Judicial Strategies Research Articles

Countering Democratic Decay Judicially: Is Resistance Futile?

Abstract With democratic decay advancing around the globe, scholars deeply disagree about courts’ ability to protect democracy. I argue that this divergence is influenced by conceptual and theoretical deficiencies of the debate. The existing approaches to judicial responses to democratic decay often do not pay sufficient attention to the differences among courts and the environments in which they operate. To tackle these issues, this article introduces the judicial countering capacity frame as an analytical tool to guide further empirical analysis. The framework recognizes courts’ agency but emphasizes the constraints and resources stemming from the environment in which a court operates. Moving away from single-factor explanations, I make a case for a multicausal understanding of judicial countering of democratic decay. I argue that the extent of a court’s countering capacity rests on three pillars: institutional design, the level of political pluralism, and political culture towards courts. The judicial countering capacity frame invites an empirically oriented agenda focusing on micro-mechanisms of judicial countering, their effectiveness, structural preconditions, and the plausibility of available judicial strategies. The article demonstrates the new frame on case studies of Colombia, South Africa and Poland.

Judicial self-empowerment and unconstitutional constitutional amendments

Abstract In the context of global judicial aggrandizement, many courts have developed and accepted the unconstitutional constitutional amendments doctrine. However, with the exception of some case studies, there is little comparative scholarship on the causes of judicial expansion in this area. This article addresses this gap by examining the development of the power to review amendments in three constitutional systems: Colombia, India, and Malaysia. The article argues that in all three cases, one of the important elements that contributed to the consolidation of this power is the strategic behavior of courts. To understand the importance of strategy, the article suggests a rational choice theory of judicial empowerment, according to which judges estimate the costs of potential backlashes and act in certain moments and in certain ways so as to make political reaction unlikely. It further suggests three different types of strategies utilized by these courts that helped curb political backlash. First, courts engaged in timing strategies: they decided the scope of their own power when political competition was high and the likelihood of backlash was low. Second, courts engaged in outcome strategies: they expanded their own power while simultaneously giving the dominant political coalition a “win.” Third, courts employed case selection strategies: they picked mundane and low-stake cases in order to decrease the incentives for political reaction. The article concludes with some considerations on the limits of judicial strategy.

Judging Under Authoritarianism

Authoritarianism has significant implications for how judges should discharge their duties. How should judges committed to constitutionalism conduct themselves when under authoritarian pressure? To answer this question, the article proposes a two‐step adjudicative framework, documents a variety of judicial strategies, and proposes how principles and strategies can and should be incorporated into the framework in different scenarios. The first step of the adjudicative framework involves judges identifying the ‘formal legal position’ while blindfolding themselves to extra‐legal factors (such as potential authoritarian backlash). In the second step, depending on the level of risk incurred by maintaining the formal legal position, judges should lift the blindfold to check whether, and if so how, the formal legal position should be supplemented with or adjusted by judicial strategies. Through this analysis, the article offers a guide to judicial reasoning under authoritarianism.

Study on the Controversial Issues of Abduction and Trafficking of Women and Children Crime: Legislative and Judicial Strategy Adjustments to Combat Crimes of Abduction and Trafficking

In recent years, the crime of trafficking has posed a serious threat to social security. At present, the general controversy about the crime of abduction and trafficking of women and children mainly focuses on the determination of the object of the crime. At present, crime has taken on a new shape, which leads to many problems that can not be solved in the current legislation. Therefore, this paper holds that the "right to personal dignity" should be defined as the legal interests infringed by this crime. Based on this, this paper further adjusts the legislative and judicial strategies of this crime, and proposes to modify the current "crime of trafficking in women and children" into "crime of trafficking in human beings", which provides reference opinions for solving the controversial issues of the crime of trafficking in women and children.

Legislative and Judicial Strategies in Danish Law

Abstract Whereas Danish legislation traditionally accommodated international human rights obligations, as demonstrated by the 1992 incorporation of the European Convention on Human Rights, the past two decades have seen a significant counter-reaction. The changing approach has become manifest in connection with numerous restrictions of immigration and asylum policy in which international obligations were perceived as a constraint to domestic lawmaking. In order to manage the limits of international law, the Danish legislature has developed various strategies with a view to reconciling increasingly restrictive measures with human rights obligations. As compatibility became more difficult, new regulatory strategies were introduced along with rhetoric openly challenging international obligations, based on more unilateral or nationalist policy framing in light of the 2015 asylum crisis. The article will provide a typology of these strategies and analyse them in the context of judicial responses at domestic and international levels.

