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Based on the theory of path dependence, we show that legal tradition affects the administrative court’s rulings. It also complements the two other reasons for diversified verdicts: the experience of the judges and courts (specialization) and preference (bias) for one of the parties. This effect is persistent even if the verdicts are controversial and result in serious consequences for a party and when the penalty paid by the complainant is perceived as excessive but fulfilling the strict rules of law. We prove that judicial decision making is a function of path dependency stemming from a legal tradition of the court. To confirm this, logistic regression is applied to a sample of 337 erroneous excise duty documentation cases of heating oil sales from all sixteen provincial administrative courts in Poland. Increasing the specialization of judges and having them exchange experiences may be a remedy for the unjustified adjudication differences.

This work intends to investigate the different conceptions—accommodation and laicization—that underlie processes of legislative regulation and judicial decision in matters of conflicts involving the right to religious freedom, in the legal systems of North America and Brazil. We will also investigate the potential for harmonization of legal in conflicts with other fundamental rights. The objective here is to build possibilities in order to establish a synthesis meaning for the right of religious freedom, in accordance with the democratic constitutional models of law to begin with, the recent modulations which allowed the fundamental right to religious freedom, especially from the edition of some US federal and state legislation, as well as from a set of decisions taken by Brazilian courts. As a corollary of these modulations, the article intends to assess the consequences that these new laws and judicial decisions caused in the legal system, through social andinstitutional democratic practices related to any fundamental rights. We used the dialectical method, since the idea and the foundation of the right to religious freedom follow a three-stage approach: thesis (religious freedom in its original sense and secularized conception), antithesis (right to religious freedom as a possibility to act in the exercise of belief, by claiming accommodation with other rights), and synthesis (the perspective to elaborate a proper sense to liberal democracies). Initial results indicate that both models based on secularization and accommodation can generate democratic and undemocratic meanings to the right of religious freedom; both models can either harmonize conflicting rights or escalate social antagonisms.

The study of law and information technology comes with an inherent contradiction in that while technology develops rapidly and embraces notions such as internationalization and globalization, traditional law, for the most part, can be slow to react to technological developments and is also predominantly confined to national borders. However, the notion of the rule of law defies the phenomenon of law being bound to national borders and enjoys global recognition. However, a serious threat to the rule of law is looming in the form of an assault by technological developments within artificial intelligence (AI). As large strides are made in the academic discipline of AI, this technology is starting to make its way into digital decision-making systems and is in effect replacing human decision-makers. A prime example of this development is the use of AI to assist judges in making judicial decisions. However, in many circumstances this technology is a ‘black box’ due mainly to its complexity but also because it is protected by law. This lack of transparency and the diminished ability to understand the operation of these systems increasingly being used by the structures of governance is challenging traditional notions underpinning the rule of law. This is especially so in relation to concepts especially associated with the rule of law, such as transparency, fairness and explainability. This article examines the technology of AI in relation to the rule of law, highlighting the rule of law as a mechanism for human flourishing. It investigates the extent to which the rule of law is being diminished as AI is becoming entrenched within society and questions the extent to which it can survive in the technocratic society.

This paper aims to contribute to the goal of finding influential legal precedents by quantitative methods. A lot of work has been made in this direction worldwide, especially in the context of common law jurisdictions. However, this type of work is extremely scarce in the Brazilian literature. In addition, our work also contributes to the research of network analysis and the law by applying these methods to unprecedented amount of data and narrowing our inquiry to a single law area, corporate law. Furthermore, whereas most of the literature applying network analysis to judicial decisions had access to readily available data on the citations to precedent within each ruling, our raw data was nothing but the full text of decisions. We focus on data produced by the Superior Court of Justice (STJ), the highest court in Brazil for matters of federal law, including statutory interpretation of civil, criminal and corporate law. The Court issued an astonishing 282040 opinions tagged as related to corporate law between 2008 and 2018. This amount of cases is unparalleled internationally for superior courts and for studies in network analysis and law. In our results, we rank precedents quantitatively based on the citations they receive and make. We also qualitatively analyze some of the results, especially related to groups identified in the network with the Modularity algorithm. Our findings also reveal that corporate law jurisprudence in the STJ is quantitatively dominated by a few legal issues around one single theme that is only tangentially related to corporate law. That is, a type of contract used for the expansion of telephone landlines, which also allowed the consumer to become a shareholder of the telecommunication company. This comparison is especially pertinent because the utter lack of data on the quantitative weight of STJ precedents means the national literature has been operating in a void of objective measurements, one which has been filled with cherry-picked rulings and subjective ranking criteria.

In the past few years, the term financial security has been increasingly referred to by politicians in China’s public discourse. This term was meant to broadly denote national security considerations in relation to financial markets. This article draws on and analyses a recent study of 242 Chinese court decisions undertaken by the authors and explores the nature and the extent of the term ‘financial security’ as used in judicial decisions in China. Our research demonstrates that the judiciary makes frequent use of this term even though it is a term which remains to be defined in legislation and regulation. This article offers a means of categorising the manner in which the term financial security is deployed, which may assist in a better understanding of the Chinese courts’ judgments in the contemporary context as well as in the future. It also offers an account of the thinking and motivation behind legal reasoning that assists in gaining an insight into the use and implications of financial security that appear to underpin these decisions. The adoption of the term financial security, similar to the Greek myth of the Delphic Oracles, is indicative of the role played by the courts in the light of the Chinese political system.

