Court Review Research Articles

INDIVIDUAL LEGAL ACTS OF THE SUPREME COURT OF THE RUSSIAN FEDERATION ON FAMILY DISPUTES CONCERNING PROPERTY

The article has analyzed the jurisprudence of the Supreme Court of the Russian Federation on family disputes that involve property issues, revealed features of implementation of functions of the highest court in this field. First, it is stated that the Supreme Court of the Russian Federation reviews decisions of lower courts mainly in cases where the application of family law rules is contradictory and unsettled. It is necessary to fill in a gap in family law, to resolve conflicts between certain legal norms, to choose between several possible interpretations of the law. Second, the judicial panels of the Supreme Court of the Russian Federation, making a determination on a particular case, clarify the meaning of legal norms, and sometimes under the guise of interpretation in fact correct ill-considered or outdated norms of family law. Third, the High Court reviews cases where there is a typical and widespread error in the application of a very clear and defined rule. Fourth, in individual legal acts it is possible to observe the concretization or change of the previously designated legal stances while maintaining the legislative rules in the same form. Using certain examples of cases considered by the Supreme Court of the Russian Federation on family disputes concerning property, the paper has demonstrated the mechanism of possible transformation of abstract, non-personified and doctrinally oriented provisions contained in the definitions of judicial boards of the Supreme Court to general legal regulators. The author has determined certain problems of legal regulation of property relations in the family that have not been settled by the Supreme Court of the Russian Federation.

ВОЗНИКНОВЕНИЕ ИДЕИ ПРОВЕРКИ СУДЕБНЫХ РЕШЕНИЙ ПО УГОЛОВНЫМ ДЕЛАМ И ПЕРВЫЕ ОПЫТЫ ЕЕ РЕАЛИЗАЦИИ

From the very early stages of development, the state resolves social conflicts related to the crime committed. However, decisions made as a result of such conflicts begin to be challenged by their participants, which shows that there is an objective need for the right to appeal and review court decisions. This suggests that the right to appeal and review court decisions is objectively required. It is important to bear in mind that at the initial stages of statehood development, there is no procedural separation of appeals from other forms of verification of court decisions. The search for the effectiveness of such an audit is directed towards identifying the officials vested with the authority to carry out it, the subject of the appeal, the means of verification and its results. Further development of the idea under consideration has led to the emergence of various forms of verification of court decisions. Verification of court decisions in criminal cases is also objectively conditioned by the nature of criminal proceedings due to the impossibility of excluding court errors, including the limited cognitive abilities of a person. The close relationship between verification and the nature of social relations is indicated by the fact that, having emerged a few thousand years ago, such verification still exists today and will not be necessary in the future no matter how civilisation develops. Public relations give rise to certain types of miscarriages of justice (in establishing factual circumstances, in applying legal rules or in factual and legal matters at the same time), depending on which there is a differentiation in the way court decisions are checked, which is a response to the nature of the miscarriage of justice. Of course, the ways of verifying judicial acts are different because judicial errors are different. A generalisation and analysis of the history of verification of court judgments make it possible to identify their typological, repetitive and characteristic features which serve as grounds for classification. Such grounds are the entities authorised to carry out the audit, the means of verification, justification and argumentation at a higher authority and the types of decisions it makes. The first experiences with the idea of verifying criminal court decisions are extremely diverse. While many of the trends in the development of such verification are repeated, its morphological forms are different. At the stage of historical development under consideration, there is no close relationship between the individual states, so that the verification of court decisions in each state is formed with a small number of borrowings. This experience is interesting because it is unique for each state in a particular historical period. The formation and institutionalisation of court review is determined by the spatial, temporal, cultural, legal and other characteristics of individual states. On the one hand, various countries are aware of the need to create national judicial systems, and on the other hand, each state does this inde-pendently, using its own approaches.

