Majority Judgment Research Articles

Article 142 and the Case of Irretrievable Breakdown of Marriage: A Study

This paper, based on Article 142 and related criticisms, deals with the interpretation of Article 142 under the Indian Constitution, and describes various situations of application of the provision. Elucidating about the meaning and interpretation of the words ‘complete justice’, the author further discusses the specific term and its application with substantiating case laws. Since the powers under this particular article cannot override an existing statutory law, the author, while citing various judgments, deals with the explanation by the court on the debatable point of Article 142 being in contravention with statutory laws. No law has ever existed without there being a dissenting opinion in the court. Hence the author deals with various cases where the court dissented over the use of such discretionary powers and demanding for checks and balances over the same. The next question put forth was regarding the inherent powers interfering with the working of the legislature and have an overriding effect over the law-making process in the country, to which the author while citing various judgments has tried to establish the limit on the powers of Supreme Court in the law-making process with the help of separation of powers. Further, the author aims to discuss a case of irretrievable breakdown of marriages wherein the Supreme Court has repeatedly exercised its inherent powers in specific cases of divorce either solemnized under statutory laws or personal or customary laws. To have an idea of the court’s jurisdiction and instances, the author has very briefly discussed some of the major landmark judgments where the apex court has under Article 142 exercised its jurisdiction. In the final part, the author has made an analysis how a restraint over inherent powers of the Supreme Court would lead to restricting the court’s powers and would adversely affect complete justice to be delivered to each citizen.

The Challenge of Imposing Just Sentences Under Mandatory Minimum Statutes: A Qualitative Study of Judicial Perceptions

Mandatory minimums limit judicial discretion in many jurisdictions in the United States, often compelling judges to impose harsh incarcerative terms. Using qualitative interviews with 41 criminal term judges presiding in a state in the United States, we explore how mandatory minimums influence the judicial sentencing function. We find that judges vary in their approaches to sentencing and that their approaches correspond with their perceptions of mandatory minimum statutes. While our respondents consider case-level, systemic, and pragmatic factors, the majority of judges are focused on the case level and perceive that mandatory minimums often strip away the flexibility they need to craft appropriate sentences in individual cases, leading to punishments that are unduly harsh, and sometimes preventing the imposition of promising alternatives to incarceration. Some judges experience moral dilemmas and guilt feelings during this process. In contrast, judges who highlight pragmatic factors (e.g., public perceptions) are more receptive to statutory restrictions.

Sevilleja v Marex Financial Ltd: Reflective Loss and the Autonomy of Company Law

AbstractIn Sevilleja v Marex Financial Ltd the Supreme Court considered the ambit of the prohibition on a shareholder recovering losses from third parties for the reduction in the value of their shares or loss of dividend income arising from a wrong suffered by the company. This prohibition on ‘reflective loss’ had been growing in scope in recent years, leading to a lack of clarity as to whether it is taxonomically situated in company law or in private law. The majority in this case situated the prohibition firmly within company law. This note argues that the majority judgment did not go far enough and explores the impact of this case on company law more broadly.

The Case Against Leaders: A Moral Reading of Geir Haarde's Conviction for Negligence of Ministerial Duties

In the aftermath of the Icelandic economic crisis of 2008 Iceland's former Prime Minister Geir Haarde was convicted for negligence of his constitutional duty to consult with his ministers on measures to prepare for the coming crisis. The court ruled that there was sufficient information available to the government to conclude that there was real danger of a major banking crisis in the months preceding the crisis. Mr. Haarde was the only head of government to be convicted in the aftermath of the Financial crisis. His indictment and conviction was hotly debated in Iceland where many people considered the process unfair, primarily because Mr. Haarde was the only minister indicted by Parliament for negligence of duties although a Special Investigative Commission appointed by Parliament had recommended indicting other ministers and officials as well. The paper reviews the case against Haarde and the public reaction to it. It is argued that the majority of judges on the special court which convicted Mr. Haarde used the constitutional clause on the duty to conduct ministerial meetings to present a more wideranging condemnation of Haarde's failure to deal with and acknowledge the threats Iceland was facing. Public opinion changed over time: When the Parliament began its consideration of whether to indict former ministers surveys showed an overwhelming majority favoring indictments, but limited confidence that anyone would actually be indicted. When proceedings against Mr. Haarde started public support was much less. After the conviction opinion polls have shown growing doubts about the special court itself. The whole case is an interesting example of the elusiveness of accountability: The paper argues that a thoroughgoing moral reading of Mr. Haarde's conviction reveals a more damning analysis og his actions (and lack of actions) than has generally been acknowledged by political leaders and in public debates.