In this article, we extend the research on the public interest to non-audit engagements performed by accounting firms and public accountants. Our thesis is that non-audit engagements, as private goods, require a distinct approach to the public interest than auditing. We suggest that a public value perspective can be used conceptually to provide substantial criteria for designing non-audit engagements conducive to public value creation and greater accountability. We illustrate the applicability and consequences of a public value perspective by analyzing and contrasting the decision of two judicial opinions deciding whether Deloitte and the lead partner of a consulting engagement failed to act in the public interest in engineering the sale of collapsed British carmaker MG Rover. We advocate for a significant change in ethical codes of conduct by defining public interest obligations, not only in terms of professional attributes, but also in terms of outcomes. Our approach also suggests a requirement regarding planning a non-audit engagement, including establishing a public value proposition detailing the planned nature of the engagement, and extent of the assessment of the intended public value creation. We discuss the aspirational function of codes of conduct to provide accountability other than in terms of technical output, and to maintain the legitimacy and purpose of the profession.

The Bern Convention aims to conserve wild flora and fauna and their natural habitats, especially those species and habitats whose conservation requires the cooperation of several states. Turkey became a party to the convention in 1984 and therefore made it binding in terms of domestic law. It was sought to answer the question of how effective the Bern Convention was in Turkish legislation and judicial decisions. For that purpose, first, comparison of the provisions of the Bern Convention with Turkish legislation is carried out by using a four-point scoring chart, and second, the effect of the convention on the judicial decisions was examined by considering whether the Bern Convention was clearly referred in the relevant judicial decisions—47 Council of State decisions were analyzed from 1984 to 2019. It is observed an improvement in Turkish wildlife legislation increased from 17 to 74% per the Bern Convention’s goals and objectives. The proportion of judicial decisions referred to the Bern Convention, which resulted in a positive ecological decision was 87.5%. Decisions that do not refer to the Bern Convention were 66% positive. A comprehensive evaluation of both judicial decisions and legislative analysis showed that there are many deficiencies, especially in terms of migratory species and interstate coordination. To improve judicial decisions, courts should be subjected to mandated capacity-building training/workshops concerning international conventions.

Many accounts of the moral duty to obey the law either restrict the duty to ideal democracies or leave the duty’s application to non-ideal societies unclear. This article presents and defends a partial account of the moral duty to obey the law in non-ideal societies, focusing on the duty to obey judicial orders. We need public judicial authority to prevent objectionable power relationships that can result from disputes about private agreements. The moral need to prevent power imbalances in private relationships grounds a qualified moral duty to obey judicial decisions. The parties to a dispute are morally required to comply with a judicial order in their dispute if all of the following conditions obtain: (1) the parties’ dispute was in good faith, (2) the court’s resolution of the dispute is more impartial than either party’s own judgment, (3) the order does not call for violation of important natural duties or important artificial duties that the duty-bearer incurred involuntarily, and (4) the primary aim of disobeying the court order would be to advance an ordinary, non-political project, not to call public attention to an injustice. The moral duty to obey judicial decisions can survive significant departures from ideal fairness.

To date, there has been surprisingly little research on separate opinions in legal linguistics literature. Scarce attention has been paid to the linguistic and communicative aspects of how judges frame their disagreements. This paper serves as one of the early attempts to examine the institution ofvotum separatum, or separate opinion, from a comparative, cross-language perspective using a linguistic methodology. The evidence indicates a clear similarity in terms of how separate opinions are integrated within the respective macrostructures of the US SC opinions and the Constitutional Tribunal judgments. This study demonstrates how judges tend to employ highly formulaic expressions to signal their disagreement despite the absence of clear guidelines to communicate such stances. The analysis of their frequent phraseology demonstrates that declaringvotum separatumand providing its justification are two different acts, not only legally but also linguistically, especially in terms of their formulaicity. The Polish and American justifications differ in the degree to which the frequent phraseology reveals peculiarities of judicial argumentation in addition to the presence of strong evaluative concerns.

In their article ‘Striking Back’ and ‘Clamping down’: An Alternative Perspective on Judicial Review, Carol Harlow and Richard Rawlings consider the ways in which an executive may respond to judicial decisions which find against it. They organize such responses or ‘tactics’ into ‘striking back’ according to which the executive attempts to nullify the effect of the judgment, and ‘clamping down’ in terms of which the government attempts to prevent future adverse judgments. Harlow and Rawlings consider such tactics in the context of the United Kingdom and find that there has not been a significant change in tactics in the country’s transition from a system of pure parliamentary sovereignty to one influenced by European law and the Human Rights Act 1998. In this paper I consider the practices of ‘striking back’ and ‘clamping down’, identified by Harlow and Rawlings, in the context of South Africa. I pose the question whether there has been a change of tactics in South Africa moving from a system of parliamentary sovereignty to one of constitutional supremacy. I also consider how effective these tactics have been under each system. My finding is that there has been a significant change in tactics in South Africa, as the Constitution has placed restraints on the tactics available to the government in striking back and clamping down, leading the government to resort to more extreme measures which in turn threaten South Africa’s constitutional democracy.