Editorial - Constitutional Court Review beyond the global pandemic

This issue of Constitutional Court Review (CCR) was born at a time when 'social distancing' was a technical term with currency only among specialists in public health circles. In August 2019, our annual conference was held over two days in which a fascinating array of papers was discussed and honed — face-to-face — by participants united in the common enterprise of engaging in-depth with the work of the Constitutional Court of South Africa. Backward looking in one sense, this journal reflects on recent jurisprudence of the Court and its development over time. In so doing, scholars play a critical role in the constitutional schema that holds the Court to account for its reasoning and decisions. In another sense, the journal is forward-looking, revealing alternate paths not taken or engaging with issues that inevitably will come before the Court. While the interplay of past, present and future is perhaps characteristic of the legal enterprise as a whole, it is of particular value to the constitutional project that aims to transform South African society fundamentally.

The problems with Prince : a critical analysis of Minister of Justice and Constitutional Development v Prince

Over two years ago, South Africa saw the decriminalisation of the use, possession and cultivation of cannabis by an adult in private in the landmark judgment of Minister of Justice and Constitutional Development v Prince (Clarke and Others Intervening); National Director of Public Prosecutions v Rubin; National Director of Public Prosecutions v Acton (Prince III). This judgment was the culmination of a journey that started in the 1990s. This case note is a critical assessment of that judgment. In it, I argue that some of the characteristics of judicial minimalism can be seen in Prince III, namely, incomplete and incoherent reasoning and a focus on the desired outcome. The case note focuses on two main problems in the Court's reasoning. First, the lack of adequate reasoning around the nature of the right to privacy and an articulation of what being 'in private' entails. Second, a limited and incomplete limitations analysis in terms of section 36(1) of the South African Constitution. Both failures contribute to an unsatisfactory outcome which has confused the public, as well as the policing authorities. ACKNOWLEDGEMENTS: An earlier version of this case note was presented at Constitutional Court Review X Conference in August 2019. I thank fellow conference participants, Rafiq Phillips, David Bilchitz and Andrew Konstant for their support, and two anonymous reviewers, whose contributions are greatly appreciated.

From Attleboro to EPSA: The Pace of Change and Evolving Jurisdictional Frameworks in the Electricity Sector

Author(s): Panfil, Michael | Abstract: This Article compares the pattern of fundamental change, legal and regulatory response, and judicial adaptation underlying the electricity sector’s twentieth century beginnings to its current and ongoing rapid transition. This comparison is then used as a basis to examine and contextualize the collaborative federalism jurisdictional framework that the Supreme Court employs when adjudicating modern-day jurisdictional disputes in the sector.The early 1900s saw a period of rapid industry expansion, with the electricity sector progressing from small intrastate utilities to a sprawling interstate grid. The expanding grid rapidly outgrew the state-led regulatory framework that had organically developed. In turn, Congress responded by passing the Federal Power Act to fill what is now known as the Attleboro gap. Courts in turn needed to resolve consequent jurisdictional tensions that arose under the new federal and state balance of authority. The courts employed a bright-line jurisdictional framework that divided authority on the basis of location, adjudicating disputes by determining where the contested action took place. This line-drawing split federal authority on one side of the juridical line—such as wholesale sales and interstate activities—and state authority on the other, such as retail sales and intrastate activities.Just as the interstate expansion of the grid disrupted industry and regulatory structure in the 1900s, modern rapid change is once again creating new benefits and interests through foundational sector disruption. This disruption has similarly placed pressure upon the electricity sector and its regulation. This Article analyzes three foundational changes to the electricity sector that are spurring energy transition and grid modernization: opening the industry to competitive market forces; technological advances making a multidirectional grid possible; and evolving state policy preferences and priorities that seek to combat climate change. The foundational change underway in the electricity sector has spurred a legal and regulatory response in order to create new connections between longstanding statutory mandate and sector change. Congress, the Federal Energy Regulatory Commission (FERC), and states have responded with laws and regulations that acknowledge a sector that now resists simple, bright-line jurisdictional division. These responses have invited increasingly frequent court review. In adjudicating disputes in the electricity sector, the courts have turned to and fully embraced a functionalist, ‘collaborative federalism’ jurisdictional framework. This jurisdictional framework considers an issue’s intent, target, and effect rather than an issue’s location. It best enables courts to adjudicate disputes in the context of changes occurring within the modern electricity sector.

