Public Law Cases Research Articles

Has the UK Supreme Court Become More Restrained in Public Law Cases?

In recent years, a number of academics, judges and politicians have noted that the UK Supreme Court has adopted a more restrained approach when it comes to public law than it had done previously. This article assesses the quantitative and qualitative evidence for this apparent conservative turn. It finds that, in a number of important respects, the Court has indeed adopted a more restrained approach to public law issues in recent years. However, conservatism and caution are not apparent across the board, and there are a number of areas in which the approach of the Court has been anything but restrained. Overall, the Court should not be considered ideologically conservative, nor should it be deemed constitutionally supine. Rather, it is most accurate to suggest that the Court is basing its judgments on a vision of the law rooted in the tradition of political constitutionalism.

О некоторых аспектах судебной защиты публичных прав в России

The article deals with the problem of procedural features of consideration by courts of cases of a public law nature. The author proceeds from the fact that the state, its subjects, municipalities represented by the relevant bodies and authorized officials are the obligatory party of the public law relationship. At the same time, in a public legal relationship, its subjects are in a relationship of power and subordination. The specificity of public law is due to its belonging to an unlimited circle of persons, which naturally produces the impossibility of disposing of it by a specific, individual subject, including in the procedural sphere. Because of this, procedural administrative rights (refusal of a claim, recognition of a claim, the right to conclude a settlement agreement) in proceedings on cases arising from public legal relations (administrative proceedings) should be limited, and judicial control in their commission should be strengthened. The author differentiates cases subject to consideration according to the rules of administrative proceedings into administrative and public law cases, arguing that in public law cases, the mandatory participation of the prosecutor should be fixed, with a positive conclusion of which the parties have the opportunity to perform administrative procedural actions. It is noted that the state, its subjects and bodies can become participants in civil law relations, disputes from which are resolved in civil and arbitration proceedings, claims proceedings, the rules of which should also be modified taking into account this circumstance. Thus, it is proposed to fix the mandatory participation of the prosecutor in lawsuits, if one of the parties to the legal conflict is a public authority.

Мировое соглашение (соглашение о примирении) в публично-правовых делах

The article is devoted to the search for a criterion for the applicability of a settlement agreement in matters of a public law nature. The dual nature of the settlement agreement is shown, combining both substantive and procedural features. The properties of a settlement agreement as an act of public, procedural law arise at the time of its approval by the court — however, at present, the legislation does not contain an answer to the question of which cases are subject to settlement and which are not. The author’s criterion for determining the admissibility of a settlement agreement in public law cases is proposed: the criterion of abstract or specific public law enforcement. The issues of concluding a settlement agreement on certain categories of cases of a public law nature, as well as on cases that combine both imperative and dispositive legal regulation, are considered.

Plea to Save the Right to Strike

Plea to Save the Right to Strike Florence Debord (bio) In France the right to strike is a constitutional right. As a matter of principle, only the law can regulate a constitutional right. In the absence of a law, it is the judges who determine the contours of the right to strike. However, few laws govern this right, so it is case law that says what is "the 'normal' exercise of the right to strike".1 The qualification, by case law, of what a strike is, has practically not changed since the affirmation in 1946 in paragraph 7 of the preamble to the Constitution that "the right to strike is exercised within the framework of the laws which regulate it". In France, the right to strike is not a right of the trade union, but of the individual worker2. It is always the employees who have the right to strike3. For judges, a strike is the collective and concerted cessation of work to obtain satisfaction of professional demands. Even this basic framework is a restrictive interpretation of the exercise of the right to strike. Ordinarily, during a strike, the disciplinary power of the employer is suspended. But by restricting the right to strike, judges allow the employer to increase its disciplinary power. Also, the legislator has intervened on several occasions to prohibit or regulate the exercise of the right to strike, or to allow the establishment of a minimum service. When that is not enough, it is possible in some cases for the government to resort to requisitioning workers. The right to strike must be saved4 because today it is restricted by the increase in disciplinary power, by the intervention of special laws or by the practice of requisitions. Objectives of a strike and the disciplinary power of the employer The collective and concerted cessation of work to obtain satisfaction of professional claims characterises the exercise of the right to strike according to the case law of the social chamber of the Cour de Cassation (English: "Court of Cassation", the highest court of appeal). Judges can therefore disqualify a strike if they consider that there is no complete cessation of work5 or that the "claims" of the strike (the workers' demands) are not professional (ie - if the strike does not concern workplace issues). The question of "revendications professionnelles" (English: "occupational claims") is indeed central. Normally, it is not the judge's role to assess the legitimacy or the merits of these claims6. Yet we see attempts to discredit strikes on this basis7. Nor should these demands be political8. Here again, employers are trying to position themselves on this ground to be able to sanction employees9. In terms of assessing this requirement, the Court of Cassation recently considered the case of workers sacked for organising a strike against "the repressive methods" of the employer following the dismissal of a colleague10. The Court found that their action was not a protected strike as it did not concern occupational claims, and so the dismissals were validated. Limiting the exercise of the right to strike thus increases the subordination of employees. If a workers' protest is qualified as a strike and not overturned by the judges, the disciplinary power of the employer is suspended (except for cases of gross negligence or gross misconduct committed by the employee12). Conversely, the more the right to strike is restricted, the more the employer can sanction striking employees who, according to this way of understanding the action, have not gone on strike but have committed serious misconduct, allowing dismissal without compensation or notice. This unsatisfactory picture can be supplemented by other restrictions in sectors where there is legal regulation. Restrictions by the application of special laws First, there are old prohibitions, which for the most part essentially concern civil servants who exercise the sovereign functions of the State13. Indeed, the main question first concerned public services. In 1950, the Conseil d'État (English: "Council of State", the appeal court for administrative and public law cases) affirmed that in the absence of this regulation, recognition of the right to strike could not have the effect of excluding the...