This paper studies the problem of automated classification of fact statements and value statements in written judicial decisions. We compare a range of methods and demonstrate that the linguistic features of sentences and paragraphs can be used to successfully classify them along this dimension. The Wordscores method by Laver et al. (Am Polit Sci Rev 97(2):311–331, 2003) performs best in held out data. In an application, we show that the value segments of opinions are more informative than fact segments of the ideological direction of U.S. circuit court opinions.

The paper concerns the conditions and methods of using previous judicial decisions as a kind of precedents in the processes of application of law within the statutory legal order. The use of such decisions, not announced by the legislator, depends on the courts, undertaking such actions on the grounds of similarity of cases or of decisional processes. Such decisions do not become an exclusive validation argument and may create a situation of their potential conflict with legal regulations as well as an inferential supplementation of their content. Dissemination of such activity of the courts leads to the development of precedential practice (relevant to the statutory legal order), though, its actual jurisdictional role depends on proper justification of decisions, within which reference to these decisions should be adaptive (in relation to the elements of the current case), generalizing (forming elements of ratio decidendi) as well as argumentative and discursive (in respect of the way in which the decisional reasoning and arguments expressed in the prior justification are used).

When courts started publishing judgements, big data analysis (i.e. large-scale statistical analysis of case law and machine learning) within the legal domain became possible. By taking data from the European Court of Human Rights as an example, we investigate how natural language processing tools can be used to analyse texts of the court proceedings in order to automatically predict (future) judicial decisions. With an average accuracy of 75% in predicting the violation of 9 articles of the European Convention on Human Rights our (relatively simple) approach highlights the potential of machine learning approaches in the legal domain. We show, however, that predicting decisions for future cases based on the cases from the past negatively impacts performance (average accuracy range from 58 to 68%). Furthermore, we demonstrate that we can achieve a relatively high classification performance (average accuracy of 65%) when predicting outcomes based only on the surnames of the judges that try the case.

Several factors are combining to make it increasingly important that employers recognize their obligation to accommodate job applicants and employees with obesity-related disabilities, and respond effectively to requests for such accommodations when they arise. This article provides analysis and guidance that is intended to assist employers and practitioners in anticipating and responding to requests for obesity-related workplace accommodations. It is based on a review and analysis of all identified U.S. judicial decisions involving obesity-related workplace accommodations that were either voluntarily provided or disputed by an employer. The results of that review and analysis are summarized in a table by the type of accommodation, job, and court ruling (when the accommodation was not voluntarily provided). The table provides a list of potential obesity-related accommodations that is both more comprehensive and more specific than any list previously published in the legal, behavioral sciences, or health literatures. Key legal issues are identified and discussed, and practical guidance is provided. Although the focus is U.S. law, the guidance provided has relevance to employers and practitioners in the European Union, and those countries whose laws recognize that obesity may involve a legally protected disability that entitles an individual to reasonable accommodation in at least some circumstances.

This paper aims to provide a cognitive computing framework to meet the challenges of semantic understanding, knowledge learning and judicial reasoning in the Chinese legal domain. In our framework, legal factors are first represented in a formal way; secondly, legal factors are extracted, and concepts and their relations are augmented with a combination of rule-based and deep learning methods; thirdly, a predication model is generated and trained to make judicial decisions. When a fact description is brought into the model, the probability of judicial decisions will be given automatically. Two elementary results are obtained: I. Our method can effectively predict the decisions for divorce cases with different expression styles, and offers better performance than traditional methods like Support Vector Machine (SVM); II. Our machine learning predicting results can be easily understood by general public as applied induction rules are given.

Turkey became a party to the Ramsar Convention in 1994 and has since made effective progress on the legislation and administration for the protection of wetlands. We assessed the provisions of the Ramsar Convention with Turkish legislation by using a five-points scoring chart. We determined that there is 64,7% compliance rate among the examined legislation. Of 156 countries, Turkey is one of the best in adapting international commitments to its own domestic laws. Ramsar Convention’s effectiveness on the judicial decisions was evaluated by analyzing 50 Council of State decisions from 1994 to 2020 in the terms of whether the Ramsar Convention was clearly referred or not. The rate of reference to the Ramsar Convention in judicial decisions is as low as 28%. However, in all the decisions that do refer to the Ramsar Convention, the court ruled in favor of the protection of the ecosystem. It has been determined that investment projects and changes in plans (zoning, landscaping, etc.) occupy an important place among the lawsuits. Considering the number of cases subject to litigation, we determined that wetlands, which have priority to be protected according to the Ramsar Convention, are among the places under pressure.

Regardless of formalization used, one on-going challenge for AI systems that model legal proceedings is accounting for contextual issues, particularly where judicial decisions are made in criminal cases. The law assumes a rational approach to rule application in deciding a defendant’s guilt; however, judges and juries can behave irrationally. What should a model prize: efficiency, accuracy, or fairness? Exactly whether and how to incorporate the psychology of courtroom interactions into formal models or expert systems has only just begun to be examined in a serious fashion. Here, I outline data from the United States which suggest that trying to incorporate psychological biases into formal models of legal decision-making will be challenging. I focus on the use of neuroscience data in criminal trials, homing in on so-called group-to-individual (G2i) inferences. I argue that data which should be the most effective at swaying judicial decisions are in fact those most likely not to make a difference in the disposition of the case. I conclude that judges often assign culpability by ignoring what our best science regarding how human decision-making occurs.