Proportionality, Rights-Consistent Interpretation and Declarations under the Victorian Charter of Human Rights and Responsibilities: The Momcilovic Litigation and Beyond

The meaning, scope and interaction of the key provisions relating to the rights-compatibility of legislation under the Charter of Human Rights and Responsibilities Act 2006 (Vic) were analysed by the Victorian Court of Appeal inRv Momcilovic. On appeal, the High Court of Australia reviewed this analysis and considered the constitutionality of the key provisions. Although overall the High Court upheld the provisions as constitutional, no majority opinion emerged on the scope and operation of the provisions in Victoria, with similar differences of opinion refl ected in the Victorian superior courts. Opinions differed on: the role, if any, of limitations under s 7(2); whether s 32(1) is an ordinary rule of statutory construction or a ‘remedial’ rule of interpretation; and the constitutionality and role of s 36(2) declarations of inconsistent interpretation. Even where a degree of agreement was apparent on one provision, the reasoning underlying the agreement differed, and/or there was no agreement on the interlinking provisions. An overarching theme concerned the methodology by which to approach the key provisions, which again produced disagreement. This article will critically analyse the multiplicity of views in the High Court, both because of the importance of the decision and because its application in Victoria is unclear. Regarding the latter, the Victorian superior courts have considered the Court of Appeal decision to not be overruled by the High Court, and continue to rely on it in varying degrees, whilst also seeking to identify a ratio from the High Court. By way of background, the article will explore the choices facing the Court of Appeal and its decision. It will then analyse the fi ve High Court judgments, focussing on the thematic issues of limitations, ordinary/ remedial interpretation, declarations, and methodology. It concludes with a review of the Victorian superior courts’ reaction to the High Court decision. Analysis will be limited to consideration of the Charter of Human Rights and Responsibilities Act 2006 (Vic) as it operates in Victoria. In addition to the specifi c disagreements on the key provisions, broaderissues of parliamentary sovereignty, the proper role of the judiciary and democratic governance will be examined.

Animal Welfare Act Enforcement

This is an annotated transcript from a panel presentation at The Animal Welfare Act at Fifty conference at Harvard Law School. Delcianna Winders discusses the Animal Welfare Act (AWA) and how the United States Department of Agriculture (USDA) enforces it. She also provides a critique of the USDA’s enforcement of the AWA, with particular attention to its heavy reliance on warnings and discounted penalties, which in many cases fail to deter regulated entities from violating the AWA. Varu Chilakamarri discusses how animal welfare issues are incorporated into the work of the Department of Justice (DOJ). She provides an overview of the AWA, noting the specific sections that provide for federal court review. Chilakamarri also discusses some of the programmatic steps the DOJ has taken within the past few years to make animal welfare a larger priority.

The Decline of the Judicial Override

Since 1972, the Supreme Court has experimented with regulation of the death penalty, seeking the illusive goals of consistency, reliability, and fairness. In this century, the court held that the Sixth Amendment prohibited judges from making findings necessary to impose a death sentence. Separately, the court held that the Eighth Amendment safeguarded evolving standards of decency as measured by national consensus. In this article, we discuss the role of judges in death determinations, identifying jurisdictions that initially (post 1972) allowed judge sentencing and naming the individuals who today remain under judge-imposed death sentences. The decisions guaranteeing a jury determination have so far been applied only to cases that have not undergone initial review in state courts. Key questions remain unresolved, including whether the evolving standards of decency permit the execution of more than 100 individuals who were condemned to death by judges without a jury's death verdict before implementation of the rules that now require unanimous jury votes.

