no contexto da Operação Lava Jato. Para tanto, serão examinados o problema da multiplicidade dos órgãos de controle e, de modo especial, os impactos da atuação do Ministério Público Federal e da instância judicial sobre a atividade do Tribunal de Contas da União. Na sequência serão discutidas a repercussão dos acordos de leniência sobre o exercício das competências do TCU e algumas questões controvertidas dessa relação de interdependência. Para cumprir esses objetivos, será promovida uma análise sistematizada da jurisprudência do TCU e dos tribunais judiciais, no propósito de construir uma visão concreta do tema em análise. Ao final do trabalho, constatou-se que o advento do instituto de leniência criou dificuldades adicionais à busca de uniformidade e coerência do sistema de controle brasileiro, devido à sobreposição de funções entre os diversos órgãos integrantes. Não obstante, percebeu-se uma atuação mais harmônica entre as diversas instâncias, que estabeleceram condições para o uso de provas compartilhadas contra o colaborador. O próximo desafio será a construção de um balcão único de leniência, com vistas à melhoria da alavancagem investigativa e da eficiência processual.

The right to bail pending trial in Uganda

Article 23(6)(a) of the Constitution of Uganda (1995) states that an arrested person is ‘entitled’ to apply to court for bail (discretionary bail). Articles 23(b) and (c) require a court to release on bail a person who has been awaiting trial in custody for a specified number of days (mandatory bail). Jurisprudence of Ugandan courts on bail pending trial shows that courts have dealt with two main issues: the right to bail or to apply for bail; and the conditions for granting of discretionary bail pending trial. The Supreme Court has held that an accused has a right to apply for bail. In this article, the author argues that the drafting history of Article 23(6)(a) shows that an accused has a right to bail (as opposed to just apply for bail). The author also demonstrates how courts have been inconsistent in many cases when dealing with the conditions for granting of discretionary bail pending trial. It is argued further that since the Ugandan government is increasingly re-arresting opposition politicians who have been granted bail by the high court, Ugandan courts may explore the possibility of granting anticipatory bail. It is also argued that the drafting history of Articles 129(d) and 210 of the Constitution shows that courts martial are courts of judicature and subordinate to the high court which means, inter alia, that the high court has the power to release an accused on bail should the general court martial refuse to release him/her on bail.

A Negotiated Instrument: Proposing a Safer Contract for Consumers (And Not Just a Smarter One)

In this piece, I propose a new standard for determining what constitutes assent, as a matter of contract formation, within the domain of electronic consumer contracting. In my formulation, the threshold test should reject the “take-it-or-leave-it” arrangement dominant in the marketplace and reified by recent proposals before the American Law Institute (“ALI”) under the moniker “blanket assent.” It should do so in favor of a default rule that would require any electronic form proposing contract terms to permit at least a minimal amount of negotiation around terms seeking waiver of rights from consumers. It proposes this rule as a more acceptable behavioral proxy in determining whether the manifestation of mutual assent standard applicable to all contracts performed by competent contracting parties is met, as a matter of contract law. Requiring negotiation and negotiability from forms will go further than the current “click-through” baseline does to cure the current problem of consumer incapacity widely recognized (though not widely named) in the consumer marketplace. It is that disturbingly debased status that defines the plight of the consumer in the modern consumer contracting domain (a point I make in a related, earlier piece). I argue that technology has advanced to such an extent that the absence of greater negotiability can no longer be defended with regard to electronic forms. I use, as an example of this technology, the life of a wager from the online sports gaming business to make the point. Given what this gaming technology demonstrates, we are now able to see how technology may facilitate ever greater consumer interface around pricing, risk taking, risk prediction, and active choice, in relation to qualitative events, features and outcomes, online. I use this technology, in conjunction with contract law, and norms from tort law, to argue that a recent decision by the Massachusetts Supreme Judicial Court analyzing Uber’s electronic form, should demand more from sellers than the “click-through” option the Court appears to set, as a baseline, for accomplishing assent with regard to electronic consumer contracting formation.

Independence of Russian Judges in Conditions of Irremovability of Judges

The paper has become the fourth work in a cycle of studies carried out by the author to investigate the independence of the judiciary. It is devoted to the implementation of the principle of irremovability of judges as one of the declared guarantees of their independence. The paper analyzes the institutional and individual independence of courts and judges, concludes that it is individual independence of judges that plays the special role in ensuring the independence of the judiciary in general. Within the framework of the study, the reader’s attention is drawn to the components of the irremovability of judges: the period of granting the status of federal judges and the special procedure for suspending and terminating their powers. The author criticizes various age limits established by the legislator, upon which judges’ powers are terminated. Such a differentiated approach, in his opinion, conflicts with the general legal principle of equality and a sectoral principle of the unity of the status of judges. As a consequence, the leadership of the highest courts, given the possibility of reassigning them repeatedly, falls into a harmful dependence on the person entitled to nominate them for the positions of the President and Vice-Presidents of the relevant court. The author provides discouraging forecasts concerning the implementation of the constitutional amendment extending the powers of the President to deprive the status of judges of the Constitutional, Supreme Courts, Cassation and Appeal Courts of the Russian Federation. The work elaborates on the procedure for bringing judges to disciplinary responsibility, which is designed to protect their independence, but in view of the existing shortcomings allowing the use of this mechanism in order to monitor and pressure judges. In this regard, the author substantiates and proposes an impressive list of measures aimed at changing the situation. These measures include changing the composition of the qualification panels of judges, restricting the participation of judicial leadership and higher courts, their expansion by the judges of the Constitutional Court and the strengthening of their public participation, the establishment of the possibility of challenging the decisions of the qualification panels of judges by applicants.