Background In the ruling in Y [2018], the UK Supreme Court has confirmed that there is no general requirement for the courts in England and Wales to authorise the withdrawal of clinically assisted nutrition and hydration from patients with prolonged disorders of consciousness. The perceived requirement, which originated in a court ruling in 1993, encompassed those in the vegetative state and those in the minimally conscious state. The ruling in Y confirms that the court may still be approached to decide difficult or contested cases, but there is otherwise no routine requirement that the judges be approached. Main body There is much to welcome in this ruling, particularly as it means that these decisions for these patients are no longer (unusually) singled out for a judicial decision, with all the financial and emotional costs that court proceedings can entail. However, there is also a risk that the ruling might have unwelcome consequences. First, there is the possibility that patients might die too soon, particularly if doctors should now adopt the courts’ previous reasoning, which has suggested that patients in the vegetative state lack interests, so treatment may – perhaps must – be withdrawn. Secondly, there is the converse possibility that patients might live too long, since empirical research suggests that – whether intentionally or not – patients’ families, clinicians, and the health system appear to promote treatment-by-default. Conclusion Rather than adopt general positions, which may be contestable and potentially risky, this article argues, on a pluralistic basis, that the individual patient should be the focus of any decision made in his or her ‘best interests’. The existing legal framework in England and Wales, which is provided by the Mental Capacity Act 2005, already points in this direction, although more efforts may be needed to ensure that those involved in making these decisions are suitably educated and supported. Fortunately, new guidance from the British Medical Association could help clinicians and families to make decisions in the future, which are appropriate for the incapacitated individual patient in question.

In this exploratory study, we develop models of factors that influence the citation or influence of judicial opinions written by U.S. Courts of Appeals judges. Prior studies of citation patterns in the U.S. Courts of Appeals largely focus on the judge’s career as the unit of analysis. Not surprisingly, this research suggests judge-level factors tend to influence the degree to which judges’ opinions are cited in subsequent decisions. Utilizing a dataset with a random sample of individual cases as the unit of analysis, we compare the effects of judge, panel, and case factors. Overall, while several case-level factors influence the number of citations a case receives, few judge- and panel-level variables affect citation rates. The findings suggest that opinion citation models based on judge- and/or panel-level attributes alone miss the influence of case attributes on citation rates.

The losses caused by worker theft is one of the most concerning security problems for corporations. Private policing of the workplace is central to cutting down on such losses and keeping up profits. One of the most frequently used methods in such policing is searching workers. Despite the importance of searches and their potential for intrusion into individuals’ right to privacy, the normative bases for and limits to the use of this power have so far been little studied. The aim of this paper is to analyze the legal foundations and limits imposed by the Brazilian State so that private security guards can conduct searches in the workplace. The analysis is based on a qualitative study of Brazilian labor law and a qualitative/quantitative study of 376 judicial decisions on searches collected randomly in two Brazilian states between 2010 and 2013. The data shows that searches can be conducted in the workplace based on the employer’s right to manage production and protect their property. It also indicates the existence of relatively flexible limits to searches. Only a minority of the courts impose restrictions on searches similar to those set for police officers. Most judges allow more extensive searches than those permitted within the scope of public justice systems. The consequences of these findings are discussed.

Legal reasoning requires identification through search of authoritative legal texts (such as statutes, constitutions, or prior judicial opinions) that apply to a given legal question. In this paper, using a network representation of US Supreme Court opinions that integrates citation connectivity and topical similarity, we model the activity of law search as an organizing principle in the evolution of the corpus of legal texts. The network model and (parametrized) probabilistic search behavior generates a Pagerank-style ranking of the texts that in turn gives rise to a natural geometry of the opinion corpus. This enables us to then measure the ways in which new judicial opinions affect the topography of the network and its future evolution. While we deploy it here on the US Supreme Court opinion corpus, there are obvious extensions to large evolving bodies of legal text (or text corpora in general). The model is a proxy for the way in which new opinions influence the search behavior of litigants and judges and thus affect the law. This type of “legal search effect” is a new legal consequence of research practice that has not been previously identified in jurisprudential thought and has never before been subject to empirical analysis. We quantitatively estimate the extent of this effect and find significant relationships between search-related network structures and propensity of future citation. This finding indicates that “search influence” is a pathway through which judicial opinions can affect future legal development.

This is a review of the book Archiving Sovereignty by Stewart Motha. Typical of critical legal writing, the monograph challenges our conditioned perception about the sovereign State. As such, it provides us with access to an archive of sovereign violence created by the law. It is argued that judicial decisions sustain and recreate sovereign power by way of destruction of facts. The focus here is on states with imperial histories, taking as case studies several islands in the Indian ocean region.

This paper applies a Gramscian analytical framework to scrutinise the judicial decision-making process. Based on two distinct research projects, the article explores how, on one hand judges in criminal courts can be identified as part of the bureaucratic machinery of the state, as ‘technicians of repression’; whereas, on the other hand, human rights judges can be distinguished as providing ‘moral and intellectual leadership’ in their production and reproduction of certain values. Some of the key questions this article seeks to answer are: What is the role of hegemony in the judicial decision-making process? To what extent are legal actors both ‘technicians of repression’ and ‘moral and intellectual leaders’? This paper uses examples from empirical research conducted at courts in Argentina and at the European and Inter-American Courts of Human Rights to identify and explore this dual role of judges as both repressive technicians and moral and intellectual leaders in neo-liberal capitalist societies.

