Search

C. Privileging Use of Personal Names A trademark treatise writer in 1885 analogized participants in the American economy to knights in a medieval tournament. "Each man stands upon his own [...]

B. Merrell Dow Pharmaceuticals Inc. v. Thompson In 1986, the Court in Merrell Dow Pharmaceuticals Inc. v. Thompson (175) took Franchise Tax Board's "practicality and necessity" (176) approach a step [...]

TABLE OF CONTENTS INTRODUCTION I. CLIMATE CHANGE AS A GLOBAL PROBLEM A. How is Climate Change a Global Problem? B. Non-existence of a Global Solution by Traditional International Actors C. [...]

Can tribunal decision-makers take account of community values, community standards or community expectations in the course of their deliberations? The courts have grappled with the role of community values in [...]

ESSAY CONTENTS INTRODUCTION I. MAKING RIGHTS II. THE PROTECTIVE EFFECT A. Gideon and Rights-Making B. Gideon's Adversarial Role C. Gideon's Protective Consequences III. LAW PROTECTION AND CIVIL GIDEON CONCLUSION INTRODUCTION [...], Gideon v. Wainwright dramatically affects the rights of indigent defendants by entitling them to representation. But Gideon has another systemic consequence as well. In addition to protecting the rights of individual defendants in particular trials, Gideon also protects the integrity of the development of the law by ensuring that the legal principles courts articulate are the product of a legitimate adversarial process. While law protection was not an explicit rationale for the outcome in Gideon, the decision's reasoning and the surrounding historical context resonate with a concern for the integrity of judicial lawmaking. And an examination of subsequent cases reveals the influence of appointed counsel on the shape of the law. The guarantee of counsel, then, has significant benefits for courts' lawmaking endeavor, and, indeed, these benefits serve as an independently sufficient rationale for the provision of counsel to indigent defendants. This alternative rationale for Gideon offers a justification for extending the entitlement to counsel to certain civil contexts that raise concerns similar to those present in the criminal context.

This piece examines situations in which judges are called upon to develop and modify the common law. By reference to a number of recent developments in the United Kingdom and [...]

INTRODUCTION China has experienced a fundamental change in its mode of economic management since its reforming and opening up to the outside world: from the ex ante administrative permit and [...], This article shows that Chinese adjudication is in a dilemma: on one hand, the Judicial discretion is extensive; on the other hand, public opinion supervision is adopted to control the discretion. In fact, the public opinion and judicial discretion could co-exist and compliment one another. There is no objective and stable framework regulating both. There are attempts aiming to completely negate the judicial discretion, such as computer sentencing. A strange logic of judicial reform exists in China: either eliminating the judicial discretion through such mechanical methods as computer sentencing in the hope to guarantee judgment in conformity with the law; or resorting to the arbitrary external power intervention or public opinion supervision to constrain the judicial discretion, resulting in a new form of discretion. In the author's opinion, the critical nexus of institutional designing of good governance is an independent judiciary following the principle of procedural fairness. Therefore it is necessary for China to first establish the courts' authority through judicial reforms, laying the institutional foundation of rule-of-law. Then comes the supervising and checking of the legality of the government power. More importantly, an independent judiciary functions as a neutral arbiter of conflicting interest groups and a third-party enforcer of contracts, which enhances the predictability of market transactions and safeguards fair competition. Compared with structural shift of political power, judicial reform is relatively less difficult and more practical. If judicial reform dooms to fail, how is it possible for a comprehensive political reform to succeed? It is admitted that the judicial reform is subject to the overall power arrangements, nevertheless, it is still probable that we resort to judicial reform, as a breakthrough or reference, a gradual switch on the transformation of political power structure, centering on fundamental requirements of rule-of-law. This roadmap, of course, has preconditions, that is, that the ruler has adequate practical rationality and that society reaches consensus on rule-of-law.

I WHAT IS IT WE ARE LOOKING FOR? our task in this themed issue is to identify the worst decision handed down by New Zealand's top court in the last [...]

Having studied comparative constitutional law for over fifteen years, one of the things that becomes strikingly apparent are attempts by courts to portray obvious political rulings as stemming from an [...]

Abstract Since the Second World War, judges in Australia and the United Kingdom have increasingly written legal articles and textbooks. The purpose of this article is to test current dogma, [...]

[Where are the courts currently drawing the lines, between the employer's confidential information and connections with customers and the employee's own explicit, tacit and personal knowledge, when they are asked [...]

