Judicial Questions Research Articles

Toward automatic support for leading court debates: a novel task proposal & effective approach of judicial question generation

Toward automatic support for leading court debates: a novel task proposal & effective approach of judicial question generation

The weak link of democracy and the challenges of educating toward global citizenship

Before discussing the prospects for educating young people toward becoming global citizens, we must ask ourselves: is global citizenship reality or illusion? What can be stated is that plain citizenship itself can no longer be considered merely a legal or judicial question. Today, citizenship is only partially linked to rights and duties deriving from the recognition of an individual as belonging to a community (local, national or international). Future citizens of the digitally hyper-connected global village face two dangers: simulation of participation and the illusion of having a less asymmetrical relationship to power. The rules of engagement are not being written by legislators but by agencies producing and sharing knowledge; citizenship (global or otherwise) is intimately correlated with access to quality education. Three concepts form the basis for educating toward global citizenship: awareness that citizenship and education are inseparable, awareness that democracy and education are inseparable, and awareness that democracy is complexity.

Beyond the Current Discourse: Addressing the Judicial Question of Death Penalty in India

It is observed that whenever a heinous crime happens, the public outcry for the death penalty is very vocal in the social realm of India. Though there are several discussions around this, from de-institutionalism to judicial questions, a sociological analysis of the public response is identified as a research gap by the author. In light of this, the research attempts to analyse the public response to the discourse of capital punishment in India. This paper refers to two important cases in the history of the Indian judiciary to define the principles of the 'rarest of the rare' and circumstantial crime. This is primarily an attempt to provide an easy narrative to understand why the Indian judiciary still does not avoid sentencing the death penalty to the convicts. This short article uses certain important cases and some popular theories from an ethnocentric viewpoint in making the sociological analysis.

Teletravel in Labor Reform

The present study aims to discuss the requirements that characterize teleworking with the advent of Labor Reform. Thus, it seeks to understand general aspects inherent to this new form of work organization, such as concept, characteristics and modalities. To carry out this research, as a methodology, we opted for a literature review on doctrines, legislation and jurisprudence that deal with the topic under analysis. It was seen that teleworking has advantages and disadvantages for the worker, for companies and for society. Everything indicates that, if the sense of teleworking is not distorted and, if implemented with due care and minimum observance of the recommended standards, this type of work tends to prove beneficial for the members of the employment relationship and to positively impact employment. society. However, the theme demands a more in-depth study, in view of the existence of a large field to raise judicial questions, especially with regard to the teleworking workday. The real effects, benefits and damages to the rights and health of the worker, only time can reveal.

“Habit and creativity in judges’ definition and framing of legal questions”

The dominant social scientific approach to studying judicial behavior treats judges as strategic actors pursuing their political preferences under institutional constraint. The intellectual roots of this rational choice approach are in American law’s long but sporadic engagement with pragmatist ideas. This article challenges that approach: a fully pragmatist account of judicial action provides a better description of the intellectual and social work of judging, and better explains how judges reach a decision in difficult cases that most affect the development of law and its relationship to society. The article argues that the foundational intellectual problem for appellate judges is how to define the legal questions presented in a case. Definitions of legal questions arise from the interplay of habitual and creative action in the local social context of an appeals court. Professional and local interpretive habits and legal forms ordinarily do a great deal to define the key questions, which are not strictly determined when a case comes before a court. Unscripted small group interactions at oral arguments also figure in question definition; oral arguments are most important in the rare but legally important cases where habitual practices alone are insufficient to delimit the legal question judges must answer. Supported by extensive interviews with federal appeals judges and clerks, the article illustrates judges’ creative, interactional efforts to define an answerable question in a major asylum case decided in the Seventh Circuit Court of Appeals. Building from this case, the article describes the factors that shape judicial question definition, and describes the conditions when creative judicial action is likely to be most prominent.

