Judicial Statements Research Articles

On crosswords and jigsaw puzzles: the epistemic limits of the EU Courts and a board of appeal in handling empirical uncertainty

AbstractThis Article sheds new light on the long-running debate in EU legal studies about how intense the EU judicial review of complex and uncertain assessments requiring specialist knowledge could and should be. It argues that it is necessary to move beyond formulas and concepts hammered out in the judicial statements of reasons and consider how the institutional context affects legal epistemology. How likely is it that the judges form an independent opinion about the probative value of the presented evidence and the soundness of the administration’s specialist reasoning? How likely is it that their opinion is reliable? Answering these questions helps appraise the boundaries in which judicial review or proliferating administrative review by partly specialised boards of appeal foster the rule of law understood as the pursuit of non-arbitrariness. The Article examines recent case law of the EU Courts and the Board of Appeal of the European Chemical Agency concerning public health and environmental issues, in which complex and uncertain specialist assessments were prevalent. It contends that, due to institutional limitations of EU adjudicatory bodies, a further expansion of the rule of law in EU decision-making requiring specialist knowledge should be pursued through extra-judicial means fostering transparency, inclusiveness, and accountability.

News media reporting on Scottish cases in which women kill following domestic abuse

This paper presents the results of a feminist analysis of news media reports related to Scottish cases in which women killed following domestic abuse. The findings show that problematic narratives have prevailed within the reporting of cases of this type and that, at a time when knowledge and understanding of domestic abuse was improving in Scotland, news media presentations of women who kill following abuse were worsening. It is argued that the reporting landscape was changed by an especially high-profile case of this type, and that judicial statements also exert a significant influence on how cases of this type are reported. It is concluded that more must be done to ensure that reporting of these cases follows national guidelines related to the reporting of violence against women, especially since reporting is likely to influence public perceptions and understandings of the subject matter.

Counterclaim in Jordan's Law of Evidence

This study deals with the counterclaim issue as a means of proof. This subject is particularly important because it exempts the opponent from resorting to other means of proof. Without a legislative text, identifying cases of counterclaims and the Judge's power over them has become necessary. This research concludes with a series of conclusions and recommendations, most notably that the civil Judge's power to assess the counterclaim of a judicial statement is limited in the light of the conditions required by the legislator, while the Judge has broad discretion towards non-judicial recognition. We hope that the Jordanian legislature will explicitly stipulate the effect of counterclaim in any dispute.

Administering Indian citizenship

ABSTRACT Primary legislation on Indian citizenship – particularly the Citizenship (Amendment) Act, 2019 – has recently attracted a great deal of attention. However, secondary legislation, and administrative policies and practices, which form the backbone of citizenship administration in India, have mostly escaped scholarly and public attention. This is concerning since the lawfulness of some of these critical policies and secondary legislation is highly questionable. Against this background, we survey and analyse the main policies and secondary legislation that constitute India’s citizenship administration. We then argue that despite government’s efforts to argue for immunity from judicial review, and some judicial statements characterizing administrative discretion in this area as “absolute and unfettered”, judicial review of citizenship administration is very much available. Finally, we argue that some of the most important policies and rules relating to citizenship administration in India breach public law norms.

Exclusion in the interests of inclusion: who should stay offline in the emerging world of online justice?

ABSTRACT England and Wales are in the middle of an ambitious court reform programme, a key element of which is the shift to more online hearings in appropriate cases. This raises a series of new questions for the judiciary, not least of which is whether there are circumstances in which a video hearing is unsuitable because a key participant is not able to engage effectively online. This article considers current thinking about the circumstances in which a case should be excluded from the list of online proceedings and compares judicial approaches to what we know of digital disadvantage from the social science literature. The authors draw on emerging judicial statements about threshold competencies, and original research with court staff, regular participants in court hearings and lay users. It is argued that the complex dynamics of digital disadvantage are frequently misunderstood and underestimated. This article makes clear the need for a more in-depth consideration of the multiple ways in which digital disadvantage manifests itself beyond a lack of equipment or skills. In doing so it raises critical questions about what we mean by user perspectives and how the voices of users are being heard.

Frustration: Navigating the Bramble Bush.

