Judicial Intervention Research Articles

Judicial Control over Public Administration in the United Arab Emirates

This study highlights public administration’s role and position in the United Arab Emirates. Drawing on the literature on judicial interventions in public administration and the freedom and rights of citizens in the United Arab Emirates, this study attempts to develop greater understanding regarding the balance between the two bodies. It analyzes articles, journals, and government reports to understand the traditional judicial relationship with public administration and the distribution of freedoms among public interests; it also attempts to detect any changes to this system in the context of the United Arab Emirates. The study discusses the application of law, the freedoms contained within public prosecution, examining how the government is renovating the best countries in terms of legal systems to make the United Arab Emirates one of the best countries in terms of legal systems.

Rucho Is Right – But for the Wrong Reasons

In Rucho v. Common Cause, the Supreme Court ended its long struggle to formulate constitutional standards to regulate political gerrymandering by declaring that it was not up to the job. The Court held that it could come up with no manageable standards governing the controversy and that it therefore posed a nonjusticiable political question. In this brief comment, I attempt defend this outcome. The task is not easy, and I hope that the reader will at least give me some points for degree of difficulty. There is no denying that partisan gerrymandering is a very serious evil and there is no defending Chief Justice Roberts’ dreadful opinion justifying the Court’s refusal to do anything about it. Still, I argue, on balance, we are better off without the Supreme Court mucking around with this problem. Moreover, the reasons why we are better off go beyond this particular issue and impeach some of the standard arguments for judicial intervention more generally.

Livelihoods and legal struggles amidst a pandemic: The human rights implications of the measures adopted to prevent, contain and manage COVID-19 in Malawi

Malawi's COVID-19 response has evinced a measure of fluidity. This has been manifested by, among other things, the adoption of two sets of subsidiary legislation on COVID-19, the judicial intervention striking down proposed lockdown measures and the constant change in the institutional arrangements meant to spearhead the country's response. A key challenge that the response has had to contend with is the balance between saving lives and preserving livelihoods. This article analyses Malawi's response to COVID-19 and establishes that aside from its rather haphazard nature, serious questions of legality have been implicated by the measures adopted. Specifically in relation to lives and livelihoods, the articles focuses on the right to economic activity, to highlight some of the challenges that Malawi's response generated to the preservation of livelihoods. The human rights implications of some of the measures adopted are also briefly analysed.

Overcoming the Labyrinth: A Guide for Immigration Attorneys to Assert Habeas Corpus

Trump’s draconian immigration policies threatened our sense of common decency so fiercely that few Americans noticed that immigrants also lost all their most important cases in the U.S. Supreme Court during the Trump era. Perhaps their worst loss to date was DHS v. Thurassigiam, which was a parade of horrible firsts. For example, Thuraissigiam was the first SCOTUS decision to judicially suspend the writ of habeas corpus to any class of person with no actual insurrection or invasion in the country. Thuraissigiam was also the first U.S. Supreme Court decision to suspend the writ without first attempting to interpret the law to avoid conflict with the Suspension Clause, and it is the first to decide not to overrule such a law as Marbury v. Madison requires. In the habeas context tracing back to 1789, immigrants were never treated this way. One cannot find judicial treatment this bad of any other class of person throughout our history, including African American slaves, women, our enemies in WWII, the insurrectionists of the Civil War, among other likely classes for mistreatment. Calling Thuraissigiam the “Dred Scott” of our day, despite the obvious similarity of degrading the constitutional rights to those the Court decides are not U.S. Citizens, does not capture the size of the Court’s blunder. Dred Scott’s habeas corpus companion Ableman v. Booth preempted State Court habeas for African Americans, but did not consider whether the Fugitive Slaves Law suspended federal judges from hearing the writ. In Thuraissigiam, the Court did not interpret a law external to the Court was a suspension, but rather owned its ruling that certain immigrants have no privilege to assert habeas corpus as a self-imposed, judge made rule. This article was written to help immigration attorneys in perhaps our most shameless era access habeas corpus for their clients. Below are six approaches inspired by Boumediene v. Bush, according to which Thuraissigiam may be objectively distinguished. This article also examines common misconceptions about how Immigration Court should be addressed in a habeas proceeding by petitioners and a description of leading habeas law in support of immigration habeas petitions.

