Public Law Cases Research Articles

Contested views of expertise in children’s care and permanence proceedings

In this article, we consider different perspectives on who is best able to provide relevant and helpful expertise in public law cases where the long-term care of children is under consideration. Opinions vary and sometimes conflict on the respective importance of legal, child development, and lay understandings. These opinions relate to views on rights, appropriate procedures, decision-making processes, and the effects of decisions on children. Firstly, we summarise literature relevant to the knowledge and skills of three key groups of decision-makers within the Scottish child care system: legal professionals, child care professionals and lay decision-makers, and outline literature about guardians ad litem and their counterparts. We then discuss issues of expertise emerging from a study exploring the reasons for, and impact of, the appointment of safeguarders (who, in Scotland, perform a similar role to guardians). We conclude that there may be an increasing tendency for disagreement and a lack of clarity about who brings the most relevant and helpful expertise to hearings; this may have negative effects for children.

Where Should Costs Assessments in Public Law Cases Take Place?

1. In The Public Services Ombudsman for Wales v Patrick Heesom [2015] EWHC 3306 (QB), the court determined that an application for a detailed assessment of costs in the Administrative Court must be...

Top 10 Public Law Cases 2015–2016

1. The aim of this article is to highlight what might be described as a Public Law “Top 10” from the 12 months up to July 2016. In doing so, we have chosen cases which we think highlight some of th...

Relief from Sanctions in Public Law Cases

“The new [CPR] rule 3.9 is intended to introduce a culture of compliance, because that is necessary to promote access to justice at proportionate cost. It is not intended to introduce a harsh regime of almost zero tolerance, as some commentators have suggested.” (per Jackson LJ in Denton v TH White Ltd, Decadent Vapours Ltd v Bevan [2014] EWCA Civ 906 [2014] 1 WLR 3926 at [96])

When adoption without parental consent breaches human rights: implications of Re B-S (Children) [2013] EWCA Civ 963 on decision making and permanency planning for children

The Court of Appeal in Re B-S (Children) [2013] EWCA Civ 1146 delivered a judgment on 17 September 2013 that has led to confusion and uncertainty in adoption cases specifically, but public law cases more generally. In his judgment, the President of the Family Division, Sir James Munby, highlighted the need for a greater degree of analysis and a weighing up of all the options for the child, including adoption. Significantly, the President stated that adoption without parental consent is an extremely draconian step, and as an option should not therefore be based on resource constraints if the most appropriate option for the child is to remain living within his or her own family with support.The authors are concerned that following the decision in Re B-S the courts appear to be more willing to grant leave to appeal an adoption order, especially where parents are not legally represented. Members of the judiciary may be concerned to uphold the Article 6 rights of parents, but this must be carefully balanced against the welfare of the child.Furthermore, following the decision in Re B-S we are seeing evidence in unreported cases of social workers being heavily challenged on their oral evidence in court. The judgment in this case will inevitably lead to uncertainty amongst professionals who are already working under considerable strain and these may result in further delay for children; this is ironic given the rhetoric of recent reform of family justice is premised upon the importance of the timetable for the child.

Constitutional Law, Moral Judgment, and the Supreme Court as Super-Legislature

I defend and explore three claims in this lecture. First, there is very little actual “law” in federal constitutional law in the United States, especially with respect to cases that end up at the U.S. Supreme Court: there, the Court operates as a kind of super-legislature, albeit one with a limited jurisdiction, essentially making decisions based on the moral and political values of the justices, and not on the basis of legally binding standards. This is, in part, a jurisprudential thesis about what counts as “legally binding standards,” one that I shall defend by reference to the most plausible account of the nature of law, the legal positivist theory developed by H.L.A. Hart and Joseph Raz. Second, the absence of law in so many parts of federal constitutional law means that the quality of moral and political judgment exercised by judges is of decisive importance in how they fulfill their role and thus should be the overriding factor in the appointment of federal appellate judges, especially Supreme Court Justices. That brings me to my third claim, namely, that all political actors know that the U.S. Supreme Court often operates as a super-legislature, and thus that the moral and political views of the Justices are decisive criteria for their appointment. This almost banal truth is, however, rarely discussed in the public confirmation process, but is common knowledge among political and legal insiders. To be sure there is media speculation about the political predilections of the nominees, but their actual moral and political views are treated as off limits in the real confirmation process. This anti-democratic secrecy is, in my view, deeply wrong and must be replaced with a realistic acknowledgment of the role of the Supreme Court as a political actor of limited jurisdiction. I will illustrate these claims by discussing a number of important public law cases, recent and not-so-recent, including New York v. U.S., Heller, Hobby Lobby, Shelby County, and others.