The law of frustration is tantalizingly simple when it comes to stating it, but incredibly hard when it comes to applying. One would be getting the wrong end of the stick if one were to treat various judicial statements surrounding the doctrine as axioms to be applied in a rule-like manner. Doing so would wrongly lead to a disproportionately large number of ‘false positives’. The purpose of this article is two-fold. First, it seeks to give heuristic short-cuts to anticipate a common law judge’s approach to a frustration case which is poorly captured in definitions and formulae. It seeks to do so by focussing on the ‘tacit knowledge’ used by lawyers. Second, it seeks to get to the heart of why frustration claims are so rarely successful by elucidating its doctrinal underpinnings.

Синтаксические способы организации профессионального дискурса активного воздействия

The investigation focuses on the study of linguistic methods of impact in professional discourse. The research outlines the grounds for professional discourse classification and highlights textual and communicative characteristics of professional discourse. The objective of the study is to determine the range of language means that may help to create communicative impact within the framework of professional interaction. The contribution describes one of the stages of professional discourse investigation in order to demonstrate the results of active effect discourse analysis on the syntactic level. The article highlights the features of the implementation of pragmatic strategies of defense statements. This type of legal discourse is considered in comparison with other ways of implementation of legal discourse, as well as with other types of active effect discourse. The study has demonstrated that when choosing quantitative and qualitative parameters of syntactic means used in legal texts their authors should take into account genre characteristics of these texts. Expressive syntactic means are intensively used in judicial defense statements in order to intensify the impact they produce on the audience. The research has revealed that among expressive syntactic means most frequently use in defense statements are the following: parallelism, anaphora, asyndeton, climax, and parenthetical insertions. The publication also aims to demonstrate the potential of the applied methodology in terms of further investigation of various types of professional discourse; such investigation may allow to outline the most efficient means of speech impact in professional discourse, and therefore, to increase the effectiveness of professional interaction.

The Subject Is Still There. Judicial Statements and Mexican Political-Military Organizations in the Seventies

This article analyses the judicial statements of members of political-military organizations that were obtained by agents of the national security and intelligence institution Dirección Federal de Seguridad (Federal Security Department; DFS) during the seventies. The analysis proposes that the conditions in which these documents were produced, as well as their dialogic and uneven nature, brought about narratives of the lives of the detainees that may be used as an index to understand certain aspects of these militants’ process of subjectivation. For example, the heterogeneity of their social origins and the diverse spaces about which they spoke, as a way to account for their political trajectory prior to their participation in armed militancy, and how they conceptualised both the organisation and their militancy. At the same time, it is also possible to find certain traces about the DFS agents who interrogated them: their bias against the militants, the aspects and features of the lives of the detainees that were inaudible to them. The corpus of DFS statements, as a discourse, provides a useful resource for problematising our conception of who the militants and agents of repression were, and for broadening the history of Mexico’s recent past.

The Inadmissibility of Extrajudicial Statements in Criminal Trials and Perennial Ignorance of Some of Our Prosecuting Agencies

It has surprisingly become common practice for some prosecutors to tender witnesses’ statements (extra judicial statements) recorded during criminal investigation to “buttress” their witnesses’ testimonies at the trial and such unsupported practice has come to be accepted by most trial courts especially where there is no resistance from the defence counsel.

A Wealth of Sovereign Choices: Tax Implications of McGirt v. Oklahoma and the Promise of Tribal Economic Development