The Supreme Court of India and the Inter-Institutional Dynamics of Legislated Social Rights

The jurisprudence of the Supreme Court of India is generally celebrated in the academic literature for its creative use of constitutional interpretation to read in certain socioeconomic rights into the ‘right to life’ provision despite their textual absence from the Constitution. However, this line of case law made the obtainment of a judicial remedy highly conditional upon an extant scheme or law, was necessarily piecemeal, deferent to the executive, and incapable of fixing precise accountability upon a violation or addressing issues of systemic material insufficiency. Much of this had to do with the absence of a rights-based legislative framework. The enactment of the Mahatma Gandhi National Rural Employment Guarantee Act, 2005 (MGNREGA) and the National Food Security Act, 2013 (NFSA) presented major developments in the livelihood and food security regimes in India, and a leap forward for legislated social rights. These legislations consolidated, expanded and entrenched a number of existing rights which had come into being through judicial decisions. In this paper, I examine the antecedents of social rights in India, and show the afterlife of disagreements over appropriateness, practicality and affordability, which resulted in the adoption of the Directive Principles of State Policy (DPSP) in the Indian Constituent Assembly, persist in legislative design and judicial reasoning. In this paper, I analyse judicial treatment of these laws and propose a novel theoretical framework for better understanding them. The theoretical framework has discursively antagonistic and discursively catalytic components, and sheds light on the inter-branch institutional dynamic which arises when NFSA and MGNREGA based public interest litigation (PIL) is activated. I suggest that such PIL and the kinds of complex, dialogic remedies which result from them have effects in the political, legal, and social fields. These remedies result in a form of hybridized politico-legal accountability that enables the Supreme Court of India to safeguard its institutional capital, while also being able to better engage with concerns such as polycentricity, democratic legitimacy, lack of expertise, federalism, and the separation of powers.

Reviewing Current India Backlog of Pending Cases and Excessive Judicial Intervention in Arbitration: Focusing on Setting Aside and Enforcement with Ssangyong Case

Reviewing Current India Backlog of Pending Cases and Excessive Judicial Intervention in Arbitration: Focusing on Setting Aside and Enforcement with Ssangyong Case

Judicial Intervention on Environmental Protection through Judicial Review with Special Reference to Sri Lanka

The concept of solidarity as advanced by Durkheim in the 18th century concerns about the totality of a given society in which it tries to work together as a cohesive unit. Durkheim observed that at the initial stages, that is to say in the primitive societies people bonded together because of their similarities. As most of the people in a tribe or a clan in those periods were self-sufficient and their needs and wants being limited in nature, they were capable of surviving on their own and hence they formed alliances with one another out of their similarities. This was termed as mechanical solidarity. Durkheim observed that, during these periods laws were stringently applied and that any deviant behaviors were heavily condemned and retributive justice was considered to be the norm. However, as the societies grew in numbers, the similarities which existed among the people in a tribe or a clan soon started to disappear and more and dissimilarities and differences among them began to arise. With these latter developments, the unity of the society was protected by a different kind of solidarity, which is termed as organic solidarity. Under this particular system social unity is based on a division of labor that results in people depending on each other. As one person became dependent on another the relationships which existed prior to such change of circumstances were not able to provide for the rather complex relationships which started to develop with the division of labor, where each person was somehow, or the other produced a commodity which was to be exchanged with other commodities in which the exchange of ones capabilities with another became the norm of a society. Durkheim explained that, even with these differences people had to work together under an organic solidarity to make sure of their future existence. Durkheim observed that, during these periods, the laws are made not so with a retributive aim but with a rehabilitative aim, in which offenders or deviants are rehabilitated so that they can be re-released to a given society where once again they can become productive individuals. Using a black letter approach, this paper tries to evaluate the theory of solidarity as advanced by Durkheim in a conceptual manner with the prevalent realities of the modern society. In doing so this paper looks at the contemporary arguments which have been put forward both for and against the ides presented by Durkheim with regard to his idea of solidarity. From these contemporary writings it has been found that, though not in its entirety, he Durkheimian concept of solidarity still holds true with regard to the working of or keeping a society together admits all of its differences.