Judicial review of revocation decisions in the context of European banking supervision

The Single Supervisory Mechanism (SSM), a system centralising banking supervision in Europe, is comprised of the European Central Bank (ECB) and the national competent authorities (NCAs). The paper focuses on a new phenomenon occurring within the SSM, the so-called Top-Down revocations which might require the Court of Justice (Court), while reviewing a decision of the ECB, to also incidentally review a decision of an NCA. The paper first shows that such an incidental review creates a tension between, on the one hand, the principle of legality, thus the Court's obligation to review EU acts and, on the other hand, the principle of EU law autonomy which prohibits situations where EU law depends in its interpretation, validity or application on national law. Second, the paper analyses Court's case law on 'derivative illegality' and argues that the Court's approach adopted there can be carefully applied to Top-Down revocations. Finally, it argues that the Court can review such revocation decisions in three situations: (1) when the review of the revocation decision suffices to determine the unlawfulness of the national measure; and when the lawfulness of the national act can be assessed in the light of (2) EU procedural law; and (3) EU substantive law.

Tackling Local Protectionism in Enforcing Foreign Arbitral Awards in China: An Empirical Study of the Supreme People's Court's Review Decisions,1995–2015

AbstractIn an effort to fight against local protectionism in court enforcement proceedings, China's Supreme People's Court (SPC) promulgated its “Notice on relevant issues pertaining to the people's court handling foreign and foreign-related arbitration” in 1995. Pursuant to this Notice, all Intermediate People's Courts have to report to the SPC and obtain its approval for any decision not to enforce a foreign or foreign-related arbitral award. However, the effectiveness of this internal reporting mechanism in constraining local protectionism has never been empirically tested. This study is based on 98 publicly available non-enforcement reply opinions rendered by the SPC after lower courts have made and reported preliminary non-enforcement decisions. It analyses whether these non-enforcement decisions show any pattern of local protectionism. Statistical results do not suggest that local protectionism is a major barrier hindering effective enforcement of foreign or foreign-related arbitral awards in China. We therefore contend that this internal reporting system may serve other functions by providing an alternative tool to reinforce judicial oversight in spite of China's weak appellant system. At the same time, the Chinese government seems to rely on this internal reporting system to achieve important policy goals. In this sense, analysing the functionality of this internal reporting system offers insights into this mechanism for top-level judicial control.

Is ERISA Preemption Superfluous in the New Age of Health Care Reform

In June 2010, the Department of Justice (DOJ) submitted a brief to the United States Supreme Court opposing the grant of certiorari in litigation over the legality of San Francisco’s recent health reform law. The claim in the case was that ERISA, which had long preempted a variety of state health reform efforts, also preempted the San Francisco reform. The DOJ, however, recommended against Supreme Court review in large part because of the new federal health care reform law, the Affordable Care Act (“ACA”), had recently been enacted, and even the government was unprepared to predict with confidence its effect on previously settled areas of law like the one at issue in San Francisco. Because the federal reform was so new, the DOJ argued, it was premature for the Court to hear the case. But the ACA is no longer so new, and though Supreme Court review of the question arising from the San Francisco reform may not have been advisable, it is critical to obtain more clarity now about the ACA’s interaction with other major laws. In particular, one of the principal sources of uncertainty is the ACA’s relationship to ERISA. ERISA preempts any state laws that “relate to” employer-provided health benefits. Although the ACA is a federal law and thus not preempted by ERISA itself, the states must implement much of it. Yet despite ERISA’s reputation as a state reform-killer, Congress did not address whether it would have any preemptive effect once the ACA rolled out. Can the states implement reforms mandated with the ACA without running afoul of ERISA? What about ERISA’s effects on states’ non-ACA reforms going forward? And then there is the middle ground: state reform plans that receive waivers through the ACA. These have recently received much publicity, but will state reforms that get an ACA waiver be able to avoid ERISA preemption?

