Majority Judgment Research Articles

Sądownictwo powszechne w II Rzeczypospolitej (1917–1939). Założenia organizacyjne, budowa struktur, funkcjonowanie

The judiciary system in the Second Republic of Poland (1917–1939): Organisational assumptions, structures, functioning The standardisation of legal provisions regulating the functioning of the judiciary system was one of the key challenges faced by the Second Republic of Poland at the dawn of its independence. The law that had been created by the partitioners was still used in the first years of interwar Poland. A regulation uniform for the whole country: the Law on Common Courts Organisation, had not entered into force until 1929. Under that regulation, women could enter the profession of judge for the first time in the country’s history. This must be recognized as one of the greatest achievements of interwar Poland, whereas one of its significant failures were the low salaries that hindered the functioning of the courts. Judges had protested against that throughout the interwar period, but they did not manage to gain any considerable pay increase. The 1930s also saw a dispute over judicial independence. The adherents of Józef Piłsudski, who ruled Poland at the time, tried to gain control over the judiciary system, which was perceived by the majority of judges as an attempt to limit their rights. Despite those turbulences, the assessment of actions taken in regard to the judiciary system in the interwar period should be positive. The functioning of the courts achieved a definitely higher level compared to the time before World War I.

Klaus Müller v Germany, No. 24173/18, 19 November 2020

In this case, the European Court of Human Rights (ECtHR) was faced with the question of whether an administrative fine imposed on a lawyer practising in Germany, who invoked the legal professional privilege to refuse to testify in a criminal proceeding against the former managing directors of his client companies, was compatible with Article 8 of the European Convention on Human Rights (ECHR). A core issue was whether the lawyer’s duty of professional secrecy can be waived by express consent of the current directors instead of the former directors who communicated with and consulted the lawyer on legal matters on behalf of the companies. From the judgment of the ECtHR it follows that there are two opposite views among the judges. Both recognise that a company is a figurative person and can only act through its agents, namely, its directors. The communication between a lawyer and its company client is actually conducted through physical persons, normally the company’s directors. However, the debate is whether the attorney-client privilege between a lawyer and a company, as based on German law, can extend to the communications between the lawyer and the company’s directors. As a commentator I concur with the majority of judges, which held that attorney-client privilege can be waived by the agent of a company, namely, its current directors, without the need to acquire consent from the company’s previous directors.

"Does 'No, Not without a Condom' Mean 'Yes, Even Without a Condom'?: The Fallout from R v Hutchinson"

In R v Kirkpatrick, the Court of Appeal for British Columbia held that consent to sexual activity cannot be established where a man proceeds with unprotected vaginal intercourse when his sexual partner has insisted on a condom. While this finding should be uncontroversial, it is in fact contrary to the Supreme Court of Canada ruling in R v Hutchinson. In this comment we argue that the approach taken in Kirkpatrick is correct and consistent with the landmark decision in R v Ewanchuk. We urge the Supreme Court of Canada to reconsider its majority judgment in Hutchinson in order to fully recognize the central role that a condom plays in whether a woman agrees to participate in sexual activity.

Approval Voting & Majority Judgement in Weighted Representative Democracy

Pivato and Soh [Pivato, M., Soh, A., 2020. Weighted representative democracy. Journal of Mathematical Economics 88 (2020) 52--63] proposed a new system of democratic representation whereby any individual can choose any legislator as her representative and different legislators can represent different numbers of individuals, concomitantly determining their weights in the legislature. For such legislatures, we consider other voting rules, namely, the weighted approval voting rule' and weighted majority judgement rule. We show that if the size of the electorate is very large, then with very high probability, the decisions made by the legislature will be the same as the decisions that would have been reached by a direct democracy, as decided by the corresponding simple (unweighted) voting rules.

Behavioral Economics of Corruption and its Implications

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.

