State Judiciary Research Articles

Bale Mediation as an Alternative Institution For Resolution of Communal Intellectual Property Rights Disputes Among Indigenous Communities in West Nusa Tenggara

The settlement of communal intellectual property rights disputes is not only through litigation, but is also possible through mediation. The purpose of this study is to determine the position of the mediation hall as an alternative institution in resolving communal intellectual property disputes and in the judicial system in Indonesia and how the legal force of the Bale Mediation decision is in resolving Communal Intellectual Property disputes. This research method uses normative legal research, namely legal research conducted by examining library materials or secondary data. Based on the results of the study, Bale Mediation is an institution that carries out the functions of mediation, coaching and coordination in the implementation of mediation in the community in accordance with local wisdom in the context of legal reform in the field of resolving Communal Intellectual Property Rights disputes. Bale Mediation is not part of the state judiciary but rather an institution that resolves disputes outside the courts. Legal settlement of Communal Property disputes through Bale Mediation is a non-structural institution and is responsible to the Governor. The decision or result of the dispute resolution at the Mediation Center in the form of an agreement that does not yet have permanent legal force but is only an ordinary contract for the parties, only obtains the status of a peace deed after the parties, with or without the assistance of a mediator, file a peace lawsuit through the Commercial Court/District Court.

Reestructuración en la organización del poder judicial del estado de Paraíba, Brasil: Un análisis de los discursos de los actores jurídicos a la luz del principio de eficiencia

With the recent financial crises and the lack of resources faced by the State, its branches, and various entities have been promoting a restructuring of their administrative organization. In this scenario, the State Judiciary of Paraíba (TJPB) was no exception. It had to adopt internal measures to navigate this situation, particularly the public policy of closing courthouses scattered throughout the State. To address these issues, this work aimed to analyze and assess this restructuring in light of the constitutional principle of efficiency, while also addressing the main social implications such measures could cause, especially concerning the constitutional principles of broad judicial protection and the dignity of the human person. Based on important legal scholars, the theoretical framework covered essential topics for understanding the issue, such as the basic organization of the Brazilian public administration and the constitutional principles applicable to public administration. The methodology used was descriptive, qualitative, and bibliographic, also employing the method of argumentation analysis from the New Rhetoric theory. In the discussion of the topic, the reasons justifying the closure of courthouses by the judiciary were made explicit, as well as the reasons and counterarguments expressed by civil society entities that criticized these measures based on the social impacts they will cause. Thus, it became evident that administrative measures cannot apply the principle of efficiency solely through technical or quantitative perspectives but must also weigh social consequences as relevant criteria.

The Pros and Cons of Technology in the Judicial Process in Lagos State, Nigeria

The application of scientific knowledge to the practical aims of humans to the change and manipulation of the human environment is called technology. Its application to the judicial process in Lagos State Judiciary has made it easier to access information, file court processes, enable swift, and accurate research, and improve the delivery of justice thereby curbing the delay in the dispensation of justice though this is with some qualifications. The study juxtaposed and analysed the advancement of technology in the judicial process in Lagos State, Nigeria. Historical and case study designs were adopted. Doctrinal method was used in data collection. The primary sources of data were the Constitution of Federal Republic of Nigeria 1999 (as amended), Lagos State High Court (Civil Procedure) Rules 2019; Magistrates’ Court (Civil Procedure) Rules 2009; Lagos State Chief Judge Practice Direction dated April 27, 2020; sources of secondary data were published textbooks, law reports, scholarly peer-reviewed journals, and articles. Data were content-analysed and presented thematically. Findings revealed that technology is needed for the advancement, development, and growth of the judicial process in Lagos State. Many a lawyer and litigants have not utilised the technology in the state’s judiciary. There is no clear legislation in the state protecting or guiding the utilisation of technology in the judiciary save the practice direction issued by the state’s chief judge in 2020. The study concluded that technology is necessary in advancing the judicial process in Lagos State. The study recommended that lawyers and litigants are to be properly educated vide seminars on how to ustilised technology in advancing the judicial process. The Lagos State House of Assembly should initiate a bill for the utilisation and applicability of the technology in the state’s judiciary.

