Judicial Restrictions Research Articles

Controls For Distinguishing Between a Correction Lawsuit and A Change Lawsuit According to The Civil Status Law and Its Impact on Jurisdiction

This study dealt with a vital topic, as it is considered one of the most important practical issues that address a real problem that faces the judiciary and administrative bodies as well as individuals in practical situations. This topic is the controls for distinguishing between a correction lawsuit and a change lawsuit according to the Civil Status Law and its impact on jurisdiction. When the Jordanian legislator authorized the correction and change in the data of civil status records, the regulating provisions were overlapping and vague. They did not also set dividing boundaries between correction and change. As result, this has raised a practical problem represented in how to distinguish between correction and change in civil records, because of its impact on the legal adaptation of the case. The legal and judicial procedures are obligatory and the competent authority is concerned with their consideration. Therefore, it was necessary to identify the controls for distinguishing for between the correction change lawsuits through a statement of the legal and judicial restrictions and controls and administrative control over both lawsuits. This will help draw a clear picture of each correction and change lawsuit, in addition to the distinction between them. This can lead to the competent authority or court to consider these requests or cases.

Reconstructing the Principle of Nullum Crimen Sine Lege

As a product of scientism and rationalism, the principle of nullum crimen sine lege has been subject to changing times and theoretical assumptions. In practice, therefore, it has not been fully able to play its role in protecting freedom and has constantly wavered over the determination of criminal punishments. Even though it has been constantly challenged, the principle of nullum crimen sine lege should be adhered to and renewed as an important principle of the modern rule of law. First, the principle of de lege lata is being questioned by theories of substantive law, and sources not in the form of law have become the de facto basis of criminal punishment. For this reason, it is necessary to reaffirm the nature of de lege lata as an exclusive source of law. Second, although the possible boundary of the meaning of criminal law texts cannot be clearly delineated empirically, one should not therefore reject the possible boundary of this meaning. The practice of delineating an objective boundary based on empirical facts should be abandoned and normative boundaries should be delineated and justified. Finally, the responsibility for judicial clarity should be recognized and accepted as a supplement to legislative clarity, and a two-tier system of legislative and judicial clarity should be developed. Here, the definite nature of criminal legislation should develop standards in terms of behavioral guidance and judicial restrictions, and clarity in criminal justice should start from the legislative text and establish general secondary rules to make the text more specific, bringing it ever closer to specific and particular case facts, and eventually establishing a relationship of subsumption between the legislative text and the facts of the case.

Interpretación, corrección y objetividad: a propósito del fallo “Farina” y los límites a la creatividad interpretativa en la decisión judicial

Law is commonly understood as a system of legal norms that seeks to promote inter-subjective cooperation in order to achieve social peace. Its success depends not only on the existence of a harmonious set of general norms but also on the fact that judges follow a common and uniform interpretive platform. Otherwise, the instrumental value of law would be depreciated. Concerning the problem above, this paper aims to develop a series of objective criteria that judicial decisions should satisfy within the rule of law. In matters of judicial freedom and restriction, the paper attempts to reflect on the possibility to guarantee legal certainty, preserve human rights, and promote respect for dignity.

Metamorphoses of an Adversarial Nature of Criminal Proceedings in Cases of Judicial Review

An adversarial nature of any judicial proceedings, which is characteristic of justice and corresponds to its nature, is revealed in criminal proceedings not only in criminal cases, but also in so called cases of judicial review exercised during pre-trial proceedings. In the present paper the features of adversarial construction of judicial review proceedings in the Russian criminal process are investigated in the context of the purpose and subject of judicial review at pre-trial stages. The author has analyzed the specifics of the conflict relationship, the essence of the legal dispute and the subject composition of the procedural parties in cases of judicial review, as well as the peculiarities of initiating the judicial review proceedings and distribution of the burden of proof between the parties; reveals the transformation of the procedural roles of the main participants of the adversarial proceedings when the disputed issue is transfered from the main proceedings in the criminal case for consideration in the procedure of judicial review within the framework of separate proceedings. The paper also elucidates such features characteristic for certain forms of judicial review as involvement of third parties having their own interest in the judicial review case and restriction of participation in the court session of the interested party. The paper focuses on the problem of ambiguous (from the standpoint of the principle of adversariality) procedural status of the prosecutor in judicial and review proceedings in which independent parties are the investigator and (or) the head of the investigative body. Alternative options for elimination of the problem discussed above are proposed. It is concluded that in the course of normative regulation of judicial review procedures and law enforcement, it is necessary to take into account the specifics of cases of judicial review and the originality of manifestation of adversarial foundation in such cases.