Topical Issues and Problems of the Legal Regulation of Control and Supervisory Activities in the Field of Financial Markets: Issues of Theory and Practice

The article is devoted to the problems of legal and individual regulation of relations arising in the course of control and supervisory activities in the field of financial markets. In the context of the goals and content of reforming the legislation on control and supervisory activities and the urgent tasks of improving the judicial procedure for resolving public law cases, the regulation of control and supervisory activities in the field of financial markets is investigated, theoretical and practical proposals and recommendations in this area are substantiated.

A Numbers Game? Statistics in Public Law Cases: ALBA Annual Lecture, 5 July 2021

A Numbers Game? Statistics in Public Law Cases: ALBA Annual Lecture, 5 July 2021

Проблемы реализации принципа независимости судей при рассмотрении дел публично-правового характера

The article raises the problem of the independence of judges who consider and resolve public law cases. Since a public law conflict is a dispute between a private person (citizen or organization) and the state represented by its bodies or officials regarding the exercise of power, the judge is actually a representative of one of the parties to the legal conflict (the state). In such conditions, it is difficult for him to maintain impartiality and independence. It is shown that it is necessary to distinguish between the categories of “court independence” and “judicial independence”. The constitutional principle of the separation of powers ensures the independence of the court as a state body, but not of a judge. It is proposed, first, to consider the independence of a judge in three aspects: from other authorities and officials; from the persons participating in the case and from other judges, including higher courts. In order to increase the independence of judges considering public law cases, it is also proposed to introduce the institution of administrative assessors into the Russian model of administration of justice (by analogy with arbitration and jury assessors). At the same time, it is advisable to revive the institution of civil liability of judges for the erroneousness of their decisions.

Recent engagement with international human rights norms by the courts of Singapore, Malaysia, and Philippines

Abstract This article makes two claims about international human rights norms in three English-speaking courts in Southeast Asia. First, the courts are engaging with the norms, contrary to the prevailing view that the four-walls and dualist doctrines maintain a stranglehold on the region. Singapore courts relied on foreign case law applying the European Convention on Human Rights to rationalize a liberal interpretation of arbitration agreements; Malaysia’s Court of Appeal based its decision on the Association of Southeast Asian Nations Human Rights Declaration, despite lack of legislative incorporation; and the Philippine Supreme Court applied the Convention on the Protection of Persons against Enforced Disappearances (CPPED) as evidence of customary international law, notwithstanding that the government had repeatedly refused to ratify CPPED. Second, their engagement is characterized by inconsistency and arbitrariness as it is governed more by exigency than by human rights philosophy. The Philippine court invoked universality to give direct but selective effect to the norms. In the name of pluralism, Malaysian courts gave direct effect to the norms, but the effect has been transitory. In Singapore, the norms have teleological effect in private law cases involving commercial and investment interests, but not in public law cases involving individual and political rights. The lack of principled practice and the ensuing uncertainty undermine the ethos of human rights and raise the question of whether more practice makes right.