A Religious Movement on Trial: Transformative Years, Judicial Questions and the Nation of Islam

The Nation of Islam (NOI) is one of the most controversial political-religious groups in the United States. Some define it as an exclusionary race-based group, while others see it as a genuine empowerment movement. Although it has been viewed as an unconventional fringe group, NOI represents an important syncretic movement of its time. Its approach to Islam was marked by a range of currents from the anti-colonial interpretive framework of the Ahmadiyya to Marcus Garvey's Universal Negro Improvement Association forging a highly dynamic narrative to explain the racial injustices and individual and collective requirements of future emancipation. Despite its strong anti-establishment discourse, NOI operates within the parameters legal and judicial system and seeks to reach out to new groups. As NOI faces the challenge of balancing its clashing inner currents rooted in its commitments to orthodox vs. vernacularized Islam or anti-systemic vs. accommodationist policies and often stigmatized by outside observers, it constitutes one of the most promising and precarious black movement.

Law and Public Policy: A Gap Between Theory and Teaching?

ABSTRACTThe realization that policy and law are tightly intertwined dates at least to de Tocqueville’s observation that, in the United States, political questions often become judicial questions. Scholars have shown consistently that courts, both federal and state, play a role in public policy decision making. This is observed in social policy (e.g., same-sex marriage and abortion), environmental policy (e.g., Environmental Protection Agency regulations), economic policy (e.g., New Deal Era decisions), and more. Too often, however, graduate programs in public policy fail to prepare students for the role of the courts in the policy process. This study examines the requirements and core competencies from Masters of Public Policy programs to determine to what extent, if any, judicial policy making is taught. We find that there is a significant gap between the theory about the role of courts in the public policy process and what public policy programs teach their students. We conclude with recommendations for possible changes to curricula to close this gap.

Idle No More: A Movement of Dissent

Idle No More is a movement of dissent insofar as it refused the reality and truth about Indigenous peoples that are imposed by the state and the majority of the settler population. In focusing on anticolonial dissent, Idle No More continues previous Indigenous movements, brings together existing movements and campaigns, and maintains open the questions of the goals to be pursued and of the means of pursuing them. The appeals to rights in Idle No More thus represent not only a judicial question but also the re-opening of political questions and the fundamental questioning of the existence of the Canadian state.

Juicio a un abogado incrédulo. Consuelos para los que un día perdieron un proceso. La aleatoriedad de la justicia como aleatoriedad de la vida misma.

Es un hecho que la resolución de los asuntos judiciales depende de un ejercicio de interpretación pudiendo ser distintas las soluciones. Ante ello este libro objeto de recensión no realiza obviamente crítica alguna, al considerarlo inevitable. Su objeto es en concreto, más bien, realizar una explicación del fenómeno. De la lectura del trabajo se deduce claramente que es esto lo que pretende el autor partiendo de que falta explicar esta realidad.

Plenary Power, Political Questions, and Sovereignty in Indian Affairs

A generation of Indian law scholars has roundly, and rightly, criticized the Supreme Court’s invocation of the political question doctrine to deprive tribes of meaningful judicial review when Congress has acted to the detriment of tribes. Similarly, many Indian law scholars view the plenary power doctrine — that Congress has expansive, virtually unlimited authority to regulate tribes — as a tool that fosters and formalizes the legal oppression of Indian people by an unchecked Federal government. The way courts have applied these doctrines in tandem has frequently left tribes without meaningful judicial recourse against breaches of the federal trust responsibility or intrusions upon tribal interests and sovereignty. Furthermore, there is a troubling inconsistency in the courts’ application of these doctrines to questions of inherent tribal sovereignty. For example, courts consider congressional abrogation of a treaty a kind of political question beyond the reach of the judiciary. At the same time, challenges to the inherent, or aboriginal, authority of tribes are deemed justiciable. The Court’s approach represents a kind of “heads I win; tails you lose” application of the political question and plenary power doctrines in Indian affairs.This paper proposes that rather than facing a rigged coin toss in the courts, tribes should be able to avail themselves of the political question and plenary power doctrines to have Congress rather than the courts decide questions of inherent tribal authority. Under current precedent, the Court has aggrandized its own power in Indian affairs through the theory of implicit divestiture, which holds that the Court may find tribes divested of inherent powers even without Congressional action. This Article argues that whether inherent tribal authority endures and which sovereign powers tribes exercise are political rather than judicial questions given the current landscape of plenary power, political question, and implicit divestiture doctrines in Indian law. Under this reading of the Court’s Indian law precedent, unless the Supreme Court reexamines these fundamental assumptions, the Supreme Court should treat questions challenging inherent tribal authority in much the same way it treats questions raised by tribes challenging congressional exercise of the Indian affairs power: as political questions that do not present justiciable controversies. This argument builds upon the author’s earlier work assessing the comparative institutional competency of Congress and the courts with regard to questions of inherent tribal authority and proposes a fundamental shift in the conception of the plenary power doctrine and the political question doctrine’s application in federal Indian law. Scholars have traditionally rejected and critiqued both the plenary power and the political question doctrines in Indian affairs because they leave a discrete and insular minority vulnerable to political whims. The critique has generally envisioned the Court as a counter-majoritarian bastion standing between the tyranny of the majority and the tribes. However, in recent decades, the Court has been the instrument for eroding inherent tribal authority, primarily without the input of Congress. This paper challenges long-held assumptions about these fundamental doctrines of federal Indian law and poses important questions about the role of the courts and the Congress, and the future of inherent tribal sovereignty.