CHANDRACHUD V. CHANDRACHUD: UNDERSTANDING THE SCOPE OF INTERPRETATION OF STATUTES THROUGH THE FATHER

In the broader picture, Interpretation of Statutes donnes a rather infinitesimal scope to its applications in the practical judicial setup of the nation. Be it the Constitution or the plethora of laws that are passed by the parliament to run the nation and govern its various stratum, interpretation plays a dominant role in getting the same to percolate down to the grass-root level. Benjamin N Cardozo has very famously theorized a lot of what the scope of interpretation of statutes entails and has even streamlined major theories to deduce the process of derivation used by judges to draw out conclusions in various cases. These postulations, although not expressly, find themselves being effectuated via various judges and the same can be deduced upon closer inspection of the wordings of the judgment a judge chooses to articulate while delivering the same. These processes of reasoning by judges vary in their applications and lead to consequences that have been intended by the legislature or rather furthered by the principles of justice, equity and good conscience, the three pillars of a just society. Through the course of this paper, we analyse two major judgments, Sowmithri Vishnu v. Union of India and Joseph Shine v Union of India. Both cases were instituted challenging the constitutionality of section 497 of the Indian Penal Code, that criminalise the act of adultery. The former case, adjudged by Justice YV Chandrachud upheld its constitutional validity whereas the later one adjudged by Justice DY Chandrachud decriminalised the section. Adjudging the interpretative paths taken by the two judges in light of Cardozo’s understanding of Interpretation provides unique insight into the workings of the judicial minds and how time influence the scope of the same. The variance in judgments delivered by father and son presents as an important ground to understand the role of interpretation of statutes and its applications in the world while also helps map out a certain evolutionary process that may be attributed to the scope of interpretation in light of various societal factors that also affect it.

Behavioral economics of corruption and its implications

ABSTRACT This paper holds that the standard economic accounts of corruption based on expected costs and benefits are insufficient to understand and to tackle dishonesty in the real world. It embarks on a survey of the literature to discuss the major roles automatic judgments and decisions, as well as cognitive biases and social preferences might play in deviations from honest behavior. The paper further discusses the implications of behavioral economics to the debate over how to fight corruption and foster integrity.

O Bitter Pill to Swallow: Separating Ratio from Dicta in Maria Chin Abdullah

This article discusses the Malaysian Federal Court's decision in Maria Chin Abdullah v DG of Immigration in January 2021. It critiques the majority judgment of Rahman Sebli FCJ, and of the fate of the basic structure doctrine at Malaysian law post-Maria Chin. Whilst other decisions (such as Rovin Joty v Lembaga Pencegahan Jenayah) have changed the legal landscape since the article was first written, we argue that the doctrine continues to exist at Malaysian law, albeit in a presently uncertain state. The article also considers the underlying disagreement between the majority and dissenting judges in Maria Chin, namely the constitutionality of the 1988 amendment to art. 121 of the Federal Constitution. Whilst disagreeing with the 'reading down' argument made by Tengku Maimun CJ, we suggest an alternative route where the basic structure doctrine is read into art. 121, thus answering at least part of the formalist challenge to the basic structure doctrine's existence. Ultimately, however, striking down the 1988 amendment is the best way to lay this issue to rest.

Happy River evaluation system and its application

The construction of rivers into Rivers is a new goal for river management in China in the new era, which is of great significance for sustainable development of river health and the society. The present study further evaluated the concept of a River and proposed a River evaluation system. The evaluation system is based on the framework of the Four Major Judgment Criteria, namely, safe operation, continuous supply, ecological health, and harmonious development, and included 16 and 34 basic and alternative indicators, respectively, according to the three levels of goal-criteria-indicator. By referencing the large number of normative and standard documents along with the research results, five levels of River grading standards were proposed for each indicator. The Happy River Index was introduced for quantitative evaluation of river status, and the single index quantification-multiple indices synthesis-poly-criteria integration method was used to calculate the index; Finally, the evaluation system was applied to the Yellow River, China for 2017, including the Yellow River segment, nine provinces, and the Weihe River tributary. The present study verified that the proposed evaluation system accurately represented the River status of the Yellow River, and the evaluation system is therefore reliable and applicable.