1 L'insuffisance theorique du presuppose mentaliste 1.1 La navigation a vue entre les obstacles epistemologiques 1.2 Le deplacement de la question 2 Un eclairage epistemologique en provenance de la theorie [...], This article aims at emphasizing in legal methodology the importance of paying particular attention to epistemological presuppositions inherent in legal judgment. In his analysis of the doctrine of vagueness as enunciated by the Supreme Court of Canada, the author examines the epistemological obstacles to the reasoning suggested by the Supreme Court, but which the Court then attempts to surmount or by-pass. From the duty of providing fair notice to the citizens to the criterion of giving sufficient guidance for legal debate, the approach remains nonetheless mentalistic. It is precisely in order to avoid this new obstacle that the writer proposes a pragmatic conception of the operation of the production of meaning, based on a reflexive usage and a shared normative significance, in order to shed light upon the epistemological background of the methodological application of the constitutional doctrine of vagueness. L'article qui suit tente de demontrer l'interet pour la methodologie juridique de preter attention aux presupposes epistemologiques du jugement juridique. En examinant la theorie de l'imprecision legislative elaboree par la Cour supreme du Canada, l'auteur s'interesse d'abord aux obstacles epistemologiques que rencontre le raisonnement judiciaire suggere par la Cour supreme, et qu'elle essaie par la suite de surmonter ou de contourner. Passant de l'obligation de fournir un avertissement raisonnable aux citoyens au critere du guide suffisant pour un debat judiciaire, l'approche retenue demeure neanmoins mentaliste. C'est precisement pour eviter ce nouvel obstacle que l'auteur propose une conception pragmatiste de l'operation de production du sens, qui repose sur l'usage reflexif et la signification normative partagee, et ce, pour eclairer l'arriere-plan epistemologique de l'application methodologique de la norme constitutionnelle d'imprecision.

For this symposium, I was invited to serve on two panels. For Panel 2, I was asked to provide commentaries on three papers, namely: (1) John O. Haley, The Japanese [...]

I. INTRODUCTION We know that they are there, but, unlike law clerks at the United States Supreme Court, (1) not much has been written (2) about our "courtiers" (3) to [...]

This is a time when many Americans distrust our governmental institutions. Perhaps that is a good reason to discuss the institution I know best, the Supreme Court, and to ask [...]

This article analyzes the federal government's concessions before the Supreme Court of Canada that its own laws are unconstitutional under the Charter of Rights, marking the first time that concessions have been analyzed empirically in Canada. Using data from 1984 2004, the author finds that full concessions of unconstitutionality are exceptionally rare but that partial concessions are not uncommon. There is weak support for the hypothesis that governments are more willing to concede laws passed by previous governments of a different party, but, on the whole, the federal government appears committed to defending its laws in court. The author explores the implications of this for the relationship between the judiciary and the executive, including judicial activism, Charter dialogue and government use of the courts to advance policy goals. Cet article analyse les concessions du gouvernement federal devant la Cour suprime du Canada que ses propres Iois violent la Charte canadienne des droits et libertes. Il s'agit, en fait, de la premiere analyse empirique de ces concessions au Canada. S'appuyant sur des donnees des annees 1984 a 2004, I'auteur constate que les concessions completes d'inconstitutionnalite sont exceptionnellement rares, mais que les concessions partielles ne sont pas inhabituelles. On donne peu d'appui a l'hypothese que les gouvernements sont plus disposes a conceder les lois passees par des gouvernements precedents representant un autre parti, et, dans l'ensemble, le gouvernement federal semble etre engage a defendre ses lois devant les cours. L'auteur explore l'incidence de cette situation sur les relations entre le pouvoir judiciaire et le pouvoir executif, abordant, entre autres, la question de l'activisme judiciaire, du dialogue sur la Charte et de l'utilisation des tribunaux par le gouvernement pour promouvoir certaines politiques. doi: 10.1017/S0008423910000739

It is a source of continuing frustration to legal academics that judges fail to cite their work, even when that work is directly on point. Their expectation that judges would [...]

Abstract: Much of the debate about the rule of law in democratizing states centers on formal institutional design as the key to building a democratic judiciary. While acknowledging the importance [...]

Through its rulings, the U.S. Supreme Court makes clear what the Constitution means and how best to interpret congressional statutes. But, because Supreme Court rulings do not implement themselves, the Court is dependent on compliance by lower courts to effectuate its policies. Using the concept of jurisprudential regimes developed by Richards and Kritzer in 2002 and specifically the Establishment Clause jurisprudential regime they identified in 2003, we evaluate the extent to which the U.S. Courts of Appeals faithfully implement the Supreme Court's policy in this area of law. We find that decision making by court of appeals panels is indeed structured by the Supreme Court's Establishment Clause jurisprudential regime, even when taking into account the policy preferences of court of appeals judges. Furthermore we find that this attentiveness to legal factors is not a function of circuit court judges' fear of reversal. Keywords: U.S. Courts of Appeals; judicial compliance; judicial decision making; jurisprudential regimes; Establishment Clause

To what extent do lower court judges follow Supreme Court plurality opinions? By examining treatments of Supreme Court cases from the 1976-1986 terms by the Circuit Courts of Appeals from 1976 to 2005, this article addresses the consequences of the Supreme Court's failure to reach a clear majority decision. I find evidence that lower courts are less likely to follow plurality opinions than majority opinions. These findings have implications regarding the authority of the Supreme Court. compliance, and institutional legitimacy. Keywords: supreme court; circuit courts of appeals; plurality opinions; majority opinions; institutional legitimacy