Ação política em saúde de pessoas trans em Manaus, Amazonas, Brasil

Abstract This article describes the political action repertoire mobilized in the construction of public health policy for trans persons in the Manaus, capital city of the state of Amazonas, in northern Brazil. It is based on ethnographic research combining participant observation in the multiple sites where these policies are constructed and interviews with members of two transgender rights organizations in Manaus, between January 2016 and July 2018. Four modes of political action were reconstructed, as ideal types, named after native categories: those of confrontation, others of “articulation”, the ones seeking visibility and others collaboration. Each mode has the local society as public and agents of the municipal and state Judiciary, Legislative and Executive bodies sometimes as adversaries, sometimes as allies.

Political action in the health of transgender people in Manaus, Amazonas, Brazil.

This article describes the political action repertoire mobilized in the construction of public health policy for trans persons in the Manaus, capital city of the state of Amazonas, in northern Brazil. It is based on ethnographic research combining participant observation in the multiple sites where these policies are constructed and interviews with members of two transgender rights organizations in Manaus, between January 2016 and July 2018. Four modes of political action were reconstructed, as ideal types, named after native categories: those of confrontation, others of "articulation", the ones seeking visibility and others collaboration. Each mode has the local society as public and agents of the municipal and state Judiciary, Legislative and Executive bodies sometimes as adversaries, sometimes as allies.

Implementasi Hukum Adat Sebagai Penanganan Restorative Justice Dalam Membangun Sistem Alternative Penyelesaian Hukum Pidana di Indonesia

In the implementation of the resolution of criminal law violations in customary courts, it is felt to be very effective in dealing with many criminal cases through a restorative justice approach which theoretically relies on values that are characterized by Indonesian harmony, balance and conduciveness to ensuring shared life in society. Therefore, all forms of recognition of customary law must be carried out through acceptance and granting legal status related to the existence of its implementation in areas where the application of customary law is very strong. This research is a qualitative type of research with a normative conceptual and juridical approach. The data source was obtained by examining positive legal norms in the form of applicable laws and customary law norms. The conclusions that can be drawn from this research are: In customary justice it is not considered as non-formal justice outside of the judiciary under the State judiciary institution. The Supreme Court is on par with other customary justice bodies. Customary justice is something that actually occurs in the midst of society, therefore the basis contains the principles of restorative justice which focuses on resolving criminal cases outside of court so that the value of justice can be accepted by each group and individual in the customary law that occurs in Indonesian society.

Should Prosecutors Be Expected to Rectify Wrongful Convictions?


 
 
 In 2008, the American Bar Association amended the Model Rules of Professional Conduct to address prosecutors’ post-conviction conduct. Model Rules 3.8(g) and (h) establish the remedial steps a prosecutor must take after achieving a criminal conviction when confronted with significant new evidence of an injustice. They require prosecutors to disclose the new exculpatory evidence and to take reasonable steps to initiate an investigation, and if clear and convincing evidence then establishes the convicted defendant’s innocence, the prosecutors’ office must take reasonable steps to rectify the injustice. Since then, 24 state judiciaries have adopted versions of one or both rules. Although prosecutors in those states have not reported problems with the rules, state and federal prosecutors often oppose their adoption in the remaining states, including in Texas where the model provisions have been under consideration for over a year.
 Prosecutors’ objections generally sound one of three themes. First, some prosecutors contest that they should be responsible for investigating and rectifying wrongful convictions. Second, some assert that because they can be counted on to rectify wrongful convictions, the rules serve no useful purpose but instead simply impugn prosecutors’ ethics. Third, some insist that the rules will unduly burden them—the rules demand too much of prosecutorial time and resources; they are too imprecise; or they will provoke unfounded disciplinary complaints to which prosecutors must respond. After providing background into the rules’ development, this Article examines prosecutors’ objections to adopting Model Rules 3.8(g) and (h) and explains why those objections are unpersuasive.
 
