Substantive Judgments Research Articles

Methods of Application of the Proportionality Principle in Environmental Law

A court can rule on the proportionality of an administrative decision without infringing on the decision–making primacy of the administrative authorities. It can go quite far in doing so, as long as it uses the proper method. Characteristic for this method is not so much that it uses the proportionality principle as a rule under which the facts are subsumed, but as a framework for a discussion that is held between parties during the proceedings, under the direction of the court. If the court finds that the administrative body has not demonstrated a sufficient basis for its choices, it need not confine itself to an annulment on formal grounds. It can take its examination further and give parties the opportunity to consider alternative decisions. This method enables the court to come to a substantive and final judgment.

The Political Egalitarian’s Dilemma

Political egalitarianism is at the core of most normative conceptions of democratic legitimacy. It finds its minimal expression in the “one person one vote” formula. In the literature on deliberative democracy, political equality is typically interpreted in a more demanding sense, but different interpretations of what political equality requires can be identified. In this paper I shall argue that the attempt to specify political equality in deliberative democracy is affected by a dilemma. I shall illustrate the political egalitarian’s dilemma by a hypothetical choice between two informational bases for political equality: Rawlsian primary goods and Amartya Sen’s capability approach. The political egalitarian’s dilemma reveals a clash between the requirement of ensuring equal possibilities to participate in the democratic process and the requirement of subjecting substantive judgments to deliberative evaluation. As such, the dilemma is a variant of the procedure vs. substance dilemma that is well-known in democratic theory. While it has sometimes been argued that deliberative democracy solves the tension between procedure and substance, the political egalitarian’s dilemma shows that this tension continues within deliberative democracy.

In What Way the Review Is More Weighty than the Article

It is commonly thought that the review is, in every way, less weighty than the article. (I am speaking here of reviews of articles not of books which are very different, just as the authorship of books is very different from the authorship of articles. And I am speaking on the basis of my experience having reviewed in print almost four-dozen articles.) This conventional wisdom is almost true: It is true, perhaps, in every academic way, but is far from true ethically. It is certainly far less creative to write a review- which is, in some sense, a response to someone else's ideas-than to come up with one's own ideas. Also, articles are typically longer than reviews, and therefore take more effort in craftsmanship as well, not merely in thought.The ethical dimension is rather different from the creative dimension and the composing dimension. When one writes an article, one has many levels of protection from error. One normally circulates preliminary drafts to what Blaise Cronin calls one's trusted assessors. Then, an editor takes a preliminary look and decides whether it is even worth forwarding to referees. If the article passes these informal screens, one or more referees evaluate it critically, often with more of an eye to rejection than acceptance, and when acceptance is recommended, the author is usually required to make significant, sometimes substantial, revisions. The revisions are then checked against the referees' recommendations, at least cursorily by the editor, and sometimes in depth by both the referees and the editor. It goes without saying that many articles receive relatively little scrutiny compared to others, and what we have described above is, perhaps, a bit romantic (or tedious, depending on one's perspective). But it remains true that articles do not readily and ordinarily appear in print without significant scrutiny by others.If, despite this scrutiny, a piece appears in print that is littered with errors of substance, only the author's reputation normally suffers. When an author puts an idea in print, he is choosing, to some extent at least, to risk his own reputation-but only his own reputation.The reviewer, in contrast, is in an entirely different position in two key respects. First, he has someone else's reputation in his hands besides his own and, second, there is very little scrutiny of the sort the author faces to deter erroneous substantive judgments. There are, of course, editors of various kinds who pass judgment on reviews, and who may and do choose to decline them, but in almost all cases, such scrutiny is, of necessity, limited to the text of the review itself, without comparable scrutiny of the reviewed text alongside it. Now, this is not a criticism of review journals for, if the editors were required to examine not only the reviewer's text but also the reviewed text alongside it, they would be duplicating the efforts of the reviewer and could not possibly produce a journal that publishes a substantial number of reviews at regular intervals. …

Between Civil Libertarianism and Executive Unilateralism: An Institutional Process Approach to Rights during Wartime

Times of heightened risk to the physical safety of their citizens inevitably cause democracies to recalibrate their institutions and processes and to reinterpret existing legal norms, with greater emphasis on security, and less on individual liberty, than in "normal" times. This article explores the ways in which the American courts have responded to the tension between civil liberties and national security in times of crises. This history illustrates that courts have rejected both of the two polar positions that characterize public discourse on these issues. Civil libertarians argue that political bodies are too easily gripped by passions, hysteria, and self-interest in these times and that courts therefore ought to play a central role in protecting liberty. Executive unilateralists argue that the qualities that uniquely characterize the executive branch, such as decisiveness, access to information, and efficiency, must become so dominant in these moments that few checks, if any, should constrain executive prerogatives. Oddly, civil libertarians and executive unilateralists find implicit consensus in the view that, in times of war, courts have tended not to play a significant role in overseeing executive power. We argue to the contrary: historically, a significant constitutional tradition of judicial scrutiny in the United States during times of war does exist. But this scrutiny does not take the form of courts making first-order substantive judgments about the content of liberty or other claimed constitutional rights. Nor does it take the form of judicial assessment of how significant or credible the national security claims of the executive branch might be. Instead, judicial oversight has been focused on preserving the institutional structures and processes through which decisionmaking on these issues takes place. The judicial role has centered on the second-order question of whether the right institutional processes have been used to make the decisions at issue, rather than on what the content of the underlying rights ought to be. This approach has historically rejected or resisted most claims of executive unilateralism. When courts have upheld the government's actions, they have done so only after a judgment that Congress, as well as the executive, has endorsed the action. This approach has also rejected the civil libertarian framework. When courts find bilateral institutional endorsement, they have typically accepted the joint political judgment of how liberty and security tradeoffs ought to be made. By focusing on congressional endorsement of emergency measures, the courts have created a broad-based political accountability for the actions taken in the name of national security. We suggest that even if congressional endorsement is more apparent than real in some of these contexts, the judicial maintenance of this structure of rhetorical justifications sustains desirable understandings of political structure. Because the President and Congress draw from different political constituencies in a presidential rather than a parliamentary system, we also raise questions about whether the American judicial approach to these questions should be limited to political systems with separated executive and legislative powers.