Pre- and post-operative gait analysis for evaluation of neck pain in chronic whiplash.

IntroductionChronic neck pain after whiplash is notoriously refractory to conservative treatment, and positive radiological findings to explain the symptoms are scarce. The apparent disproportionality between subjective complaints and objective findings is significant for the planning of treatment, impairment ratings, and judicial questions on causation. However, failure to identify a symptom's focal origin with routine imaging studies does not invalidate the symptom per se. It is therefore of a general interest both to develop effective therapeutic strategies in chronic whiplash, and to establish techniques for objectively evaluation of treatment outcomes.MethodsTwelve patients with chronic neck pain after whiplash underwent pre- and postoperative computerized 3D gait analysis.ResultsSignificant improvement was found in all gait parameters, cervical range-of-motion, and self reported pain (VAS).ConclusionChronic neck pain is associated with abnormal cervical spine motion and gait patterns. 3D gait analysis is a useful instrument to assess the outcome of treatment for neck pain.

The role of personality in politics: Ashton, Barroso and Van Rompuy, Trinity at EU?

Abstract This article is the first scientific study into the political personalities of European Union leaders. It investigates the personalities of the permanent president of the European Council Herman Van Rompuy, the European High Representative for Foreign Affairs and Security Policy Catherine Ashton, and the president of the Commission Jose Barroso. The aim is to determine whether there is any psychological reason to suspect a possible power struggle between the personalities of Van Rompuy, Ashton and Barroso. The power division between the new leaders of EU, has indeed, as a consequence of the Treaty of Lisbon in the European Union, given rise to speculations about a possible struggle for power. This is in particular due to the complex judicial relations between the three positions, and the still unclear competences of all positions in the foreign relations area of EU. This article will approach this discussion from a different angle than the judicial debate. In order to be able to portray the profile of the current giants of European Foreign policy, the article will build upon the theories of two main disciplines: psychological profiling and European governance. A psychological profile of all actors will be completed on the basis of the method of political profiling by Aubrey Immelman (e.g. 2004). Before that, the article explains the judicial question marks that surround the top positions in the EU at the moment, and the Immelman profiling method itself. It concludes with a discussion on the consequences of the results in the light of the judicial issues. Keywords: political profiling – European Union – personality ----- Bibliography: Middelhoff, Jurriaan/De Landtsheer, Christ'l: The role of personality in politics: Ashton, Barroso and Van Rompuy, Trinity at EU?, PCS, 2-2013, pp. 260-273. https://doi.org/10.3224/pcs.v4i2.19808

Toxic substances in blood: an analysis of current recommendations under a Bayesian (decision) approach

This article extends existing discussion in literature on probabilistic inference and decision making with respect to continuous hypotheses that are prevalent in forensic toxicology. As a main aim, this research investigates the properties of a widely followed approach for quantifying the level of toxic substances in blood samples, and to compare this procedure with a Bayesian probabilistic approach. As an example, attention is confined to the presence of toxic substances, such as THC, in blood from car drivers. In this context, the interpretation of results from laboratory analyses needs to take into account legal requirements for establishing the ‘presence’ of target substances in blood. In a first part, the performance of the proposed Bayesian model for the estimation of an unknown parameter (here, the amount of a toxic substance) is illustrated and compared with the currently used method. The model is then used in a second part to approach—in a rational way—the decision component of the problem, that is judicial questions of the kind ‘Is the quantity of THC measured in the blood over the legal threshold of 1.5 μg/l?’. This is pointed out through a practical example.

