Judicial Interference Research Articles

Transplanting Absolute Priority in Indian Bankruptcy Law: Part I

In 2016, India revamped its bankruptcy legislation and introduced a new framework for resolution of financially distressed businesses. The Insolvency and Bankruptcy Code (IBC) was intended to usher in a new era of efficiency and galvanize India’s ailing bankruptcy regime. The results thus far have been mixed. One of the issues that has frequently arisen under the new regime is how to distribute the resolution proceeds amongst different classes of creditors. The doctrine evolved by courts and tribunals has been to leave any question on distribution to the discretion of the Committee of Creditors – an approach developed to insulate bankruptcy proceedings from excessive judicial interference. In this paper, which will be published across two volumes, I endeavour to show that this approach is flawed and contributes to the systemic problems afflicting the Indian bankruptcy regime. Drawing on doctrine developed in transnational bankruptcy law, I argue in favour of adopting the absolute priority rule as a fixed rule for distribution of resolution proceeds in India, which can augment value maximization and enable efficient resolution of distressed debt. Part I of this paper will trace the origins, evolution and migration of the absolute priority rule in transnational bankruptcy law. Part II, which will be published in the following volume, will make the case for transplanting absolute priority in Indian bankruptcy law.

The Hijab Ban Verdict: A Case Note on Aishat Shifat v. The State of Karnataka

Abstract Should judges engage in theological deliberations? This question has often been asked in the context of religious claims before the courts in India. Following the hijab ban by the Karnataka government, the subsequent decision of the Karnataka High Court (khc) upholding it, and a split verdict by the Supreme Court of India (sci), the question is doing the rounds once again. The present article attempts to critically analyze the decisions of the khc and the sci on the hijab controversy. The analysis draws on the claim of Justice Dhulia that the courts are not the proper forum to engage in theological deliberations, and judicial interference is warranted only when the limits set by the Constitution are violated. In alignment with the claims of Justice Dhulia, the present article argues that in matters concerning government interference in religious practices, the focus of the reviewing court should be more on the legitimacy of the restriction rather than the religious validity of the practice. The author agrees with Justice Dhulia that in matters concerning the right to religion, proportionality is objectively the better standard of judicial review, as it dissuades the court from inquiring into the religious and cultural practices of the parties.

The Autonomy of Administration

Justice Rosalie Abella is closely associated with deference to administrative decision makers. I will argue that her deferential approach was multifaceted, much more sophisticated than might typically be assumed. Abella J’s administrative law jurisprudence is as much about administrative autonomy as it is about judicial deference. On one level, Abella J’s jurisprudence is a jurisprudence of judicial restraint, preaching limited judicial oversight of the administrative process. This reflects the conventional way of thinking about deference in administrative law as a doctrine requiring judicial restraint: it is a shield protecting administrative decision makers from judicial interference. Accordingly, she supported a broad presumption of deference to administrative decision makers and articulated a fairly non-interventionist conception of reasonableness review. But, on a deeper level, Abella J’s jurisprudence is more radical. As I explain, Abella J was not committed simply to a restrained approach to judicial review but, rather, to promoting the autonomy of public administration: she furnished swords to administrative decision makers, allowing them to carve out additional space in which to operate and articulate applied versions of legal norms. Her commitment to administrative autonomy, rather than simply to judicial restraint, prompts reflection about the basis of Abella J’s administrative law philosophy, which must ultimately be grounded in her trust of the administrative process, aligning her with the so-called ‘functionalist’ school of thought associated with progressive thinkers. I then turn to the Supreme Court of Canada’s recent rearticulation of Canadian administrative law in the Vavilov case – a rearticulation with which Abella J expressed firm disagreement. I reflect on why the majority and Abella J diverged in Vavilov and suggest that the key features of Abella J’s jurisprudence – restraint and autonomy – are rooted in a mode of thinking about administrative law that has fallen out of favour.

Introduction: Antipolitics or Antinomianism?