Polymorphous Public Law Litigation: The Forgotten History of Nineteenth Century Public Law Litigation

Recent debates about popular constitutionalism and judicial supremacy have focused on the question of who interprets the Constitution. This article reframes the debate by asking what legal sources courts apply to protect individual rights from government infringement. Throughout the nineteenth century, federal courts applied a mix of international law, statutes and common law to protect fundamental rights and restrain government action. This article uncovers the forgotten history of nineteenth century public law litigation.Professors Post and Siegel have advocated “policentric constitutional interpretation,” wherein the Supreme Court shares authority for constitutional interpretation with other actors. By analogy, this article introduces the concept of “polymorphous public law litigation.” Under the polymorphous model, instead of fixating on constitutional law as the dominant public law discourse, courts apply international law, statutes, and common law — and occasionally constitutional law — to decide public law controversies. The article demonstrates that nineteenth century federal courts applied a polymorphous model of public law litigation.During the twentieth century, the polymorphous model was supplanted by a constitutionalized model of public law litigation, wherein courts rely primarily on constitutional law to decide public law cases. The process of constitutionalization exacerbated the tension between judicial review and popular sovereignty. When the Supreme Court applies constitutional law to decide a case, the Court does not merely decide the case; it also creates or modifies a legal rule that is not subject to revision by legislative majorities. In contrast, when the Court applies other types of law, Congress or state legislatures retain the power to modify the controlling legal rule. Hence, revival of a polymorphous model would help mitigate the tension between judicial review and popular sovereignty.

Recent Public Law Cases and the Separation of Powers in Scotland

(2012). Recent Public Law Cases and the Separation of Powers in Scotland. Judicial Review: Vol. 17, No. 3, pp. 236-248.

Intervention of Right in Judicial Proceedings to Review Informal Federal Rulemakings

The codification of the Federal Rules of Civil Procedure in 1938 (the “Federal Rules”) created not only a more transactional approach to litigation, but also the flexible party structure that was necessary for “public law litigation” to flourish. Indeed, many argue that intervention by non-parties in public law cases is essential to ensure that the court can hear from and protect the wide range of interests likely to be impacted by its decision. This Article seeks to make a case for limiting intervention as of right in a specific subset of public law proceedings –– those brought to review the legality of informal federal rulemakings pursuant to the Administrative Procedure Act (“APA” or the “Act”). The courts in these cases are placed in a difficult position in considering applications to intervene. On one hand, given the narrow scope of judicial review it is unclear how a court will benefit from the addition of defendant-intervenors seeking to uphold the administrative rule. Instead the court faces the likelihood of information overload and/or information degradation as defendant-intervenors incorporate duplicative or irrelevant arguments into the proceedings. On the other hand, when a court chooses to deny such intervention, it creates the possibility of a lengthy appeal that will further delay judicial review. In sum, intervention practice under the Federal Rules harms the rights of those entitled to judicial review of an agency rulemaking and, most importantly, negatively impacts the public as a whole by reducing the efficiency of the administrative rulemaking process. As such, this Article argues that the practice is inconsistent with both the APA and the intent of third-party practice under the Federal Rules.

Standing for Nothing: The Paradox of Demanding Concrete Context for Formalist Adjudication

This article examines a paradox found in public law cases. While justiciability doctrines aim to provide concrete context for adjudication of public law questions by insisting upon individual injury, often the Supreme Court ignores the litigants' injuries when it turns to the merits of cases. Examination of this paradox leads to a fuller appreciation of the structure and nature of public law. In particular, it sheds light on a recent debate in leading law reviews about whether constitutional litigation should be seen as about individual rights or the validity of legal rules. It also raises serious questions about the modern doctrine of standing. Alexander Bickel's influential writing on the passive virtues views justiciability doctrines as an aid to wise decision making. Bickel emphasized that the law of standing would provide concrete information about the consequences of laws undergoing judicial review that would contribute to sounder more enduring judgments as to constitutionality. Analysis of the reasons that information regarding injury often has no influence upon the merits of many public law cases casts doubt on justiciability doctrines' capacity to aid wise decision-making. Courts need to adopt a new set of active virtues, a set of practices governing the framing, consideration, and resolution of the merits of public law cases.

Opening the floodgates: the price of modernisation of child law

The Children Act 1989 forms a modern and integrated legal framework for children proceedings. A victim of its own success, the Act has brought child care law into the spotlight, with more public law cases heard in judge courts and the proceedings making great demands of public funds in social work and legal spheres. There is a need to simplify the process and make more urgent the resolution of cases to better protect children in a timely way.