While there are huge cultural, social and socio-legal differences between India and Germany, the sentencing laws of the two countries show a couple of similarities. In India and Germany alike, the substantive law makes only little specifications for the sentencing process. There are no sub-statutory sentencing guidelines, within the range provided by the penal codes the courts have a wide discretion in the sentencing process. It is, however, interesting to see that the courts exercise their discretion in similar ways which can specifically be observed in murder cases. The article describes the legal framework which is applicable in murder cases in India and Germany and compares the judicial decisions in selected cases: hold-up murder, sexually motivated murder, domestic violence killings and honor killings. The comparison gives evidence of the communicative function of punishment. After a serious crime like murder the public – typically well informed by the media, agitated and highly troubled – will in both countries only be settled by a judgment considered as fair, just and proportionate. Peace under the law and internal security, however, do not seem to be dependent on specific forms of punishment. Capital punishment and life imprisonment appear as penalties which may be necessary reactions to murder in a given cultural context, but which are not indispensable to a criminal justice system.

Any involvement in business is associated with the risk which a business decision may bring in terms of both gains and losses. Economic activities have business cycles and fluctuations, so neither a constant and stable profit nor deals that are always beneficial can be guaranteed. If directors were personally responsible for every loss-making decision, this would ruin their initiative and entrepreneurship and limit their discretion in situations requiring prompt and decisive action. However, if directors were not subject to legal liability for damages incurred due to their decisions, this would increase the risk of directors adopting unlawful decisions. Therefore, it is important to find the golden mean between liability and freedom to adopt decisions. This article aims to present the rules applied in the Lithuanian legal system in liability cases against directors in the evaluation of risky business decisions. The research has shown that there is no explicit legal rule in Lithuanian corporate law which provides for a business judgment rule, since the Lithuanian legal system, like most legal systems in other countries with a civil law tradition, does not recognise the judicial abstention doctrine, which emphasises a court’s right not to consider ex post criticism of directors’ decisions. In Lithuania, there is no tradition of litigation proceedings and rules formulated in judicial decisions that allow directors to be aware of the decision-making rules ex ante, so that their decisions cannot be assessed as illegal ex post.

The concept of judicial objectivity is a cornerstone of modern legal systems. This article discusses the interplay between the lexical uses of the concept of judicial objectivity in cases that review the judicial impartiality of the court. The data for this project is retrieved from a large sample of cases (over eight hundred decisions) from Hungary, Italy, Lithuania, Slovakia, Slovenia, Spain and the UK. The analysis of the data shows that in the case of alleged judicial bias, the concept of objectivity is referred to in order to justify a series of judicial activities (e.g. the assessment of procedures adopted by an allegedly biased court; the existence of subjective interest in the case). In particular, the study provides a strong indication of what Legrand called ‘pre-judices’, which are the cultural aspects that are embedded in the process of the professional socialisation of each legal system.

The International Court of Justice (ICJ) advisory opinion on the Legality of the Threat or Use of Nuclear Weapons in 1996 was a landmark case because, for the first time in history, the legal aspect of nuclear weapons was addressed. The decision has evoked controversies regarding the Court’s conclusion, the legal status of international humanitarian law in relation to nuclear weapons, and a newly introduced concept of state survival. While much legal scholarship discusses and criticizes the legal significance of the opinion, there has not been enough scholarship examining the Court’s specific choice of words and concepts that sustain its wider ideological and political position in the opinion. The paper argues that the Court’s vague and controversial logic is attributed to its confrontation with two international orders/codes: the legal order (or international law) and the political order (or state practice). The paper engages in legal semiotics as methodology to decode legal text and discover a deep structure that sustains networks of codes, according to which text is interpreted. Through the semiotic examination of three sets of key concepts (1) “permitted” and “prohibited,” (2) “threat of use” and “possession of the weapon,” and (3) “state survival,” the paper shows the ICJ’s confrontation with two orders/codes and eventual prioritization of the political order over the international legal order. The analysis of the opinion based on legal semiotics indicates an intimate and inseparable relationship between state practice and international law, which must be disentangled for the sake of the rule of law.

Problems in public, ethical and judicial decision-making often concern important but conflicting or incompletely compatible human values and interests. In many cases this seems to require us to balance the relevant options against each other. Philosophers generally regard the weighing up of competing human interests, goods and normative principles as an important aspect of ethics and public policy. Also in theories and conceptions of justice and in judicial decisions weighing may play a

This paper investigates the profile of the Greek bankrupt households and is the first to deal with the bankrupt households in Greece utilizing court data from the judicial decisions according to the newly established personal Bankruptcy Law 3869/2010. We compare the characteristics of the bankrupt households drawn from the court data with those of a control group of households without financial difficulties constructed from the EU-SILC database. Our findings indicate that income and/or job loss, family breakup, and women with children are important characteristics related to bankruptcy. We also find that although the median of the household disposable income of the bankrupt households is lower than that of the households without financial difficulties, the former do not fall below the poverty line at a greater rate than the latter, in all household size instances. This finding is in line with the results of earlier studies indicating that bankruptcy is not a poor household’s issue. The results are confirmed using logistic regression relating the probability of bankruptcy to a set of socioeconomic measures.