 

The Lower and upper rozprava of the Katerynoslav Vicarage: peculiarities of functioning

The purpose of the article: to characterize the work of the upper and lower rozpravy of the Katerynoslav Governorate which were special state judicial institutions of the last quarter of the 18th century and dealt with the analysis of cases of free settlers, state peasants and categories equated to them. Research methods: historical-comparative, retrospective, method of internal criticism of sources, statistical. Main results. Archival heuristics prove that preserved documentary complexes provide information for forming a general idea of the activities of individual judicial establishments in the 1780s and 1800s. Lacunae, which are not covered by archival materials, can be filled by referring to the general imperial legislative base; to the documents of other institutions that cooperated with the rozpravy. In country court only nobles were elected as assessors to hear the cases of the nobles, but nobles, officials, commoners, and finally, representatives of the villagers could also be elected as the assessors for hearing at rozpravy. A significant part of village assessors was illiterate. Execution judges were appointed from officials. One of the districts which the bureaucratic apparatus of Southern Ukraine was filled from in the specified period were employees of hundred and regiment offices of the former Hetmanship and the Slobidska Ukraine. The vast majority of cases in Katerynoslavska upper and lower district rozpravy belonged to the field of criminal law. Since minor criminal offenses were dealt with in settlements by elders, village elders, more significant offenses were included in the rozpravy. This explains the presence of a significant number of serious criminal offenses under consideration in rozpravy, for example, murder cases were in the range of 30 to 40% out of the total number. Documents of the rozpravy of the Katerynoslav governorate indicate the cases of legal battles between state peasants (often former Cossacks) for land ownership with their landlord neighbors. State judiciary was more often on the side of the landowners, but there were also examples of successful struggle of the rural community as a collective subject of law. Originality: Court cases provide an opportunity to obtain new evidence about peasant everyday life, peasants' understanding of their rights and status, behavioral strategies in new life circumstances. Type of article: research.

Keeping It Complex With Philip Hunton, John Locke, and the United States Federal Judiciary: On the Merit of Murkiness in Separation of Powers Jurisprudence

Abstract This article draws on the resources of a little-known political theorist, Philip Hunton, to explain the function of “murky” jurisprudence in the maintenance of separation of powers over time. In the era immediately before the drafting of the United States Constitution, separation of powers was a touted remedy to tyranny. But if government is thus moderated, a critical question arises: who will judge the precise contours of each institution's powers? This article addresses this longstanding question by comparing the solutions offered by Philip Hunton, John Locke, and the United States judiciary. I conclude that the judiciary's decried inability to clarify the limits of its own power is justified by Hunton's obscure explanation that separation of powers can only function so long as murkiness shrouds questions of ultimate institutional authority.

The European Court of Justice's Transformation of its Approach towards Preliminary References from Member State Administrative Bodies

AbstractAccording to Article 267 TFEU, a ‘court or tribunal of a Member State’ can make a preliminary reference to the Court of Justice. The Court applies a single, homogeneous definition of a ‘court or tribunal’. This has allowed it to admit references from those specialised, independent, administrative bodies that in several Member States have been established instead of administrative courts to decide claims under public law, including EU law. Whether such a ‘dispute settling’ body is entitled to submit a preliminary reference normally depends upon whether it commands sufficient ‘independence’ vis-à-vis both the parties to the dispute and the public administration as such. The Court has tightened these requirements appreciably in connection with the threats against the independence of the judiciary in some Member States, and the consequent more prominent roles that Articles 19 TEU and 47 of the Charter have come to play. Whereas safeguarding the rule of law is of utmost importance, these provisions pursue objectives within the Union's legal order which are materially different from those pursued by Article 267. In this article, it is therefore argued that the Court should apply different constructions of the independence criterion with respect to these provisions.

