Judicial Determination Research Articles

The Space Between Second-Personal Respect and Rational Care in Theory and Mental Health Law

In recent human rights and legal instruments, individuals with impairments are increasingly recognised as agents who are worthy of respect for their inherent dignity and capacity to make autonomous decisions regarding treatment and care provisions. These legal developments could be understood using Stephen Darwall’s normative framework of the second person standpoint. However, this paper draws upon phenomena – both in legal developments and recent court cases – to illustrate theoretical difficulties with the contractualist underpinnings of Darwall’s account if applied to questions of what is owed to individuals with disabilities. I argue that, under Darwall’s framework, whether the threshold for second-personal competence has been met will determine whether respect or rational care is owed to them. This fact distorts our understanding of what we owe to persons with mental impairments—in part because it limits respect to relations that are symmetrical and reciprocal. In light of these challenges the paper offers an account of hermeneutic competency, which can be applied to non-reciprocal and asymmetrical relationships. This alternative account will be of practical import to judicial determinations of best interests under the Mental Capacity Act 2005 in England and Wales. It will also be of broader theoretical interest to any legal system that deals with people with mental disabilities.

Three Coming Legal Challenges to Indonesia's Death Penalty Regime

Indonesia's President, Susilo Bambang Yudhoyono, stepped down on 20 October 2014 after two five-year terms in office. Under Joko Widodo, his successor, outright abolition is considered unlikely for the time being, as Indonesia’s public, government and religious institutions still favour the retention of the death penalty. By the date of his departure from office, President Yudhoyono faced around 40 pending clemency petitions, which he did not rule on, preferring instead to pass them to his successor. Other than hoping that the new President accedes to these requests for clemency, or alternatively the courts proceeding to overturn the death sentence in judicial appeals for those prisoners who still retain the option, abolitionists and defence advocates must consider other legal possibilities for the roughly 140 prisoners currently held under sentence of death in Indonesia. Accordingly, within the context of a significant political moment for the country, I outline three potential constitutional challenges to Indonesia’s death penalty, capable of being employed by and on behalf of those prisoners who remain on death row. In general, these potential challenges would involve judicial determination on: 1) the length of time that certain prisoners have spent on death row in Indonesia; 2) the procedural changes to clemency petitions brought by Indonesia's revised 2010 clemency law and 3) the relationship between judicial review proceedings ('peninjauan kembali') and clemency petitions. In this article, I outline the legal arguments in favour of each challenge, the categories of prisoners who would stand to benefit, together with foreseeable legal and political hurdles that would need to be overcome for the petitioners.

Foreign Law and Constitutional Rights in the US Courts of Appeals: Findings and Implications

Abstract Judicial reliance on foreign law has been hotly debated since the early 2000s, with commentators staking out competing positions on the role of foreign sources in con­stitutional interpretation. While the literature has been normative in focus, authors fre­quently incorporate empirical assumptions about how judges have used foreign law in practice. Yet scholars have done little empirical work to ground the debate and have fo­cused so predominantly on the Supreme Court that the US Courts of Appeals have been largely ignored. This study analyzes findings from a newly created database containing Courts of Appeals decisions relying on foreign law in deciding constitutional rights issues from the earliest cases to the present day. The surprising results include the low number of overall cases, the dearth of cases using foreign law to challenge accepted principles, and the absence of cases engaging the reasoning behind foreign judicial determinations. The findings serve as a jumping off point for the examination of normative concerns, including the risk of arbitrariness in judges’ decisions to rely on foreign law in particular cases.

Licensing standard essential patents, part two: the availability of injunctive relief

The first part of this article, published in the previous issue of the journal, examined the theoretical context which surrounds fair, reasonable and non-discriminatory (F/RAND) commitments and the judicial determination of royalty rates for standard-essential patents (SEPs) subject to such commitments. This second part provides an overview of the current debate on the availability of injunctive relief for the enforcement of SEPs and the risk that injunctions may be used to exploit the lock-in situation common to potential licensees. Case law, both in the USA and the EU, shows that courts are particularly sensitive to the use of injunctions against willing licensees, and authorities appear to share the same concern. A final section of the article provides an overview of recent proposals for tightened IPR rules to be adopted by standard setting organizations, and evaluates the outstanding issues that still undermine the effectiveness and predictability of F/RAND commitments.