Justice Neil Gorsuch’s now famous opening line in McGirt v. Oklahoma will long be remembered by Indigenous Nations as one of the most powerful judicial statements in the history of federal Indian law: “On the far end of the Trail of Tears was a promise.” McGirt is a landmark United States Supreme Court decision that rejects Oklahoma’s century-long presumption that no Indian reservations remained in present-day Oklahoma. Acting on that presumption, Oklahoma had long exercised civil and criminal jurisdiction over most of the State, including Indians and non-Indians alike.In reaffirming the reservation boundaries of the Muscogee (Creek) Nation, the Court rejected Oklahoma’s exercise of criminal jurisdiction over a major crime committed by an Indian within Indian country. The implications of the McGirt decision are potentially far-reaching and will likely extend to both criminal and civil jurisdiction of federal, state, local, and tribal governments. The reaffirmed reservations of the similarly situated “Five Tribes” collectively span half of the state of Oklahoma. This article explores one aspect of the potential civil jurisdictional implications of McGirt: the sovereign power of taxation. We include a detailed analysis of what has changed, and what remains the same for purposes of federal, tribal, state, and local taxing authority.McGirt is heralded as ushering in substantial changes for the eastern half of Oklahoma. However, in order for the Five Tribes to fully realize all treaty-based promises, the McGirt decision must lead to more than just increased criminal justice system responsibilities for the federal and tribal governments. The “promise” Justice Gorsuch highlights was not simply an empty promise of geographic boundaries, it also included a permanent homeland with fully functioning tribal governments, including the power of taxation. With the reaffirmation of reservation boundaries and the reassumption of many governmental responsibilities, the Five Tribes must necessarily have the power to raise meaningful revenue to govern. If the Five Tribes and Oklahoma play their collective economic cards right, big change could come in the form of positive economic outcomes. Economists predict, or at least hope for, a post-COVID economic revival for rural communities in America’s heartland. To assist in this economic revival, the Five Tribes’ reservations could serve as laboratories for the formulation of economic development strategies that could serve as blueprints for other parts of rural America. For that to happen in eastern Oklahoma, McGirt will need to live up to its full potential, becoming much more than an overturned criminal conviction from inside Indian country. This article suggests several law and policy choices available to the Five Tribes, including how to maximize tax incentives to grow the reservation population base and support a diverse economy through small business and enterprise scale development. The article includes a call to action for tribal governments to formulate long-term economic strategies that will take advantage of tax attributes that attach to the various reaffirmed reservations. In conclusion, the article suggests possible compact arrangements with other Indigenous nations and with Oklahoma’s state and local governments. If the challenge of sovereignty is accepted, the Five Tribes have an opportunity to reconfirm and expand government powers that have been denied them for over a century, including the power to make the same sovereign tax choices afforded other sovereigns worldwide.

Brief Of Amicus Curiae Professor Andrew Michaels Supporting No Party: in the Supreme Court, United States v. Arthrex, Inc.

The Federal Circuit's decision to treat Halloween 2019 as the effective date of its as applied severance fix striking removal protections on Administrative Patent Judges was simply wrong in that it is contrary the fundamental legal principal of judicial retroactivity. The fix, like any judicial statement of law, should at least presumptively be considered retroactive, such that the APJs were always removable at will; they did not spookily change from unconstitutional to constitutional on Halloween as the Federal Circuit held. As a result of the Federal Circuit's blunder on this issue, roughly one hundred pending appeals of final written decisions from the Patent Trial and Appeal Board were vacated and remanded for rehearing, and those matters are now stayed before the agency pending the outcome of this case. This wasteful and legally improper Kafkaesque multiplication of administrative hearings does not reflect well on the patent system or the legal system in general, and could be avoided through a straightforward application of the Supreme Court's retroactivity jurisprudence.

El gobierno de Raúl Alfonsín y el Poder Judicial según La Nación y Clarín (1986)

En el artículo se analiza cómo los diarios La Nación y Clarín interpelaron a través de sus editoriales al Poder Judicial durante 1986. Para esto, se aborda el tratamiento conjunto de los matutinos respecto a la discusión sobre la creación de nuevos órganos judiciales, las sentencias sobre haberes de jubilados y el defectuoso funcionamiento de empresas estatales. Asimismo, a partir del tratamiento singular de cada medio, se observa la problemática de los edictos policiales y de la libertad de expresión teniendo en cuenta el fallo «Campillay» de la Corte Suprema de Justicia de la Nación.

Visualising violence? Capturing and critiquing body-worn video camera evidence of domestic and family violence

ABSTRACT Heralded as an evidentiary ‘game changer’, body-worn video cameras (BWVCs) have recently been utilised by justice agents in domestic and family violence (DFV) responses. Proponents assert that BWVC footage can: strengthen evidential cases; improve the probability of guilty pleas or convictions; reduce State expenditure; and bolster police accountability and perceptions of procedural justice. There has been little consideration of how BWVCs might shape victim/survivor experiences of the justice system. In this article, I discuss (and foreground) missing voices on BWVCs, drawing on a project completed with Australian female victim/survivors. I unpack issues that women have flagged as important; whether or not BWVC footage might prompt reviews of police actions and failures to act, serve their best interests and impact their journey through the justice system. Exploring interdisciplinary literature and police and judicial statements in public discourse, I examine expectations about how women present and understandings of the dynamics and effects of DFV. Questioning claims that BWVCs provide neutral footage, I contend that representations are subject to interpretation, governed by practical, ideological and social standpoints, biases and constraints. To study BWVC evidence we must consider the media, the incident-based focus of BWVCs and the relationality between image and spectator.