Preserving the Rule of Law in Public Law Cases: Keatings v Advocate General for Scotland and the Lord Advocate

Preserving the Rule of Law in Public Law Cases: <i>Keatings v Advocate General for Scotland and the Lord Advocate</i>

The Appellate Standard of Review in Public Law Cases

The goal of this paper is to conduct a comparative discussion of the issue of the appellate standard of review in public law cases. On this issue, two common law apex courts have recently divided: the United Kingdom Supreme Court taking one view, the High Court of Australia a very different view. In England and Wales, the Supreme Court has limited the role appellate courts can play in assessing the proportionality of administrative decisions, thereby placing a significant degree of authority in the hands of first-instance courts. By contrast, the High Court of Australia has insisted that the question of whether an administrative decision-maker acted lawfully is one of law, even where the answer to legal question at issue depends (as is often the case in contemporary public law matters) on an appreciation of contextual factors; accordingly, an appellate court can substitute its judgment for that of a first-instance court if it disagrees with the first-instance court’s conclusion. In this paper, I will begin by laying out the competing approaches taken by the UK Supreme Court and the High Court of Australia. I will then discuss the divergence between these two common law apex courts. Three issues are relevant in explaining the divergence between these two apex courts: whether clear lines of demarcation can be maintained between questions of “law” on the one hand and questions of “discretion” on the other; whether the goal of proportionate dispute resolution should influence the rules relating to appellate standard of review; and, finally whether a legal system’s culture is relatively legalistic or relatively contextual. In summary, in England and Wales, judicial and academic scepticism of the distinction between “law” and “discretion” (consistent with a general preference for contextual rather than legalistic approaches to legal issues) has allowed proportionate dispute resolution to exercise significant influence over the appellate standard of review. This was previously the case in private law and has now come to be the case in public law too. In Australia, however, judicial adherence to the “law”/“discretion” distinction (consistent with the legalistic approach celebrated by many Australian jurists) means that proportionate dispute resolution is less prominent in determining the appellate standard of review. After my analysis of the reasons for the divergence between the UK Supreme Court and the High Court of Australia, I will also discuss the approach taken by the Supreme Court of Canada. Although the Canadian approach to the appellate standard of review is the same as the Australian, the current approach has been criticised. Moreover, the orientation of the Canadian legal system on the three issues which explain differing approaches to the appellate standard of review more resembles the English than the Australian. Accordingly, this is an area of Canadian law which seems ripe for judicial reform. Having discussed the divergent approaches in Australia and in England and Wales, analysed the reasons for the divergence and noted the Canadian position, I conclude with a critical assessment of the English position. While the new approach of the UK Supreme Court is unsurprising, as a descriptive matter, it remains to consider whether it is defensible in normative terms. On this, I am sceptical. There are, I suggest, good arguments for the Australian position in public law cases.

What’s with Formalism? An Empirical Study of Various Predictors and Profiles of Supreme Court Rhetoric

This paper identifies the concomitants of legal formalism in Israeli Supreme Court decisions by analyzing 2086 opinions from 1950-2013. The paper is the first to present an empirical, multi-faceted approach to formalism, that examines patterns of legal rhetoric in relation to the nature of the case and the type of decision. Our findings suggest that reliance on legal rules still remains the most common expression of legal reasoning, although judicial rhetoric is constantly changing, and fluctuates in time and in relation to fields of law, as well as in reference to other textual elements. The deviation from formalist rhetoric in terms of references to judicial discretion, and rationales based on policy were more prevalent in public law cases handled by the High Court of Justice and in criminal appeals than in civil cases. In addition, we found an intricate interplay between the various aspects of formalism. It is the emphasis on formalisms, rather than a single binary view of formalism or its lack, and on a large number of predictors gleaned from a variety of empirical approaches, that is the unique contribution of this study.

Data Resource: Children and Family Court Advisory and Support Service (Cafcass) public family law administrative records in England.