The Defense of Socio-Educational Internment: Feature of the Hygienist Principles

Youth violence and interventions to affront it are the focus of our scientific research. The aim of this study is evaluate the existence of the aspects contained in the justifications of hygienism judgments of teenagers who meet admission youth work. In this sense, we 21 sentences that determined the internment and its supporting materials which makes up the judicial process of teenagers that have entered the year 2010 in the Center of Socio-education II in Cascavel Paraná State. The results led us to conclude that nowadays, notwithstanding the Children and Adolescent, we are still, by judicial determination, removing the Teen Delinquency situation and closed the judicial term returning it to the same context from which it was withdrawn. Enshrined due differences in shape and time note this routing aspects of the ideology of mental hygiene and the minor doctrine.

Competing Institutional Perspectives in the Life of Glass–Steagall

A growing body of scholarship explores processes of gradual but transformative institutional change, classifying patterns of change into several categories. I argue that policymakers themselves actively contest the appropriate institutional frames for understanding changes as they seek to guide institutional change, and show that judicial determinations of statutory meaning are sensitive to judgments about which institutional perspective is most compelling. A process-tracing examination of institutional changes in the Glass–Steagall Act over the law's whole life span, from 1933 to 1999, provides a concrete example of how the dynamics of contestation can play out. Those who conceived of Glass–Steagall as the institutional embodiment of the separation between commercial and investment banking argued that expansion of commercial bank powers represented institutional drift. Alternatively, those who came to see Glass–Steagall as just one set of statutory imperatives to be handled within the larger institutional context of American banking law, including banking regulators, interpreted regulatory changes as constructive acts of conversion adapting to novel economic challenges. I document the slow process through which courts came to accept the second framing while noting how the fixity of statutory text nevertheless continued to limit available adaptations.

Further steps towards a uniform approach to RAND rates for standard-essential patents in the USA: the alternative 'top down' approach

A few months after Judge Robart, in Microsoft v Motorola, provided the first judicial determination of (fair,) reasonable and non-discriminatory (RAND) rates for standard-essential patents in the USA, a new case confirmed the validity of the approach based on an ex ante hypothetical bilateral negotiation, conducted in light of the Georgia-Pacific factors and of previous licences for comparable patents or standards. Judge Holderman provided significant guidance on the assessment of potential damages for the infringement of RAND-encumbered standard-essential patents, investigating the use of an alternative ‘top down’ methodology, to calculate RAND rates in the absence of comparable licensing agreements.

Arbitrating the Treaty on Certain Maritime Arrangements in the Timor Sea: The Latest Round between Timor-Leste and Australia

This brief article details the latest in a long-running dispute between Timor-Leste and Australia over rights to resources in the seabed and subsoil below the sea between their coastlines. Having been closed out of the International Court of Justice and the International Tribunal for the Law of the Sea, Timor-Leste is now seeking to arbitrate its dissatisfaction with current arrangements under a provision in the Treaty on Certain Maritime Arrangements in the Timor Sea (CMATS). Potential claims of fraud, breach of good faith, and unlawful intervention mean that it is possible; perhaps likely, that CMATS will be declared invalid or void. Much will depend on the evidence, however. Australia now finds itself in a difficult situation and the dispute is likely to continue and fester absent good will on the part of both parties. The most just course of action at this point could be to allow an independent third party to finally make a judicial determination of the seabed boundaries of between Timor-Leste and Australia in order to achieve and equitable solution, create certainty about rights, and bring an end to this continuing saga.

Community standards

I introduce a model of community standards relevant to the judicial determination of obscenity. Standards are defined as subjective judgments restricted only by a simple reasonableness condition. Individual standards are aggregated to form the community standard. Several axioms reflect legal concerns. These require that the community standard (a) preserve unanimous agreements, (b) become more permissive when all individuals become more permissive, and not discriminate, ex ante, (c) between individuals and (d) between works. I show that any rule which satisfies these properties must be “similar” to unanimity rule . I also explore the relationship between the model and the doctrinal paradox of Kornhauser and Sager [12] .

Between Supremacy and Submission: A Model of Collaborative Constitutionalism?