Abstract In this introduction to part 3 of the Common Knowledge symposium “Antipolitics,” the journal's editor argues that, apart from sortition, the best guarantees of safety in a democracy are, first, to augment judicial oversight of all political processes and, second, to exclude politicians from the process of selecting judges. “There can never be too much judicial interference,” he writes, “in what politicians regard as their domain.” The author reached this conclusion during attempts by the newly elected Israeli government, in the spring of 2023, to make itself absolute by eliminating checks on its conduct that the Supreme Court had been developing and applying since the 1950s. Traditional Jewry and Judaism being notoriously hypernomian, the resistance to legality on the part of the ruling coalition has conveyed an aura of antinomian heresy. The choice in Israel appears to be between antipolitics and antinomianism, rather than between Left and Right politically—and the antipolitical model in Israel of a superintendent judiciary and an autonomous attorney general is arguably superior to the American prototype, even from the perspective (“all men are created equal . . . , endowed by their Creator with certain unalienable Rights”) that we have come to regard as quintessentially American.

Judicial interference with mifepristone

In the days since Texas federal judge Matthew J. Kacsmaryk invalidated the approval by the US Food and Drug Administration (FDA) of mifepristone, a medication used to terminate pregnancy, a shock wave of concern has swept through many people, organizations, and companies that work closely with the agency. The strong opposition reflects the high stakes not only for pregnant persons and for the FDA, but also for the scientific process of drug development and public access to safe and effective medications. Twists and turns in the case are already happening. A federal appeals court stayed the full suspension of mifepristone, but permitted multiple restrictions on its availability. Then the Supreme Court, which recently overturned the constitutional right to abortion, kept the status quo in place for a few days while considering the government's appeal. The results of the legal battle will be enormously consequential for reproductive health care-and far beyond, for innovation, science, and health.

POLITICO-JUDICIAL ACTIVISM IN PAKISTAN: A HISTORICAL OVERVIEW

The purpose of this article is to take a historical overview of Judiciary’s activism in derailing the democratic process in Pakistan. To provide a complete study of judicial activism and its impacts on democracy a glimpse of historical background can help to establish an appropriate point of view that the political history of Pakistan is full of judicial interference. The constitutional and political history of Pakistan has witnessed the murder of political rights by other institutions. The repeated undemocratic acts/episodes of dissolving the elected assemblies by the military or bureaucratic establishment with judicial support can be witnessed throughout the political history of Pakistan. This study shall attempt to find the correlation between the successful democracy and the doctrine of separation of power. By applying the theory of separation of power to this study it shall be concluded that the prime reason of weak democracy is imbalance of power among the three organs of government. This research shall be conducted by utilizing the qualitative methodology. The documentary analysis provides the information to understand historical roots of specific issues. Keywords: Judicial Activism, Political Representation, Separation of power, Suo motto powers, Fundamental rights.