Repressing the Protests through Law, Police and Discourse: the Example of the Yellow Vests’ Movement in France

ABSTRACT The yellow vests movement dominated the French political debate and agenda from October 2018 and throughout 2019, exposing the difficult living conditions of many French people – especially those living on the outskirts of cities and in the countryside. Overwhelmed by the protests and bothered by the public support they garnered, the government was unwilling to meet the yellow vests’ political demands, given its chosen financial strategy and taxation policies. It therefore used different tools in order to contain demonstrations and repress demonstrators, in the hope of discouraging people from protesting. This article presents the different strategies of control and repression that were used by the government and the President in order to do so. It focuses in particular on police violence, and the political discourse surrounding it; as well as on the judicial strategies that allowed for the arrest of many protesters, while police officers went uncondemned. These strategies raise deep democratic and legal issues, and illustrate, I argue, the potential link between ordo-liberalism and authoritarianism that has already been highlighted by numerous authors.

Countering Terrorism: Constitutional and Legal Framework (A Critical Appraisal of Judicial Strategies of Pakistan)

Countering Terrorism: Constitutional and Legal Framework (A Critical Appraisal of Judicial Strategies of Pakistan)

The Illiberalization of American Election Law: A Study in Democratic Deconsolidation

For many years, the dominant view among American election law scholars has been that the Supreme Court’s constitutional jurisprudence of democratic practice got off to a promising start during the mid-twentieth century, but has since then slowly deteriorated into incoherence. In light of the United States’ recent turn toward populist authoritarianism, that view needs to be substantially revised. With the benefit of hindsight, it now appears that the U.S. Supreme Court has functioned, in its management of the constitutional jurisprudence of democracy, as a vector of infection – a kind of superspreader of populist authoritarianism. There is, sadly, nothing unusual these days about an apex court reinterpreting a formerly liberal constitutional jurisprudence to support a populist authoritarian regime. Typically, however, constitutional courts pivot toward authoritarianism suddenly, after they have been captured through aggressive court-packing or coercive threats and intimidation. In the United States, however, federal courts retain real independence, and the process of illiberalization has been correspondingly slower and less immediate. In particular, the U.S. Supreme Court has slowly illiberalized American election law in a two-stage process: first, by deconsolidating a liberal jurisprudence into incoherence; and then by reconsolidating it into a form more conducive to authoritarianism. The main strategy by which this has occurred has been an increasingly aggressive deployment of an ever narrower palette of individual rights, gradually narrowing a complex and conceptually rich jurisprudence to a single dimension – a judicial strategy that, in its radical anti-pluralism, is deeply populist, fundamentally illiberal, and profoundly destructive of the inherited liberal democratic settlement of the late twentieth century.

Comunicación y abogacía. Análisis de las relaciones con los públicos en los despachos de abogados

In this article, we will initially review the current scenario regarding the use of new technologies by law firms, to later analyze what is the subjective view that large law firms in Spain have about the adoption of the new technological tools in their professional activity, especially in terms of communication with clients, and if they respect the existing ethical standards regarding advertising. To do this, we have developed a survey model covering the key aspects in the matter, sent to the 70 most important law firms in Spain, obtaining as a result that the use of the new tools is already a reality in issues such as document management, use of web pages or that of social networks, but not yet in other sections such as the use of Artificial Intelligence or Big Data. As far as respecting ethical standards is concerned, the opinion of the offices is that these are respected, although it can be inferred from some answers that this is not entirely the case. The development of this research is not without complications, since lawyers have traditionally been a very closed and hermetic union, reluctant to show their working methods and, even more, to vary it through the use of new tools. On the other hand, determining the sample has not been easy either, since large law firms normally operate through multiple companies, which makes it extremely difficult to discern the total turnover of each of them, beyond of the official figures that appear in the commercial registers. This is due, among other factors, to the anachronistic idea that a lawyer does not need anything more than codes and a text editor to carry out his work, since, on the other hand, communication with clients is considered as a residual aspect. That said, it should be noted that, despite all this, we have found a very high predisposition to participate in the present study, and that the responses obtained have generally been very direct and concise, without trying to avoid questions such as that of respect for professional deontology. On the negative side, perhaps we have noticed that there is a worrying degree of ignorance regarding the technological tools available for practicing the legal profession, which contrasts strongly with the existing panorama in the Anglo-Saxon market, in which the use of Big Data and Artificial Intelligence are not only an available option, but they have become essential tools and the most valuable allies when it comes to undertaking judicial strategies or communicating with their audiences. This ignorance is not about isolated cases, but, on occasions, its Communication Directors or similar figures, who consider that tools as old as SMS or telephone calls are “new communication tools”. Another surprising aspect is the treatment and importance that these macro-companies make of an aspect as important as communication, surprising that on many occasions, they do not have a specific person responsible for these tasks, being frequent that these are carried out by lawyers, partners or heads of other departments.