IntroductionIn England, in cases of child maltreatment or neglect, the state can intervene through the family court to remove children from their family home and place them in out-of-home care. The Children and Family Court Advisory and Support Service (Cafcass) collects and maintains administrative records of all public family law cases in England. While these national records are primarily used to monitor and manage the workflow of Cafcass teams across England, researchers have re-purposed this data for analysis to understand the drivers and outcomes of public family law intervention.Data contentsThe administrative dataset is a reflection of the cases Cafcass is involved with and the extent of that involvement. The dataset contains information about the local authority that makes an application to initiate public family law proceedings, the children and families involved, and the duration and details of the case. Between 1 April 2007 and 31 March 2019, Cafcass captured information on approximately 172,100 public family law cases, involving 282,300 children, and 349,600 adults (of which 289,300 are recorded as biological parents). Amongst the information recorded are the relations between adults and children, making it possible for researchers to identify family groups. Additionally, recording practices at Cafcass have improved over time, this has increased the availability of demographic information of all those involved, as well as child’s final legal outcome.Data accessResearchers can apply to the Secure Anonymised Information Linkage databank (SAIL) for access to the Cafcass pseudonymised administrative data extract, where it is refreshed bi-annually.Keywordschildren, out of home care, family relations, family law

Procedure of Appeal Against Resolutions of the National Council of the Judiciary

The essence of the procedure of appeal against resolutions of the National Council of the Judiciary, conducted solely before the Supreme Court, is defined by mechanisms for the recognition of public law cases. Such mechanisms concentrate around the notion of public case, which is to be legally understood here as legal proceedings in the field of public law. The considerations of legislative technique decided at the time that a public case had to, first of all, be legally based in the provisions of the Code of Civil Procedure on cassation. In this context, specific constructs of appeal proceedings against resolutions of the National Council of the Judiciary emerged.

Room At The Table

Judicial opinions in structural reform litigation regarding unconstitutional police practices have largely truncated the Federal Civil Rule 24 analysis when evaluating the interests of impacted communities. No decision in police reform consent decree cases has ever granted a community organization’s motion to intervene as a matter of right. The most success achieved by a small few has been permissive intervention or amici status. Input from affected communities is an essential component of the reform process aimed at remedying the effects of unconstitutional policing. The model used by the Department of Justice to elicit the community perspective through newly created hybrid Commissions has largely been frustrating and unable to have a voice with equal weight and authority in the process. This articles seeks to identify a uniform standard for courts to utilize in public law cases when community organizations seek intervention and to propose an alternative approach to the composition and structure of organization(s) so that the voices and input of those affected by police brutality are included in a meaningful way. Section I discusses the standard set forth for intervention under Federal Rule 24, its purpose generally, and the motivation behind the 1966 amendment to the rule. This section also addresses normative questions as to community input in the creation of laws and litigation generally. Section II summarizes community organization attempts to engage in police-related structural reform litigation initiated by the Department of Justice since the enactment of 12601 as well as discuss the basis for which the respective courts’ denied community organizations the intervention as a matter of right. Section III explores the evolution of previous attempts by the Department of Justice to integrate community voice and perspectives into police consent decrees and why those efforts have been less than optimal. Section IV will explore the relevant cases and the courts’ application of the intervention standard. The Article concludes by offering a solution that provides community organizations the right to intervene as a party in DOJ-initiated reform efforts while addressing the practical and representative concerns articulated by the judiciary in prior cases.

International Women’s Day 2019: In Conversation with Harriet Wistrich

This reflection item provides an edited account of human rights lawyer Harriet Wistrich’s conversation with Manvir Grewal, Visiting Lecturer and Ph.D. student, and Harriet Samuels, Reader in Law at the University of Westminster. It summarises the exchange which focused on Harriet Wistrich’s career trajectory and the many public interest law cases that she has brought on behalf her clients, mainly women, in both domestic and international forums. It also includes a condensed version of the question and answer session with the audience. Questions included the broader issues around domestic violence, rape, coercive control, sex work and the nature of feminism.

Introducing Social Science Evidence in Family Court Decision-Making and Adjudication: Evidence from England and Wales

This article examines the use of social science research in case level decision-making and adjudication in public and private family law proceedings from the perspectives of judges and lawyers in England and Wales. To provide a context for our analysis, we first review a limited, but nevertheless important, body of international literature concerned with the place of social science in the family courts. We then turn to our empirical material, drawn from a scoping study commissioned by the Nuffield Foundation, to inform the design of a new family justice observatory for England and Wales. The study found that judges and lawyers in England and Wales described similar obstacles to the use of social science evidence at a case level as their international counterparts, despite differences in jurisdictional rules and norms. Specifically, they were concerned with due process and the admissibility of research evidence, as well as the potential for advocacy bias, given the contested nature of social science evidence. Questions about how to apply population data to the specifics of an individual case were also raised. However, analysis also revealed further contextual obstacles in England and Wales resulting from radical changes to the family justice system, following comprehensive review in 2011. Judges and lawyers indicated that a reduction in experts and far shorter timescales for the completion of public law cases, together with an influx of self-representing litigants in private law, have created a context that is less, rather than more receptive to interdisciplinary knowledge, including research evidence.