Contradiction and Legislation Regarding the Right to Life

Contradiction and Legislation Regarding the Right to Life Kevin L. Flannery, S.J. Unborn Human Life and Fundamental Rights: Leading Constitutional Cases under Scrutiny. Edited by Pilar Zambrano and William Saunders, with concluding reflections by John Finnis. Berlin: Peter Lang, 2019. The most fundamental principle of law is the principle of non-contradiction. This is Thomas Aquinas's position in the seminal article on the natural law, Summa theologiae I-II, question 94, article 2, where, citing Aristotle, he formulates the principle as, "One should not simultaneously affirm and negate." Lafter in the same article, Thomas offers a practical formulation of the same principle, "Good is to be done and pursued and evil avoided"; but in law, since it is contained in propositions (airmations and negations) as distinct from ideas regarding the pursuit of goods, the prior formulation is the more immediately relevant of the two. The book under review is important in that, by going through the legal history regarding abortion and related issues in a number of different countries—the United States, Canada, Italy, Spain, Poland, Ireland (Eire), Costa Rica, Argentina, Chile, Mexico, and Peru—it causes to emerge any number of times the realization that legislation and judicial decisions in favor of abortion "rights" invariably infect a legal system with contradictions and inconsistencies of various sorts. The present essay is, therefore, not your typical book review. Its objective is simply to list some of the legal contradictions and inconsistencies identified by the book's various authors as they describe the legal status of the unborn in their respective nations. [End Page 1323] William Saunders's very clear and comprehensive first chapter is entitled, "Judicial Interference in the Protection of Human Life in the United States: Actions and Consequences." In it, he describes, among other things, the Human Cloning Prohibition Act passed by the U.S. House of Representatives in 2003, which prohibited "any person or entity, public or private" from performing human cloning (23). He speaks also of a bill proposed in the U.S. Senate once the Human Cloning Prohibition Act had passed in the House of Representatives. This Senate bill (which was entitle, "The Human Cloning Ban and Stem Cell Research Protection Act") would have prohibited "any person or other legal entity" from conducting human cloning, even while allowing nuclear transplantation, which it defines as "transferring the nucleus of a human somatic cell into an oocyte from which the nucleus . . . ha[s] been . . . removed or rendered inert." The problem here, as Saunders explains, is that this latter definition "is the very definition of cloning" (25). In other words, in the same year, two pieces of legislation were considered in the Congress of the United States, both purporting to ban human cloning, one of which would have permitted what the other described (correctly) as human cloning and so prohibited. In the second chapter, "Whither United States Abortion Law?" by Gerard V. Bradley, discussed, among other things, is the inconsistency between the United States Supreme Court's pro-abortion decision Roe v. Wade and various laws, both state and federal, prohibiting feticide. Bradley says of the 2004 federal Unborn Victims of Violence Act that, "in pertinent part it says that 'whoever' 'causes the death of or bodily injury to,' a 'child who is in utero' is guilty of an offense apart from any accompanying offense against the woman carrying the child." The penalty for such an act is the same as would be imposed if the act were inflicted upon the unborn child's mother: if, for instance, the mother was killed. "A child in utero," reports Bradley, "is defined as a member of the species homo sapiens, at any stage of development, who is carried in the womb'" (37). The problem here is that prosecutable under this law are acts identical with those performed legally by abortionists. Bradley mentions two cases in which a woman's male partner—in one case the woman's husband—effected by stealth the abortion of her child. In one case, the male purchased abortion pills and affixed to their container a pharmacy label indicating that it contained a common antibiotic; in the other, the husband obtained the same type of...

Legal position of the Students’ Parliament of the Republic of Poland

The Students’ Parliament of the Republic of Poland (PSRP) is a representative institution of the higher education community. It brings together representatives of student self-governments of all universities – regardless of their profile and level of education. It is an association type organization with legal personality. The scope of activity of the PSSP and the competences of its bodies result from the Act on Higher Education and Science and its statute, which becomes effective after approval by the Minister of Science and Higher Education. This body finances the activities of the PSRP in the form of an entity grant, and at the same time is a supervisory body over the activities of the Parliament. By referring to the Law on Associations, the supervisory body shall use the means of supervisory intervention appropriate for associations. The type of the applied supervisory measure is determined by the degree of violation of the law or the statute by the PSRP or its bodies. If the violation is gross or persistent, without positive prognosis, Parliament is subject to judicial interference. The aim of this work is to present the functioning of the PSRP, with particular emphasis on the competences of its various bodies and the supervision of their activities, as well as the judicial control of these activities, with reference to the provisions of the Law on Associations.

Klauzula rebus sic stantibus (art. 269 kodeksu zobowiązań) w warunkach okupacji niemieckiej w Generalnym Gubernatorstwie w świetle tez prawnych polskich (nieniemieckich) sądów

The article aims to examine how the rebus sic stantibus clause (Article 269 of the Code of Obligations) was interpreted by Polish (non-German) courts in the General Government. The legal theses issued by these courts will be examined. It was an institution that was used to unify the jurisprudence, regarding the liquidation of the Supreme Court. The period of war and occupation was an extraordinary situation, that undoubtedly influenced the contractual relations between the parties. In the Code of obligations of 1933, the Polish legislator introduced the rebus sic stantibus clause, which allowed for judicial interference in contractual relations in the event of extraordinary accidents. It is interesting how the legal order of the General Government reacted to these circumstances. The paper uses archival sources, in which legal theses of Polish (non-German) courts, regarding the issue of the article, were found. Legal theses were not officially published, hence the need to select and develop archival material. A review of the most significant dogmatic-legal and historical-legal literature on the issue of the rebus sic stantibus clause is also presented in the paper. The next problem discussed will be whether Polish (non-German) courts complied with the conditions of application of Art. 269 of the Code of Obligations, including those developed by pre-war jurisprudence and doctrine. The problem is what, in the light of the jurisprudence, under the conditions of occupation, was meant by „extraordinary accidents”, whether the courts interpreted this notion narrowly or broadly. The research hypothesis of the article assumes that Polish (non-German) courts during the German occupation used the rebus sic stantibus clause only after meeting the conditions specified by the legal order.