What has the Constitutional Court Given Us? Afriforum v University of the Free State 2018 (4) BCLR 387 (CC)

The history of South Africa is an unpleasant one. It was a society based on racial segregation with the promotion of Afrikaner culture and the Afrikaans language above all other languages. This can be traced to the architect of apartheid, the Afrikaner National Party, which introduced apartheid. Afrikaans-speaking people, through the Afrikaner National Party, dominated South Africa politically. Their language too, was promoted above all other languages. For example, Afrikaans enjoyed more privileges than other languages in that it was used for drafting laws, as the language of record in the courts and was also the only compulsory subject for learning. The apartheid government, through its racial policies, used the Afrikaans language as a tool to control Black South Africans in almost all spheres of life, including education, which had to be undertaken in Afrikaans. It is therefore no surprise that there were five universities that offered education mainly in Afrikaans. These are Stellenbosch University, University of the Free State, University of Pretoria, Potchefstroom University for Christian Higher Education (now North-West University) and Randse Afrikaanse Universiteit (now University of Johannesburg). The use of the Afrikaans language as an instrument for social control was not sustainable. The new constitutional dispensation ushered in an era wherein respect for fundamental human rights and freedoms is at the top of the South African agenda. The right to further education is constitutionally recognised in section 29(1)(b) of the Constitution of the Republic of South Africa, 1996. Section 29(2) of the Constitution further recognises and embraces the diversity of South African society and provides that “everyone has the right to receive education in the official language or languages of their choice in public education institutions where that education is reasonably practicable” (s 29(b) of the Constitution). The State has an obligation to take reasonable measures on a progressive basis to ensure that further education is available and accessible (s 29(1)(b) of the Constitution). In ensuring “effective access to and implementation” of the right to further education, It is notable that, in its endeavour to make further education available and accessible, the State is required to consider several factors such as language policies. In an effort to facilitate the realisation of the right to further education, the Higher Education Act (101 of 1997) was enacted in order inter alia to “redress past discrimination and ensure representivity and equal access to higher education institutions” (preamble to the Act).In the UFS case (CC), the Constitutional Court applied section 29(1)(b) of the Constitution, which provides for the right to further education and the “right to receive education in the official language or languages of [one’s] choice”. This note centres on this decision and seeks to critically discuss and analyse both the majority and minority decisions of the Constitutional Court. The question presented is whether the Constitutional Court has given the public a solution to the issue surrounding the use of either Afrikaans or English as a language medium of instruction in the higher education sector and what the effect of this has been on the development of other languages. The case note is divided into five sections. The facts of the case, the issues put before the court for consideration and the finding of the court are discussed in part 2. Part 3 contains an analysis of the minority and majority judgments. Part 4 considers whether the court has given us any solutions. Part 5 sets out the authors’ recommendations and their conclusions.

Science Journalism, Value Judgments, and the Open Science Movement

Science journalists face significant challenges as they seek to achieve the dual goals of providing balanced perspectives that consider all sides of the stories they cover and at the same time avoiding the presentation of unreliable or misleading information. This paper draws on recent scholarship in the philosophy of science that can help journalists navigate these challenges and report on scientific research in socially beneficial ways. The paper proposes that science journalists have the opportunity to contribute to the open science movement by identifying and explaining major value judgments in scientific research for members of the public. Journalists are uniquely situated to fulfill this role because they serve as gatekeepers of information for the public and because their investigative skills are ideal for uncovering value judgments. The paper illustrates how this principle can provide guidance for science journalists by examining a case study of recent journalistic reporting on possible health effects associated with cell phone radiation.

The public interest, representative government and the 'legitimate ends' of restricting political speech

The question of what constitutes a ‘legitimate end’ for burdening the implied freedom of political communication has remained unclear and divisive for nearly two decades, in spite of the unanimity of the High Court in Lange v Australian Broadcasting Corporation (1997) 189 CLR 520. Until recently, the test for ‘legitimate ends’ appeared to require evaluation by the High Court of the ‘public interest’ that the impugned legislation was directed at. However, the ambiguous operation of ‘legitimacy testing’ has now been simultaneously clarified and problematised by the High Court in McCloy v New South Wales (2015) 257 CLR 178. In that case the High Court switched the focus of legitimacy testing from an impugned purpose’s effect on the ‘public interest’ to its effect on ‘representative government’. This article examines how the bare majority’s judgment in McCloy has both removed some confusion, but also laid the groundwork for continued uncertainty in other respects, and places the landmark decision in the wider context of legitimacy testing. In particular, questions remain concerning the continued role of public interest considerations and what constitutes ‘representative and responsible government prescribed by the Constitution’.