After the Australia Acts: the High Court’s attitude to changing the common law (1987–2016)

ABSTRACT The end of Privy Council appeals in 1986 was a transformative event in Australia’s common law history. This article examines the High Court of Australia’s attitude to changing common law doctrines in the period 1987–2016, covering the Mason, Brennan, Gleeson and French Courts. Throughout this period, it is shown that the Court has consistently been willing to overturn and modify common law rules for the sake of achieving coherence and certainty to the law. However, it is argued that the Mason Court espoused a bolder vision of the permissible bases for change, in contrast to the Gleeson and French Courts. The Mason Court derived new common law rights from general principles, and invoked contemporary values and international human rights norms to change common law doctrines. In the Gleeson and French eras, a majority of judges were disinclined to consider justifications of this nature, even when opportunities existed.

The contract-delict interface and harm-causing omissions

Dale Hutchison co-authored two excellent articles on the contract– delict interface. Their focus was primarily on breaches of contract causing pure economic loss. This article extends the investigation to omissions which are in breach of contract and which cause physical harm to person or property. At the centre of the investigation is the Supreme Court of Appeal’s (majority) judgment in the case of Chartaprops 16 v Silberman 2009 (1) SA 265 (SCA). A harm-causing omission will be wrongful, for the purpose of delictual liability, only if it was in breach of a specific duty. To date, our law has recognised only a small number of such specific duties. The Chartaprops judgment seems to recognise another, arising – in a way which is not clearly explained in the judgment – from the contractual duties by which the harm-causer and certain third parties are bound. In a series of steps, this article develops an account of that duty, culminating in the following formulation, which is meant to capture both the duty’s ground and its content: ‘If a person has contracted with another person to perform a task and knows (or ought to know) that the other person has contracted with him to perform that task in order to discharge a delictual duty owed by the other person to one or more further persons, then he owes those further persons a specific duty, the breach of which constitutes a wrong for the purposes of Aquilian liability, not to cause harm to them by negligently having contracted with the other person to perform that task and then failing to perform it.’

Form and substance in the Constitutional Court: Whither contract law’s policy after apartheid?

This article enquires into commitments of substance and form in contract law after apartheid. The argument begins with an overview of the substance and form argument as presented by Duncan Kennedy in 1976 and applied to the South African law of contract by Alfred Cockrell in 1992. Kennedy and Cockrell’s argument that commitments of form follow commitments of substance in private-law adjudication generally, and in contract-law adjudication specifically, is mapped onto Karl Klare’s 1998 argument that transformative constitutionalism necessitates a commitment to the ‘postliberal’ in both formal and substantive terms. The argument then proceeds to a reading of the majority judgment in the Constitutional Court in Beadica 231 CC & others v Trustees for the time being of the Oregon Trust & others. The discussion illustrates how form still follows substance in the South African law of contract in a constitutional era, and how the privileged policy position remains that of rule-based formal commitments and individualist substantive commitments. The article concludes with the assertion that the dominance of the individualism/rules position is inconsistent with transformative constitutionalism’s commitment to a postliberal legal order.

Judges’ experiences with mitigating jurors’ implicit biases

Implicit bias can influence jury decision-making. Training judges about implicit bias is a fairly new endeavor, and not all judges are necessarily aware of these biases. Even when judges are aware that biases exist, they might not know whether or not they should alert jurors to such biases or how to appropriately do so. It is currently unknown how many judges alert jurors to implicit bias (e.g. via instructions or juror orientation). The purpose of this study is to discuss judges’ beliefs and practices regarding implicit bias in the courtroom. The findings indicate that the majority of judges (72%) do not alert jurors to implicit bias. Many judges were found to have a lack of awareness or understanding about implicit bias, but many now feel that alerting jurors about bias is important and would like to do so in the future.

Constitutional matters and arguable points of law: Reflections on the General Council of the Bar, Jiba and Mrwebi jurisprudence