Preventive Penalisation in China: Background, Adverse Impacts and Judicial Restriction

Recent criminal law reforms in China show a noticeable preventive character by criminalizing preparatory activities, lowering conviction threshold and imposing crime prevention obligation on legal persons, especially internet service providers. Timely preventive penalization is necessary because it responds to requirement of modern society to prevent invisible yet destructive risks in almost every corner of industrial activities. Meanwhile, preventive penalization puts criminal law and citizens in danger too, because punishing formally unlawful conducts that cause no harm to society leads to not only injustice in criminal justice but also ineffective allocation of precious resources. Chinese legislation gives enough space and choices to judiciary to prevent adverse impact of preventive penalization in practice. Unfortunately, the absence of a common recognition of its obligation and collective action shows that there is still a long way to go before establishment of a check and balance mechanism between seemingly unstoppable preventive penalization and criminal justice.

ABOUT THE REDUCTION OF CIVIL LIABILITY IN THE CASE OF PENALTY

The article deals with the peculiarities of the historical formation of provisions on the possibility of reducing the amount of the penalty by court. Attention is paid to both the study of the socio-economic aspects of the problem and the consequences of modern practice. The study is based on a historical analysis of the main provisions of the Civil Code Draft (1914), the Civil Code of the Ukrainian SSR (1922), Civil Code of the Ukrainian SSR (1963), and Civil Code of Ukraine (2003). On this basis, regularities of the functioning of judicial restriction of the amount of the penalty, as well as inheritance by legislative acts of the most characteristic rules were established. Considering the regularities of the case law for 2017–2018, placed in the Unified Register of Judgments of Ukraine. Particular attention is paid to the clarification of the higher courts of law regarding the reduction of a penalty in court. Based on the comparison of legal provisions and clarifications of higher courts, was found the historical origins of the problem of application of the provisions of Part 3 of Art. 551 of the Civil Code of Ukraine. In particular, the courts substantially reduce the amount of the penalty in almost all cases without substantiating such action. This practice undermines contractual discipline and distorts the principles of liability laid down in the Civil Code of Ukraine. The analysis of the scientific literature and the case law shows that the reason for this problem is the fact that the reduction of the amount of the penalty is carried out if its size significantly exceeds the damage caused. Such positioning of liability measures is the basis of contractual discipline; otherwise the right of participants to set exactly the amount of responsibility that would make an effort to fulfill the obligation properly is nullified. In the current socio-economic context, the need to apply a judicial restriction on penalties is overwhelmingly lacking. The author proposes to improve the provisions of Part 3 of Art. 551 of the Civil Code of Ukraine by establishing the exclusivity and proportionality of the court’s reduction of the penalty.

Focussing reduced representation CpG sequencing through judicious restriction enzyme choice

Current restriction enzyme based reduced representation methylation analyses aim for limited, but unbiased, methylome coverage. As the current best estimate suggests that only ~20% of CpGs are dynamically regulated, we characterised the CpG and genomic context surrounding all suitable restriction enzyme sites to identify those that were located in regions rich in dynamically methylated CpGs. The restriction-site distributions for MspI, BstUI, and HhaI were non-random. CpGs in CGI and shelf+shore could be enriched, particularly in gene bodies for all genomic regions, promoters (TSS1500, TSS200), intra- (1st exon, gene body, 3′UTR, 5′UTR) and inter-genic regions. HpyCH4IV enriched CpG elements in the open sea for all genomic elements. Judicious restriction enzyme choice improves the focus of reduced representation approaches by avoiding the monopolization of read coverage by genomic regions that are irrelevant, unwanted or difficult to map, and only sequencing the most informative fraction of CpGs.