The adoption by jurisdictions like Canada, Australia, the UK and New Zealand of relatively novel mechanisms for resolving disputes about rights has led to the development of several ostensibly novel models of constitutional adjudication.The most high profile of these - notably Mark Tushnet's distinction between weak and strong-form review, and Stephen Gardbaum's Commonwealth model of constitutionalism - place emphasis, in particular, on the provision of a legislative power to override a judicial determination. It is argued, especially by Gardbaum, that this vesting of the final say in the legislature avoids the weaknesses of both political and legal constitutionalism and so represents a better alternative to traditional theories of legislative or judicial supremacy.This paper argues that Gardbaum's claims are misconceived. Using examples from other jurisdictions, the paper suggests that the claimed novelty and hybridity of the model is based on a caricatured image of alternative approaches to constitutional adjudication. In particular, it is contended that the Commonwealth model's concentration on the idea of the 'final say' is misleading, illusory and gives rise to a false choice between extremes. The critical consideration in any system is not how the mechanisms are designed but how they actually operate.In reality, the contingent and disaggregated nature of modern government means that it is unlikely that any institution will have the 'final say', in the sense of commanding the complete and permanent implementation of its intentions.This, it is suggested, provides the basis for an alternative model of collaborative constitutionalism. This model proceeds from an acceptance of the contingent nature of institutional decision-making to suggest that institutions, like courts and legislatures, should therefore be regarded as engaged in the collaborative enterprise of constitutional governance. By freeing constitutional theory from the necessity to make a false choice between judicial or legislative supremacy, collaborative constitutionalism allows constitutional scholars to concentrate on more practically-important issues of institutional competence, respective expertise, protocols for inter-institutional engagement, and so on.

Discrepancies in Death Certificates, Public Health Registries, and Judicial Determinations in Italy

The death certificate is mandated by civil law and serves as a medical-scientific document useful for biostatistics and epidemiological research. For a variety of reasons, death certificates can be misclassified. We reviewed data from self-inflicted deaths collected over an 8-year period by the Forensic Institute of the University Sacro Cuore of Rome (Italy). Four hundred and thirty-five of 2904 were classified as self-inflicted deaths (15%). The comparison with death certificates processed by the local public health authority (ASL) and by the Italian National Census Bureau (Istat) and with the judicial investigation results available in the Italian Penal Court archive shows some discrepancies. One-hundred and twenty-four of 435 deaths were not considered to be self-inflicted but due to a crime (29% overrecording suicide) with a higher reduction for women, suggesting that it is easier to confuse a murder for suicide in female cases. Any discrepancies between the mortality and crime data are discussed in details.

Ouster Clause: Legislative Blaze and Judicial Phoenix

If constitutionalism denotes obedience to the
 Constitution, the scheme for enforcement of obedience
 and invalidation of disobedience should be found in the
 Constitution itself. It is important that this scheme be
 clear and the task of enforcement be vested in a
 constitutional body. In such a situation, the question of
 custodianship i.e., who will ensure the rule of
 constitutionalism assumes prime importance, as any
 ambiguity regarding the same will result in conflicts
 uncalled for between legislature and judiciary. This
 conflict intensifies when judiciary determines the
 constitutionality of the legislations and the legislature
 defends by placing it in the „ouster clauses‟ within the
 Constitution to exclude the judicial determination.
 Judiciary counters by nullifying the legislative attempts
 through innovative interpretation. An attempt is made to
 study Article 31 B, the most prominent ouster clause in
 the Constitution of India barring judicial review of
 legislations and how the Indian judiciary retaliated to
 such legislative attempts and effectively curbed them. The
 study outlines the historical reasons which necessitated
 the insertion of Article 31 B in the Constitution and
 analyses the myriad implications of such an ouster clause
 within the Constitution. The constitutional basis of
 judicial review is studied to audit the justifiability of the
 open ended Ninth Schedule along with Article 31 B. A
 comparison between Article 31 B and the other ouster clauses namely Articles 31 A and 31 C is also made,
 bringing out the effect and scope of Article 31 B. The
 study covers a critical survey of judicial pronouncements
 from 1951 to 2007.

Targeted Killings and Proportionality in Law: Two Models

I will explore three problems. First, how can targeted killings understood on the domestic law enforcement model be conducted without violating due process concerns? If the targeting is based on the conduct or behaviour of the person targeted, then it seems that a judicial determination of the facts is required. And in any event, the killing, rather than the arrest, of the person targeted would rarely be justified on a domestic law enforcement model. Secondly, on the international humanitarian law model, are targeted killings no different from other ‘battlefield’ killings in war or armed conflict? One of the salient issues here is how to satisfy proportionality, which seems to require that the least lethal means be used consistent with military necessity. Thirdly, under what conditions, if any, would targeted killings be subject to international criminal prosecution? If targeted killings fail to be proportionate, are those who perpetrate them prosecutable under the International Criminal Court’s understanding of disproportionate attack?

