Judicial Means Research Articles

Towards an understanding of judicial denunciation: Relating theory to practice by comparing the perceptions of English and Danish lower court judges when sentencing minor theft offenders

The influence of judicial denunciation during sentence summation and how this equates with wider criminal justice attempts to change offending behaviour through re-education and re-moralization appears to be important. However, there is no coherent academic agreement as to what judicial denunciation means and how this may relate to its interpretation and application by judges in practice. Through a small comparison of judicial perceptions in two distinct legal cultures there were common hints provided as to what denunciation may mean when applied to theft offenders. However, the limited data gathered were insufficient to develop a firm link to any one specific sentencing principle, policy or social theory. It would appear that if we are to better understand judicial denunciation during sentence summation we must master both the plurality of theoretical understandings and philosophical thoughts available and gather significantly more qualitative data in order to test what judicial denunciation may mean. The comparison of England and Denmark was only a slight nudge in the right direction, but it remains an attempt nonetheless to keep the ball rolling and inspire future academic enquiry into this important research area.

The Process of Evidencing (Offer of Proof) at Administrative Procedure

The investigatory procedure carried out by an administrative organ during administrative proceedings is indispensable. There is no doubt that “lex specialis”, in several cases, tend to detail this process, however, it needs a “lex generalis” act which will regulated principally all the important elements of the investigatory procedure. The Code of Administrative Procedure is an act, which naturally poses its problematic, however it is very important for prescribing such institute of administrative proceedings. Due to such significance, the analysis of judicial means being available to an organ of public administration for evaluating complexly the totality of facts and proofs and certainly for identifying present problems, is the central pillar of this report.

Sovereign Immunity, Insolvent States and Private Bondholders: Recent National and International Case Law

Abstract This article deals with issues of sovereign immunity from foreign jurisdiction and enforcement, with respect to attempts by private bondholders to recover judicially their credit against a foreign State defaulting on its sovereign debt. It seeks to clarify these issues also in the broader context of cases where a foreign State relies on its insolvency situation as a plea to escape from recovery actions brought by private creditors on the basis of State contracts. In the case where the bonds may qualify as an “investment” under the relevant investment treaties, ICSID and other investor-State tribunals’ awards and their follow-up become relevant too, as shown in the Argentinian crisis and its moratorium on foreign debt. The article reviews recent case law issued by national courts where creditors have brought a claim or tried to have their judgment enforced. In the light of this, it critically highlights the recent bondholders’ practice of refusing the offer made by the ‘insolvent’ State under its debt restructuring plan while seeking to recover their outstanding debt through judicial means.

Social Equality and the Mobilization of the Law

Sociolegal scholars refer to the invocation of law or rules during a dispute as the mobilization of law. Most studies of the mobilization of law focus on the mobilization of law by people in non-official capacities, particularly by persons of relatively low social status or in positions of social disadvantage. Early studies debated the effectiveness of court-centered strategies for social justice, examining whether real social change could be achieved through formal judicial means. Scholars now largely agree that law can be effectively mobilized for social change through both direct formal legal action and the indirect radiating effects of legal mobilization. This is because the influence of law goes beyond the courtroom; rights consciousness and legal mobilization help to transform culture and understandings of social status and power. Currently scholars are turning their attention to the mobilization of law within organizations such as schools and workplaces and the mobilization of rights talk and justice talk in unofficial arenas domestically and internationally.

Da acao civil publlica em materia trabalhista

This article makes general considerations about the public class civil action in the Labour Court. It designs an evolutionary line in the brazilian scenery, creates concepts and enlightens its judicial nature, and also delves into the peculiarities of this relevant judicial means. It analyses the civil investigation and the declaration of conduct adjustment, that can be settled between the Federal Attorney’s Office of Labour and the interested party, allegedly the would be defendant on a possible judicial lawsuit. Also, this work singles and draws a concept of the meta-individual rights that can be argued in the aforementioned procedure. It outpoints the hypotheses of use, the jurisdiction, who can demand and be demanded on the aforementioned legal procedure. The article praises the perfomance of the Federal Attorney’s Office of Labour as a party and as custus legis. The present work mentions also the sentence, the res judicata and the possible appeals in the analyzed procedure. At last, it focuses on the judgment execution and later fulfillment of the judicial claim

The Brazilian and Italian Labor Courts: Comparative Notes

SummaryThis article compares the Brazilian Labor Court, created in 1939, and the Italian Magistratura del Lavoro, instituted in 1926 by the government of Mussolini, to “harmonize” the conflicts between labor and capital through judicial means. The text problematizes the Brazilian intellectual tradition which sees the Labor Court either as a typically national product or as the transcription of an international model. It demonstrates that current polemics are fixed within the ambit of the “national problem” such as it was formulated in the 1930s. The approach adopted does not concentrate exclusively on the formal apparatus of juridical structure, but interrogates its functioning over time in different historical conjunctures. The main goal of the article is to understand the Labor Court as an institutional recourse historically appropriated by different subjects, in particular by workers, who gave the courts differentiated political meanings.