PCOs in Public Law Cases

PCOs in Public Law Cases

Court of Appeals: NY's High Court Judges, Selection, the Current Court & Decisions on NY's Governance

This is the October 16, 2008 presentation at the Rockefeller Institute of Government in Albany, New York by Professor Vincent M. Bonventre. It is the latest update of previous years' presentations, with some substantive additions. It explores the ideological dynamics within the court from the latter years of the chief judgeship of Sol Wachtler through the tenure of Chief Judge Judith Kaye up to spring 2008. It looks at the individual judges and the patterns in their voting records and in the decisional record of the court as a whole. It concentrates on divided criminal law cases which tend to be highly sensitive to ideological leanings. It also considers the patterns in public labor law cases and in the frequency of written dissents. The presentation also outlines and critiques the process for merit selection of the judges, and the evolution of the court through the gubernatorial appointments of Mario Cuomo, George Pataki, and Eliot Spitzer. The result today is a somewhat less conservative, less law and order court, despite the remaining majority of appointees by Republican Pataki. The difference may be the newest appointment to the court by now-former Governor Spitzer. Finally, the presentation looks at decisions over the past several years in which the court has delineated the powers of the separate branches of New York State government, of state agencies, state officials, and municipalities.

The Public-Private Distinction in the Conflict of Laws

This paper examines the public-private distinction in the conflict of laws. Conflicts rules have long influenced the ways in which courts have interpreted the extraterritorial reach of regulatory statutes, but two distinctions remain. The first is the external-internal distinction. In private law cases the court determines the applicable law by looking to rules external to the substantive law, while in public law cases the court determines applicability by looking internally for the law's intent. The second is the which-whether distinction. In private law cases the court asks which of two or more substantive laws applies, while in public law cases the court asks only whether the forum's substantive law applies. This paper argues that neither distinction is justifiable.

The Legal Environment of Salmond's Time

This paper examines through multiple lenses the world of the lawyer in early 20th century New Zealand. It considers, and places in their social and political context, the major issues with which Parliament and the courts were dealing, notably issues to do with alienation of Māori land and attempts to prohibit the liquor trade, but also looking at law reform by private members' Bills. The reported decisions of the courts are analysed to consider the areas of frequent litigation, particularly land law (including Māori land cases), administrative and public law cases thrown up by the prohibition question and the very large volume of torts cases. It then examines the position of the judiciary and the courts, paying particular attention to agitation by the profession for increased judicial salaries and to the debates about the role of the Privy Council following its judgment in Wallis's case. It concludes with a discussion of the organisation and membership of the legal profession, the state of legal education and the development of a body of locally-generated legal literature.

Children's Rights to Representation: A Comparison Between Sweden and England

In both England and in Sweden, the approach to a child's right to representation differs between public law cases and private law cases regarding legal custody/parental responsibility, residence or contact. This article discusses the basis for this distinction, and how far it accords with the best interests of the child.