Comunicación y abogacía. Análisis de las relaciones con los públicos en los despachos de abogados / Communication and advocacy. Analysis of relationships with the public in law firms

Resumen En este artículo, inicialmente daremos un repaso al panorama actual en lo referente al uso de las nuevas tecnologías por parte de los despachos de abogados, para posteriormente analizar cuál es la visión subjetiva que los grandes despachos de abogados en España tienen acerca de la adopción de las nuevas herramientas tecnológicas en su actividad profesional, especialmente en cuanto a la comunicación con los clientes, y en qué medida lo hacen respetando la normativa deontológica existente al respecto en materia de comunicación. Para ello, hemos elaborado un modelo de encuesta abarcando los aspectos claves en la materia, enviada a los 70 despachos más importantes en España, obteniendo como resultado que el uso de las nuevas herramientas es ya una realidad en cuestiones como la gestión documental, el uso de páginas webs o el de las redes sociales, pero aún no en otros apartados como la utilización de Inteligencia Artificial o Big Data. En lo que se refiere al respeto de las normas deontológicas, la visión de los despachos es que se respetan, aunque se puede desprender de algunas respuestas que esto no es del todo así.Palabras clave: Despachos de abogados, relaciones con los públicos, nuevas tecnologías, comunicación.AbstractIn this article, we will initially review the current scenario regarding the use of new technologies by law firms, to later analyze what is the subjective view that large law firms in Spain have about the adoption of the new technological tools in their professional activity, especially in terms of communication with clients, and if they respect the existing ethical standards regarding advertising. To do this, we have developed a survey model covering the key aspects in the matter, sent to the 70 most important law firms in Spain, obtaining as a result that the use of the new tools is already a reality in issues such as document management, use of web pages or that of social networks, but not yet in other sections such as the use of Artificial Intelligence or Big Data. As far as respecting ethical standards is concerned, the opinion of the offices is that these are respected, although it can be inferred from some answers that this is not entirely the case. The development of this research is not without complications, since lawyers have traditionally been a very closed and hermetic union, reluctant to show their working methods and, even more, to vary it through the use of new tools. On the other hand, determining the sample has not been easy either, since large law firms normally operate through multiple companies, which makes it extremely difficult to discern the total turnover of each of them, beyond of the official figures that appear in the commercial registers. This is due, among other factors, to the anachronistic idea that a lawyer does not need anything more than codes and a text editor to carry out his work, since, on the other hand, communication with clients is considered as a residual aspect. That said, it should be noted that, despite all this, we have found a very high predisposition to participate in the present study, and that the responses obtained have generally been very direct and concise, without trying to avoid questions such as that of respect for professional deontology. On the negative side, perhaps we have noticed that there is a worrying degree of ignorance regarding the technological tools available for practicing the legal profession, which contrasts strongly with the existing panorama in the Anglo-Saxon market, in which the use of Big Data and Artificial Intelligence are not only an available option, but they have become essential tools and the most valuable allies when it comes to undertaking judicial strategies or communicating with their audiences. This ignorance is not about isolated cases, but, on occasions, its Communication Directors or similar figures, who consider that tools as old as SMS or telephone calls are “new communication tools”. Another surprising aspect is the treatment and importance that these macro-companies make of an aspect as important as communication, surprising that on many occasions, they do not have a specific person responsible for these tasks, being frequent that these are carried out by lawyers, partners or heads of other departments. Keywords: Law firms, public relations, new technologies, communication.