The Shadow Effect of Courts: Judicial Review and the Politics of Preemptive Reform

We challenge the prevalent claim that courts can only influence policy by adjudicating disputes. Instead, we theorizethe shadow effect of courts: policy makers preemptively altering policies in anticipation of possible judicial review. While American studies imply that preemptive reforms hinge on litigious interest groups pressuring policy makers who support judicial review, we advance a comparative theory that flips these presumptions. In less litigious and more hostile political contexts, policy makers may instead weaponize preemptive reforms to preclude bureaucratic conflicts from triggering judicial oversight and starve courts of the cases they need to build their authority. By allowing some preemptive judicial influence to resist direct judicial interference, recalcitrant policy makers demonstrate that shadow effects are not an unqualified good for courts. We illustrate our theory by tracing how a major welfare reform in Norway was triggered by a conflict within its Ministry of Labor and a government resistance campaign targeting a little-known international court.

Arbitrary Judicial Interference in Human Rights Guaranteed by the Convention

Abstract The purpose of this study is to improve the approaches to the resolution of disputes arising from the arbitrary interference of the judiciary with human rights stipulated by the Convention. The methodological basis of this study consists of: the method of comparative legal analysis; the method of linguistic and systematic interpretation of legal texts; and synthesis of European Court of Human Rights decisions. The paper examines European Court of Human Rights decisions regarding arbitrary interference by the state with human rights. The authors of this scientific paper identify groups of the most common human rights breaches arising from the administration of justice by national courts. The results of the study suggest that it seems necessary and justified in any democratic society to have certain safeguards in the law of the respective state, namely, a certain set of legal safeguards against arbitrary interference with human rights by the judiciary.

On 'Confetti Regulation''”: The Wrong Way to Regulate Gamified Investing

Zero-commission investing apps like Robinhood have a business model that requires clients to trade as much as possible. To that end, these apps incorporate design features sometimes called “gamification”: behavioral prompts and flashy casino-like design elements that encourage trading. Securities regulators have focused on elements that encourage repeat engagement and trading. In principle there are many ways both to define the problem and to address it through policy. In this Essay, we focus on one approach to the problem—direct regulation of software design—and warn securities regulators away from it. Regulators might find it tempting to ban objectionable design features like a burst of confetti after the successful execution of a trade, or what we call “confetti regulation.” There are two problems with “confetti regulation.” It may be hard to implement and justify. But to our mind the greater problem is that it would attract a lot of deregulatory energy from technology attorneys who cast informational molehills as free-speech mountains. Securities regulation is largely about information and communication—yet it has somehow avoided serious First Amendment scrutiny (read: judicial interference) for decades. The SEC, meanwhile, has lost many important appeals before the Supreme Court. And in light of recent changes to First Amendment law, in our view it would be unwise for the agency to pursue regulatory strategies that would precipitate more deregulatory constitutional challenges. We argue that in addressing gamification regulators should avoid asserting direct control over “bad” software design, and instead focus on the business model that drives it. In addition, regulators should justify regulatory action in terms of settled policies that are technology-neutral. Our essay discusses these implications and tees up for future preliminary components of a framework for assessing behavioral design against the securities laws’ goals.