READING DOWN SECTION 44(i) OF THE AUSTRALIAN CONSTITUTION AS A METHOD OF AFFIRMING AUSTRALIAN CITIZENSHIP IN THE 21st CENTURY

Until 2017, the most recent disqualification of a member of the Australian Parliament under section 44(i) of the Australian Constitution (‘Constitution’) was Senator Heather Hill in 1998. Remarkably, since 2017, almost twenty years after Sue v Hill, ten parliamentarians have resigned or been disqualified, triggering a series of by-elections. The catalyst for this flurry of activity occurred in July 2017, when Greens senator Scott Ludlam announced that at the time of his election, he was a citizen of New Zealand and was incapable of sitting in parliament under section 44(i). He was the first of ten senators and members of parliament to be referred to the High Court of Australia in the cases of Re Canavan and later Re Gallagher on questions of eligibility under section 44(i). Eight of these parliamentarians were disqualified, sparking national debate around parliamentary representation and membership within the Australian community. Since Re Canavan and Re Gallagher and indeed well before those cases, the section had and has continued to attract popular, journalistic, parliamentary and academic criticism. Consequently, there have been calls for a referendum on section 44(i) for a significant period of time. While the authors support this call, this article reflects on the cases and develops a different interpretive approach to section 44(i) which if argued by the parties and adopted by the Court, would have rendered a referendum unnecessary. By drawing on the earlier section 41 of the Australian Constitution case of R v Pearson; Ex parte Sipka and its majority judgment, as well as drawing upon the minority judgment of Murphy J and a more recent feminist judgment written by Kim Rubenstein, one of the authors of this article, we argue that the principles of representative democracy and the sovereignty of the people could have acted as a frame to read down section 44(i). Had this approach been adopted, the Court could have effectively placed the decision around disqualification of parliamentarians around the issue of dual citizenship, back into the hands of the elected representatives

Majority judgment vs. majority rule

The validity of majority rule in an election with but two candidates—and so also of Condorcet consistency—is challenged. Axioms based on evaluating candidates—paralleling those of K. O. May characterizing majority rule for two candidates based on comparing candidates—lead to another method, majority judgment, that is unique in agreeing with the majority rule on pairs of “polarized” candidates. It is a practical method that accommodates any number of candidates, avoids both the Condorcet and Arrow paradoxes, and best resists strategic manipulation.

CLASSIFICATION ACCURACY ASSESSMENT FOR REGIONAL VECTOR DATA PRODUCT BASED ON SPATIAL SAMPLING: A CASE STUDY OF JAPAN

Abstract. Spatial vector data is a kind of data that represents real spatial information through points, lines and polygons. Spatial data quality is one of the basic theoretical research in geographic information science. Accurate and reliable data quality assessment is very important for its theoretical significance and practical value. This paper proposes an improved method for the traditional classification accuracy evaluation of spatial vector data: (1) Quantitative estimation of sample size. According to the statistical principle of probability theory, the overall quantity is estimated by controlling the sampling error and the acceptance quality level. The sample quality is the unbiased estimate of the overall quality. (2) Stratification strategy: the overall objects are divided into three layers according to the three basic geometric structures -- points, lines and polygons. The difference within the layer is small and the difference between layers is large, which conforms to the basic principle of stratification. Then, the proportion of the total number of elements in each layer is taken as the weight to distribute layer by layer, and the sample size of each layer is obtained. (3) Allocation of samples. The spatial property of spatial sampling is mainly reflected in the allocation of samples. Considering the spatial correlation of elements in same layer, Local Moran's I index was used to calculate the correlation degree of a certain attribute between each spatial element and its neighbouring elements. After cluster analysis of elements in each layer, samples were screened by setting a reasonable threshold value. (4) Sample inspection. Each sample was examined against reference information, including images and data. The classification of each sample is judged by the principle of majority judgment. (5) Classification accuracy assessment. The classification accuracy information of samples was obtained by making the confusion matrix of the classification result of samples and the real results. The classification accuracy of experimental data is evaluated according to Kappa index. A case study of Global Core Vector Data of Japan shows the improved method in this paper and process of classification accuracy assessment for regional spatial vector data product. Global Core Vector Data are organized according to the country or region, including three categories of transportation, river system, place names, which are divided into 8 middle categories and 52 small categories. In this paper, 1405 samples of Global Core Vector Data in the experimental area of Japan are selected by spatial stratified sampling in 3 strata. The experimental results show that the proposed improved method is applicable to classification accuracy assessment of regional spatial vector data product and overcomes the disadvantages of type-based spatial stratified sampling that relies on the classification information of all elements. The Kappa coefficient is 0.831, which reflects the result of classification accuracy assessment in the experimental area is good. The proposed improved method provides a reference for the method of classification accuracy assessment classification of following global spatial vector data product.