Integration by Fiat?: The Institutional Context of European Judicial Decisions and Questions About Judicial 'Activism'

There is no shortage of accounts of the European transnational courts as 'heroic' defenders of human rights, imposing progressive norms on unwilling national governments. However, American constitutional development has abandoned this view of the US Supreme Court, situating it instead as a political institution subject to institutional constraints. Using literature from this field, I argue that 'heroic' conceptions of the European courts are similarly misplaced. Using doctrine and political data, I argue that the European Court of Justice and European Court of Human Rights are merely enforcing popular, majoritarian norms.

Reflections on Monitoring the Implementation of Court Orders in Class Action Lawsuits

Alexis de Tocqueville observed in the 1830s, ‘‘Scarcely any political question arises in the United States that is not resolved, sooner or later, into a judicial question’’ (cited in Baker, 1945). De Tocqueville would likely have felt further vindicated in his observation had he witnessed the modern explosion of class action litigation that ventures beyond private commercial disputes and into the domains of traditional governmental functions. Such lawsuits have sought judicially imposed equitable remedies rather than money damages in actions challenging governmental policies and practices that are alleged to adversely affect members of a defined class of people. Usually such actions are brought to address serious and intractable long-standing problems that are alleged to cause significant harm to members of the plaintiff class and that have been impervious to other attempts at remedying them. Examples include class actions seeking to end racial segregation of school students; to remedy overcrowding, understaffing, abuse, and neglect in prisons, jails, state mental institutions, and juvenile detention facilities; to ban discrimination in access to public housing or segregation on the basis of disability; and so on. If the plaintiffs prevail in their case, the resulting equitable remedy, whether imposed by the court itself or agreed upon between the parties in a Consent Judgment, may require complex and timeconsuming actions by the defendants to address the underlying grievances. Often, either at the inception or subsequently during the remedial phase, the court appoints a court monitor or special master to assist the court in supervising the implementation of the remedy. In this article I discuss my experiences with such class actions while playing a variety of different roles in the legal system. These include working as a law clerk in appellate courts, dealing in part with judicial decisions about public agency compliance with legal obligations; serving in the office of counsel to the governor of New York, helping to defend the state in class action lawsuits against the state mental health and prison systems; running a state agency responsible for monitoring mental health and mental retardation systems in New York as well as administering the Protection and Advocacy system that brought litigation against state agencies for violating the rights of service recipients; serving in various roles in monitoring compliance with court orders in several states in class action cases involving large systems of human services; and consulting with the United States Department of Justice in cases under the Civil Rights of Institutionalized Persons Act (1997). Over the approximately 40-year period covered by this article, acceptable terminology has changed from mental retardation to developmental disability and currently to intellectual disability. In this article I have used the prevailing terminology during the periods of time discussed. In a number of these cases, I served as a member of court monitoring bodies, including the Wyatt v. Stickney litigation in Alabama (a substantial part of the early history of this case in recounted in Wyatt v. Rogers, 1997) originally commenced in 1970; the Willowbrook litigation in New York commenced in 1972 (New York State Association for Retarded Children, Inc., v. Carey, 1975); Gary W. v. State of Louisiana (1976) in the 1980s; Evans v. Williams in Washington, DC (the history of this litigation is summarized in Evans v. Fenty, 2007), which has been going on since the mid-1970s; CAB v. Harvey in Maine (the history of this litigation is summarized in Consumer Advisory Board v. Harvey, 2010), which is about the same age; and in the Blackman v. District of Columbia special-education litigation in the District of Columbia (2006), which has been going on for approximately 10 years. INTELLECTUAL AND DEVELOPMENTAL DISABILITIES VOLUME 49, NUMBER 5: 374–382 | OCTOBER 2011