The dark side of Paediatric dentistry: Child abuse

Background: Children who have been abused could exhibit lesions and diseases in their oral cavity and develop psychological consequences towards the dentist-patient relationship. Objectives: Analyse the oral lesions and diseases, the psychological consequences and understand the role of the dentist in the detection and notification of child abuse. Methods: Systematic review, according to PRISMA statement, with two search strategies in the MEDLINE/PubMed database. 19 publications were included after the application of selection and eligibility criteria. Results: Physical-abuse-related lesions and Münchausen syndrome are not pathognomonic; this requires the detection of indicators of suspicion. Physical-neglect diseases usually have associated other chronic health problems. Specifically, diseases related to sexual abuse are the oral infection caused by Treponema pallidum and Neisseria gonorrhoeae; while other lesions and diseases might only suggest abuse. The most frequent psychological sign of child abuse in the dentist-patient relationship is dental phobia. Typically, when detecting and notifying, dentist face the following barriers: insufficient information; fear of wrong suspicion; impact in the professional practice; fear of consequences on the minor; fear of violence against the dentist; lack of knowledge of necessary documents/procedures; fear of judicial statement. Conclusions: Child-abuse-related lesions and diseases often appear in the oral region. Dentists play a fundamental role in the detection and notification of those. It is essential to establish training and action protocols as well as reliance strategies in the patient-dentist relationship.

INDICATIONS OF INCONSISTENCY

AbstractThe author makes two claims in this paper. First, there appears to be an increase in indications of inconsistency (“IoIs”) across the common law world. Second, this increase is a normatively concerning turn in judicial practice. IoIs are judicial statements which, either explicitly or by implication, indicate that primary legislation is incompatible with certain protected human rights or civil liberties. They are related to, but stop short of, the formal remedies known as declarations of inconsistency (“DoIs”).

FOUCAULT, A CIDADE E O DISCURSO: O MÉTODO ARQUEOLÓGICO NA PESQUISA DO DISCURSO JURÍDICO SOBRE A CIDADE

A análise arqueológica dos discursos jurídicos sobre a cidade permite investigar em que medida os enunciados produzidos pelas instituições do sistema de justiça são influenciados por saberes que se inscrevem na temática urbanística, a ponto de afetarem a formulação dos enunciados judiciais. O método da análise arqueológica do discurso de Michel Foucault é então aqui mobilizado para efeito de se analisar pronunciamentos emitidos pelas instituições do sistema de justiça a fim de que se torne possível responder: como os saberes urbanísticos, tanto no campo histórico, quanto no campo normativo, são movimentados e assumem uma rota capaz de ser rastreada até ao ponto de ser possível revelar a quais formações discursivas se associam. Demarca-se o manejo do método arqueológico com base na análise dos pressupostos metodológicos buscados na arqueologia foucaultiana. Os resultados permitem aferir que o método arqueológico é perfeitamente aplicável na pesquisa sobre discursos jurídicos a ponto de esclarecer a conformação de saberes sobre a cidade.

A Step Too Far? Rethinking the Stepping Stone Approach to Officers’ Liability

In recent years, the Australian Securities and Investments Commission has placed considerable emphasis on the stepping stone approach as a device to establish officers’ liability in respect of corporate contraventions of the law. The approach represents a novel interpretation of the general duties of officers under the Corporations Act 2001 (Cth) (‘ CA’). Despite the seriousness of the consequences for an officer that may follow from a finding of liability, the content and boundaries of the approach remain undefined. Critically, the courts’ heightened receptiveness to the approach and the judicial expansion of its scope departs from earlier judicial statements of caution sounded against using the general statutory duties as a mechanism to secure corporate compliance with the law. At a more fundamental level, it is doubtful whether the approach represents a legitimate interpretation of the general statutory duties, to the extent that it subverts several existing routes to officers’ liability and remedies under the CA. It is incumbent on the legislature to correct these inconsistencies by recalibrating the role envisaged for officers under the CA in line with contemporary expectations.

Usurping Indigenous sovereignty through everchanging legal fictions

ABSTRACTThe legitimacy of Australia’s legal and political systems lies in the understanding that the British and then Australian governments validly secured sovereignty, and, in doing so, legally annexed the land occupied by Indigenous peoples, and the people themselves, under the laws of the Crown. This paper critically examines the legal foundations of Australian sovereignty by comparing the earliest judicial statements that outline the basis and extent of Australian sovereignty with the positions taken by various key High Court judgements in the twentieth century, as well as contemporary statements by former Prime Minister Turnbull in response to the Uluru Statement from the Heart. This analysis reveals how the legal and political discourses asserting Australian sovereignty continually re-write history to develop dramatically differing legal narratives to suit changing social and political climates. When examined alongside the ceaseless assertions of sovereignty by Indigenous peoples preceding colonisation till the present it becomes apparent how judges and politicians have participated in promulgating legal fictions to provide legitimacy to an unjustified and illegal denial of Indigenous sovereignty from 1770 until the present.