Majority judgment over a convex candidate space

Most voting methods can only deal with a finite number of candidates. In practice, there are important voting applications where the candidate space is continuous. We describe a new voting method by extending the Majority Judgment voting and ranking method to handle a continuous candidate space which is modeled as a convex set. We characterize the structure of the winner determination problem and present a practical iterative voting procedure for finding a (or the) winner when voter preferences are unknown.

Standing on Unsteady Ground: AREVA NP Incorporated in France v Eskom SOC LTD

Areva NP Incorporated in France v Eskom Holdings SOC Ltd 2017 6 BCLR 675 (CC) was a dispute over a multi-billion-rand tender. Although the majority of the Constitutional Court recognised the public importance of the case, it adjudicated the dispute entirely on a preliminary point. It found that the applicant did not have legal standing to seek the judicial review of the award of the tender.
 This case note has three aims. First, I will argue that the Constitutional Court's majority judgment in Areva was generally unpersuasive. Second, I will attempt to show that Areva exposes an unresolved legal question: when should a court consider the merits of a case made by a litigant with questionable standing? Third, I will propose a method for resolving this question by way of substantive judicial reasoning in any given case.
 

Are Close of Pleadings now Irrelevant? An Evaluation of the Impact the Nkala Judgment has on Litis Contestatio

The position regulating close of pleadings in South African law of civil procedure has for a long time been unchallenged. However, the court in Nkala v Harmony Gold Mining Company Limited 2016 5 SA 240 (GJ) developed the common law to allow for the transmissibility of claims for general damages to the deceased's estate even if pleadings have not reached the stage of litis contestatio. The argument is that while the need for the development for the common law is recognised, the minority opinion should be the preferred approach. The majority held that the common law should be developed to allow all claims for general damages to be transmissible to the deceased's estate even if the stage of litis contestatio has not been reached. This note posits that the points raised by the minority opinion are of sufficient magnitude to prevent the immediate wholesale development of the common law. Detailed legal argument specifically addressing the development of the common law as a whole in this context, as well as the knock-on effects of the same were not ventilated, and as such the majority judgment can be viewed as premature. The paper provides an analytical and critical view of the judgment.
 

Majority judgment and strategy-proofness: a characterization

Majority judgment as recently formulated and advocated by Balinski and Laraki in their influential monograph (Majority Judgment (2010)) is a method to aggregate profiles of judgments which are expressed in a common language consisting of a linearly ordered, and typically bounded, set of grades. It is shown that majority judgment thus defined is strategy-proof but not coalitionally strategy-proof on a very comprehensive class of rich single peaked preference domains. The proof relies on the key observation that a common bounded linear order of grades makes the set of gradings a product of bounded chains, which is a special instance of a bounded distributive lattice. Relying on the foregoing result, this paper also provides a simple characterization of majority judgment with an odd number of agents by anonymity, bi-idempotence and strategy-proofness on rich single peaked domains.

The End of Innocence: Open Justice, Free Speech and Privacy in the Modern Constitution – Khuja (formerly PNM) v Times Newspapers Limited

AbstractThis case note explores the issue of open justice considered by Khuja (formerly PNM) v Times Newspapers Limited in the Supreme Court and argues that the current law is confused and incoherent. Far from settling the debate, it is suggested that the decision further undermines some of the key assumptions underpinning the current approach, especially in the light of the compelling and humane minority judgment. This leaves the area ripe for reconsideration in general terms. This note challenges many of the formulaic slogans and rhetoric in previous case law as well as suggesting that the meaning of open justice has been lost in current discourse. After summarising the facts, this note sets out the majority and minority judgments, before analysing some of the conceptual difficulties raised – particularly those of open justice, privacy, presumption of innocence and freedom of speech.

