Scope Of Judicial Review Research Articles

Case C-80/23: A Quest for Clarity. The Law Enforcement Directive 2016/680, a Bulgarian Court and Case C-205/21

Abstract This contribution examines the legal intricacies surrounding law enforcement data collection practices in Bulgaria within the framework of the Law Enforcement Directive 2016/680 (LED) and relevant Court of Justice of the European Union (CJEU) rulings, particularly cases C-205/21 and C-80/23. The analysis underscores challenges in interpreting the concept of “strict necessity” and ensuring compliance with its provisions, in particular, Art. 10. Key findings reveal ambiguities in the LED’s application, particularly concerning judicial review and the scope of data collection. The subsequent Case C-80/23 further seeks clarification on the strict necessity standard and the scope of judicial review in the collection of biometric and genetic data. The outcome of both cases has broader implications for EU member states, highlighting the need for legislative alignment and underscoring the complexities and challenges in balancing effective law enforcement with the protection of fundamental rights.

The Scope of Judicial Review and Typification of Degree Revocation Behavior

The Scope of Judicial Review and Typification of Degree Revocation Behavior

Scope of Judicial Review in the Executing State in EIO Proceedings

Scope of Judicial Review in the Executing State in EIO Proceedings

Conceptual Framework of Judicial Review with Reference to Nepal

The power of the Judicial Review is considered as the touchstone to test constitutionality of the state action including legislation. It brings life and dynamism to the constitutional system. It brings about constitutional clarity and fulfills any gaps that may arise in the constitution. Judicial review controls the arbitrariness of government and protects civil liberties by maintaining the rule of law. The judicial review is exercised to make state organs and bodies as well as government and public officials disciplined and accountable. It is the foundation of constitutional government. The scope of judicial review can be categorized as judicial review of legislation, judicial review of executive action, and judicial review of judicial action. There are several grounds the judiciary can exercise its power. Compliance with the constitution and protection of civilian rights are the fundamental basis of judicial review. The grounds upon which state organs are subject to control by the judicial review have been classified as illegality, irrationality, and procedural impropriety. Its concern is whether a decision-making authority has exceeded its power, committed an error of law, committed a breach of rules of natural justice, and reached a decision without reasonable ground or by abusing its power. The concept of judicial review is not away from criticism. It is often said that judicial review is intolerably uncertain and amounts to little more than a license for judges to interfere arbitrarily with the machinery of government and administration. The power of judicial review has been criticized for being against democratic legitimacy. The question arises that is justifiable for the court to question the validity of the actions of the elected members of the parliament. This question makes the concept of judicial review as the most controversial feature of the Constitution. But this right is not an authority to make the court higher and more powerful than other organs, but it is a means to establish constitutional supremacy and rule of law.

The Scope of Judicial Review in the United Kingdom: An Overview

This research paper delves into the concept of judicial review in the United Kingdom, outlining its historical evolution from the seventeenth century to its contemporary significance. Judicial review empowers the judiciary to assess the decisions and actions of public authorities, ensuring the legality, procedural correctness,and propriety of these actions while maintaining checks and balances. Recent developments have reshaped this practice, influenced by political and constitutional changes like Brexit. Questions have arisen concerning the judiciary's role in relation to government and parliament actions, especially in light of Brexit and the COVID-19 pandemic.

On the Assumption and Improvement of the Judicial Review Mechanism About the Central Bank

Generally speaking, judicial power and administrative power are two important national public powers in a country. It is precisely because of their respective powers that they need to form a check and balance relationship between them. The central bank, as an institution holding the important decisions of national monetary policy and national economic development, its relationship with the government ais either independent or subordinate to the government. It is a special administrative and financial institution. If some of its decisions and decisions are contrary to the national economic development goals, there should be a review mechanism that can review its decisions and decisions in advance to prevent the harm. The core of judicial review is judicial power, and the decision-making of the central bank belongs to the embodiment of administrative power. The check and balance of judicial power over administrative power is a new trend in new fields. This paper discusses the necessity, degree and scope of judicial review by the central bank, and the necessity of establishing a separate special institution, it provides some ideas for the construction of such a special judicial review institution.