Why (big) states cannot do what they want. International legalization at work

Non-compliance occurs in all international organizations and hampers the effectiveness of international law. Despite increasing international legalization, we know little about how international courts abolish non-compliance. Why do states sometimes abolish non-compliance before but sometimes only after judgements or even threats with penalties? This article argues, first, that there are few differences between weak and powerful states in reacting to the European Court of Justice. Second, contrary to the expectation of legalization approaches, judicial means, such as judicial discourses, cannot always facilitate compliance. Third, by contrast to the expectations of enforcement theories, powerful states do not resist judgements and sanction-threats to a greater extent than weak states. Fourth, non-country variables, such as the gravity of the infringement or the choice of judicial interpretational devices, are scope conditions for the success of judicial discourse and sanctions and are crucial in explaining how norm violations of weak and powerful states can be resolved by the international courts.

A Law and Economics Perspective on Injunctive Relief

The Law and Economics perspective on injunctive relief has been developed primarily from the Calabresi and Melamed (1972) distinction between property rules and liability rules, two different judicial means of enforcing legal rights. Their analysis is predicated on the assumption that, if the prevention of the unlawful activity by an injunction does not reach an efficient solution between the relevant parties, then the latter can modify the terms of the injunction by means of bilateral negotiation, drawing on Coase's basic analysis. The approach is particularly important once it is appreciated that legal entitlements are imperfectly formulated and that, in appropriate circumstances, legal wrongdoing can increase social welfare. For example, in areas where intellectual property rights are particularly difficult to formulate because of the high technology involved, too rigid an enforcement of those imperfectly targeted rights generates welfare losses. The task for economic analysis is then to determine whether injunctive relief or damages is preferable in the particular circumstances governing the parties' activities. This largely involves comparing on the one hand the welfare losses which arise from imperfect damages awards which arise predominantly where the court has high information costs in assessing the plaintiff's losses (particularly where those losses are subjective and therefore cannot be determined by reference to market evaluation) or include irrecoverable third-party losses with, on the other hand, the transaction costs of negotiating a compromise solution or the welfare losses arising from a holdout (both conditions are likely where more than two parties are involved). One branch of the literature has added a new dimension to this analysis. It is concerned to explore how the choice of remedy ex post affects behaviour ex ante, in particular the propensity to invest. In addition, literature on optimal enforcement provides insights regarding the optimal timing of sanctions, which is relevant for the choice between injunctions (the first possible stage of legal intervention) and damages (the last possible stage).

Conjoined twins: an experience of a tertiary hospital in Southeast Brazil

to analyze the occurrence of conjoined twins at a tertiary perinatology reference university hospital over a period of 25 years (January 1982 to January 2007) and to describe the successful separation of one of the pairs. we consulted retrospectively the database of the University Hospital of the Medical School of Ribeirão Preto, University of São Paulo, Brazil, in order to determine the number of pairs of conjoined twins, their frequency, classification, gender, type of pregnancy resolution, attempted surgical separation, prenatal diagnosis and survival. we detected 14 pairs of conjoined twins (1/22,284 live births and 1/90 pairs of twin live births) born during this period (six males, seven females and one of indeterminate sex). The prenatal diagnosis was performed in all twins and all births were accomplished by cesarean section. The separation was possible in only one pair, which survives in excellent health conditions after eight years. Of the remaining 13, ten died on the day of birth and three survived only a few months (less than one year). Although our study revealed an abnormally high number of conjoined twins, this is a rare phenomenon, with a poor perinatal prognosis depending on the organs shared by the twins and associated malformations, especially those related to the fetal heart. Due to the poor prognosis of these pairs and to the maternal reproductive impairment caused by the need to perform body cesareans, we suggest that, based on these numbers, early interruption of these pregnancies be legally granted, as in the case of other diseases incompatible with fetal survival outside the uterus. Thus, the confirmation of a diagnosis of conjoined twins and the resolution of pregnancy should be performed at a tertiary obstetric and perinatal care center, and an authorization for the interruption of pregnancy should be obtained by judicial means.

New Developments in the Restitution of Cultural Property: Alternative Means of Dispute Resolution

AbstractAlternative methods of dispute resolution are an important resource in matters of cultural heritage in addressing the return, restitution, and repatriation of cultural property. The purpose of this article is to analyze the situations in which such methods might be preferred to the classical judicial means and to examine the problems that might arise.The article is in two parts. The first part describes the actors as well as the current methods used for the restitution and return of cultural property. The second part explores the types of property that lend themselves to alternative dispute resolution techniques and lists the—often original—substantive solutions that have been used in practice.Alternative methods of dispute resolution enable consideration of nonlegal factors, which might be emotional considerations or a sense of “moral obligation,” and this can help the parties find a path to consensus.