Konformističko ponašanje adolescenata u donošenju estetskih sudova usled pritiska autoriteta i vršnjačke grupe

The aim of the research was to determine whether adolescent aesthetic judgments are subject to group pressure, and whether there is a difference in their conformist behaviour, depending on whether the pressure group is composed of peers or scientific authorities, as well as to establish the presence of aesthetic judgments in a narrower or broader sense. The sample consisted of 52 participants of Petnica Research Centre. The respondents were shown artistic paintings in pairs in which one painting always had a significantly greater aesthetic value than the other one. The task was to evaluate which painting had a greater aesthetic value and which painting they would keep in their room. There were three groups involved in the research: a control group that made judgments on its own and in writing, and two experimental ones: the first one made judgments in the presence of scientific authorities, while the second group did the same in the presence of their peers. Afterwards, a semi-structured interview was conducted with the respondents to check the level of conformity awareness. The analysis of variance shows that there is an effect of a group on the selection of the paintings with a lower aesthetic value for both questions (on the aesthetic value and on which painting they would put on the wall), and the post-hoc test (LSD test) confirms statistically significant differences between all three groups only on the task of aesthetic judgments in a narrower sense, namely, the respondents who were in the authority group conformed more to the majority judgment than those who were in the peer group. The question of which of the two paintings they would put on the wall revealed a statistically significant difference only between the control and the two experimental groups, but not between the experimental ones, which indicates information conformism. The differences in the respondents' awareness of yielding under social pressure were not found to be significant in this research, and such awareness was not even identified.

Media Relations in the PR Structure of the Judiciary

The article analyzes the liaison between judges and journalists as part of the information policy of the judiciary. It is shown herein that the restriction of access to judicial information, the shortcomings in the operation of the communication and information structures of the courts hinder the maintenance of the authority of justice in society. It is proved that the press service is responsible for public relations and media relations. As a result of this approach, the press services created by the courts are unable to participate efficiently in the interaction of the media and the judiciary, and the contacts between journalists and judges are minimized. The data of surveys of judges, journalists and the population of the Arkhangelsk Region are presented with the purpose to reveal if information about judicial proceedings is in demand in society and how open the judiciary is. It is shown that the majority of judges of district and city courts consider that the information on the operation of courts is in demand by society to a sufficient degree. However, at the same time, journalists face the problems of access to information, although the population considers the information on the operation of the judiciary in demand.

Prosecutor v. Jean-Pierre Bemba Gombo: Judgment on the Appeal of Mr. Jean-Pierre Bemba Gombo against Trial Chamber III's “Judgment Pursuant to Article 74 of the Statute” (Int'l Crim. Ct.)

On June 8, 2018, the Appeals Chamber of the International Criminal Court (ICC) delivered its eagerly anticipated judgment on the appeal of Jean-Pierre Bemba Gombo against his conviction by Trial Chamber III in March 2016 for war crimes (murder, rape, and pillage) and crimes against humanity (murder and rape). Bemba's conviction was notable for the variety of “firsts” it gave rise to for the ICC. As a former vice-president of the transitional government of the Democratic Republic of the Congo (DRC) and president of the Mouvement de libération du Congo (MLC), he became the most senior leader to be successfully convicted by the ICC. His conviction was the first in which an individual was found responsible for the commission of crimes pursuant to command responsibility under Article 28 of the Rome Statute. Of particular significance was the fact that this was the first conviction at the ICC for acts of rape and sexual violence committed against women and men. Finally, this was the first case in the history of international criminal law where members of the defense team were arrested, tried, and convicted of crimes against the administration of justice during the course of the trial. The trial judgment was heralded as “a turning point in the ICC's history” following the debacles in the Lubanga, Katanga, Chui, and Kenya cases. However, we now have a new addition to the list of firsts: with the Appeals Chamber's majority judgment (decided 3-2), Bemba becomes the first accused to have his conviction overturned in full.

Compromise Rules Revisited

Decision makers often face a dilemma when they have to arbitrate between the quantity of support for a decision (i.e., the number of people who back it) and the quality of support (i.e., at which level to go down in voters’ preferences to obtain sufficient level of support). The trade-off between the quality and quantity of support behind alternatives led to numerous suggestions in social choice theory: without being exhaustive we can mention Majoritarian Compromise, Fallback Bargaining, Set of Efficient Compromises, Condorcet Practical Method, Median Voting Rule, Majority Judgement. Our point is that all these concepts share a common feature which enables us to gather them in the same class, the class of compromise rules, which are all based upon elementary scoring rules described extensively by Saari. One can exploit his results to analyze the compromise rules with relative ease, which is a major point of our paper.