Abdication of Responsibility or Justifiable Fear of Illegitimacy? The Death Penalty, Gay Rights, and the Role of Public Opinion in Judicial Determinations in Africa

This Article analyzes the extent to which some of the highest courts in Africa have tackled the potential conflict between the power of judicial review on the one hand, and public opinion on the other, by looking at two controversial subjects, i.e., the death penalty and gay rights, and by considering the influence of public opinion on the judicial determination of the constitutionality of laws that imposed the death penalty or criminalized sodomy. The Article observes that the two principal reasons that can possibly justify the judicial consideration of public opinion are the democratic principles of popular sovereignty and its inherent ideals, and consequentialist theories. Yet, finding the answer to a constitutional issue in public opinion contradicts the very purpose of judicial review as a counter-majoritarian institution. In particular, judicial reliance on public opinion raises serious concerns about the protection of human rights of unpopular minorities and about their causes which often lie at the heart of the issue of constitutionality and judicial review. The Article argues that courts should not exclusively rely on public opinion to determine constitutional issues. It appears that public opinion has played a particularly determinative role in African courts in gay rights decisions, more so than when the constitutionality of the death penalty was the issue. It seems that African courts, with the exception of the South African Constitutional Court, have succumbed to the fear of democratic illegitimacy by abdicating their legal and moral responsibility to decide constitutional human rights issues in a neutral, independent manner.

Enunciating Genocide: Crime, Rights and the Impact of Judicial Intervention

As a consequence of recent decisions from the ICJ and the ICTR, it is clear that genocide can be pursued through the international courts both in terms of criminal liability and also rights/responsibility legal paradigms. This article suggests that this duality in possible contexts and processes of judicial determination, while being procedurally problematic, is in keeping with the human rights direction of international criminal justice. In addition, by opening the legal consideration of genocide to questions of individual liability as well as state-sponsored rights abuse, judges are now able to consider the more realistic complexity of genocide atrocity and thereby to address the diverse legitimate interests of victims. Particularly, by enabling and expanding juridical activation as the medium for legally enunciating the Genocide Convention, the determination of genocide and its consequences may benefit from enhanced certainty when reflected against the constitutional legality of the courts.

Sham of the Moral Court? Testimony Sold as the Spoils of War

This paper analyses the critical influences on witness-based truth-telling for judicial decision-making in the international criminal tribunals. The judicial fixation on witness testimony reflects the weight and legitimacy given to personal testimony before international courts. This weight must be balanced by the awareness that a witness may provide false testimony intentionally, or may be coaxed by third parties to provide such testimony, as has been evidenced recently before the ICC. If witness testimony is tainted then its capacity to endorse the truth-finding function of the court is compromised. As a consequence the ability to assert that the tribunal is a ‘moral court’ based on empirical truth in such circumstances is jeopardized. The nexus between witness testimony, truth, the morality of judicial determinations, and the legitimacy this affords is explored in what follows. We question whether simple assertions that witness testimony, tested through adversarial examination, produces truth and resultant morality, are all they seem. The analysis also critiques the forensic reality of witness testimony before the international tribunals. Ultimately the paper suggests that while truthful testimony is crucial if international criminal trials are to produce legitimate judicial determinations, the naïve claim to a moral court as a consequence of tested witness testimony is problematic at least and unsustainable at best.

The impact of juveniles' ages and levels of psychosocial maturity on judges' opinions about adjudicative competence.

This study investigated whether defendants' ages and levels of psychosocial maturity would affect judges' ratings of juveniles' adjudicative competence in juvenile and criminal court. Three hundred forty two judges reviewed a forensic psychological report about a hypothetical defendant; only the defendant's age (12-17) and maturity level (mature, immature) varied across reports. Results revealed a main effect of age, with older juveniles generally deemed more competent, and a main effect of maturity, with mature juveniles generally deemed more competent. No interaction was found. Results suggest that age and maturity play major roles in judicial determinations of juvenile competency.

The Sweet Taste of Defeat: American Electric Power Co v. Connecticut and Federal Greenhouse Gas Regulation