Max Huber as Arbitrator: The Palmas (Miangas) Case and Other Arbitrations

The peaceful settlement of international disputes by judicial means held a prominent place in Max Huber's work throughout his career both as an academic and legal practitioner. For a number of good reasons, Huber's best known contribution in the field, his 1928 award in the Island of Palmas case, is still renowned as one of the leading cases of our discipline. Although somewhat less well known, the second case in which Huber acted as sole arbitrator (British Claims in the Spanish Zone of Morocco 1923–1925), served as one of the major precedents in the International Law Commission's work on state responsibility. Going far beyond the rather technical (and marginal) issues at stake, both awards owe their lasting importance not least to the firm theoretical foundations on which they rely. In contrast, a third case in which Huber was actively involved in a twofold way has almost completely fallen into oblivion. Huber not only negotiated and signed the 1921 Swiss-German treaty of arbitration and conciliation, but was also called to sit on the bench of the Jacob Salomon Kidnapping case (1935) established under the terms of that very treaty. Although no formal award was rendered, this case is nonetheless a prime example of the pressure that the mere existence of an arbitration procedure can apply even on dictatorial regimes.

The Decline, but not Demise, of Multiculturalism

This article discusses the decline of the multicultural doctrine that has governed Western political philosophy and practice in the last part of the 20thcentury. This decline is felt in the USA as well as in EU countries and manifests itself in new cultural restrictions on immigration policy, in stricter loyalty tests for immigrants who seek naturalization and in statutes regulating behavior in public places (such as the anti-veil acts in Europe) and proscribing deviant acts based on religious tradition (such as the American law criminalizing female genital circumcision). This decline is also accompanied by rethinking the theoretical foundations of the multicultural approach. This rethinking was accelerated by the onset of the Islamist—as distinct from Moslem—crisis, but started before the 9/11 events.The article surveys the state of multiculturalism in a number of Western countries and pays special attention to the cases of the USA, Britain, France, and the Netherlands. The case of Israel is discussed separately because of its unique features as a society plagued by a national conflict. In all these countries the principal issue is how to tolerate intolerant communities, how to treat religious communities whose tenets clash with the democratic and liberal values of the host country and how to balance the rights of the individual against the rights of the cultural group to which that individual belongs.The author challenges the notion that all cultures are entitled to equal treatment and excludes from this ambit cultures that clash with the values of democracy and human rights. The author denies the notion that consent of the sufferer validates such cultural practices and demonstrates this by referring to the former Hindu practice of Seti—burning a widow alive, with her consent. Such consent is irrevocable and is always subject that it was given under social and cultural duress.The main brunt of this article is that the norms of democracy, equality, and human rights are not a culture in the ordinary sense of the word, as they are distinct from all traditional cultures and are the result of an intellectual construct founded upon the autonomy of the individual and on a rejection of traditional culture. This is the reason why these liberal norms should supersede any custom, even when based on cultural tradition, when there is a clash between the two. When there is no such clash, a compromise solution ought to be reached resorting to traditional judicial means of balancing contradictory values.

Development of the Doctrine of Enforcement in the European Union

The main objective of the paper is to investigate, whether the planned changes concerning the formal constitutionalization of the law of the European Union would alter the enforcement of the law of the European Union more effective. The idea comes from the fact that having researched the different forms of co-operation between the different system courts, the author reached the conclusion that no matter how sophisticated is the dispute settlement level or how much it even has been formally constitutionalized, a remedy cannot be effective if there exists no liability. Therefore, the author has built the research on the principle of effectiveness, now also stipulated in article 28(1) of the Draft Treaty establishing a Constitution for Europe, which, on the one hand, means the obligation of member states to provide sufficient judicial means in order to ensure effective protection of rights and, on the other hand, means effectiveness of dispute settlement in the institutions of the European Union.

Globalisation and the Institutional Deficit

Globalisation is a major process of change involving the creation of one global market economy with the promise of higher outputs and larger incomes. This process puts immense pressure on the environment of the earth with the risk of a severe degradation of nature. It also creates dependencies among the nearly 200 states of the world. Thus, a problem emerges: how to enhance state coordination, that is, how can governments cooperate to promote mutually beneficial outcomes without reneging? This article suggests the following answer, institutionalisation involving the multiplication and enforcement of transparent rules of the global society game. Needed are more economic, environmental and political rules, as well as stronger enforcement of these rules especially by judicial means.