This paper considers the implications of Opinion 2/13 by the Court of Justice of the European Union on the interrelationship between European Union law and the European Convention on Human Rights. It addresses the question of the extent to which the Bosphorus decision of the European Court of Human Rights can be maintained. The paper overviews the background to Opinion 2/13 before going on to briefly analyse Opinion 2/13. The paper addresses the effects the Opinion will have on the relationship between the ECHR and the CJEU, the effects it has had on international treaties, and in particular on the Brussels II bis Regulation.

Judicial opinion says restrictive regulations may not apply to plants and animals bred using CRISPR technique. Judicial opinion says restrictive regulations may not apply to plants and animals bred using CRISPR technique.

This article offers an interpretation of lawyers’ reactions to verse judgments, being judicial decisions rendered in rhymed poetry form. While, in recent history, there has been an unexplained break in the close historical connection between poetry and law, some judges nevertheless continue to render their judicial decisions in verse. This has met strong criticism from fellow judges, inevitably, but also from lawyers. However, there is no evidence in academic writing of anyone attempting to explain why lawyers are having these reactions. Endeavouring to fill that void, this research employs hermeneutics to offer an interpretation of lawyers’ reactions to verse judgments. The article analyses the varied opinions uncovered in five qualitative interviews with lawyers of different backgrounds, and contends that a movement of poetry back towards its utilitarian origins would see lawyers change their reaction to verse judgments, instead viewing them as an appropriate form of judicial expression.

The wording of major human rights texts—constitutions and international treaties—is very similar in those provisions, which guarantee everyone the right to family, privacy, protection against discrimination and arbitrary detention, and the right to access the court. However, judges of lower national courts, constitutional judges and judges of the European Court of Human Rights often read the same or seemingly the same texts differently. This difference in interpretation gives rise not only to disputes about the hierarchy of interpretative authorities, but to more general disputes about limits of judicial construction and validity of legal arguments. How it may happen, that the national courts, which apply constitutional provisions or provisions of national legislative acts, which are seemingly in compliance with the international human rights standards, come to different results with the international judges? Do they employ different interpretative techniques, share different values or develop different legal concepts? Do international judges ‘write’ rather than ‘read’ the text of the Convention? Who is, in Plato’s terms, a name-giver and who has a power to define the ‘correctness’ of names? The answers to these questions from the rhetorical and semiotic perspectives are exemplified by the texts of the judicial decisions on the rights of persons with mental disabilities.

In the Vorwerk Folletto case, the Italian Court of Cassation delivered a judicial opinion on the interpretation of Art. 6(1)(c) of the Trade Mark Directive, which allows trade mark reproduction necessary in order to distinguish the intended purpose of a product or service, in particular as accessories and replacement parts. Departing from its previous case law, the Italian Court ruled that what is necessary in order to distinguish the destination is the use of the trade mark on packaging only, not also on products. This comment briefly illustrates the Court’s reasoning in one of its former decisions and relates it to the decision in Vorwerk Folletto, in order to shed some light on the rationale of this important revirement affecting competition on Italian aftermarkets.

Both national and international judgments and judicial precedents play an important role in the development of legal regimes. In the light of judgments and judicial precedents, the administration of justice and judicial security can be measured in every legal system. In this context, the International Court of Justice and other international judicial and arbitral bodies have an important role to play in the development of international law, particularly in international environmental law. In addition, judgments and judicial precedents of international courts, especially the International Court of Justice can affirm new legal rules and principles that can contribute to the development of international environmental law. This research through content analysis attempts to analyze the capacity and capability of new international judgments and judicial precedents of the International Court of Justice on environmental issues in influencing the development of environmental law. For this purpose, this study attempts to analyze five recent legal cases of the International Court of Justice. It also provides guidelines for applicable solutions by identifying legal gaps and existing inefficiencies.

In the Li Longfeng case, the Supreme People’s Court delivered its judicial opinions on the interpretation of Arts. 41(1) and 31 of the Trademark Law 2010, which tackle bad faith trademark registrations in China. Based on the terms and structures of the provisions, this comment argues that the Supreme People’s Court is correct in its interpretation and application of these articles. The Court held that as an absolute ground for trademark invalidation, Art. 41(1) should be invoked only when the trademark piracy will jeopardize the public interest. The Supreme People’s Court also agreed with the second instance court that although Art. 31 can curb trademark piracy in a general way, it only protects the victim trademarks that have already been used in China and enjoy substantial influence in the Chinese market. Under this legal regime, however, most of the foreign trademarks with a certain reputation among Chinese consumers, but which have not yet officially been launched into commerce in China, face the risk of trademark piracy without corresponding legal recourse. Since it is justifiable and increasingly common in international society to grant such extra-territorial legal protection to foreign trademark owners as an exception to the principle of territoriality, the law should be amended accordingly to explicitly provide for such protection against cross-border, bad faith trademark registrations.