Thai Trust Law: A Legal Import Rooted in Pragmatism

The Thai Civil and Commercial Code expressly prohibits the creation of trusts except when provided for by specific legislation. To date, there is only one such piece of legislation: the Trust for Transactions in the Capital Market Act of 2007. However, the history of trusts in Thailand dates back to the late 19th century, and whilst the separation of legal and equitable titles does not sit well with the Code’s legal or intellectual framework, it is possible to provide a coherent explanation of its historical development through the lens of legal pragmatism. This chapter investigates the journey of trust law in Thailand, which runs in parallel with the country’s expansion of international trade and its industrial modernisation. It traces the historical judicial treatment of English common law trusts and the more modern regulatory attempt to integrate statutory trusts into the Thai legal system. Whilst both avenues demonstrate a highly adaptive and pragmatic approach to this imported equitable creature, they appeal to different legal and public policy considerations. With the Draft Bill on Trusts for the Purpose of Personal Asset Management having received cabinet approval in 2018, Thailand now stands at an important juncture for the development of its future trust law regime.

Selectively Assertive: Interventions of India’s Supreme Court to Enforce Environmental Laws

We examine why India’s Supreme Court has selectively intervened to enforce environmental laws. While the Indian Judiciary has substantial political insulation, judges recognize the need for tactical balancing to preserve the legitimacy of their institution. We examine four cases: judicial interventions to check water pollution from tanneries and to phase out diesel engines, and judicial non-intervention to prevent degradation of wetlands and to check crop burning in states adjacent to Delhi. We suggest that judges intervened to correct enforcement failure when they do not anticipate pushback from organized constituencies. Where judicial action imposes costs on a large number of actors and motivates protests from organized groups, the justices have tended to overlook enforcement failures. In sum, in spite of political insulation, judges remain attentive to the popular mood and interest-group politics.

Few Differences in the Externalizing and Criminal History of Young Violent Offenders With and Without Autism Spectrum Disorders

Autism spectrum disorders (ASDs) are known to be associated with an increased risk of aggression and challenging behavior. In this study, we have mapped the externalizing history of a nationally representative cohort of young violent offenders with ASD, compared with offenders without ASD. Two hundred and sixty-nine violent offenders were assessed for prevalence of ASD, and participated in a thorough assessment of previous externalizing problems and criminal history. Twenty-six offenders met consensus clinical DSM-IV criteria for ASD and they were compared to offenders without ASD from the same cohort. Overall, we found a very high prevalence of externalizing and antisocial behaviors in the history of these offenders and there were few differences between the groups. Placements in foster homes were overrepresented in the ASD group and the ASD-offenders had significantly more often been diagnosed with a neurodevelopmental disorder (i.e. ASD or ADHD) by a clinician before the study. At index conviction, ASD offenders were overrepresented in sex crimes with a child victim. Though offenders without ASD had more previous convictions, in particular drug crimes, we found no difference in terms of total number of prosecuted crimes. Substance use disorders were more common among offenders without ASD. The ASD offenders scored higher compared to the non-ASD offenders on the Affective facet of the Psychopathy Checklist-Revised (PCL-R) but there were no differences in terms of total PCL-R scores. Our results provide important knowledge of the developmental history of offenders with ASD. Though this is a small and atypical phenotype it poses significant challenges to the criminal justice system and we need to understand more of it to be able to prevent these individuals from committing crimes but also to provide a fair judicial treatment, to assess exculpatory factors and improve our forensic treatment models.

The 'License As Tax' Fallacy

Intellectual property licenses are commonly portrayed as a “tax” that limits access to technology assets, thereby stunting innovation by intermediate users and inflating prices for end-users. This presumptively skeptical view motivated postwar antitrust’s proliferation of per se rules against a wide array of licensing practices and, more recently, has driven recent Supreme Court decisions on IP licensing and enforcement actions by competition regulators in the U.S. and other commercially significant jurisdictions that would effectively rewrite licensing arrangements in wireless communication markets. Renewed skepticism toward IP licensing, and associated judicial and regulatory interventions, overlook the fact that IP licenses typically play an enabling rather than exclusionary function by mitigating expropriation risks that would otherwise frustrate transactions between the holders of complementary specialized IP and non-IP assets. These transactions support a robust innovation ecosystem by facilitating value-creating exchanges of knowledge assets, promoting the division of labor among innovation and production specialists, and lowering entry costs for firms that excel in innovation but lack capital-intensive production and distribution capacities. Illustrative evidence is drawn from paradigm transactional structures that illustrate the principal enabling functions of IP licensing arrangements in content and technology markets.