Deliberative constitutionalism ‘without shortcuts’: On the deliberative potential of Cristina Lafont’s judicial review theory

AbstractDeliberative constitutionalism is one of the most important developments of recent decades in constitutional theory and practice. It is in this context that Cristina Lafont’sDemocracy Without Shortcutswas published. Lafont’s theory provides an opportunity to advance the research agenda on deliberative constitutionalism since she offers a deliberative democratic reinterpretation of judicial review. According to this compelling and powerful idea, citizens can challenge any laws in constitutional courts and thus trigger democratic deliberation about rights. With this issue in mind, this article offers a general approach to deliberative constitutionalism, describes Lafont’s reinterpretation of judicial review, and makes explicit five tensions in this reinterpretation of judicial reviewvis-à-visdeliberative constitutionalism: (1) the default authority in the interim; (2) the procedural type of constitutional amendment; (3) the scope of judicial review; (4) the irrelevance of constitutional amendments; and (5) the scope of constituent power.

Judicial Review and the Tax-Assessment Making Process

Noting the ‘deep concern’ of taxpayers and stakeholders with how the assessment power is sometimes used, this article demonstrates that notwithstanding the statutory process for overturning an assessment in part IVC of the Taxation Administration Act 1953 (Cth) and recent judicial comments constraining the scope of judicial review for jurisdictional error, judicial review is nevertheless available to invalidate a default assessment or one made at any time where the Commissioner merely suspects the taxpayer engaged in fraud or evasion without any probative evidence to this effect. As will appear, in either instance the assessment-making process may be challenged in judicial review proceedings for legal unreasonableness, which markedly differs, and is otherwise excluded, from a part IVC challenge but which fundamentally bears on whether there has been abuse of the assessment-making power and thus whether the ensuing assessment satisfies the statutory description of assessment.

Disparate Discrimination

This Article explains and analyzes a recent trend in the Supreme Court’s cases regarding unintentional discrimination, where the argument is that a law has the effect of producing a disadvantage on members of a particular group. In religious discrimination cases, the Court has held that a law is presumptively unconstitutional if the law results in a comparable secular activity being treated more favorably than religious activity. Yet in racial discrimination cases, the Court has said the mere fact that a law more severely disadvantages racial minorities as a group does not suffice to establish unlawful discrimination. The two tracks for unintentional discrimination claims can be understood through the lens of political process theory. One part of political process theory maintains that courts should be skeptical of laws that negatively affect discrete and insular minorities who may be politically powerless and face prejudice. One reason the Court more carefully scrutinizes laws that burden conservative, (often) Christian religious groups may be that the Court views those groups as socially powerless because their views no longer command majority support and because their views are not treated with the respect the Court thinks they deserve. And the Court’s decisions have the effect of redistributing power to or reinforcing power in the groups the Court believes to be socially powerless. Identifying the jurisprudential worldview that may plausibly drive these trends helps to identify the potential implications and assess the merits of the new doctrinal approach that the Court has taken in (some) antidiscrimination cases. The Court’s new approach to religious discrimination claims has some virtues; in particular, the Court is probably right to consider facts from the private sphere, such as a group’s economic or social power, in deciding the appropriate scope of judicial review. But the selectivity with which the Court has applied this approach, as well as the Court’s odd assessments of various groups’ power, has resulted in a problematic jurisprudence of conservative victimization that judicially protects backlash against advances in equality and antidiscrimination law.