Between Civil Libertarianism and Executive Unilateralism: An Institutional Process Approach to Rights During Wartime

Times of heightened risk to the physical safety of their citizens inevitably cause democracies to recalibrate their institutions and processes, and to re-interpret existing legal norms, with greater emphasis on security, and less on individual liberty, than in normal times. This article explores the ways in which the American courts have responded to the tension between civil liberties and national security in times of crisis. This history illustrates that courts have rejected both of the two polar positions that characterize public discourse on these issues. Civil libertarians argue that political bodies are too easily gripped by passions, hysteria, and self-interest in these times, and that courts therefore ought to play a central role in protecting liberty. Executive unilateralists argue that the qualities that uniquely characterize the executive branch, such as decisiveness, access to information, and efficiency, must become so dominant in these moments that few checks if any should constrain executive prerogatives. Oddly, civil libertarians and executive unilateralists find implicit consensus in the view that, in times of war, courts have tended not to play a significant role in overseeing executive power. We argue to the contrary: historically, a significant constitutional tradition of judicial scrutiny in this country during times of war does exist. But this scrutiny does not take the form of courts making first-order substantive judgments about the content of liberty or other claimed constitutional rights. Nor does it take the form of judicial assessment of how significant or credible the national security claims of the executive branch might be. Instead, judicial oversight has been focused on preserving the institutional structures and processes through which decisionmaking on these issues takes place. The judicial role has centered on the second-order question of whether the right institutional processes have been used to make the decisions at issue, rather than on what the content of the underlying rights ought to be. This approach has historically rejected or resisted most claims of executive unilateralism. When courts have upheld the government's actions, they have done so only after a judgment that Congress as well as the executive has endorsed the action. This approach has also rejected the civil libertarian framework. When courts find bilateral institutional endorsement, they have typically accepted the joint political judgment of how liberty and security tradeoffs ought to be made. By focusing on congressional endorsement of emergency measures, the courts have created a broad-based political accountability for the actions taken in the name of national security. We suggest that even if congressional endorsement is more apparent than real in some of these contexts, the judicial maintenance of this structure of rhetorical justifications sustains desirable understandings of political structure. Because the President and Congress draw from different political constituencies in a presidential rather than a parliamentary system, we also raise questions about whether the American judicial approach to these questions should be limited to political systems with separated executive and legislative powers.

A review and analysis of research on the test-retest reliability of professional judgment

This paper analyzes existing research on the test–retest reliability of human judgment, i.e. the extent to which a judge makes identical judgments when presented with identical stimuli on two occasions. Only research involving professional judges who make experimental judgments in a reasonable analog of their everyday experience is included. Studies of both internal consistency reliability and temporal stability reliability are analyzed (where the former refers to the inclusion of repeat stimuli in the same experimental session, and the latter refers to the repeating of the experimental task from a few days to several months later). It is found that (1) the test–retest reliability literature is concentrated in four substantive judgment areas (medicine/psychology, meteorology, human resources management, and business), (2) the literature is extremely variable in terms of research approach/design, the determinants or correlates of test–retest reliability that have been studied, and the quality of the execution and analysis, and (3) mean test–retest reliability differs across both substantive judgment areas and the internal consistency versus temporal stability distinction. An inescapable conclusion from the analysis is that our knowledge of this fundamental property of human judgment is quite meager. Therefore, the paper concludes with suggestions about future research that would address test–retest reliability more systematically. Copyright © 2000 John Wiley & Sons, Ltd.

Case Analysis: Comment on the Genocide Case (Preliminary Objections)

On 11 July 1996, the International Court of Justice, in its third Substantive decision and first Judgment in respect of the dispute brought before it by Bosnia and Herzegovina (Bosnia or BH) against the Federal Republic of Yugoslavia (Yugoslavia or FRY) under Article IX of the 1948 Convention on the Prevention and Punishment of the Crime of Genocide, dismissed all the preliminary objections that had been raised by Yugoslavia, as well as several additional bases of jurisdiction invoked by Bosnia. The Court also found that it had jurisdiction to adjudicate upon the dispute and that the application filed by Bosnia on 20 March 1993 was admissible. It thus positioned itself, over three years after the application had been filed, to resume the proceedings to consider the case on its merits, though still on an somewhat lcisurely schedule.

Where You Stand Depends on Who Sits: Platform Promises and Judicial Gatekeeping in the Federal District Courts

A burgeoning body of research has identified a persistent link between the politics of federal judicial appointments and patterns of judicial judgment. Moreover, appointment effects on district judges' substantive judgments have increased dramatically in tandem with equally dramatic increases in the politicization of judicial appointments during the Reagan administration. In this note, we shift the research focus from substantive judgments to procedural disputes over who has standing to sue in the federal trial courts. We find that, despite their platform-based commitment to "judicial restraint," Reagan appointees are much less likely than Nixon or Carter appointees to deny disputed standing to "upperdog" claimants. However, when the claimant is an "underdog" claiming standing to sue corporate or governmental defendants, Reagan appointees are twice as likely as Nixon appointees and four times as likely as Carter appointees to deny access. The Carter appointees, on the other hand, are twice as likely as the Nixon appointees and four times as likely as the Reagan appointees to grant disputed standing to underdog proponents of social regulation.