The Shadow Effect of Courts: Judicial Review and the Politics of Preemptive Reform

We challenge the prevalent claim that courts can only impact policy by adjudicating disputes. Instead, we theorize the shadow effect of courts: Policymakers preemptively altering policies in anticipation of possible judicial review. While American studies imply that preemptive reforms hinge on litigious interest groups pressuring policymakers who support judicial review, we advance a comparative theory that flips these presumptions. In less litigious and more hostile political contexts, policymakers may instead weaponize preemptive reforms to preclude bureaucratic conflicts from triggering judicial oversight and starve courts of the cases they need to build their authority. By allowing some preemptive judicial influence to resist direct judicial interference, recalcitrant policymakers demonstrate that shadow effects are not an unqualified good for courts. We illustrate our theory by tracing how a major welfare reform in Norway was triggered by a conflict within its Ministry of Labor and a government resistance campaign targeting a little-known international court.

‘Minority Awards’ in India: A Low-Hanging Fruit for Judicial Interference?

While Indian courts are entitled only to ‘set aside’ an arbitral award under section 34 of the Indian Arbitration and Conciliation Act, 1996, there have been numerous instances of modification of arbitral awards and this interventionist tendency has driven Indian courts to further devise new tools for interfering with the arbitral process. One such tool is the opinion of the dissenting arbitrator(s). The ‘minority awards’, which were completely overlooked back in time, are now being referred to not only for finding defects in the majority award but also for replacing them altogether. In fact, Indian jurisprudence in this regard has been very peculiar as no other Model Law jurisdiction has witnessed such overemphasis on the significance of the awards of the minority. This article analyses the various reasons cited by the Indian judiciary to approach arbitral awards in the foregoing manner. Particularly, the article addresses the conflict between these reasons and one of the most fundamental objectives sought to be achieved by the 1996 Act, viz. limiting judicial intervention.

Legal Transplants, Law Books, and Anglo-American Corporate Fiduciary Duties

This article explores legal transplants and divergences in Anglo-American corporate fiduciary law. The internal management rule in English law acts to restrict judicial interference in corporate governance disputes. It is conceptually similar to the business judgment rule but the two remain distinct. This article explains why Anglo-American corporate law developed differently, despite its shared roots. It pinpoints the origins of the internal management rule to Lord Lindley’s work, which was written in the late nineteenth century. Lord Lindley was central to the development of corporate law in England and other common law jurisdictions within the British Empire but his jurisprudence was not influential in the United States. By this stage in the nineteenth century, the body of American scholarship was sufficiently well developed. Lindley’s text, despite its failure to stimulate American doctrinal development, was well read in the United States. Even so, judges and corporate lawyers in the United States took their inspiration from English law at the time of the founders.

La inestabilidad del sistema electoral y el fracaso de la «democrazia gobernante» en Italia (2008-2018)

This article deals with the evolution of the electoral system of the Italian Second Republic during the period from 2008 to 2018. It starts with the reform carried out in 2005 by the center-right coalition and concludes with the legislative modification agreed before the general elections of March 2018. On a first level, the contexts and causes that have contributed to the high variability in electoral systems are described and studied; the interpartisan level is included but also an exogenous factor such as judicial interference. On a second level, the lines and directions of the complex relationship between the electoral system, the party system and the parliamentary regime are discussed, based on a reflection on the theoretical contributions in that field. It concludes by analyzing, within that second level, the special meaning of the 2015 reform, as well as its failure in terms of blocking the «democrazia gobernante».

Mandatory and Default Regulation in the Slovak Commercial Law

The aim of this contribution is to provide the reader with an understanding of the concept of mandatory and default regulation within the Slovak commercial law. Private law regulation is in the Slovak Republic quite specific, as the Commercial Code covers not only companies (and cooperatives), but contractual aspects of the commercial law as well, which interferes with the contractual regulation stipulated in the Civil Code and causes duality. The Commercial Code and the Civil Code differently regulates the matter of mandatory and default regulation and therefore we found it crucial to provide the reader, who (most likely) does not have a detailed knowledge about these specificities in the Slovak law, with a more theoretical and descriptive introduction. Such an introduction is crucial in order to understand the following contextual analysis of the issue of mandatory and default regulation in the Slovak commercial law. However, the main aim of this contribution is to tackle the specific angles of the topic, in concrete, a possible judicial interference into the mandatory and default regulation of the commercial law and its impact on this concept. Moreover, the authors address the matter of possible avoidance of mandatory regulation in the commercial law through the contract on the sale of an enterprise and shareholders’ agreements, which are uniquely regulated in the Commercial Code. Moreover, the contribution addresses a hypothesis, that despite the need for simplification of the commercial law, the latest amendments of the Commercial Code goes opposite direction by introducing new mandatory provisions into the code, due to the abuse of a company as a legal form.