Sądowoadministracyjna kontrola przyjęć na studia w PRL

The scope of judicial review regarding the application of administrative law in the authoritarian Polish People’s Republic (Polska Rzeczpospolita Ludowa — PRL) was limited. The reason for this is obvious: resolving disputes between executive power (public administration) and individuals in PRL by courts functioning in honest and effective way would be an “obstruction” of the tasks executed by the communist state. The Supreme Administrative Court was reactivated in the last stage of PRL’s functioning in 1980, following the model of interwar tradition. The paper offers an analysis of judicial-administrative review in PRL in the field of university admissions.
 Organization and functioning of the authoritarian PRL exerted an influence on the way judicial review of public administration operated. Administrative justice reactivated in 1980 was submitted to organizational and jurisdictional limitations, as the created Supreme Administrative Court was a one-instance institution with limited jurisdiction, filled with only nine judges. Still, reactivating administrative justice began the process of restoring the proper place for freedoms and individual rights against the state, including the right to attend higher education schools.
 The analysis of the chosen case has allowed to identify some significant interconnected processes and phenomena in the judicial-administrative review in the declining stage of PRL within the whole domain of administrative law. One example is public administration striving for avoiding judicial review by taking a position that settlement of an administrative matter by the university is not an administrative decision. Another example is regulation of individual freedoms and rights by a multi-layered unstable system of legal sources, including: law on higher education, order of the Minister for Science, Higher Education and Technology, and non-published guidelines from the Minister of Health and Social Welfare of 21 May 1981 on admission principles and procedure of full-time studies at medical universities.

ВЛИЯНИЕ РЕШЕНИЙ КОНСТИТУЦИОННОГО СУДА РФ НА СУДЕБНУЮ ПРАКТИКУ В СФЕРЕ НОРМОКОНТРОЛЯ

The decisions of the Constitutional Court of the Russian Federation have a great influence on the formation of the law enforcement practice of other courts in the scope of judicial review of normative acts. So the positions of the Constitutional Court of Russia has changed understanding by courts of the procedural norms about accepting applications for challenging normative acts that have not been published. The judicial practice has also changed in terms of the assessment of applicant's interest at the stage of initiating a case. The article discusses the issue of any difficulties associated with adoption positions by the courts of general jurisdiction, of the reasons determines the wrong use of these decisions by courts, and also how such a reaction affects subsequent decisions of the Constitutional Court and the formation of more balanced practice.

Research on the legal system of students' rights and interests relief in China: A case study on the revocation of Yu yanru's doctoral degree by Peking University

<p>近年來高校學生因學校對其違紀違規處理過當或者不能接受相應的處分結果，將母校告上法庭的案件時有發生。學生認為學校的處理結果嚴重的侵害到其受教育權或其他基本權利。這種現象一方面是高校學生的自我保護的法律意識不斷地提升，另一方面也反映出高校在處理學生違規行為時學生權利救濟程序存在著不合法之處。學位不僅僅是學術水準的象徵，而且是獲得相應的經濟地位和社會地位的前提條件。在高校作出學位撤銷的決定時，必須要同時兼顧實體公正和程序正當，既要達到維護學術價值和學術倫理，又要充分保護學生的合法權益。尤其是學位撤銷會給當事人帶來的負面影響是極其重大的，除了直接會影響到當事人名譽權、隱私權和工作權，乃至於當事人的人格尊嚴等。這種會造成當事人嚴重後果的行為，必須要完善救濟的途徑。目前因為學位撤銷而引起的糾紛已經納入到司法審查的範圍，不過，因為關係到高校的「學術自由」，法院對學位撤銷糾紛進行審理時，一般僅會審查高校在學位撤銷過程中是否遵循正當程序原則，至於實質性學術不端問題，法院一般不會進行審查。本文以北京大學撤銷于艷茹博士學位案為例，分析學位撤銷存在的爭點，企盼更全面認識中國大陸學生權益救濟法制。</p> <p> </p><p>In recent years, college students often take their alma mater to court because they have been punished or can not accept the corresponding punishment. Students think that the results of the school seriously infringe on their right to education or other basic rights. On the one hand, the legal consciousness of College Students’ self-protection is constantly improving, on the other hand, it also reflects the illegality of the student rights relief procedure in dealing with students’ violations. degree is not only a symbol of academic level, but also a prerequisite for obtaining corresponding economic and social status. When colleges and universities make the decision to cancel their degrees, they must take into account both substantive justice and procedural justice, not only to maintain academic value and academic ethics, but also to fully protect the legitimate rights and interests of students. In particular, the negative impact of degree revocation on the parties is extremely significant, in addition to directly affecting the party’s right to reputation, privacy and work, and even the party’s personal dignity. This kind of behavior will cause serious consequences of the parties, we must improve the way of relief. At present, the disputes caused by the revocation of degree have been included in the scope of judicial review. However, because it is related to the "academic freedom" of colleges and universities, when the court tries the dispute of revocation of degree, it generally only examines whether colleges and universities follow the principle of due process in the process of revocation of degree. As for the substantive academic misconduct, the court generally does not review it. Taking the case of the Yu Yanru’s doctorate degree from Peking University as an example, this paper analyzes the dispute points of degree withdrawal and hopes to have a better understanding of the legal system of student rights relief in Chinese mainland.</p> <p> </p>