Paying for America’s Elections: The Bipartisan Campaign Reform Act of 2002 and Information Access

This paper provides an overview of the legislative history of the Bipartisan Campaign Reform Act of 2002 (BCRA), known popularly as McCain-Feingold. It will also explore the challenges to the act in the courts. The paper will conclude with a review of access to campaign finance reports resulting from the Bipartisan Campaign Reform Act of 2002. With a rich legislative history that spans several Congresses as well as a history of judicial interventions which have shaped the law as it stands today, it is pertinent that the American people have access to information associated with the law so as to better understand the federal election process and assess its strengths and weaknesses in advance of the 2020 elections.

Interwencja służb środowiska lokalnego formą pomocy rodzinie

Uregulowania prawne dotyczące realizacji funkcji rodziny oraz władzy rodzicielskiej
 przez dorosłych jej członków znajdują wyraz w szeregu norm zawartych w Kodeksie
 rodzinnym i opiekuńczym. W artykule dokonano przeglądu form instytucjonalnej pomocy
 umocowanych w polskim systemie prawnym, uwzględniając znaczenie rodziny
 dla rozwoju wszystkich jej członków, a szczególnie małoletnich dzieci. W przypadku
 wystąpienia problemów w zakresie pełnienia władzy rodzicielskiej organy państwowe
 podejmują interwencje o charakterze dobrowolnym (stadium przedsądowe) i przymusowym
 (stadium sądowe). Analizie poddano także zakres przedmiotowy pomocy udzielanej
 rodzinie – w zależności od rodzaju problemów i stopnia dysfunkcjonalności – przez
 instytucje państwowe na podstawie aktów normatywnych różnych szczebli.
 Słowa kluczowe: rodzina, władza rodzicielska, dysfunkcja, rodzic, małżonek, dziecko

Anti-racism legislation in Brazil: the role of the Courts in the reproduction of the myth of racial democracy

The goal of this paper is to analyze Brazilian anti-racism law in practice, assessing judicial response to cases of racial stigma and insult. We analyzed over 200 cases from 9 Brazilian states involving racial insults and racial disparagement in Brazilian courts of appeal. We find that the judiciary tends to downplay the importance of insult and stigma, often dismissing cases or lowering penalties. This judicial treatment conflicts with the evidence that racial insults are prevalent in society and serve to maintain racial hierarchies. While the judiciary appears to be enforcing anti-discrimination law, the actual decisions show that the legal system fails to recognize and deal with the real dynamics of Brazilian racism thereby reinforcing the myth of Brazil racial democracy.

Confronting the Problem of Fraud on the Board

Recent precedents make it difficult to challenge transactions approved by a board of directors and a stockholder majority. When should such cases be filed, proceed beyond the pleading stage, and prevail? My answer is that judicial intervention should remedy and deter tortious misconduct that corrupts board decision-making (i.e., misconduct that the Delaware Supreme Court has called “illicit manipulation of a board’s deliberative processes” or “fraud upon the board”). Commission of fraud on the board is an omnipresent temptation for self-interested controllers, activist stockholders, officers, financial advisors, and their legal counsel. Fraud can be used to put a company in play, steer a sale process toward a favored bidder, suppress the sale price to a controller, or make a favored bid look more attractive. I argue that confronting the problem of fraud on the board has three components. First, virtually all successful breach of fiduciary duty actions should be reinterpreted as occasions when courts determined that a board decision was corrupted by fraud or related tortious misconduct. Second, stockholders should be entitled to examine contemporaneously created books and records in order to detect fraud on the board. Third, when committed by a non-fiduciary, fraud on the board should be considered a free-standing tort, without the need to establish that duped directors breached their fiduciary duties. Recognizing a tort of fraud on the board would be consistent with tort principles and a sound stockholder litigation regime.

Promotion of children's rights and prevention of child abuse

Child abuse is a complex, multi-faceted and controversial topic. A retrospective cohort study aimed to characterize the profile of children victims of domestic violence and their aggressors and to evaluate the efficiency of judicial interventions. Ninety-eight cases lodged with the Infancy and Childhood Court involving 179 children and 121 perpetrators were analyzed. Negligence/abandonment (62%) and physical violence (30%) were the most frequent violations. Mothers were identified as the most frequent aggressor; monthly income of up to one minimum wage and history of alcohol use have been associated with violence. Seventy-one percent of victims were enrolled in educational institutions. In 25% of the cases the severity of the abuse required the removal of the child from the family. A third of the children were enrolled in official programs designed to provide the family with support, orientation and follow-up. This protective judicial intervention was successful in reducing abuse in 93% of the cases within 2 years. Prevention of child abuse requires the involvement of professionals of multiple fields at an early stage. The promotion and safeguarding of children's rights must come primarily from the implementation of public policy not judicial intervention.