Sindicatos e justiça: mecanismos judiciais e exercício de direitos

Este artigo adota uma perspectiva que reconhece o protagonismo dos trabalhadores na defesa de seus interesses coletivos e aborda a luta pelo reconhecimento dos sindicatos como atores legitimos no exercicio de direitos. Primeiramente, apresenta a busca, por parte dos sindicatos, do direito de participarem como substitutos processuais, representando os empregados em acoes coletivas. Em seguida, trata de suas estrategias para promover mudancas em restricoes juridicas ao exercicio do direito de greve, especialmente os interditos proibitorios, que sao usados para manter os grevistas longe das empresas e bancos. Por fim, aborda outra importante iniciativa dos sindicatos no Judiciario, que e o uso da Convencao n. 158 da OIT e de principios constitucionais em dissidios coletivos de natureza juridica, com o objetivo de conquistar o direito de negociacao coletiva antes de demissoes coletivas.

Lawyers and Investment

This paper presents a model of lawyers and investment. Investors use litigation to enforce their financial contracts with entrepreneurs. Litigation is modeled as a contest in which both agents hire lawyers to increase their probability of winning the trial. The issue and the cost of the contest determine how much investors are willing to lend. The model predicts that (i) more lawyers are hired if judicial efficiency is lower or damages are higher; (ii) higher judicial efficiency, higher damages, and tighter restrictions on the supply of lawyers benefit investment. Thus, the number of lawyers can be negatively correlated with economic activity even though lawyers are assumed to be productive.

The Morning After: A History of Emergency Contraception in the United States (review)

Reviewed by: The Morning After: A History of Emergency Contraception in the United States Joyce A. Berkman Heather Munro Prescott . The Morning After: A History of Emergency Contraception in the United States. Critical Issues in Health and Medicine. New Brunswick, N.J.: Rutgers University Press, 2011. xi + 163 pp. $69.00 (cloth, 978-0-8135-5162-3), $22.95 (paperbound, 978-0-8135-5163-0). Heather Munro Prescott provides an engrossing and many-angled account of the origins and development of emergency contraception in the United States through to 2010. This study, chronologically organized and eschewing simplistic categories of friends and foes of emergency contraception, contextualizes the growth of popular and legal approval for emergency contraception within the fluid political history of the nonemergency birth control pill, changing feminist perspectives on hormonally based contraceptives, the anti-abortion backlash to Roe v. Wade, and the complex evolution of U.S. drugs' oversight and regulation. Charting shifts and continuities in public attitudes regarding unwanted pregnancy, Prescott observes how oral contraceptives were promoted to cure the unwanted pregnancy "disease," then reframed as attention expanded to societal causes of unwanted pregnancy; for example, taking into account sexual violence and social inequality, and in the later 1960s counting reproductive self-control as essential to a woman's power to over her own body. Relying on diverse documentation such as congressional hearings, Federal Drug Administration transcripts, National Institute of Health minutes, Planned Parenthood papers, television broadcasts, unpublished individual papers in numerous archives, professional, political and popular journals as well as relevant print and internet scholarship, Prescott builds the case that the consensus that emerged in support of emergency contraception—radical feminist groups antagonistic to decades of male medical and pharmaceutical callousness over women's interests; women of color rightfully suspicious of population control agendas; population and family planners; pharmaceutical and medical professionals—did not come easily. It entailed diligent and creative collaborative outreach and organization even among groups internally divided. It reflected constant medical, feminist, and non feminist reassessment of the risks of emergency contraception relative to the risks of alternative postcoital methods of preventing birth. Crucial to consensus building were conservative successes: Women of diverse races rose up against the stalling of FDA approval for RU 486, against pharmaceutical companies concealing the fact that the regular birth control pill could also be used as a postcoital contraceptive, and against judicial restrictions of access to abortion. Throughout her account Prescott stresses the key role of countless women from the 1960s to the present day who demanded ready access to emergency contraception, ultimately through over-the-counter purchase. She argues that "recent activism on emergency contraception demonstrates how women have continued to use personal histories of their bodies to transform reproductive health research and healthcare policy" (p. 127). Prescott is fully aware that emergency contraception is not a panacea for a woman's well-being. Written from a feminist pro-contraceptive persuasion, her study joins others critical of shallow advocacy of emergency contraception and calls for reproductive justice. She concludes her study by stating that the feminist [End Page 296] health movement and consumer economic initiatives "have thus far been unable to resolve the economic inequalities in the United States that continue to pose an insurmountable barrier to those unable to afford the products of this self-care revolution" (p. 128). Prescott might add that even if this barrier were surmounted, eased availability of emergency contraceptives may well compound female vulnerability to unwanted male sexual overtures if concurrent female sexual autonomy and self-confidence did not also ensue. Prescott's excellent account is not without its limitations, as when she cursorily turns to global developments. Why, for example, did thirty-eight countries provide emergency contraception ahead of the United States? We need fuller understanding of national variables in health care provision and feminist activism as well as greater knowledge of international exchanges and collaborations, since for decades the United States imported much of its contraceptive technology from Europe. Disappointing, too, is Prescott's weak discussion of Supreme Court rulings on privacy rights, especially the three pivotal decisions during the 1970s that involved Bill Baird, no mere "contraceptive salesman" (p. 16). Since Prescott places substantial emphasis on female...