I. INTRODUCTION II. MASSACHUSETTS v. EPA AND ITS AFTERMATH A. The 2007 Opinion B. Regulatory Aftermath III. AMERICAN ELECTRIC POWER V. CONNECTICUT A. Impact on EPA's Clean Air Act Authority B. Potential Impact on Proposals to Amend Away EPA Authority IV. WHAT NEXT? REDUCING GREENHOUSE GASES THROUGH STATE PUBLIC NUISANCE ACTIONS V. CONCLUSION I. INTRODUCTION Despite increasingly dire warnings from scientists, the United States Congress has been unable to pass comprehensive legislation to reduce climate altering greenhouse gases. In the absence of new federal legislation, states, cities, and nonprofits have petitioned and sued administrative agencies to regulate pursuant to existing environmental laws. Under former President Bush, executive agencies largely rebuffed these efforts, prompting litigation by environmental plaintiffs. In response to judicial determinations and citizen petitions, as well as by virtue of its own policies, the Environmental Protection Agency under President Obama began regulating greenhouse gases pursuant to the Clean Air Act. Political and legal attacks followed swiftly, with opponents charging that the Agency had exceeded its mandate and politicians proposing legislation to incapacitate the Agency. Meanwhile, plaintiffs have also sued power producers in state and federal common law tort actions characterizing greenhouse gas emissions as a nuisance. This cause of action--which creates liability for an unreasonable interference with a right common to the general public (1)--was used to abate pollution long before the advent of the administrative state. (2) Although nuisance lawsuits are often viewed as a distinct predecessor to regulation under modern federal environmental statutes, this article argues that these common law actions can significantly influence development of a federal regulatory regime for greenhouse gases. In the midst of the battle over climate change regulation, the Supreme Court issued its 2011 decision in American Electric Power v. Connecticut (AEP) (3) holding that the federal common law nuisance cause of action relied upon by the plaintiffs had been displaced by the Clean Air Act. Many headlines touted the decision as a win for utilities, highlighting the Court's rejection of states' and environmentalists' claims against the five largest electricity generators in the United States. (4) Yet, such attention to the formal outcome missed the real import of the case. By strongly reaffirming the Court's 2007 decision in Massachusetts v. EPA, Justice Ginsburg's brief opinion strengthened the Environmental Protection Agency's (EPA's) authority to regulate greenhouse gases under the Clean Air Act. Moreover, because the Court held that displacement of nuisance claims under federal common law hinges on EPA's authority to regulate greenhouse gases, the decision impedes congressional Republicans' efforts to obstruct EPA's climate change efforts by amending the Act. Meanwhile, the Court did not decide whether or not the Clean Air Act preempts nuisance actions brought under state law, leaving intact another possible tort avenue for plaintiffs. By bolstering EPA's nascent efforts to regulate greenhouse gases, the decision appreciably advances the development of a federal regulatory regime to address climate change. Other aspects of the case--less a focus of this discussion--support environmental plaintiffs more broadly. By affirming the Second Circuit on jurisdictional questions, the American Electric Power opinion solidified the Court's 2007 holding in Massachusetts v. EPA that the injuries caused by climate change and their incremental redress provide an appropriate basis for standing to sue. In addition, the affirmance undermined claims (beginning to gain traction in some courts) that the political question doctrine prevents courts from reaching the merits of climate change suits. …

How Children’s Voices Were Heard ‘Above the Din’ in Family Court Proceedings in Cases Where There Were Allegations of Child Sexual Abuse: The Importance of Judicial Orientation and Professional Evidence in the Discernment of the Child’s Voice

This article examines how children’s voices can be heard in Family Court hearings when there are allegations of child sexual abuse. Using a case study approach, three judgements are examined to see how judicial determination centralised the information from and about children. In these three purposively selected cases the voices of children was identified from conflicting evidence presented by professional assessors and counsellors. These three cases were selected because of the primacy given to evidence that was presented from and about children. In these cases allegations were not assumed to be artifacts of a parental dispute, instead, the Judge who heard them worked actively to discern the child’s voice within the conflicting evidence. Further, these three cases were also distinguished by the range of evidence available that included family reports and assessments from professionals as a result of Court Orders, but also evidence from those who had ongoing involvement with the children in counseling roles. These counsellors were located outside the Family Court, in the child protection sector. The evidence from counsellors was preferred by the Judge as it provided a higher level of detail about the children and their allegations. The ‘voice of the child’ was constructed by the Judge in their interpretation of professional evidence.

Freedom in paradise: Quality of conditional release reports submitted to the Hawaii judiciary

Annually thousands of insanity acquitees are released from mental hospitals when they are no longer determined to be dangerous. This research examined quality of post-acquittal Conditional Release (CR) reports submitted to the Hawaii Judiciary. Hawaii utilizes a “three panel” system for assessing trial felony competency, criminal responsibility, and conditional release, where typically two psychologists (one Department of Health and one community-based) and one community-based psychiatrist submit independent reports to the Court. One hundred fifty CR reports were rated using a 44-item report quality measure. Interrater reliability trials indicated good to excellent agreement between quality ratings. Overall level of report quality was poor regardless of examiners' professional discipline, employer, or board certification status. Concordance rates for CR opinions were poor. Level of agreement between the judicial determination and majority recommendations was also poor. Reasons for the poor quality and level of agreement are discussed with recommendations for report quality improvement, including standardization of procedures and use of forensic risk assessment instruments.