Access to 911 Recordings: Balancing Privacy Interests and the Public’s Right to Know about Deaths

Publicly disclosing 911 recordings sometimes sheds light on important matters of public interest. Nonetheless, some state statutes, court opinions, and attorneys general opinions recognize surviving family members’ privacy rights may be harmed by publicly disclosing such recordings when they involve deaths. States take a variety of approaches to balance privacy interests with interests in disclosing 911 records. In some instances, states have found that the likelihood of harm to privacy justified exempting from disclosure 911 call records. This article recommends that states require in camera court review of 911 call recordings related to deaths for judges to assess whether releasing the records would serve a public interest that outweighs interests in nondisclosure.

Effective Public Enforcement of Cartels: Rates of Challenged and Annulled Cartel Fines in Ten European Member States

A substantial number of cartels in the European Union are detected and enforced by the national competition authorities (NCAs). The effectiveness of domestic enforcement has been subject to extensive review and debates, which have recently culminated and resulted in the proposal for the ECN+ Directive. The current discussions are mostly limited to the number of enforcement activities, the quantity of imposed fines, their height and deterrence. An empirical assessment of the court procedures in which those fines were challenged and the consequences thereof received minimal attention, despite its importance. The Dutch example, more in particular the difference between the fines as issued by the NCA and those remaining after court review, shows that the mere reference to the number of cases sanctioned paints a distorted picture and an analysis of the rates of litigation and successful litigation is indispensable for veraciously assessing the NCA’s effectiveness. In light thereof, this article analyses the frequency of (successful) litigation and the reasons for annulments in cases of cartel fines in 10 Member States (Belgium, Bulgaria, Croatia, Finland, France, Germany, Italy, the Netherlands, Sweden and the United Kingdom). Public policy makers, such as the European Commission, could benefit from this data gathered in order to analyze the effectiveness of the NCAs. Moreover, the analysis is valuable for future research, since the depiction of the trends and differences can form the basis for further research to explain the percentages, trends and developments – as the author is doing for the Netherlands.

International Courts and Public Opinion: Explaining the CJEU's Role in Protecting Terror Suspects' Rights

AbstractUnder what conditions can regional and international courts (ICs) make decisions against their governments' preferences? To answer this much debated question, we develop a new, majoritarian model of state‐IC relations. It posits that in cases where well‐established ICs' positions are congruent with policy‐specific public opinion in leading member states, ICs can rule against their governments' position. We apply our approach to a series of landmark decisions by the Court of Justice of the European Union (CJEU) regarding United Nations sanctions against terror suspects. We find that the CJEU was able to harness growing public support to strengthen terror suspects' rights, punish states for superficial compliance with its rulings and ultimately broaden the Court's judicial review powers. Our analysis suggests that ICs can be agents of legal change and advance human rights against governments' resistance, but this role is conditional on the presence of public support.

Effective Public Enforcement of Cartels: Rates of Challenged and Annulled Cartel Fines in Ten European Member States

A substantial number of cartels in the European Union are detected and enforced by the national competition authorities (NCAs). The effectiveness of the domestic enforcement has been subject to extensive review and debates, which have recently culminated and resulted in the proposal for the ECN Directive. The current discussions are mostly limited to the number of enforcement activities, the quantity of imposed fines and their height and deterrence. An empirical assessment of the court procedures in which those fines were challenged and the consequences thereof received minimal attention, despite its importance. The Dutch example, more in particular the difference between the fines as issued by the NCA and those remaining after court review, shows that the mere reference to the number of cases sanctioned paints a distorted picture and an analysis of the rates of litigation and successful litigation is indispensable for veraciously assessing the NCA’s effectiveness. In light thereof, this article analyses the frequency of (successful) litigation and the reasons for annulments in cases of cartel fines in ten Member States (Belgium, Bulgaria, Croatia, Finland, France, Germany, Italy, the Netherlands, Sweden and the United Kingdom). Public policy makers, such as the European Commission, could benefit from this data gathered in order to analyse the effectiveness of the NCAs. Moreover, the analysis is valuable for future research, since the depiction of the trends and differences can form the basis for further research to explain the percentages, trends and developments – as the author is doing for the Netherlands.