Zones of Discretion at Common Law

Scott Keller argues in an important forthcoming article that the common law recognized forms of qualified immunity. This reply suggests that Keller’s authorities comprise a body of administrative law, rather than a body of qualified immunity law. Many of the doctrines Keller identifies operate much the way Chief Justice Marshall’s account of judicial review operated in Marbury v. Madison. Marshall acknowledged that matters lawfully assigned to the discretion of the executive branch were beyond the scope of judicial review. But where an official’s lawful discretion ended, and legal boundaries were transgressed, the common law was available (indeed obliged according to Marshall) to supply a remedy. In much of what Keller points to, common law courts were acknowledging that executive officials enjoyed zones of lawful discretion. But the common law did not confer immunity when those boundaries were transgressed.

Research on the legal system of students’ rights and interests relief in China: A case study on the revocation of Yu yanru’s doctoral degree by Peking University

<p>近年來高校學生因學校對其違紀違規處理過當或者不能接受相應的處分結果，將母校告上法庭的案件時有發生。學生認為學校的處理結果嚴重的侵害到其受教育權或其他基本權利。這種現象一方面是高校學生的自我保護的法律意識不斷地提升，另一方面也反映出高校在處理學生違規行為時學生權利救濟程序存在著不合法之處。學位不僅僅是學術水準的象徵，而且是獲得相應的經濟地位和社會地位的前提條件。在高校作出學位撤銷的決定時，必須要同時兼顧實體公正和程序正當，既要達到維護學術價值和學術倫理，又要充分保護學生的合法權益。尤其是學位撤銷會給當事人帶來的負面影響是極其重大的，除了直接會影響到當事人名譽權、隱私權和工作權，乃至於當事人的人格尊嚴等。這種會造成當事人嚴重後果的行為，必須要完善救濟的途徑。目前因為學位撤銷而引起的糾紛已經納入到司法審查的範圍，不過，因為關係到高校的「學術自由」，法院對學位撤銷糾紛進行審理時，一般僅會審查高校在學位撤銷過程中是否遵循正當程序原則，至於實質性學術不端問題，法院一般不會進行審查。本文以北京大學撤銷于艷茹博士學位案為例，分析學位撤銷存在的爭點，企盼更全面認識中國大陸學生權益救濟法制。</p> <p> </p><p>In recent years, college students often take their alma mater to court because they have been punished or can not accept the corresponding punishment. Students think that the results of the school seriously infringe on their right to education or other basic rights. On the one hand, the legal consciousness of College Students’ self-protection is constantly improving, on the other hand, it also reflects the illegality of the student rights relief procedure in dealing with students’ violations. degree is not only a symbol of academic level, but also a prerequisite for obtaining corresponding economic and social status. When colleges and universities make the decision to cancel their degrees, they must take into account both substantive justice and procedural justice, not only to maintain academic value and academic ethics, but also to fully protect the legitimate rights and interests of students. In particular, the negative impact of degree revocation on the parties is extremely significant, in addition to directly affecting the party’s right to reputation, privacy and work, and even the party’s personal dignity. This kind of behavior will cause serious consequences of the parties, we must improve the way of relief. At present, the disputes caused by the revocation of degree have been included in the scope of judicial review. However, because it is related to the "academic freedom" of colleges and universities, when the court tries the dispute of revocation of degree, it generally only examines whether colleges and universities follow the principle of due process in the process of revocation of degree. As for the substantive academic misconduct, the court generally does not review it. Taking the case of the Yu Yanru’s doctorate degree from Peking University as an example, this paper analyzes the dispute points of degree withdrawal and hopes to have a better understanding of the legal system of student rights relief in Chinese mainland.</p> <p> </p>

Paradoxes of Ultra-Vires Review: A Critical Review of the PSPP Decision and Its Initial Reception