Partisan Gerrymandering: Weeds in the Political Thicket

ObjectiveTo highlight the extent of the partisan gerrymandering problem in the United States.MethodsBring both original and secondary sources to bear on the problem of partisan gerrymandering, through the examination of election results under them, and federal and state court reactions to them.ResultsEvidence shows that gerrymandering in seven states accounted for the Republican Party's manufactured majority in the U.S. House of Representatives following the 2012 election, and that it took judicial intervention by courts in some states and the Democratic wave election of 2018 to loosen the grip of those gerrymanders to undo that “spurious” majority.ConclusionThe U.S. Supreme Court's decision in 2019 to withdraw federal courts from partisan gerrymandering litigation, just as the district courts were proving themselves able to deal with the issue in a nonpartisan and effective manner, is likely to result in another decade of extensive and excessive gerrymandering in the United States.

Pangs of Proximity: Politico-Constitutional Crisis in Sri Lanka and its Implications on India-Sri Lanka Relations

The National Unity Government, formed by the traditional rivals UNP and SLFP, was a good example of „cohabitation‟. However, things started falling apart in due course due to new political realignments. It reached a stage where President Sirisena joined hands with the previous President Rajapaksa to oust Prime Minister Ranil Wickremasinghe resulting in about a two-month-long politico-constitutional crisis. With judicial intervention, the crisis got over, but not permanently; the polity looks polarised. The crisis has wide-ranging implications, both at domestic and international levels, especially for India-Sri Lanka relations. Unprecedented political situation that has arisen in Sri Lanka has at least two broad implications on India-Sri Lanka relations: the state of Indian infrastructure projects in Sri Lanka and the ethnic issue in the island nation. Keywords: Wickremasinghe, Sirisena,

Contractual unfairness: another way of skinning the cat

ABSTRACTIn Pioneer Urban Land and Infrastructure Ltd. v Govindan Raghavan [2019] 5 SCC 725, the Supreme Court of India excised an onerous term in a housing construction contract as “wholly one-sided, unfair and unreasonable”. This note examines the doctrinal basis for the exercise of such power. Common law courts have, for long, sought to relieve the weaker party to a bargain against contractual unfairness, but locating the basis of this power has proved elusive. The traditional categories of duress (or coercion) and undue influence have been of limited help here. And since scholarly and judicial treatment alike have read s 16 of the Indian Contract Act as dealing with undue influence, it has been passed over in debates on unfairness. However, it is argued that a closer study of the legislative design of s 16 reveals that it was meant by Mackenzie Chalmers (the architect of the 1899 amendment) to incorporate a “general principle” of contractual fairness which empowered courts to determine whether a transaction was “fair and reasonable”.

The Big Crowd and the Small Enterprise: Intracorporate Disputes in Crowdfunded Ventures

Equity crowdfunding is a financial innovation that allows small businesses and startups to access capital through soliciting investment over the Internet. The current literature on crowdfunding has focused on its theoretical background and on the development of crowdfunding exemptions from the securities laws permitting the practice. There is less discussion of the impact of crowdfunding on corporate governance. This article fills that gap by outlining the potential for a panoply of intracorporate disputes between and among majority shareholders and “crowd” minority shareholders, placing the discussion within the longstanding—if uneasy—divide in judicial treatment of disputes in public corporations and close corporations. From there, the article argues that courts adjudicating disputes in “close-but-crowdfunded” firms should adopt the contractual approach exemplified by Delaware law, and refrain from importing minority shareholder oppression doctrine into the crowdfunding context. The two primary justifications for providing special protections for close corporation minority shareholders are much weaker in the crowdfunding context. First, the mechanics of the crowdfunding process create both the incentive and opportunity to select appropriate terms upon which the founders will continue their relationship and which will be offered to the crowd. Second, and similarly, that same process undermines the inference that there are unwritten, yet reasonable, expectations about any shareholder’s role in the venture. Furthermore, the application of oppression doctrine in the crowdfunded firm would ultimately harm crowd and non-crowd shareholders alike, while undermining the potential gains from equity crowdfunding as a new source of capital accumulation.