The Internationalization of Judicial Review in the Colombian High Courts

The internationalization of adjudication in the Colombian high court refers to the growing importance that the American Convention on Human Rights has gained among the judicial forums of this country, but especially to the phenomenon that occurs when national judiciaries implement and appropriate the doctrine of the control of conventionality. The Convention has claimed a high ground in the Colombian constitutional system due to the appropriation of international law by national courts decisions, and to the process of the internationalization of the law. By consistently applying the control of conventionality doctrine, courts like the State Council have reaffirmed the binding nature and the effectiveness of the decisions of the Inter-American Court of Human Rights for the Colombian legal system. In contrast to a much more regressive posture assumed by the Constitutional Court in recent decisions, the State Council, drawing on the legal contents of international law, has broadened the range of legal sources for rights interpretation in Colombia. By this action, as it will be further stated in this article, the State Council has contributed to a move away from a paradigm of a legalism based solely on the state sovereignty and national constitutionalism, towards one that endorses the pluralist structure of post-national law. Against this background, this article aims to discuss how the relationship of national judiciaries with international law is best understood as reflecting the development of a pluralist legal dynamic, sometimes referred to as jurisprudential dialogue, that involves the broadening of the normative horizon and the internationalization of the sources available for national judges in their reasoning; particularly in the cases that involve human rights violations.

Inverting Animus: Masterpiece Cakeshop and the New Minorities

Previous articleNext article No AccessInverting Animus: Masterpiece Cakeshop and the New MinoritiesMelissa MurrayMelissa Murray Search for more articles by this author Melissa Murray is Professor of Law, New York University School of Law.PDFPDF PLUSFull Text Add to favoritesDownload CitationTrack CitationsPermissionsReprints Share onFacebookTwitterLinkedInRedditEmail SectionsMoreDetailsFiguresReferencesCited by The Supreme Court Review Volume 20182018 Article DOIhttps://doi.org/10.1086/703043 Views: 405Total views on this site © 2019 by The University of Chicago. All rights reserved.PDF download Crossref reports no articles citing this article.

Chevron without Chevron

Previous articleNext article No AccessChevron without ChevronCass R. SunsteinCass R. Sunstein Search for more articles by this author Cass R. Sunstein is Robert Walmsley University Professor, Harvard University.PDFPDF PLUSFull Text Add to favoritesDownload CitationTrack CitationsPermissionsReprints Share onFacebookTwitterLinkedInRedditEmail SectionsMoreDetailsFiguresReferencesCited by The Supreme Court Review Volume 20182018 Article DOIhttps://doi.org/10.1086/701881 Views: 156Total views on this site © 2019 by The University of Chicago. All rights reserved.PDF download Crossref reports no articles citing this article.

Trump v Hawaii: “This President” and the National Security Constitution

Previous articleNext article No AccessTrump v Hawaii: “This President” and the National Security ConstitutionMark TushnetMark Tushnet Search for more articles by this author Mark Tushnet is William Nelson Cromwell Professor of Law, Harvard Law School.PDFPDF PLUSFull Text Add to favoritesDownload CitationTrack CitationsPermissionsReprints Share onFacebookTwitterLinkedInRedditEmail SectionsMoreDetailsFiguresReferencesCited by The Supreme Court Review Volume 20182018 Article DOIhttps://doi.org/10.1086/703316 Views: 355Total views on this site © 2019 by The University of Chicago. All rights reserved.PDF download Crossref reports no articles citing this article.

Janus’s Two Faces

Previous articleNext article No AccessJanus’s Two FacesKate AndriasKate Andrias Search for more articles by this author Kate Andrias is Professor of Law, University of Michigan Law School.PDFPDF PLUSFull Text Add to favoritesDownload CitationTrack CitationsPermissionsReprints Share onFacebookTwitterLinkedInRedditEmail SectionsMoreDetailsFiguresReferencesCited by The Supreme Court Review Volume 20182018 Article DOIhttps://doi.org/10.1086/702771 Views: 199Total views on this site © 2019 by The University of Chicago. All rights reserved.PDF download Crossref reports no articles citing this article.