Temporary nature: Is European nature conservation law ready for it?

In Western European countries like Belgium and the Netherlands several 10.000 hectares of land lie unused every year, awaiting their residential, infrastructural or industrial purpose. Usually it takes a number of years before the spatial designation of such areas is finally implemented. In the meantime these areas exert a strong attraction on certain rare pioneer species, such as Natterjack Toads and Common Terns, which are benefited by human dynamics. However, to avoid the judicial restrictions which could be attached to the presence of such protected species, landowners and developers try to keep nature off their sites, by for instance intensive mowing or regular ploughing. The concept of temporary nature marks a shift in thinking about nature conservation. Instead of preventing the development of a valuable habitat or breeding site from the very beginning, the decision could also be taken to temporarily allow nature to develop on these parcels of ‘valuable’ land. In this article the author first highlights the results of the application of current nature conservation law on a situation of temporary nature conservation, building on earlier research. In addition, he analyses some recent national case law with respect to temporary nature. Also, some general remarks on the adaptability of nature conservation law for temporary nature are made. The focus mainly lies on the Belgian (Flemish) situation, but, as temporary nature is already being applied in the Netherlands, reference is also made to this practice, too. Given the fact that the applicable nature conservation law in both countries consists mainly in an implementation of the European Directives, the conclusions of this contribution can also serve as an example for other European countries.

Prolonged Initial Empirical Antibiotic Treatment is Associated with Adverse Outcomes in Premature Infants

To investigate the outcomes after prolonged empirical antibiotic administration to premature infants in the first week of life, and concluding subsequent late onset sepsis (LOS), necrotizing enterocolitis (NEC), and death. Study infants were ≤ 32 weeks gestational age and ≤ 1500 g birth weight who survived free of sepsis and NEC for 7 days. Multivariable logistic regression was conducted to determine independent relationships between prolonged initial empirical antibiotic therapy (≥ 5 days) and study outcomes that control for birth weight, gestational age, race, prolonged premature rupture of membranes, days on high-frequency ventilation in 7 days, and the amount of breast milk received in the first 14 days of life. Of the 365 premature infants who survived 7 days free of sepsis or NEC, 36% received prolonged initial empirical antibiotics, which was independently associated with subsequent outcomes: LOS (OR, 2.45 [95% CI, 1.28-4.67]) and the combination of LOS, NEC, or death (OR, 2.66 [95% CI, 1.12-6.3]). Prolonged administration of empirical antibiotics to premature infants with sterile cultures in the first week of life is associated with subsequent severe outcomes. Judicious restriction of antibiotic use should be investigated as a strategy to reduce severe outcomes for premature infants.