Over the past few years, the series of cases implicating Advocates Jiba and Mrwebi, two erstwhile senior members of the office of the National Director of Public Prosecutions (NDPP), have received extensive media coverage. The advocates are alleged to have been politically influenced in the exercise of their public power. In mid-2019, the Constitutional Court’s ruling in General Council of the Bar of South Africa v Jiba and others 2019 8 BCLR 919 (CC), namely that the General Council of the Bar (GCB) had failed to show why the matter fell within the jurisdiction of the Constitutional Court for its consideration, disappointed many. This meant that the Supreme Court of Appeal’s (SCA) majority judgment – which had overturned the Gauteng High Court’s decision that Jiba and Mrwebi were to be removed from the roll of advocates – stood, pending a parliamentary process following upon the findings of the Mogoro Commission of Inquiry into their fitness as advocates. Reflecting on the jurisprudence involving the GCB, Jiba and Mrwebi, this contribution first explores the manner in which the ConstitutionalCourt inquired into whether a constitutional issue, or, more specifically, “an arguable point of law of general public importance” that triggers the jurisdiction of the Constitutional Court, was raised. Secondly, it examines the circumstances in which a court of appeal may interfere with the exercise of a discretion by a court a quo. Finally, with reference to certain dicta in the Constitutional Court judgment, the contribution also reflects on how the applicant’s case could have been formulated differently, in order to have persuaded the Constitutional Court to grant the application for leave to appeal to it as sought by the GCB. Examining the details of the various judgments, the article concludes that the injudicious manner in which the majority judgment in the Supreme Court of Appeal interfered with the High Court’s exercise of a discretion could, in fact, have been considered to have raised “an arguable point of law” that triggered the Constitutional Court’s jurisdiction, thus permitting the matter to be adjudicated and finally disposed of by our highest court. Moreover, the author argues that the inherent controversy of the matter, involving the erosion of the South African administration of justice and rule of law, was of sufficient public interest for the South African apex court to indeed consider it, because it offered the Constitutional Court the opportunity to develop the common-law “fit-and-proper standard” for legal practitioners, particularly those in high-ranking public judicial office. Unfortunately, this is now an opportunity missed.

How to define ‘article of manufacture’: a comparative study of the United States and India

While the first smartphone was developed in 1992,1 a case claiming infringement of design patents protecting certain features of a smartphone was only filed in 2011 in the United States of America ('US'). The case is Apple Inc. v Samsung Electronics Co., Ltd, wherein Apple Inc. (‘Apple’) accused Samsung Electronics Co., Ltd (‘Samsung’) of infringing its three design patents and two utility patents.2 While there was an unequivocal finding of infringement of Apple’s design patents by Samsung, the issue of damages was highly contended. In contrast, India has not witnessed any major disputes or judgments on the infringement of industrial designs. The smartphone industry is known for a wide variety of patents, such that the industry mammoths, namely Google and Apple, are acquiring smaller companies and start-ups on the basis of their intellectual property profile.3 In this article, we undertake a comparative study of the approach adopted in the US and India with respect to the extent of damages awarded for infringement of design patents and industrial designs, respectively. Furthermore, we make appropriate proposals and recommendations on undertaking an examination of the wording of the statute, legislative intent and judicial precedents in these countries.

Esoteric decision-making: Judicial responses to the judicialisation of politics, the Constitutional Court and EFF II

Esoteric decision-making refers to the express reliance on apolitical, technical and legal justifications to substantiate a judicial outcome that is preferred for political reasons, which remain unexpressed. Historically, the Constitutional Court has, in the face of highly political cases, relied on a number of esoteric decision-making techniques. These include prevailing on narrow or apolitical sources of law; using technical, formalist modes of reasoning; and exploiting the indeterminism of the separation of powers. Esoteric decision-making may be a necessary and justified judicial response to instances of the judicialisation of politics in order to protect the institutional security, independence and legitimacy of courts. However, when used ineptly, it risks inviting the institutional vulnerability that its use seeks to avoid. To illustrate this point, this paper discusses the majority judgment in EFF II and contrasts it to previous instances in which the Court has applied esoteric decision-making more successfully. Given the prevalence of the judicialisation of politics in South Africa, the Constitutional Court’s continued institutional legitimacy will depend on the careful and strategic application of esoteric decision-making in future cases.

Tie-breaking the highest median: alternatives to the majority judgment

The paper deals with voting rules that require voters to rate the candidates on a finite evaluation scale and then elect a candidate whose median grade is maximum. These rules differ by the way they choose among candidates with the same median grade. Call proponents (resp. opponents) of a candidate the voters who rate this candidate strictly above (resp. strictly below) her median grade. A simple rule, called the typical judgment, orders tied candidates by the difference between their share of proponents and opponents. An appealing rule, called the usual judgment, divides this difference by the share of median votes. An alternative rule, called the central judgment, compares the relative shares of proponents and opponents. The usual judgment is continuous with respect to these shares. The majority judgment of Balinski and Laraki (Proce Natl Acad Sci 104(21):8720–8725, 2007) considers the largest of these shares and loses continuity. A result in Balinski and Laraki (Oper Res 62(3):483–511, 2014) aims to characterize the majority judgment and states that only a certain class of functions share some valuable characteristics, like monotonicity. We relativize this result, by emphasizing that it only holds true for non-discrete scales of grades. Properties remaining specific to the majority judgment in the discrete case are idiosyncratic features rather than universally sought criteria, and other median-based rules exist that are both monotonic and continuous.