This opinion analyzes the decision of the Supreme Court of the United States in the case Kirtsaeng v. Wiley & Sons. In this decision, the Court ruled that the principle of copyright exhaustion as provided in Section 109(a) of the Copyright Act equally applies to products “lawfully made” in the United States as well as to products that have been “lawfully made” in foreign countries. This “revolutionary” decision came after almost two decades of conflicting positions, including two previous Supreme Court decisions that had failed to clarify the issue, notably Quality King v. L’anza and Costco v. Omega. Yet, a closer look at the decision, particularly at the concurring and dissenting opinions in the case, seems to show that Supreme Court’s position may have been a necessary step that the Court had to take in order to redress the ambiguities that continued to linger on the issue, especially in light of the additional uncertainty that the Court itself had injected into the interpretation of Section 109(a) with its decision in Quality King. Accordingly, more chapters may be awaiting to be written in this American saga on the territorial application of the principle of copyright exhaustion. As the concurring opinion in the case directly suggested, Congress could overrule the Supreme Court and clarify with a legislative amendment that the application of copyright exhaustion in the United States is not international but instead national exhaustion for all products. Calls for copyright reforms not surprisingly, started just days after the decision in Kirtsaeng. Furthermore, even if the Court’s decision would survive future reforms, copyright owners continue to have alternative means, such as contractual clauses and technical measures, to largely reduce the positive effects of the decision for international trade.

Since Korea’s democratization in the late 1980s there has been powerful momentum to reexamine the past authoritarian rule. This article aims to contribute to the growing literature in the rule of law in authoritarian regimes by discussing the judiciary of Korea during the so-called Yusin era (1972–1980). The courts in the 1970s have been placed at the center of controversy in the wake of transitional justice, as a number of judicial decisions were reopened and original verdicts overturned. Most notable were the cases involving the so-called Emergency Decrees which served as a major instrument for the regime to suppress political opposition. In December 2010 and March 2013, the Supreme Court of Korea and the Constitutional Court of Korea each ruled that the Emergency Decrees were unconstitutional and that the courts in the 1970s were wrong in declining to exercise their judicial review power. The evolving jurisprudence through the authoritarian and subsequently democratic periods has significant implications for the rule of law in modern Korea. Constitutional jurisprudence in the post-democratization years in particular brings to the fore the thorny issue of negotiating between mounting democratic aspirations and the exigency of legal stability.

Time is central to Luhmann’s writings on social systems. Social systems, as systems of meaning, operate within three dimensions: factual, social and temporal. Each of these dimensions entails selections of actualities from potentialities (or contingencies) within horizons. Whilst the factual dimension involves selections based on distinguishing ‘this’ from ‘something else’, and the social distinguishes between alter and ego (asking with respect to any meaning whether another experiences it as I do), the temporal dimension operates with the primary distinction of before and after. In the temporal dimension, everything is ‘ordered only according to the when and not to the who/what/where/how of experience and action’ (Luhmann in Social systems. Stanford University Press, Stanford, 1995, p. 78). In this paper, we explore the connection between the temporal dimension of meaning within the legal system and its connection to justice. We begin by setting out succinctly the role played by justice within the legal system, as presented by Luhmann, particularly in his book Law as a social system (2004). From this beginning, we move on to consider the relationship between law, justice and time, taking two examples. The first is the temporality of judicial decisions. The second concerns the relationship between the temporal meaning of law’s own operations, and the presumption of innocence.

The question of whether popular votes on minority rights are compatible with a liberal democracy has been broadly debated, with judicial review of popular initiatives having been discussed as a necessary veto point (Eule, Miller). As an institutional change should generally be congruent with voters’ preferences, this article asks who supports the restriction of direct democracy by judicial review and how this is related to voting behavior concerning anti-civil-rights initiatives. Two recent anti-minority votes in California and Switzerland provide examples in terms of voters’ attitudes towards judicial review of direct democracy. Cross-tables and logistic regressions of survey data show that a surprisingly broad majority of voters support judicial review of popular initiatives in both cases. Nevertheless, judicial review is not entirely uncontroversial. In Switzerland, opposition to judicial review can even predict anti-minority votes, and for specific judicial decisions, Californians also tend to blame judges for restricting the people’s sovereignty.

The present paper aims at addressing a crucial legal conflict in the information society: i.e., the conflict between security and civil rights, which calls for a “fine and ethical balance”. Our purpose is to understand, from the legal theory viewpoint, how a fine ethical balance can be conceived and what the conditions for this balance to be possible are. This requires us to enter in a four-stage examination, by asking: (1) What types of conflict may be dealt with by means of balancing? (2) What is meant by balancing? Is it a metaphor that hides and dissimulates discretionary powers and subjective decisions or a rational instrument that helps us cope with conflicts between fundamental values and interests? (3) What models of balancing are available to us? Are these models irreducible to each other? What can provide us with a common understanding of different models of balancing? (4) How can the crucial issues of rational controllability, predictability, and homogeneity of legal decisions be dealt with? Our paper will try to answer those questions by trying to reconstruct the act of balancing in terms of a rational legal reasoning, which relies upon information. In fact, every judicial decision contains some information that is delivered to the legal system: that information may serve as the basis for future evaluations, decisions, and actions, and thus influence the way we recognize and hence we protect our values, interests, and rights. In this perspective, our examination will attempt to understand those questions in informational terms. This informational treatment can provide us with a more universalistic understanding of those issues and offer us a novel way to conceptually deal with them. To this aim, we will avail yourself of Luciano Floridi’s philosophy of information: notably, we believe his constructionist conception of epistemology is crucial, based on the Maker’s Knowledge approach and his solution of the upgrading problem (i.e., from information to knowledge) in terms of a network theory of account. The informational approach will help us having a better understanding of the balance between competing interests.