A Study on the Coverage of Insurer’s Subrogation about Insurance Money paid by Insurance Company in a Self Physical Accident Insurance Policy

주요 특징으로는 피보험자가 보험가입금액 한도 내에서 피보험자의 과실이 사고 발생의 원인이 된 경우에도 과실상계를 하지 않고 과실상계를 하기 전의 손해액 전부에 대해 자신이 가입한 보험회사로부터 보험금을 받게 된다는 점과 보험금의 산정 역시 대인배상 담보의 보험금 지급기준에 따른다는 점이다. 그리고 부상 및 후유장해의 급별 보상한도액이 없으며, 상해보험이지만 구상권이 발생한다는 점이다. 대상판결은 공동불법행위(쌍방과실)로 인해 자동차사고가 발생하였고 원고 보험회사에 자동차상해담보를 가입한 피보험자에게 그가 입은 손해액 전부를 보상해준 보험회사가 공동불법행위의 다른 사고 관련자가 가입한 공제조합을 상대로 구상금 청구 소송을 제기한 사안으로 주요 다툼의 내용은 자동차상해담보에서 보험금을 지급한 보험자가 대위권을 행사할 수 있는지 여부 및 그 범위에 대한 판단이다. 대상판결은 소송의 진행과정에서 각 심급별로 법원의 판단이 상이하게 달랐고 대법원에서 2번의 심리를 거친 후 파기되어 현재 서울중앙지방법원에서 심리가 계 류 중이다. 대법원의 최종 판단은 원고차량과 피고차량의 과실이 경합된 공동불법행위로 발생한 해당 사건에서 있어 원고는 이 사건 피해자들에 대해 자동차상해특별약관의 피보험자에 대한 보험자로서의 지위뿐만 아니라 공동불법행위자인 원고 차량 운전자에 대한 책임보험자로서의 지위를 동시에 가지게 되므로 원고가 공동불법행위자 중 1인인 원고차량 운전자의 책임보험자로서 최종적으로 부담하여야 할 부분까지 피고에게 청구하는 것은 허용될 수 없고 따라서 원고는 진료비 해당 액 전부가 아닌 피고의 피공제자의 과실비율 상당액에 한해 구상금으로 청구가 가능하다고 판시하였는데 이러한 대법원의 판단은 법리적으로 타당하다고 본다. 이번 대법원 판결로 그동안 보험실무에서 야기되었던 혼선이 정리되었다고 볼 수 있는바 각 보험자들 사이에도 이번 판결의 취지에 따라 상호 협의를 통해 불필요한 구상소송을 제기하는 일은 없도록 해야 할 것이다.Automobile insurance consists of five types, namely, Bodily injury liability insurance I,Ⅱ, Property damage liability insurance, First party property damage insurance, First party injury insurance, Accident insurance by uninsured car, etc. A self physical accident insurance is a premium item of first party injury insurance. The main feature is that it pays the damage before comparative negligence. This paper contained a judicial statement at the Supreme court ruling about coverage of insurer’s subrogation in a self physical accident insurance policy. According to the effectuation of the revised enforcement regulations of Guarantee of Automobile Accident Compensation Act, even if the car accident victims have a lot of fault, the insurer must pay medical fees of the injures. However, it can be argued whether the above enforcement clause can be applied in the case of indemnification claim between the insurance companies. In this case, the Supreme Court ruled that the above enforcement clause are not applicable. I am in favor of this Supreme court ruling.

Consent to Psychiatric Treatment: From Insight (into Illness) to Incite (a Riot)

The aim of this chapter is to go back to the basics on consent to treatment, starting with the right to refuse and building from there. Part II addresses the leading judicial statements on the value of medical self-determination, and in light of these statements, considers what is at stake in psychiatric treatment choice. Part III explores the three core elements of valid consent to treatment — namely that consent be voluntary, informed and capable — with attention to variation in the law among provinces and territories, and some lines of analysis and critique specifically applicable to mental health care contexts. Part IV considers new directions in law and policy clustering around the concept of supported decision-making — a concept forged through domestic and international disability rights advocacy, which urges fundamental re-examination of the interrelationship of legal capacity, autonomy and distributive justice.