Environmental Justice “Light”? Transnational Tort Litigation in the Corporate Anthropocene

AbstractCorporations are notoriously powerful actors in the current configuration of our globalized economy. Their activities play a key role in shaping a new age of ecological precarity—the Anthropocene. Much of this environmental damage occurs in cross-border settings, hampering victims’ access to legal remedies due to widespread corporate impunity and institutional hurdles in host states. Several transnational lawsuits have recently tested the willingness of European home state judiciaries to adjudicate the extraterritorial conduct of domestic corporations. To contribute to a more nuanced understanding of this novel phenomenon, this article analyzes three legal sagas from a comparative perspective: Vedanta v. Lungowe (England & Wales), Dooh v. Shell (The Netherlands) and Lliuya v. RWE (Germany). It argues that transnational tort suits remain a problematic vehicle for the attainment of procedural and substantial environmental justice. The inherent limitations of tort law, extra-legal hurdles to transnational litigation, and the socio-cultural contingency of legal institutions severely circumscribe the space for legal contestations of the corporate Anthropocene.

Deviation from constitution in matters of judicial appointments in India: An overview

Constitution of India provides a framework for higher judiciary by laying down its powers, appointment, tenure and removal of officers of courts including judges etc. Chapter IV of Part V provides for Union Judiciary i.e. the Supreme Court of India and chapter V of Part VI provides for State Judiciary i.e. the High Court. This research paper is an attempt to analyse how the Indian practices in appointment of judges to the highest court have from time and again deviated from the Constitution of India.

Quis custodiet ipsos custodes? Data protection in the judiciary in EU and EEA Member States

Quis custodiet ipsos custodes? Data protection in the judiciary in EU and EEA Member States

Peningkatan Pemahaman Bahasa Asing pada Perjanjian Akta Notaril Bagi Anggota Ikatan Notaris Indonesia Kabupaten Bandung

Although now the contract is mandatory in Indonesian according to Law no. 24 of 2009, notaries still have to understand notary deeds in foreign languages. In fact, if necessary, be able to make notary deeds using foreign languages. This is necessary to improve the qualifications as a legal apparatus in the field of notarization and land affairs. Moreover, there are quite a lot of notaries in Bandung Regency. Based on data from the Bandung Regency Regional Revenue and Financial Management Service (Dispenda), as of June 2020, there were 418 PPAT (Land Deed Maker Officials) and based on the Notary Portal of Bandung Regency as of June 2020 there were 397 notaries. In accordance with Law no. 2 of 2014 concerning Amendments to Law no. 30 of 2004 concerning the Position of Notary (UUJN), the notary is authorized to make authentic deeds regarding all actions, agreements, and provisions required by laws and regulations and/or those desired by those with an interest to be stated in an authentic deed, guaranteeing the certainty of the date of making the deed, keep the deed, provide a copy and an excerpt of the deed. From the inventory of problems, many notaries do not understand the legal consequences when a notary makes a contract or agreement in the form of a notary deed in a foreign language. It should be noted that a contract or agreement made in the form of a notary deed in a foreign language has certain legal consequences, namely the notary deed is not an authentic deed, but as an underhand deed. In addition, the notary deed has the potential to be filed for cancellation or declared null and void through the state judiciary. The solution is, socialization or legal counseling has been held to notaries regarding the legal umbrella or legal basis for the mandatory use of the Indonesian language in contracts or agreements, either under hand or in the form of a notary deed.