O coronavírus e a responsabilidade nos contratos internacionais

O artigo examina o impacto do Coronavírus na responsabilidade contratual, com foco nos contratos internacionais. O estudo principia pelo desenvolvimento dos conceitos de força maior e impossibilidade de cumprimento pela “frustration” na Inglaterra e nos Estados Unidos. O destaque é dado ao sistema jurídico anglo-americano pois os contratos internacionais são fortemente dominados pelo estilo de negociação de cláusulas e práticas comerciais há muito vigentes no mercado mundial, o que se acentua com o fenômeno da globalização. Na sequência, a análise é centrada no instituto do Hardship e da alteração das circunstâncias, com fundamento em sua origem na Alemanha e consolidação em outros ordenamentos. Finalmente, verificamos os principais instrumentos internacionais e a forma de abordagem que procura conciliar a inquietação dos ingleses diante da interferência em contratos com os sistemas continentais, que aceitam a adaptação de contratos em situação de extrema dificuldade de cumprimento.

Striking a Balance Between Assistance and Interventionism: The Role of Courts in Rwanda-Seated Arbitrations

The African Arbitration Association was established in 2018 and its headquarters is in Kigali, Rwanda. This choice of location signals that Rwanda has made meaningful strides in improving its arbitration environment, at least in the opinion of African states. Many questions will arise as to whether Rwanda-seated arbitrations do indeed rest in a legally friendly environment, and receive optimum support of courts which act to foster the efficiency and effectiveness of arbitrations. The interplay between courts and arbitral tribunals in dealing with Rwanda-seated arbitrations is the subject of this article. Party autonomy, which broadly underscores the freedom of the parties to decide how their disputes should be resolved, is one of the most important principles in arbitration. This principle naturally translates to the autonomy of the arbitral process and notably the freedom of this process from undue judicial interference. While courts are indispensable in the success equation of the arbitral process, too much judicial intervention in matters of arbitration may have serious repercussions on the efficiency of arbitration. This article examines the autonomy of the arbitral process under the law and practice of arbitration in Rwanda. In doing so, the article discusses different practices in the leading places of arbitration on the interplay between courts and arbitral tribunals in dealing with matters of arbitration and compares these with the corresponding law and practice governing Rwanda-seated arbitrations. It concludes that, with the pro-arbitration stance often demonstrated by the courts in Rwanda and their sparing involvement in the arbitral process, the arbitration environment is as friendly as it is in most other states that are signatory to the Convention on the Recognition and Enforcement of Foreign Arbitral Awards (New York Convention, 1958). Rwanda-Seated Arbitrations, Mandatory Provisions, Party Autonomy, Jurisdictional Challenges, Kompetenz-Kompetenz, Negative Effect of Kompetenz-Kompetenz, Manifestly Void, Stay of Court Proceedings, Judicial Non-Interference, Pro-Arbitration Stance, One-Stop Adjudication

Crisis in Brazil and impacts on the fragile regional and federative health policy governance.

Since 2014, Brazil has been experiencing an economic-fiscal-political-institutional crisis. This study evaluates whether the implementation of crisis responses contributed to weaken SUS regional and federative governance. This is an implementation study, and two theoretical categories of public health, the power in Testa and the subject in Campos have been incorporated. It presumes that the implementation shifts power and develops subjects. We analyzed public data from 2014 to 2018, organized into four axes of analysis: a) instruments for implementing crisis response; b) parliament and judicial interference in investments; c) legal frameworks of regionalization; d) federative actors and possible defense coalitions. Results show reduced federal resources, specifically for regional care networks; increased parliament and judicial interference with health resources, due to the evolution of congressional amendments and lawsuits, and changes in SUS regionalization guidelines. There is a shift of power from federative regional arrangements to the central government, parliament, the judiciary, and isolated local services. It is concluded that the response to the crisis weakened the regional federative governance of SUS, aggravating the impacts of the crisis on health.