Fighting Governmental Corruption in Pakistan

Corruption remains a persistent problem in both developed and developing countries. Statistics provide evidence that Pakistan faces the menace of corruption. The recently released Corruption Perception Index (CPI) for 2019 by Transparency International (TI) ranks Pakistan as the 120th country out of a total of 180. In 1995 Pakistan used to be the second most corrupt country in the world. Moreover, TI’s Global Corruption Barometer for 2017 shows that 40–50 per cent of the respondents have given a bribe to get a public service in Pakistan. The Global Competitiveness Reports (2016, 2017, and 2018) released by the World Economic Forum in Switzerland have declared corruption to be the topmost problematic factor when doing business in Pakistan. Corruption is a public problem and relevant academic literature holds the dominant view that it obstructs economic development. It increases the direct costs of firms through bribery. It encourages bureaucratic red tape and corrupts the institutions of contract enforcement and property rights protection. Although corruption and anti-corruption have long been research topics in the social sciences, little has been done about the evaluation of anti-corruption strategies. Anti-corruption efforts are required where corruption prevails. With this in view, the study aims to ascertain the opinion of policy professionals regarding different anti-corruption strategies. Data on 26 anti-corruption strategies were collected through a self-administered questionnaire from 100 policy professionals working in 12 different policy institutes. The results have found slight differences between the mean scores for anti-corruption strategies, depicting a certain level of effectiveness for each strategy. Harsher punishments for corrupt persons and legal protection for whistleblowers informing about persons involved in corruption are the strategies that had the highest mean scores of 4.07 and 4.04 respectively. Policy professionals rated the category of “Political, legal and judicial strategies” with the highest mean value of 3.90 as the most effective anti-corruption typology. A holistic approach is required in Pakistan to eradicate corruption from governmental offices.

Comparative Oral Argument: What Australia Can Teach Us About the United States Supreme Court (and Vice Versa)

This Article provides a rare comprehensive empirical assessment of oral argument outside of the United States. Drawing on a novel data set of nearly 1 million speech episodes at oral argument in Australia’s apex court, the High Court of Australia, over nearly 25 years from 1995–2018, we are able to compare patterns of judicial behavior found in the U.S. Supreme Court to a comparable liberal Western democracy with a long tradition of judicial independence. There are a number of highly significant institutional differences in the Australian context as compared to the U.S. Supreme Court — notably: a Chief Justice with additional power at oral argument; unlimited options for the length of argument, which are typically measured in days; and variable panel sizes. Despite this, we find overwhelming evidence that, contrary to jurisprudential orthodoxy, Australian High Court justices engage in substantial and significant judicial advocacy on behalf of the side of the case that they ultimately support. It also finds strong support that, as has been identified at U.S. Supreme Court oral argument, Australian justices are more active when in opposition to a dominant ideological regime or when facing a likely failure to convince their colleagues in the case at hand. That is, both Australian and American justices are more active when they find themselves on the losing side of a case or of a more general ideological era — another recognized manifestation of judicial advocacy. In addition, numerous other factors that have been shown to be highly influential in the American context are also shown to be powerful in the Australian context, most notably judicial ideology, gender, and experience (which can counteract one another in the case of more senior female justices). This suggests that striking institutional differences can impact oral argument and make arguments look very different, but we can nonetheless discern underlying patterns of judicial behavior that can be recognized as strategic advocacy. All this suggests that neither system is “exceptional” — judicial strategy may simply be part and parcel of having a strong independent judiciary.

How Can Judges Challenge Dictators and Get Away With It?