WTO Dispute Settlement as Judicial Supervision

This article distinguishes ‘judicial supervision’ and ‘dispute settlement’. Judicial supervision is a mechanism to control and secure compliance of international obligations undertaken by States by judicial means. Its notable feature is that States which have not been injured directly may initiate judicial proceedings for the purpose of putting an end to violations of international obligations by another State. This article compares the dispute settlement procedures in the WTO with those in the ICJ, and demonstrates that the WTO procedures have the character of judicial supervision. It also focuses on the position assigned to third States by the WTO and the ICJ, and shows that the WTO allows participation of third States in its adjudicatory process much more liberally than the ICJ. A WTO member can bring a complaint to the WTO, even if it has suffered no injury in a concrete and material sense. Multiple disputes involving more than two States are a regular feature in the WTO. Third party intervention is virtually automatically allowed. It could be suggested that the WTO allows participation of third States in its adjudicatory process liberally because compulsory jurisdiction has been achieved and because the WTO adjudicatory procedures have the character of judicial supervision. The WTO and ICJ procedures are both judicial, but they differ considerably in character.

Collecting, Testing and Convincing

Forensic DNA typing evidence has become increasingly accepted within American courts. This acceptance has been largely achieved through slow legitimation in a number of `mundane' cases. Treating DNA typing as a `sociotechnical network', I explore how elements of this technology have been alternatively opened for contestation within the courts or `black-boxed'. Elements outside the view of expert communities have been largely ignored; elements black-boxed by expert communities are seldom reopened in court; and elements subject to expert conflict have served as the central site of conflict in the courts. As the relatively narrow conflicts within the expert communities have been resolved through a variety of judicial and extra-judicial means, the technology as a whole has gained credibility. I explore this process by looking at the approaches of four different expert witnesses. This study provides insights into the differences between mundane cases and spectacular cases, such as the OJ Simpson trial.

Employers and Compulsory Arbitration: The Higgins Era 1907-1920

In the aftermath of the strikes of the 1890s all mainland states in Australia legislated for some form of tribunal regulation of wages and employment conditions. Employers were antagonistic towards these tribunals, in particular compulsory arbitration tribunals. This paper reviews employers' attempts to circumscribe, by legislative and judicial means, the role of the federal compulsory arbitration tribunal. Although successful in emasculating the New Protection panoply accompanying arbitration, after 1913 their High Court challenges merely opened up new areas for federal jurisdiction. Employers lobbied unsuccessfully for legislation that would make the federal tribunal less intrusive and more benign. They were forced, however, to work within the new regulatory framework. The period proved a formative one in which enduring principles of wage fxation and dispute settlement were evolved, and the basis for the division of jurisdiction between federal and state tribunals were established. The centripetal forces resulting in a greater centralization of basic and secondary wage determination, together with the emergent 'test case' approach to standard hours of work, forced employer associations to take a more national and less state-oriented approach to conditions of employment.

Economic and Policy Implications of Hosting Sports Franchises

The acquisition and/or retention of professional sports franchises is a significant element in the economic development plans for many cities. With few exceptions, sports franchise owners demand public subsidies under the threat of relocating their teams during lease negotiations. Despite these escalating demands and apparent franchise instability, many cities continue to pursue sports franchises. This article, using Baltimore as a case study, seeks to determine whether a sports team is "worth it," and provides a discussion of the types of public policy issues local officials confront as they negotiate with franchise owners. The analysis concludes that if team owners continue to abuse their monopoly advantage at the bargaining table, cities will have no choice but to seek legislative or judicial means of altering that balance of power.

Mediated Negotiation in the Public Sector

Three case studies of mediated negotiation in the public sector are summarized. Special attention is given to the roles played by the mediators in these cases, the difficulties of ensuring adequate representation of all stakeholders, and the problems of protecting the “public interest.” Criteria for evaluating mediated negotiation as a supplement to traditional legislative, administrative, and judicial means of resolving resource allocation disputes are offered. The techniques of labor mediation and mediation in international disputes are compared to see which are more appropriate for use in public sector resource allocation disputes.

New Foundations of the Law of Expropriation of Alien Property

The continuous stream of resolutions of the UN General Assembly and much academic writing on the subject notwithstanding, the present state of customary international law regarding expropriation of alien property has remained obscure in its basic aspects; this is true in particular for expropriations in the context of North-South (still better described as “West-South”) relations, to which this article is primarily, but not exclusively, addressed. International courts have had no occasion to rule on fundamental issues of expropriation law in the past decades, even though these issues have been relevant to various disputes settled out of court. Eventually, however, the courts will be confronted with cases involving expropriation of alien property: given the continuing and rising importance of foreign investment, the parties involved probably will not invariably prefer negotiated settlements. It must also be recalled here that customary law has occasionally served as a reference standard in treaties and contracts. If an expropriation case were brought before an international tribunal, it could not simply rule that the law governing expropriation of alien property is in dispute and therefore no law at all is applicable. The very notion of international law precludes an argument that acknowledges the existence of “gray areas” in that law: a court could not rule that some law exists, but that it cannot be identified by judicial means.