Of Woodchucks and Prune Yards: A View of Judicial Takings from the Trenches

Eighty-four years after the Supreme Court acknowledged that an exercise of governmental authority other than the eminent domain power could be a taking, it appears the search for what might fit the bill has devolved from “the “lawyer’s equivalent of the physicist’s hunt for the quark” to the riddle of a nursery rhyme. Having now acknowledged Justice Scalia’s reference to one of the most unlikely phrases ever turned in a Supreme Court opinion, we can move on to the more intriguing questions presented by Stop the Beach Renourishment v. Florida Department of Environmental Protection, the case in which the Court came tantalizingly close to answering the most metaphysical of legal issues: can a state supreme court decision “take” property when it changes state property law?The case held out the promise of providing long sought-after guidance about whether a state’s exercise of judicial power is constrained by the Takings Clause, but ultimately fell one vote short. Six justices agreed that in certain circumstances, a state supreme court’s recharacterization of property from private to public would violate the Constitution; the four-justice Scalia-led plurality concluded it would be a Takings Clause problem, while Justice Kennedy, joined by Justice Sotomayor, saw it as involving the legitimacy of the state court’s action – in other words, substantive due process. Justice Breyer, joined by Justice Ginsburg agreed there was no judicial taking in the case, but demurred on expressing any opinion of when there could be. In this essay we will attempt to provide a view of how we see them, focusing first on the Scalia plurality opinion and the PruneYard case, the only other case where the Court has expressly weighed in on the judicial takings question. We conclude with a suggestion of how PruneYard and the plurality opinion in Stop the Beach Renourishment may provide a roadmap for asserting and winning a judicial takings claim.

Abuso sexual na infância e adolescência: perfil das vítimas e agressores em município do sul do Brasil

Estudo descritivo e de corte transversal que objetivou conhecer as características do abuso sexual em crianças e adolescentes de zero a 14 anos, a partir dos casos registrados nos Conselhos Tutelares e programas de atendimento do município de Londrina-PR, em 2006. Os dados foram coletados por meio de formulário e posteriormente analisados por frequência (absoluta e relativa) e proporção. Dos 186 casos, as vítimas foram predominantemente do sexo feminino (74,2%) e o risco de incidência foi maior na idade de 10 anos entre as meninas (coeficiente de cinco por 1.000); 97,3% dos agressores eram do sexo masculino; maior parte dos abusos ocorreu na residência das vítimas (52,7%) e durou menos de seis meses (57%). Houve lesão corporal em 90,3% dos casos, com seqüela física e psicológica em 97,8%. O abuso sexual entre crianças e adolescentes constitui-se um problema de saúde pública, além da estreita interface com as questões policiais e jurídicas.

Suppliche al pontefice. Diocesi di Trento 1566–1605 (review)