Brexit, the Press and the Territorial Constitution

Brexit has unveiled previously hidden aspects of United Kingdom (UK) society, law and politics. It provides a valuable opportunity to investigate the social reception of law, and in particular the mediation of the law and constitution in the press. The distinctive constitutional arrangements and histories of Wales, Scotland, Northern Ireland and England have given rise to different territorial interpretations of the UK state. These asymmetries have parallels in the UK’s territorial media landscape, yet we have little understanding of how this landscape contributes to constitutional discourses. This article offers quantitative content and thematic analysis of UK-wide media coverage of major court judgments which have served as critical junctures in the Brexit process. The analysis reveals striking territorial variation in the volume and substance of coverage. Here, the media appears to reinforce divergent understandings of the constitution: while English reporting chimed with a more unitary account of the constitution, reporting elsewhere was more consistent with a vision of the UK as union-state. In the light of these findings, we argue that media analysis can make a valuable contribution to our understanding of the law and the constitution.

Investigação sob a ótica da judicialização da saúde sobre Unidade de Terapia Intensiva no Município de São Luís/MA

Estudo acerca da judicialização da saúde na concessão de leitos de unidade de terapia intensiva adulto, por meio do Poder Judiciário no Maranhão. Objetivou compreender o fenômeno da judicialização a partir das características das demandas judiciais quanto a requerente, requerido e processo, compreendendo os critérios dos juízes em suas decisões e verificando o cumprimento das sentenças, devido ao aumento expressivo do número de processos judiciais com pedido de leito de unidade de terapia intensiva adulta em São Luís, Maranhão. Trata-se de estudo documental, em que foram selecionados 25 processos judiciais transitados em julgado, com pedido de unidade de terapia intensiva, entre janeiro de 2009 a fevereiro de 2016. Os resultados demonstraram que ações individuais com pedido de unidade de terapia intensiva adulto corresponderam a 100%; com representação por advogado particular, 60%; oriundos do serviço público de saúde, 64%; do gênero masculino, 56%; e prevaleceram idosos, na faixa etária entre 80-99 anos de idade, em 44% dos processos selecionados e analisados. A maioria dos juízes utilizou a Constituição de 1988, notadamente o direito à saúde, como critério na tomada de decisão. No cumprimento das decisões, um número maior de pacientes teve acesso à unidade de terapia intensiva. Diante da necessidade de diálogo entre os poderes Executivo e Judiciário para tornar mais célere o atendimento das demandas, cresce a importância do instituto da mediação sanitária como alternativa eficaz na negociação entre os sistemas de saúde público e particular e o Judiciário, na busca da garantia constitucional do direito à saúde para todos.

Majority Judgment vs. Approval Voting

The two main criticisms by approval voting (AV) supporters have been that majority judgment (MJ) is not “Condorcet” and that it admits the no-show paradox. That MJ is not Condorcet consistent is a good property shared with AV: the domination paradox shows that majority rule may well err in an election between two. Whereas the no-show paradox is in theory possible with MJ, it is as a practical matter impossible. Moreover, it is proven that MJ with three grades does not admit the no-show paradox. In contrast, AV suffers from serious drawbacks. With AV, voters cannot express their opinions adequately; experiments show that Approve is not the opposite of Disapprove and that AV does not admit the no-show paradox—it admits the very closely allied no-show syndrome. Two grades are simply too few! The debate must concern three or more grades.

A correspondence between voting procedures and stochastic orderings

In voting theory, two different settings are commonplace: either voters express a preference ordering on the set of candidates or they express an individual evaluation of each candidate. In either case, the aim may be to obtain a global ranking of the candidates and, in particular, to determine the winner of the election. We introduce a probabilistic framework that allows us to explore a correspondence between some usual voting procedures based on either preference orderings (e.g. the Borda count and the Condorcet procedure) or individual evaluations (e.g. the Borda majority count and the majority judgment) and some classical stochastic orderings (e.g. comparison of expected values, comparison of medians and statistical preference). We also consider a recently-introduced multivariate stochastic ordering, called probabilistic preference, and show its connection with the plurality and veto procedures.