Judicial Development Research Articles

Judicial Sentencing Policy, Criminological Expertise and Public Opinion

The first part of this article asks whether judicial sentencing can be regarded as founded on a well-informed policy. An analysis of the character of sentencing policy as it is to be found in sentencing judgments, the criminological basis of this policy and an assessment of the public's knowledge of and participation in the development of judicial sentencing policy demonstrates a negative answer is required. A case is then made for the judicial development of a more comprehensive and criminologically well-founded policy and for appropriate community involvement in this process. Finally, a scheme is proposed to facilitate these two outcomes: judicial sentencing policy could then be regarded as well informed.

The Role of Appellate Courts in the Canadian Sentencing Process

The Canadian sentencing process is in a state of flux. Recent amendments to the Criminal Code of Canada (R.S.C. Chapter C-46) explicate, for the first time, the purposes and principles of sentencing. These reforms may have a significant impact upon how sentencing is approached in Canada.1 Under normal circumstances, this legislative development would burden the provincial courts of appeal with the responsibility of providing guidance to the lower courts in interpreting and applying the new provi sions. However, two recent decisions from the Supreme Court of Canada have significantly con strained their power to review sentences. This judicial development may hamper or undercut the legislative initiative embodied in the new amend ments. This short article explores the role of appellate courts in the Canadian sentencing process with particular emphasis on recent developments.

Using a Contextual Methodology to Accommodate Equality Protections along with the Other Objectives of Government (with Particular Reference to the Income Tax Act): Not the Right Answer, Stupid. The Best Answer

The article examines the judicial development of the Charter's equality provision. The author proposes a "middle-of-the-road" or contextual approach as the most preferable path for this development. He canvasses the approaches to either side of the "middle ground," those of the democrats and the civil libertarians. He argues that both of these more extreme positions should be discouraged in favour of the more "equivocal" contextual approach. After explaining how the contextual approach has arisen and been developed in recent Supreme Court cases, the author examines this methodology with respect to the interpretation of the Income Tax Act He then utilizes the methodology to resolve some difficult factual situations arising from application of the Income Tax Act.

Judicial Development of a Business Judgment Rule in Japan

This article examines the application of a business judgment rule in Japan, a civil law jurisdiction with a statutory scheme that is different from that of either the United States of America or Australia. As will be seen, in spite of these differences, a business judgment rule similar to that in the United States of America appears to be developing.

Sentencing Purposes in England

Only rarely has the British Parliament included in its legislation any reference to the aims or purposes of sentencing. The modern law contains virtually nothing of significance in this respect. This is consistent with Parliament's general abstention from matters of sentencing policy: it concerns itself with maximum penalties, and imposes a few other restrictions, but leaves most issues of policy and principle to be developed by the courts. However, this tradition is about to be broken: a Criminal Justice Bill is currently before Parliament which would impose more restrictions on the courts than before, and which would introduce a legislative framework within which judicial development should in future take place. First, the existing position. THE CURRENT ENGLISH APPROACH With the legislature playing no role in the purposes of punishment, the matter has hitherto been left for

Homosexuality and Immigration Law: A Reexamination

Homosexuals have been excluded from entry into the United States since 1917. The issue of an individual's sexual orientation may also arise in the context of naturalization proceedings. This article examines the statutory and judicial development of these laws and the conflict that exists between their enforcement and current medical and psychological knowledge regarding homosexuality. The author concludes with a proposal for the elimination of the exclusion provision and the establishment of a “uniform rule of naturalization” that does not seek to judge private sexual behavior between consenting adults.

Judicial development of customary law in Nigeria

(1988). Judicial development of customary law in Nigeria. The Journal of Legal History: Vol. 9, No. 1, pp. 40-49.