The literature on constitutional courts under authoritarian or hybrid regimes typically suggests that judges that decide to challenge a regime in high-stakes cases might face political backlashes. For that reason, some comparative constitutional law scholars argue that courts should develop strategies such as judicial avoidance or weak judicial review practices. This article claims that sometimes those strategies are unnecessary, as it is possible for courts, in specific high-stakes scenarios, to preserve or promote democratic values without facing such backlash. If there is a strategy that makes it feasible to reconcile: (1) the need to advance a democratization agenda with (2) the necessity of safeguarding judicial independence, judges should prefer this later strategy. For this kind of strategy to be successful, judges need to identify and possibly predict the autocrats' expected costs of disobeying the judicial decision. If the projected costs are high enough, dictators might prefer to obey the ruling. One way in which this judicial strategy can work is by triggering what the author calls Constitutional Paradox. This paradox is a dilemma that forces the dictators to decide whether to respect the rulings while supporting and enforcing the institutions they had established, or to disobey the unfavorable decisions while risking to divide the regime's supporting coalition, harming their credibility and weakening the legitimacy or authority of their institutions. The paradox raises the costs for ignoring those rulings, and those costs may be too high for the autocrats to accept. The article uses an example from the Chilean Pinochet dictatorship (1973-1990) to show how a constitutional paradox may be able to push dictators to respect such rulings, and it identifies the preliminary conditions in which a constitutional paradox can be triggered.

A Father against his Daughter on Marriage Choice: A 1823 Rapto Trial in Chile

Studies of rapto—commonly known as the theft of a woman by a man—in scholarship on Chile are extremely scarce. While research into the judicial–legal culture of colonial nineteenth-century Chile from a sociohistorical framework includes judicial files on rapto, scholars have neglected the specific rhetorical and judicial strategies deployed by individual elite legal actors in cases of rapto as an opportunity to explore women’s agency and to understand rapto as an avenue for intergenerational conflict about free will in marriage choice. In this article, I look into the judicial file of a trial of rapto by seduction and its appeal, which took place during the years 1823–1824 in Santiago. I examine the judicial and rhetorical strategies used by a father, his daughter, and her suitor’s public defender to make their claims in court through the lens of gender, honor, and class. Although the father uses rapto by seduction as a tool to hide his daughter’s consent from the judges, her willingness to elope with her suitor eventually comes to the fore and disrupts the trial. In this case, the parties turn to several judicial and rhetorical strategies not only to bolster their cases but also to argue about larger social issues and conflicts specific to the early nineteenth century, such as autonomy in marriage choice and honor.

Within sacred boundaries: the limitations of saintly justice in the province of Narbonne around the year 1000

ABSTRACTAround the year 1000, judges from the ecclesiastical province of Narbonne (southern France and Catalonia) crafted judicial strategies that reinforced the region's Visigothic Code with the power of saints – conceived as gatekeepers to God's heavenly courtroom – to validate the oaths of witnesses. This practice merged liturgically grounded ideas about supernatural forces and space with a law code that prioritised secular authority. To forestall opposition to rulings, officials sometimes held proceedings in churches. This paper examines two unusual cases illustrating the challenges such strategies faced, given the perception that saints were not omnipresent. These disputes raise questions about the nature of saints, the degree of agency humans attributed to them and the utility of sacred spaces for legal ritual. In the province, saints were powerful, but constrained by their inability to act beyond the walls of consecrated sanctuaries housing their relics. This relegated saints to supplementary roles in law.

THE ITALIAN WAY TO INTERNAL DEVALUATION AND SOCIAL ACTORS’ STRATEGIES AGAINST AUSTERITY AND THE FLEXIBILIZATION OF THE LABOUR MARKET

Introduction: the Italian way to internal devaluation; 1.a Precarization of labour and weakening of trade union action at company level (amendment of dismissal law); 1.b Circumvention of the CCNL by means of exceptional employment contracts; 1.c Downward competition on labour costs by means of outsourcing and value chains; 1.d Promotion of decentralized collective bargaining and its power to derogate from the law and freezing of collective bargaining in the public sector; 2. The trade union(s) strategies; 2.a Bargaining strategy; 2.b Judicial strategy; 2.c Confrontational strategy; 3. New challenges for workers and new challenges for their organization(s); 3.a Italian trade unions’ strategies; 3.b Alternative experiences of (and in favour of) precarious workers; 4. Anti-austerity protests: the involvement of trade unions and social movements; 5. Concluding remarks; Bibliography.