Do Restrictions on Eminent Domain Harm Economic Development?

After the U.S. Supreme Court upheld in the Kelo decision the use of eminent domain for private-to-private transfer of property for economic development, public outrage was followed by attempts to restrict such use of eminent domain. Opponents of restrictions predicted dire consequences for state and local economies. This study considers whether restricting the use of eminent domain for economic development results in negative economic effects. The authors examine economic indicators before and after legislative or judicial restrictions on eminent domain across all states and between states based on the type of legislative/judicial change. Results indicate that there appear to be no negative economic consequences resulting from limiting the use of eminent domain when examining economic indicators before and after legislative/judicial change. Adopting either moderate or major eminent domain restrictions appears to create no economic ill effects when analyzing differences in trends based on the type of legislation passed or scope of judicial decision.

On Being a Juror: A Phenomenological Self-Study

Phenomenological inquiry offers a vehicle for transcending conventional disciplinary boundaries and investigative settings. Van Manen’s protocol writing offers a hermeneutic tool for human scientific phenomenological research that is ideal for the empirical realm of everyday lived experience. Underlying this approach is the tenet that interpretative phenomenological research and theorizing cannot be separated from the textual practice of writing. The entirety of this paper is a protocol, in the form of a phenomenological self-study. It describes one experience in an unfamiliar environment as a criminal trial juror. It represents data capture that can stand alone for purposes of independent interpretation. Since qualitative research in the venue described is limited by protective judicial restrictions, this phenomenological protocol captures unique data in an otherwise inaccessible setting. It suggests that protocol writing offers potential as a research tool in a myriad situations where conventional data collection techniques are impractical or unavailable.

A statistical study of Galactic SNRs using the PMN survey

The Parkes–MIT–NRAO (PMN) radio survey has been used to generate a quasi all-sky study of Galactic Supernova Remnants (SNRs) at a common frequency of 4.85 GHz (λ=6 cm). We present flux densities estimated for the sample of 110 Southern Galactic SNRs (up to δ=−65°) observed with the Parkes 64-m radio telescope and an additional sample of 54 from the Northern PMN (up to δ=+64°) survey undertaken with the Green Bank 43-m (20 SNRs) and 91-m (34 SNRs) radio telescopes. Out of this total sample of 164 selected SNRs (representing 71% of the currently 231 known SNRs in the Green catalogue) we consider 138 to provide reliable estimates of flux density and surface brightness distribution. This sub-sample represents those SNRs which fall within carefully chosen selection criteria which minimises the effects of the known problems in establishing reliable fluxes from the PMN survey data. Our selection criteria are based on a judicious restriction of source angular size and telescope beam together with careful evaluation of fluxes on a case by case basis. Direct comparison of our new fluxes with independent literature values gives excellent overall agreement. This gives confidence in the newly derived PMN fluxes when the selection criteria are respected. We find a sharp drop off in the flux densities for Galactic SNRs beyond 4 Jy and then a fairly flat distribution from 5 to 9 Jy, a slight decline and a further flat distribution from 9 to 20 Jy though the numbers of SNR in each Jy bin are low. We also re-visit the contentious Σ–D (radio surface brightness–SNRs diameter) relation to determine a new power law index for a sub-sample of shell type SNRs which yields β=−2.2±0.6. This new evaluation of the Σ–D relation, applied to the restricted sample, provides new distance estimates and their Galactic scale height distribution. We find a peak in the SNR distribution between 7–11 kpc with most restricted to ±100 pc Galactic scale height.