Can She Really Take the Family Farm? Proposed Changes to Classification of Inherited Property in Mississippi Divorce Proceedings

Is inherited property subject to equitable division in divorce proceedings? This is a question that the Mississippi appellate courts have long grappled with, and one that they are yet to decide on fully. The Mississippi Supreme Court and Court of Appeals have provided three separate and conflicting methods for deciding classification of inherited property in divorce proceedings: (1) all inherited property is separate; (2) inherited property is marital in nature if it is commingled between the spouses to the point ownership is indistinguishable; and (3) inherited property is marital in nature if it is subject to use by the spouses/family during the course of the marriage. These three conflicting methods provided by the appellate courts fail to provide coherent guidelines for trial courts. This has caused inconsistent and unpredictable holdings, considered on a case by case basis, and decided solely on judicial discretion rather than well founded principles of law. This article addresses each of Mississippi’s three current doctrines used to classify inherited property in divorce proceedings. It highlights the inconsistencies between the three, and discusses their strengths and shortcomings. The article then proposes a four-factor test that combines the existing precedents into one coherent method of classifying inherited property in divorce proceedings. The test first considers the non-inheriting spouse’s contribution to the upkeep and maintenance of the property. It then asks whether the property is the marital home. Next, the test considers whether commingling or familial use took place, and if so, to what extent. The final factor asks whether the inherited property constitutes more than half of the total marital estate. The article proposes that each factor constitute a point, and the inherited property be based on tallies from the four factors. This proposed factor test provides a clear and broadly applicable standard by which the state judiciary can consider all types of fact patterns and still have consistent, predictable, and equitable classifications of inherited property.

An empirical investigation of court users’ encounters with bribery, judicial extortion and corruption victimisation in Lagos State

This article examines the problem of corruption in the judicial system of postcolonial Nigeria using Lagos State Judiciary as a case study. The study is informed by the fact that, despite several decades of justice sector reforms in the country, some judges and court staff are still found culpable of abuse of the oath of their office. The study adopted direct encounters of court users to measure judicial corruption using a total sample of 827 litigants selected across the High and Magistrate Courts in Lagos State. The quantitative method of data collection was adopted. The study found that regularity at the court, type of court case, and category of litigant were significant predictors of vulnerability to judicial extortion, bribery and corruption victimisation in the court. Specifically, the study found that litigants with criminal cases were three times more likely to be asked for bribes and denied justice than those with civil cases. The implication of these findings for justice sector reform in Nigeria is that, the government, National Judicial Council and State Judicial Commission must deliberately block avenues and opportunities for bribery in criminal prosecution so as to protect the rights of the less privileged in the justice system.

A (IN) EFICIÊNCIA NA APLICAÇÃO DA LEI DE MIGRAÇÃO DE 2017 E O CONTEXTO DAS MIGRAÇÕES VENEZUELANAS NO TERRITÓRIO BRASILEIRO

O presente trabalho expõe uma análise do contexto histórico das migrações no espaço geográfico, e a evolução do referido fenômeno na contemporaneidade, a partir da influência dos conflitos geopolíticos mundiais. Destarte, identificou-se a nítida incongruência da conceituação de imigrantes realizada pela Organização das Nações Unidas (ONU) – a partir da necessidade de mobilidade transfronteiriça pelos embates internacionais, catástrofes naturais e animo próprio- adjunto a salvaguarda de seus direitos fundamentais, ainda que existam ferramentas no ordenamento jurídico brasileiro. Além disso, a presente pesquisa aborda a crise migratória venezuelana que assola o território do país e apresenta reflexos nas fronteiras Brasil-Venezuela, em especial o estado de Roraima, como fator de modificação do espaço geográfico e geopolítico de ambas as nações. Cabe-se, desse modo, assimilar as suas consequências e os impactos no Estado brasileiro, que repercutiram na inabilidade da aplicação da Lei de Migração nº 13.445, de 24 de maio de 2017. O emprego da nova Lei ansiou salvaguardar os direitos fundamentais dos imigrantes e preservar os interesses do povo brasileiro, propiciando estabilidade e ordem social. Todavia, ao final da pesquisa, verificou-se a ineficiência da Lei de Migração de 2017 no que tange à proteção dos direitos individuais dos venezuelanos instalados no país e a salvaguarda de sua dignidade, já que seus dispositivos não obtiveram a eficiência esperada na contenção dos discursos de ódio, práticas violentas por parte do povo brasileiro, e até mesmo a xenofobia praticada pelo próprio poder judiciário estadual. A metodologia empregada no presente trabalho consiste na pesquisa do tipo bibliográfica do estudo de caso, utilizando-se dos artigos 1º, 2º, 3º e 4º da Lei Nº13.445 de maio de 2017 e da Constituição da República Federativa do Brasil de 1988, além da Declaração Universal dos Direitos Humanos, valendo-se da análise de artigos científicos, reportagens específicas e de informativos advindos do website oficial da ONU.