Judicial independence: The master narrative in sentencing practice

This article draws on biographical narrative accounts of retired Scottish judges to provide insight about the operation of judicial independence in the routine practice of criminal justice. This oblique and often reified legal concept is given new meanings and understandings through the lived experiences of retired judicial actors, demonstrating its role as the ‘master narrative’ of the judiciary in their routine sentencing work. This research points to some of the adaptive judicial strategies necessary for the maintenance and reinforcement of the concept in the context of the everyday challenges of sentencing practice. It is argued that although judicial independence represents an aspirational conception of judicial work, this symbolic value also carries important meanings and has material effects in sentencing practice. Moreover, the boundaries of the judicial role in daily criminal practice may be less sharply defined than strong ‘Olympian’ interpretations of judicial independence would otherwise suggest.

Between Choice and Tradition: Rethinking Remedial Grace Periods and Unconstitutionality Management in a Comparative Light

Recent experiences of constitutional review in the common law world have received increasing attention in comparative constitutional law scholarship. Looking beyond the common law jurisdictions, this Article investigates the influence of variations on unconstitutionality management and changing constitutional politics on the functional mutation of remedial grace periods. Through a case study of Taiwan in light of the comparison of the civilian-continental vs. common law models of constitutional review, it argues that legal tradition and the court’s role vis-à-vis the political branch in the dynamics of constitutional politics jointly contribute to the multifunctional role of remedial grace periods in unconstitutionality management. As part of unconstitutionality management across constitutional jurisdictions, the granting of remedial grace periods is not simply the manifestation of judicial strategy. The argument unfolds in three main Parts. Part I first compares the use of remedial grace periods in constitutional review under the civilian-continental and the common law models. After drawing out the different paths toward unconstitutionality management in comparative constitutional review, Part II conducts a functional analysis of remedial grace periods in the case law of the Taiwan Constitutional Court (TCC). It is observed that the three forms of remedial grace periods—bridging, nudging, and hedging—as indicated in the TCC case law are informed by the conceptual framework of graduated unconstitutionality borrowed from the civilian-continental model. Part III further analyzes how remedial grace periods have been instrumental to the TCC’s realization of its institutional potential. In conclusion, the TCC’s continuing and frequent prescription for remedial grace periods indicates its default position in constitutional remedies, which is both informed by the civilian-continental model and shaped by its formative experience at the dawn of democratization.

Profesiones religiosas forzadas y estrategias judiciales: sor Anna Maddalena Valdina

In 1640 Anna, daughter of the prince of Valdina, was put into a convent in Palermo along with three sisters. She was seven years old and would remain there until 1699. She first asked her father and then her brother to leave the monastic state to which she was forced for patrimonial reasons and to which she never resigned herself. Her story is inscribed within the phenomenon of the so-called forced monacations, to which the Council of Trent had tried to remedy. On the death of her brother, in 1693, Anna, about sixty years old, asked the archbishop of Palermo to grant the nullity of her religious profession and her return to the lay state. Thus began a very severe judicial dispute that triggers a violent jurisdictional conflict between ecclesiastical and secular magistracies, the Vatican Congregation of Bishops, the Sicilian magistracies and ends up reaching the king of Spain and the pope. The exceptionality of the case-study lies in the possibility of its close contextualization, thanks to the rich archival documentation produced by that judicial litigation, to the intervention of different magistrates and institutions, secular and ecclesiastical and numerous social actors (from the simple nun to the viceroy). In the course of this litigation, Anna produced numerous memorials that reveal her judicial strategies, her noble logic and other aspects of her volatile personality.

Strategies of Repression

Strategies of repression vary widely between extrajudicial and judicial extremes, from unrestrained acts of violence to highly routinized legal procedures. While the former have received a great deal of scholarly attention, judicial methods remain relatively understudied. When and why do rulers repress their rivals in court? The author argues that autocrats use a judicial strategy of repression when confronting challengers from within the ruling elite. Unlike regime outsiders, who pose a common, external threat to mobilize against, insiders present a more divisive target. When autocrats confront the latter, a judicial strategy legitimizes punishment, deters future rivals, and generates shared beliefs regarding incumbent strength and challenger weakness. Using original data on political prisoners in postcolonial sub-Saharan Africa, the author finds that autocrats were significantly more likely to use a judicial strategy against insiders and an extrajudicial strategy against outsiders. A case study of Kenya traces the logic of the theory, showing how intraregime conflict made courts a valuable instrument of state repression. The findings demonstrate how courts can play a central role in autocratic survival.