Supreme Court, 13 April 2012, Mothers of Srebrenica Foundation v. the State of the Netherlands and the United Nations

This paper attempts to formalize the differences between two methods of analysis used by judicial opinions in common law jurisdictions to contradict holdings posited by earlier opinions: "disagreeing" with the holdings of the earlier opinions and "attributing" holdings to the prior opinions. The paper will demonstrate that it is necessary to model both methods of analysis differently to generate an accurate picture of the state of legal authority in hypothetical examples, as well as in an example based on Barry Friedman's analysis of the "stealth overruling" of Miranda v. Arizona through subsequent judicial interpretations. Because the question of whether "disagreement" and "attribution" need to be modeled separately relates to contradictions rather than to subtler interactions between holdings such as "distinguishing," it can be answered using the simple technique of modeling holdings as propositional variables and evaluating the holdings using truth tables.

This paper examines the development of the legal framework regarding fiduciary duties of directors in China. The concept of fiduciary duty was introduced by the 2005 revisions to China’s Corporate Law. The implementation of fiduciary duties in China has encountered considerable obstacles because of the inherent weakness of the legal system. The legal texts are simple, vague and rigid. In the enforcement process, formalised judgments have placed limitations on precedent creation, thus reducing the deterrent effect, and the judicial system has shown reluctance to intervene in matters related to directors’ duties in listed companies. There have been improvements, however. In a limited number of judicial decisions, courts have attempted to more clearly define the meaning of directors’ fiduciary duties. In the penalty decisions of the China Securities Regulatory Commission (CSRC), the duties of directors have been interpreted in a more sophisticated manner.

This paper analyzes scholarly papers published from 2003 through 2013 on the general theme of nanotechnology and governance. It considers three general points: (1) the “problem” of nanotechnology; (2) general lessons for governance obtained; and (3) prospects for aligning the US regulatory system to the next generation of complex engineered nano-materials. It argues that engineered nano-materials and products are coming to market within an already mature regulatory framework of decade-old statutes, long-standing bureaucratic rules and routines, narrowly directive judicial decisions, and embedded institutional norms. That extant regulatory regime shapes how policymakers perceive, define, and address the relative benefits and risks of both proximate and yet-to-be idealized nano-materials and applications. The paper concludes that fundamental reforms in the extant regime are unlikely short of a perceived crisis.

Since the collapse of the treatment ideology, public opinion has assumed an increasingly central role as a basis for legitimising current crime policy. It is therefore important to be able to capture and describe the public’s views on penal sanctions. Assessments of public opinion regarding appropriate sanctioning levels are largely made on the basis of different types of survey. The problems associated with how such surveys should be implemented in order to produce valid results have been discussed at length. The issue of how the results should be presented in order to provide a representative picture of public opinion have more rarely been explicitly problematized however. This article examines the question of how large a proportion, and which segments, of the public are represented in different descriptions of public opinion that can be produced based on survey results. The issue is examined on the basis of a national Swedish postal survey, in which the respondents were asked to state which sanction should be awarded in relation to six crimes described in the form of vignettes. The survey shows that public opinion on appropriate sanctioning levels is very varied. Summarizing public opinion is thus not a straightforward task. Different descriptions that are similarly representative in relation to one another lead to different conclusions as to what public opinion views as appropriate sanctioning levels. Routine references to public opinion are thus quite arbitrary unless those who refer to a certain description of public opinion also justify why this particular description is relevant.

In my paper I will analyze decisions of the Russian Constitutional Court and courts of general jurisdiction, in which they interpret ordinary and seemingly unambiguous words and phrases. In a number of cases this interpretation is made in a manner, which is suspect from a linguistic point of view. The analysis shows that there is no consistency in the application by Russian courts of the “plain language” rule and that literal interpretation may be used selectively as a means of legitimizing the decisions made on non-linguistic grounds. Though literal interpretation can be often incompatible with the concept of justice and therefore judges should also take into account other criteria, there are examples of court decisions, in which literal interpretation would have been more appropriate from the perspective of justice, separation of powers and human rights. The article shows how use and misuse of language by judges is employed as a tool in judicial decision-making.

This paper seeks a better understanding of the role of public reason in alimenting or defusing religious conflicts by looking at how courts apply it in deciding cases arising out of them. Recent scholarship and judicial decisions suggest, paradoxically, that courts can be biased towards either the secular or the religious. This risks alienating both religious majorities and religious and secular minorities. Judicial public reason is uniquely equipped to protect minorities, and its costs to religious majorities may be mitigated by accepting religious morality and identity claims in the political and legislative realm. Despite the political fragilities of judicial public reason, it is not intrinsically hostile to religious claims. It ought in fact to be fully equipped to recognize the equality and religious freedom rights that religious groups and individuals might assert in pursuing exemptions from general secular laws. Judicial public reason does have the potential to defuse religious conflicts, however much it falls short in practice.

This article uses cross-country data to empirically investigate through which channel legal origin can influence antitrust effectiveness. The evidence shows that the adaptability channel (legal flexibility) is more important for explaining antitrust effectiveness than the political channel (authority independence). The evidence also suggests that countries in which a judicial decision is a source of law will provide more legal flexibility and will adapt more easily to changing economic circumstances. They will therefore also have better enforcement of antitrust rules. On the other hand, a legal tradition that takes no formal notice of legal precedent will make the competition environment much less predictable. To the extent that these findings are true, one would expect competition agencies in Common law countries to perform better than those in Civil law countries.