Willis, 'Theology,' and the Rule of Law

Introduction John Willis memorably characterized himself as a '"government man," "a legislation man," and "a what actually happens man" ... [who tried] to talk administrative law with a civil service and political science accent.'1 He railed against the widespread legal use of 'constitutional theology' and 'lawyer's values'; disparaged the modern 'cults' of individualism, participatory democracy, and openness; and bemoaned the growth of public law cases litigated by '"concerned" busybodies.'2 From the perspective of one who thinks that 'theological' concepts such as the rule of law have value – and not just of the lawyerly kind – I propose to use Willis's writings as a launching pad to explore several of the shortcomings and strengths of the sort of functionalism and realism he espoused. It is a tricky terrain to traverse, and I will do my best to fulfil my role as a respectful critic and a reliable guide who uses both her feet and her head in the 'shadowy and arduous borderland between law, political science and public administration.'3 I begin by summarizing what constitutes the 'global and theological' and the 'specific and practical' for Willis.4 Here I suggest which aspects of Willis's thought we should take to heart and which aspects remain [End Page 767] undertheorized as they relate to the rule of law. At the very least, I hope it will be clear that functionalist, positivist, and realist approaches tell us only part of the intricate story that is the rule of law. I will then argue that the rule of law is a complex synthesis of the two moralities that Lon Fuller has described as the moralities of duty and of aspiration.5 Contrasting Fuller's broader and deeply theoretical functionalism with Willis's more institutionalist approach will establish why we need to reunite these two approaches within the discussion of the rule of law; why this synthesis is relevant for a reconsideration of functionalism, positivism, and realism; and what it tells us about a rule of law regime. Fuller's understanding of law, I will argue, comports with certain aspects of the metaphor of 'institutional dialogue,' a metaphor that purports to describe the actual and ideal relationships between Canadian judicial and legislative institutions. While I endorse such a concept in theory, I concur with critics that the lack of empirical accuracy combined with normative disengagement renders it dangerously close to the 'theological.' At the end of the day, the rule of law is less theology than politics, and legal scholars must face up to the task of disclosing which political theory, on their understanding, best supports and endorses the rule of law and its associated practices. Indeed, I assert that the rule of law is a belief – a Fullerian politico-legal fiction – that requires the endorsement and practice of the three 'cults' Willis dismissed as dangerous and unpromising. In the final section, I explain why legal scholars need to attend to trends discussed in political theory or risk the outright dismissal of this important concept by other disciplines. II The gospel according to John (Willis), abridged A The Disciple of Functionalism Willis's oeuvre displays a persistent and sardonic realism channelled into functional analyses. His basic institutional questions remain the problem of dividing up government powers and 'entrusting government work to those bodies which are most fitted to carry it out.'6 Such a clear concern [End Page 768] for the distribution of power holds little regard for any judicial use in administrative law of concepts prefaced by the weasel-prefix 'quasi-' (e.g., quasi-judicial, quasi-legislative, quasi-constitutional), which only worked to fudge the distinction between the legislative and the judicial, to the detriment of administrative agencies of the time.7 Willis therefore argued for the proper recognition by the judiciary of the necessary existence of the modern administrative state, with administrative agencies performing a vital regulatory and intermediary function based on a combination of good judgement...

Access to Information in Public Law Cases

(2004). Access to Information in Public Law Cases. Judicial Review: Vol. 9, No. 4, pp. 266-277.

Sir Francis Forbes and the Earliest Australian Public Law Cases

There is, among many students of Australian law, a tendency to regard the establishment of constitutional government in Australia in positivistic terms: as a result of the passage of the New South Wales Act in 1823, or of the Australian Courts Act in 1828, or of the Australian Constitution Acts of 1842 and 1850, or even of the Commonwealth of Australia Constitution Act in 1900. This is understandable, for, as Sir Victor Windeyer once put it, there was in the foundation of European society on these islands no element whatever of a social contract. Rather, the move to populate the Australian territories was a consequence entirely of a prospectively looking determination made by the government in London. And, as Windeyer went on to note, the formal establishment of local government was effected by ceremonies that were by their very essence positivistic in nature. On 26 January 1788, there was first a formal ceremony in which the Union flag was raised and a salute fired. Then, on 7 February, the whole population of the colony was assembled and the royal letters patent were read, which formally instructed Captain Phillip to go about the duty of creating a penal establishment.

Delight and Dole: The Children Act 10 Years On

PLENARY ONE Delay and the Challenges of the Children Act Amanda Finlay PLENARY TWO Children's Rights and the Impact of Two International Conventions: The UNCR and the ECHR Jane Fortin Interface of Children Involved in Criminal Matters Vulnerable and a Risk to Others - The Double Challenge Dr Susan Bailey Troubled Children and Criminal Justice His Honour Judge Mark Hedley When Young People Refuse Treatment: Balancing Autonomy and Protection Dr Mike Shaw PLENARY THREE Adoption James Paton A Study of Care Plans and their Implementation and Relevance for Re W and B and Re W (Care Plan) Professor Judith Harwin and Morag Owen PLENARY FOUR Expert Evidence 10 Years after the Implementation of the Children Act 1989: Where are We? The Hon Mr Justice Wall ADSS Position Statement Expert Reporting in Public Law Cases Dilemmas of the Corporate Parent Chris Davies Expert Witnesses Pat Monro The Use of Expert Witnesses Useful or Useless? Jenny Stevenson and Dr Arlene Vetere PLENARY FIVE The Skill of Representing Children at a Time of Chaos Vivienne Reed Children, Safety and Parental Contact in Private Law Proceedings Rukhsana Farooqi Thakrar Speech by Chairman of CAFCASS Anthony P M. Hewson President's Response PLENARY SIX International Adoption Professor Carolyn Hamilton PLENARY SEVEN Feedback from Small Groups and Discussions Resolution on the Adoption and Children Bill PROSPECTIVE The Way Forward The Rt Hon Lady Justice Hale Concluding Comments The Rt Hon Lord Justice Thorpe