Revisionist History? Responding to Gun Violence Under Historical Limitations.

In the D.C. Circuit case Heller v. District of Columbia (Heller II), Judge Kavanaugh wrote that “Heller and McDonald leave little doubt that courts are to assess gun bans and regulations based on text, history, and tradition, not by a balancing test such as strict or intermediate scrutiny.” Now Justice Kavanaugh, will he find support on the highest court for what was then a dissenting view? Chief Justice Roberts, during oral arguments for Heller I, asked “Isn’t it enough to…look at the various regulations that were available at the time…and determine how these—how this restriction and the scope of this right looks in relation to those?” Justice Thomas, in cert denial dissents for recent Second Amendment cases, has referenced the importance of history in determining what the Framers understood the Second Amendment to protect. There is an open question as to what role history should play in evaluating gun control regulations and, given present circuit splits, it is only a matter of time before this debate finds its way to the highest court. Absent in these debates on history, and Second Amendment discussions more generally, is police power doctrine in the area of public health. The judiciary must recognize that police power enables the state to recognize the changes in firearm technology and the continued growth of gun violence plaguing this country. Looking to relevant public health law cases, particularly Jacobson v. Massachusetts, helps to illustrate that history has not, and cannot, be the sole focus in determining the scope of the state’s ability to tackle public health problems, including gun violence.

Expanding the Parameters of Participatory Public Law: A Democratic Right to Public Participation and the State’s Duty of Public Consultation

This article examines the potential for an improved and expanded democratic relationship between the state and its legal subjects in public law. In Part I, I synthesize several of the compatible features of liberal, civic republican, and deliberative democratic theories in order to advance a new framework for public law in Canada that grounds a right to public participation, and the state’s public consultation duties. The framework illustrates how liberalism, civic republicanism and deliberative democracy possess mutually beneficial effects for public law. This type of democratically-informed common law juridical relationship has not yet been achieved—the topic of Part II—but, in Part III, I employ two typical Canadian public law cases to highlight the nature of current limitations as a springboard to suggest that expanded participation rights are both immanent and possible in Canada. In Part IV, I argue that along with the framework from Part I, jurisprudential pieces are already in place to expand the parameters of participatory public law. Drawing on insights from other jurisdictions, current limitations and anxieties about this expansion can be mitigated or overcome. I then briefly consider two criticisms concerning the effect that more robust public participation requirements may have on courts and governments. Drawing on the theoretical framework presented in Part I, I conclude that an individual right to public participation combined with a general duty of public consultation is an essential legal requirement in modern rights-respecting democracies, such as Canada’s, which aspire to be deliberative, fair, and participatory.

Public Law in the Supreme Court 2017–2018

1. In our more recent annual reviews of the Supreme Court's jurisprudence in this journal, we have noted a slight fall in the number of public law cases being taken by the court. That trend (if it ...

MDL v. Trump

Litigation against the Trump Administration has proliferated rapidly since the inauguration. As cases challenging executive actions, such as the “travel ban,” multiply in federal courts around the country, an important procedural question has so far not been considered — Should these sets of cases be consolidated in a single court under the Multidistrict Litigation Act? Multidistrict litigation, or MDL, has become one of the most prominent parts of federal litigation and offers substantial benefits by coordinating litigation pending in geographically dispersed federal courts. Arguably, those benefits would also accrue if “public law” cases were given MDL treatment. There also are some underappreciated strategic reasons why both plaintiffs and the government might want to invoke the MDL process in these cases — and we suspect that, sooner rather than later, one of these parties might give MDL a try. In this Essay, we argue that although the MDL statute would allow for consolidation of these public law cases, there are prudential reasons why the judges in charge of MDL should stay their hands. In our view, these cases rarely achieve the efficiencies of most MDLs, and there is value to these cases undergoing scrutiny in multiple trial and appellate courts before they percolate upward to Supreme Court review. Moreover, consolidation of these cases would raise the political profile of the MDL process and thus might politicize the MDL itself as well as the selection of its judges. This politicization could undermine MDL’s primary role in mass tort litigation — and, indeed, it risks harming the national tort system more generally.