AbstractThis contribution explores paradoxes of ultra vires review with specific regard to the PSPP decision of the German Federal Constitutional Court in the light of the decision’s initial reception. While some of these paradoxes are inherent in the very nature of ultra vires review, others are specific to the PSPP judgment. They relate to the underlying doctrinal and theoretical premises, to key concepts such as proportionality or the scope of judicial review, to the overall context in which the decision is embedded, and even to the community which is addressed and affected by the decision. It is the sad irony that the Federal Constitutional Court, while accusing others of manifestly exceeding their competences, does not sufficiently adhere to its own standards and increasingly risks overstretching the boundaries of its mandate under the Basic Law.

Application of Administrative Law in the Time of Reforms in the Light of the Scope of Judicial Review in Hungary

<p class="Default">The Hungarian legal system and especially the administrative law is in the state of permanent change. This constantly transforming environment is a challenge for the rule of law. Every significant field of administrative law is impacted by these changes – even the judicial review model of the administrative decisions. The author analyzes the impact of these changes – especially from the last three years – on the application of administrative law. The issues raised in the article are focused on the transformation of the procedural rules, in particular on the impact of the new Act I of 2017 – Code of Administrative Court Procedure and its amendment in 2019. Two major institutions are analyzed further. First, the work analyzes the impact of the reform on the system of legal remedies in the administrative law, i.e. the reduction of the intra-administration remedies, the administrative appeal. Secondly, the extent of the judicial review was examined, in particular debates, codifications and amendments of the cassation and reformatory jurisdiction of the courts. The courts are currently the major interpreter of administrative law, whose change can be interpreted as a paradigm shift of the approach of the application of administrative law.</p>

The forms, functions, and varieties of weak(ened) judicial review

Abstract The concept of “weak” judicial review is now a core concept in comparative constitutional analysis. Yet the relative weakness of judicial review will depend on a variety of factors, including the availability of formal mechanisms for legislative override or limiting courts’ jurisdiction, the difficulty of constitutional amendment, the scope of judicial review both in first- and second-look cases, and the actual practice of legislators and judges in a jurisdiction. The strength of judicial review is therefore not a true binary but rather a concept that spans multiple dimensions and a question of degree rather than kind. The desirability of weak as opposed to strong or even super-strong forms of review will likewise depend on a range of factors, which can and do vary across time and different contexts. This article thus aims to unpack the concept of weak-form review with a view to sharpening our understanding of both its internal complexity and relationship to questions of broader political context.

Individual concern in the State aid action for annulment in light of the notion of State aid

ABSTRACTCompetitors of aid beneficiaries bringing an action for annulment against a State aid decision must demonstrate that their position on the market is substantially affected. However, the interpretation of this criterion seems inconsistent with the concept of State aid, in particular with the notions of selective advantage and distortion of competition. Indeed, substantial effect privileges selective disadvantage over selective advantage and requires actual harm where a simple threat of distortion of competition is enough. This inconsistency has far-reaching implications because the interpretation of admissibility criteria encroaches upon the interpretation of the notion of State aid. Therefore, by narrowing down the scope of challengeable State measures, the Court effectively excludes from the scope of judicial review an important part of measures falling under Article 107(1) TFEU. Consequently, admissibility conditions should be mitigated and aligned with the logic of State aid law for the sake of completeness of EU State aid control.

The Scope of Judicial Review in the German and U.S. Administrative Legal System

The scope of judicial review of administrative decisions is one of the most important issues in administrative law. The question of the scope of judicial review is a typical problem of public law. Prior to the decision of an administrative law court, there is usually a decision of a public agency. In contrast to that, civil or criminal law cases begin without a state-run decision because these courts have to judge the behavior of private persons. In Chevron U.S.A., Inc. v. Natural Resources Defense Council, the Supreme Court held that if it determines Congress has not addressed the question at issue, “the court does not simply impose its own construction on the statute, as would be necessary in the absence of an administrative interpretation [emphasis added].” Summarized in a simple formula, one can say that civil and criminal courts decide, while administrative and constitutional courts control.

Decisions of Insolvency Professional: Scope of Judicial Review

Decisions of Insolvency Professional: Scope of Judicial Review