Destiny of the Death Penalty in China in the Contemporary Era

This paper is a study on the abolishment of death penalty in China. The author first reviewed the ancient death penalty in China, looked at the history of death penalty from its evolution and reform, then examined the status quo of China’s death penalty, and brought forward a practical question of what course should the flourishing death penalty in China follow in the international trend of abolishing and restricting death penalty. In this regard, the author analyzed the conditions for abolishing death penalty from the perspectives of public opinion’s influence, choice of politicians, control of crimes and structure of criminal penalty. He also designed a course for China to restrict and abolish death penalty from the legislation setting and judicial restriction, expecting to find a practical way to abolish death penalty.

Abortion in Canada

Canada is one of the few countries in the world—China is another—that has decriminalized abortion. In Canada, there are no legislative or judicial restrictions whatsoever on abortion: When, where, and under what circumstances abortions can be performed are all unregulated. In sharp contrast, abortion is generally illegal in South American and predominantly Catholic countries, as well as in African and Muslim countries. And the countries that do allow legal abortions, including most in Europe along with America, Australia, and Russia, typically permit it only up to a certain time or make it subject to circumstances such as risk to the woman. In what follows we will first explain how Canada came to decriminalize abortion and then go on to assess that position from an ethical point of view.

Justice Blackmun and legal abortion--a besieged legacy to women's reproductive health.

Justice Harry A. Blackmuns 24-year tenure on the Supreme Court ended in 1994. Justice Blackmun probably will be best remembered for writing the majority opinion in Roe vs. Wade (HO US 113 1973). This landmark decision together with its companion decision of Doe vs. Bolton (410 US 179 1973) declared restrictive state abortion laws unconstitutional. However the same Supreme Court decisions that had permitted public health advances in the 1970s were challenged in the 1980s and then supplanted in the 1990s. The trimester-threshold model which underlay both Roe vs. Wade and Doe vs. Bolton had its foundations in medicine and not in the US Constitution. At the time few of the elated pro-choice advocates foresaw the implications of these rulings for the delivery of reproductive health care in the 1980s and 1990s. The increased availability of legal abortion in the United States in the 1970s also improved both the safety of abortion methods and the skill of physicians performing abortions. For example clinicians recognized that dilatation and evacuation could terminate pregnancies at 13 weeks gestation or later more safely than intrauterine instillation methods; thus the rigid trimester-threshold concept became irrelevant. Because Roe vs. Wade had expressly allowed regulation of the conditions under which abortion could be performed states were in effect invited to draft new rules to guide medical practice. These regulations took several forms requiring 1) parental consent or notification 2) spousal consent or notification 3) written informed consent 4) 24-hour waiting periods 5) counseling only about risks of the procedure and 6) bureaucratic clinic licensing. Today the trimester-threshold concept is clinically obsolete and has been judicially replaced by one of undue burden. Moreover anti-abortion violence today may threaten legal abortion to a greater extent than Blackmuns fear of judicial restriction. The recent murders of physicians and other abortion clinic employees represent the most severe terrorism by antiabortion extremists.

A look at the AMA Guides to the Evaluation of Permanent Impairment: Problems in workers' compensation claims involving mental disability

AbstractMental disability claims for workers' compensation are troublesome for courts and clinicians. The overall pattern is one of a chaos of state legislative and judicial restrictions on recovery. A notable exception to this chaos is the use in the majority of American jurisdictions of the uniform system for determining mental impairment contained in the American Medical Association's Guides to the Evaluation of Permanent Impairment. The use of the Guides seems to have promoted uniformity among jurisdictions and greater acceptance of mental disability claims.A new problem with the Guides may lay ahead as the courts try to apply the third edition. This recent revision does not contain a percentage rating system for mental impairment. The availability of this system, and in the first edition of a diagnostic system, has long been attractive to courts, although it has undermined the AMA's goal of objective evaluation.

Civil RICO: The Temptation and Impropriety of Judicial Restriction

Civil RICO: The Temptation and Impropriety of Judicial Restriction