Social Workers and the Courts: Education, Practice, and Research Needs

Although social workers have long been actively involved with the legal system in efforts to advocate on behalf of clients, there is a noticeable gap in social work education. The gap encompasses the knowledge needed by practicing social workers to present themselves objectively and to gain respect for the profession within the legal system; the failure of the profession to adequately explore the judicial development of social policy, which is becoming increasingly critical in providing for disenfranchised groups commonly served by the profession; and the inattention of the profession to the research needs of judges and the courts. This paper outlines the issues involved and presents directions for social work educators to take in attempting to fill this gap.

Federalism and Company Law

stitutions that served as the vehicles of that evolution.3 Both the American doctrines concerning the proper mix of state and federal involvement with private enterprise activity, and the court system that developed those doctrines, often have been looked to as guides to the achievement of some analogous division of powers over enterprise law in Europe. This kind of comparative inquiry is all the more attractive because of the hope that judicial development can escape or at least more successfully confront the political realities that have made the legislative and administrative path to European harmonization more an obstacle course than a road. This search also is fueled by a persisting sense of an ideological affinity between the two cultures - the sense that a liberal socio-economic theory undergirds the American system, and that this theory is reflected in the American lesson of increased unification or harmonization of enterprise law.4 At the least, the American vacillations between facilitative and regulatory law, depending upon changing perceptions of appropriate statet I am indebted to my colleague, Michael E. Smith, for a critical evaluation of this paper, and to David Bledsoe, Class of 1985, for substantial research assistance.

Updating the Judicial "Hunch": Esser's Concept of Judicial Predisposition

Jurisprudence in the Common Law has owed so much to German legal theory from the days of Austin onwards that it might be expected that any major new work in German would sooner or later become known to English readers. This may no longer be true as the generation of emigre scholars, who have so enriched Anglo-American legal scholarship, are now getting older and in many cases retiring from teaching. To this may be added that fewer native English or American scholars read German now that English has virtually become the lingua franca of legal research. These may be reasons why a recent major work in legal theory does not appear to have been reviewed in English.' Josef Esser's Vorverstdndnis und Methodenwahl in der Rechtsfindung (Predisposition and Choice of Method in Finding the Law)2 is a significant study and should become known to all who are interested in judicial process. In this book Esser develops some of the thoughts first outlined in his work Grundsatz und Norm in der richterlichen Fortbildung des Privatrechts (Principle and Norm in the Judicial Development of Private Law) published in 1956, of which unfortunately no English translation is available.3 There the author demonstrated convincingly, by case-law examples, analysis and reference to the juristic literature of the major Western legal systems (Germany, France, Switzerland, Italy, Spain, England and the United States), the fundamental similarities of legal evolution by the judicial process behind the superficial differences of technique. He also emphasized the surprising similarity of solutions to the same sets of problems in legal systems which had a similar set of values by the use of apparently quite dissimilar techniques, e.g. the concept of unjust enrichment as developed in the Common Law, in French law (where there was no provision at all on this topic in the Code) and in Switzerland and Germany where Code provisions did exist. The crucial importance of the judge in this process was an evident corollary. This book had a major, though not uncontroversial, impact on Continental legal theory. Its distinctive quality for German legal

Part Performance—no Judicial Development After All

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Part Performance—A Doctrine Ripe for Judicial Development?

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Legislative and Judicial Development of Interest

Legislative and Judicial Development of Interest

Legislative and Judicial Development of Interest

Legislative and Judicial Development of Interest

Judicial Development of the Law of Selective Service Reopening

Judicial Development of the Law of Selective Service Reopening

On Law in Courts: An Introduction to Judicial Development of Case and Statute Law

On Law in Courts: An Introduction to Judicial Development of Case and Statute Law

The Politics of Judicial Development in Indonesia

Legal approaches to judicial development in the new states of Asia and Africa seem to be inadequate for at least two reasons. One is that we cannot assume a prior knowledge of the political and social factors bearing on the process of change in these countries. The second is that by emphasizing legislative aspects of development, the spotlight is shifted away from the institutions themselves. One way of meeting these two objections is to bypass momentarily the normal function of judicial institutions and to look at them first of all as organizations like any other with group interests to defend and ambitions to pursue. From that starting point, it is possible to get a glimpse of the politics and sociology of legal and institutional change.