Reviewed by: Suppliche al pontefice. Diocesi di Trento 1566–1605 Benedetta Albani Suppliche al pontefice. Diocesi di Trento 1566–1605. Edited by Cristina Belloni. [Fondazione Bruno Kessler. Annali dell’Istituto storico italo-ger-manico in Trento, Fonti, 6.] (Bologna: Società editrice Il Mulino. 2007. Pp. 861. €55.00. ISBN 978-8-815-12143-1.) The volume presents the petitions by the Tridentine faithful to the pope in a period between the pontificates of Pius V and Clement VIII (1566–1605) and follows Suppliche al pontefice. Diocesi di Trento 1513–1565 (ed. Cristina Belloni and Cecilia Nubola, Bologna, 2006). The particular situation of the diocese of Trent, located in imperial territory entrusted to the bishop-prince of Trent, provides a privileged point of view for the study of the relations of the papacy and the empire in a moment of particular political and religious importance. The 681 petitions that constitute the text are held in the Registra Supplicationum at the Secret Vatican Archives and are presented as a collection of texts, in chronological order, along with indices and useful appendices that provide dates as well as the beneficiaries of the documents and the names of those who granted them. Aside from providing information on the number of petitions presented during the various pontificates under consideration, the introduction discusses the influence of the decrees of the Council of Trent, concluded in December 1563, in the relations between the diocese and the Holy See, in comparison with the pre-Tridentine situation studied in the previous book. The average number of petitions presented to the pontiff, which ranged from two to four in the period prior to the Council of Trent, increased to seventeen in the forty-year period under consideration. Although the state of conservation of the archival sources must be taken into account when weighing the available evidence, the innovations introduced by the Council of Trent, especially those pertaining to marriage, ecclesiastical justice, and the renewal of diocesan life, are reflected in the increased number of petitions presented in the Curia. Furthermore, the reasons behind the petitions changed profoundly. The number of requests that sought benefits declined considerably while the petitions that sought papal intervention in judicial questions increased, and the petitions regarding marital questions soon became predominant. The petitions regarding questions of marriage constitute more than 67 percent of the total number, reflecting the gradual application of Tridentine decrees on marriage that introduced important changes in society. For the most part, the requests are for dispensations from impediments based on affinity and consanguinity, but we can observe a variety of other questions regarding marriage. With respect to the pre-Tridentine period, even the petitions regarding the administration of justice considerably increased. These are requests for absolution, [End Page 352] indulgences, licenses, other kinds of dispensation, and, above all, requests that are classed in a list as “significavit” (cases of theft or inappropriate appropriation frequently initiated by diocesan tribunals). In addition, in the analysis of the petitions, important differences exist when comparing the years before and after the council. In fact, while the clergy was clearly prevalent prior to the council, laypeople—simple faithful, family groups, social entities, and representatives of the Tridentine elite—took on a larger role after the council, as they became nearly 90 percent of the petitioners. The publication of such sources is of great importance for the study of questions related to the Council of Trent, and it permits us to expand research into the relations between local churches and the Holy See and will encourage the continuation of research in the Vatican Archives and local archives as well. Benedetta Albani Università degli Studi di Roma “Tor Vergata” Copyright © 2009 The Catholic University of America Press

Importância Pericial dos Registros Odontológicos Decorrentes de Tratamento Protético

The dental records produced in the prosthetic treatments have primordially a clinical purpose, because these documents allow the consultation about the stage of execution of odontological procedures. However, in specific situations, the information contained in these documents may have relevant legal value, by clarifying several judicial questions. In cases related to the identification of edentulous individuals, the dentist must be attentive to register all possible details about the oral anatomy of the patient and denture features. In this context, the aim of this work is to show the forensic importance of prosthetic records, through a case report, by emphasizing the social and legal importance of establishing denture marking standards. Until the Federal Council of Dentistry establishes specific rules concerning the matter, and to be followed by dentists and technical in dental prosthesis, these professionals must observe their ethical and legal obligations related to the notes and data about clinical and laboratorial prosthetic procedures that they have to register in patient’s record. Thus, these dental records may protect the professional exercise and subsidize correctly the forensic exams in cases of edentulous patients.

Tracing the Unique Contours of Administrative Justice: Reconceptualizing the Judicial Model for Administrative Law

The administrative judicial system operates within the executive branch as a part of the broader program of administrative law. The administrative law system, in turn, in advancing its purpose functionally adopts the three basic functions of government: legislative (through its rule making power); executive (through administration and policing functions); and the judicial (adjudicating conflicts and determining the facts in cases and controversies). It is in the administrative judicial system's resemblance to the judicial branch of government that confusion arises. Specifically, because it handles issues in an adjudicatory format similar to Article III type courts, agencies and advocates have supported the development of a system drawing upon many of the techniques of Art. III courts. This has, however, led to an implicit assumption of equivalence of roles and functions that in turn leads to a level of confusion about the proper role and nature of the administrative law tribunal. In this article, I will challenge this assumption of literal correspondence and attempt to develop a more accurate conceptual model of the administrative judicial system that can, in turn, help address the many ethical and practical challenges involved in managing and administering administrative justice. To do so, I will focus upon the adversarial model underlying the American judicial system and question its applicability to administrative justice. I will then consider the possible insights offered by the Continental inquisitorial system of justice and conclude by suggesting the application of a hybrid independent fact finder model, which I will describe and develop in broad outline. Summarizing the American administrative judicial system is fraught with difficulties, given the wide diversity of tribunals within the system. The object of this effort, however, will be to develop a conceptual model for the administrative judicial system that reflects not only the idealistic goals of justice, but does so within the actual practices of a majority of administrative tribunals.