Solving the Procedural Puzzles of Texas’ Fetal-Heartbeat Law

The Texas Fetal-Heartbeat Law enacted in 2021 as Senate Bill 8 prohibits abortions after detection of a fetal heartbeat, a constitutionally invalid ban under current Supreme Court precedent. But the method of enforcement in the Texas law is unique—it prohibits enforcement by government officials in favor of private civil actions brought by “any person.” Texas employed this enforcement mechanism to impose potentially crippling financial liability on abortion providers and advocates and to stymie their ability to challenge the law’s constitutional validity through offensive litigation in federal court to enjoin enforcement of the law. Texas lawmakers sought to confine abortion providers and advocates to a defensive litigation posture in state court. This article works through the procedural and jurisdictional obstacles that SB8 creates for abortion providers and abortion-rights advocates seeking to challenge the constitutional validity of the fetal-heartbeat ban. While Texas has created a jurisdictional and procedural morass, the law does not achieve the ultimate objectives. Providers and advocates can litigate in federal court, although it requires creativity as to timing and proper litigation targets. They also should find greater success defending in state court than legislators expected or hoped. Other avenues remain to vindicate the rights of abortion providers and advocates—and the pregnant patients they serve--that accord with the traditional operation of and limitations upon the federal and state judiciaries in adjudicating constitutional rights. This working paper forms the basis for a series of forthcoming and in-progress articles exploring all aspects of SB8.

Administrative Adjudicators' Extrajudicial Statements

The appropriate scope of federal and state judges’ extrajudicial speech has long been the subject of vibrant debate; administrative adjudicators’ extrajudicial speech has received far less attention. To the extent that it has, commentators have concluded that the ethical restraints on administrative adjudicators should largely resemble those constraining their brethren situated in courts. Commentators also seem to have assumed that administrative adjudicators themselves would judge their own statements in light of general codes of judicial conduct (often developed by professional groups), much like members of the federal and state judiciaries do. But during the Trump Administration, the Department of Justice’s Executive Office of Administrative Review instituted a policy that broadly prohibited immigration judges from publicly sharing their views. To effectual this policy, immigration judges were made subject to a preclearance review regime, requiring them to obtain permission from agency supervisors before they could speak on issues regarding immigration. This paper presents a comparative analysis of agencies and courts along seven dimensions relevant to the propriety of extrajudicial speech: (1) disqualification standards and costs of recusal, (2) nature of the interests adjudicated, (3) nature and scope of review to which adjudicators’ determinations are subject, (4) relationship between adjudicators and agency officials, (5) adjudicators’ obligations of institutional loyalty, (6) separation of powers concerns, and (7) degree of reliance upon litigants’ and the public’s acceptance of the judgments rendered in the adjudication. From this analysis, the paper draws two conclusions. First, the ethical norms of administrative adjudicator extrajudicial speech should not dramatically differ from those applicable to their brethren serving on courts. The differences between the agency and judicial contexts cut in different ways. Thus, on balance the differing contexts do not suggest the need for significantly different norms. Second, while a regime that largely relies on judges selecting their own philosophies regarding extrajudicial speech within a broad range of choice is tolerable in federal and state judicial systems, agencies should be able to take a more pro-active role. Agencies should be allowed to place less reliance on individual adjudicators’ choices and establish a framework that accords administrative adjudicators a more limited range of discretion than court systems, particularly the federal court system, typically confer upon judges.

Gender, Diversity, and the United States Judiciary

Gender, Diversity, and the United States Judiciary