Psychiatric Evidence and Full Disclosure in the Criminal Trial

T HE PSYCHIATRIST as an expert witness introduces into the judicial process a very broad and far ranging type of evidence. In line with his own methods, he asks the law to give consideration to information concerning all factors which influence and determine specific human behavior. Notwithstanding the many difficult problems in relating psychiatric concepts to those of criminal law, his testimony performs an essential function in the criminal process by providing a fuller disclosure of the background and development of the individual on trial. Properly developed, psychiatric evidence broadens the inquiry beyond an isolated consideration of the circumstances of the crime and provides an explanation of the defendant's behavior in the context of his entire life history, including his childhood, his social environment, his conscious and unconscious thoughts, and his emotional experience.' Until recently, psychiatric evidence in California has been confined mainly to the single issue of legal responsibility, and introduced only in the separate sanity phase of the trial conducted after an adjudication of the defendant's guilt.2 Fortunately, this limitation has been overcome through the judicial development of a rule, primarily in People v. Wells,s

Kirby Benedict, Frontier Federal Judge: An Account of Legal and Judicial Development in the Southwest, 1853-1874

Journal Article Kirby Benedict, Frontier Federal Judge: An Account of Legal and Judicial Development in the Southwest, 1853–1874. By Aurora Hunt. Western Frontiersmen Series, Volume VIII. (Glendale: Arthur H. Clark Company, 1961. 268 pp. Illustrations, map, notes, bibliography, appendix, and index. $9.00.) Get access Edwin R. Bingham Edwin R. Bingham University of Oregon Search for other works by this author on: Oxford Academic Google Scholar Journal of American History, Volume 49, Issue 1, June 1962, Pages 140–141, https://doi.org/10.2307/1889498 Published: 01 June 1962

Review: Kirby Benedict, Frontier Federal Judge: An Account of Legal and Judicial Development in the Southwest, 1853-1874, with Special Reference to Indians, Slavery, Social and Political Affairs, Journalism, and a Chapter on Circuit Riding with Abraham Lincoln in Illinois, by Aurora Hunt

Book Review| November 01 1961 Review: Kirby Benedict, Frontier Federal Judge: An Account of Legal and Judicial Development in the Southwest, 1853-1874, with Special Reference to Indians, Slavery, Social and Political Affairs, Journalism, and a Chapter on Circuit Riding with Abraham Lincoln in Illinois, by Aurora Hunt Kirby Benedict, Frontier Federal Judge: An Account of Legal and Judicial Development in the Southwest, 1853-1874, with Special Reference to Indians, Slavery, Social and Political Affairs, Journalism, and a Chapter on Circuit Riding with Abraham Lincoln in IllinoisAurora Hunt John Porter Bloom John Porter Bloom Search for other works by this author on: This Site PubMed Google Scholar Pacific Historical Review (1961) 30 (4): 409–410. https://doi.org/10.2307/3636430 Views Icon Views Article contents Figures & tables Video Audio Supplementary Data Peer Review Share Icon Share Facebook Twitter LinkedIn MailTo Tools Icon Tools Get Permissions Cite Icon Cite Search Site Citation John Porter Bloom; Review: Kirby Benedict, Frontier Federal Judge: An Account of Legal and Judicial Development in the Southwest, 1853-1874, with Special Reference to Indians, Slavery, Social and Political Affairs, Journalism, and a Chapter on Circuit Riding with Abraham Lincoln in Illinois, by Aurora Hunt. Pacific Historical Review 1 November 1961; 30 (4): 409–410. doi: https://doi.org/10.2307/3636430 Download citation file: Ris (Zotero) Reference Manager EasyBib Bookends Mendeley Papers EndNote RefWorks BibTex toolbar search Search Dropdown Menu toolbar search search input Search input auto suggest filter your search All ContentPacific Historical Review Search This content is only available via PDF. Copyright 1961 The Pacific Coast Branch, American Historical Association Article PDF first page preview Close Modal You do not currently have access to this content.