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In 2 recent cases—with important implications for public health practitioners, courts, and researchers—the US Supreme Court changed the landscape for judging the constitutionality of firearm laws under the Constitution's Second Amendment. In District of Columbia v Heller (2008), the court determined for the first time that the Second Amendment grants individuals a personal right to possess handguns in their home. In McDonald v City of Chicago (2010), the court concluded that this right affects the powers of state and local governments. The court identified broad categories of gun laws—other than handgun bans—that remain presumptively valid but did not provide a standard to judge their constitutionality. We discuss ways that researchers can assist decision makers.

The Finnish Supreme Court recognizes the impact of European Court of Human Rights case-law on national strike law

During its eight years of operations, the ICC (or the “Court”) has shown a remarkable resilience to administer justice in the face of U.S. pressure. But with the Obama administration's recent pledg...

The paucity of female deponents asked to give evidence before the Westminster equity courts has led some historians to conclude that women were marginal figures in disputes concerning local customary law and land use rights. This article adopts a qualitative approach, examining the oral testimonies provided by women to gain insight into the parameters of female knowledge and experience of landscape and the division of local resources. It is argued that women played a central role as informal brokers of economic power, mediated through the construction, maintenance and longevity of household knowledge and memory.

In the early years of European Integration the German Federal Constitutional Court seemed to be very willing to support the European Court of Justice in its decisions to push integration forward. Later on the Constitutional Court claimed a residual competence to control the protection of human rights and to declare ultra virus acts of Community organs as inapplicable in Germany. No action ever followed those strong words, and with its latest decision in Honeywell the Constitutional Court returned to its original position.

In October 2007 a new era in Australian military criminal justice began with the establishment of an Australian Military Court (AMC). The AMC had, however, a short life, being found in August 2009 by the High Court of Australia to be contrary to Chapter III of the Australian Constitution.1 In May 2010 it was announced that a new Military Court of Australia, established in conformity with Chapter III, was to be established to replace the interim system put in place following the High Court's invalidation of the first AMC. A Bill for a new military court was introduced to Parliament in 2010 but lapsed with the dissolution of Parliament for the 2010 election.2 No replacement Bill had been introduced as at the beginning of 2011. It is unclear when or whether a new military court will be established.

The U.S. Supreme Court is an important political institution. Nonetheless, general political histories of the United States give little attention to the Court and its justices. The appointment of justices and the decisions of courts are mere footnotes, at best, in the history of presidential administrations. Perhaps this reflects the relative insignificance of the judiciary and its actions on the broader political stage. The work of the Court pales in comparison with wars, elections and legislative struggles. The history of the Court has instead been relegated to more specialized accounts. Often those accounts were written from a primarily legal perspective or framed in terms of a history of constitutional law. The relationship between politics and the judiciary was pushed into the background. For many years, the classic one-volume history of the Court has been Robert G. McCloskey’s The American Supreme Court (4th ed., revised by Sanford Levinson, 2004). Originally published in 1960, The American Supreme Court situated the history of the Court within politics. McCloskey’s concern was to describe the Court as an “agency in the American governing process, an agency with a mind and a will and an influence of its own,” which used the law to achieve or try to achieve results (p. xv). The Harvard political scientist hoped to set aside the legalistic suggestion that the justices were primarily working out the logic of the law. The justices had agency in determining the course of public policy, and the Court was an agency within the structure of the government that made and implemented policy. The Court’s power was both real and fragile. The Court’s story, according to McCloskey, could “be broadly understood as an endless search for a position in American government that is appropriate” to the political era and the “subtle limits of judicial capability” (p. 15). A central lesson of his account, he concluded, was that the historical Court had been “fully alive to such realities as the drift of public opinion and the distribution of power in the American republic” (p. 246). The point was not that the justices “slavishly” adjusted themselves to public

Despite the importance of Supreme Court opinions for the American polity, scholars have dedicated little systematic research to investigating the factors that contribute to the content of the justices’ opinions. In this article, we examine the ability of lower federal courts to shape the content of Supreme Court opinions. We argue that lower court opinions will influence the content of the Court’s opinions to the extent that the justices perceive that integrating language from lower court opinions will aid them in making efficacious law and policy. Utilizing plagiarism detection software to compare lower federal court opinions with the majority opinions of the Supreme Court during the 2002–2004 terms, we uncover evidence that the Court systematically incorporates language from the lower federal courts into its majority opinions.

With judges chosen, cases underway, and judgments rendered, the International Criminal Court has officially begun operations. As the Court has proceeded with its activities, its potential has become enhanced. The creation of the Court through the 1998 Rome Statute came through cooperation of an exceptionally broad coalition of NGOs with like-minded states. This article examines the historical background to the Court’s establishment, exploring why seemingly favorable conditions after the World Wars failed to result in a permanent judicial institution. Even post-1948 genocides in Southeast Asia, Central Africa, and elsewhere did not lead to international steps. Unexpected events, including the end of the Cold War and special tribunals for the former Yugoslavia and Rwanda, reopened the possibility for action. Despite opposition from most Permanent Members of the Security Council, the Coalition for the International Criminal Court—the major focus of this study—coordinated a network of citizen groups to exert pressure successfully. The 2010 Review Conference for the International Criminal Court reaffirmed the Court’s basic directions, and broadened the areas over which it exercises powers of judgment. The 1998 “miracle on the Tiber” and subsequent steps strengthening the Court thus call into question long-standing assumptions about the relative significance of states and civil society.

In this paper the author offers analysis of rules regulating the challenging of a court settlement in light of the evolution and legal nature of the court settlement in domestic and comparative law (Austrian, German, and Hungarian laws). The method of the procedural challenge depended on the understanding whether the settlement is an agreement (contract) between parties before the court or it is a decision of the court (on acceptance or rejection of the proposal of the parties to reach a settlement). In the earlier instance the method of challenge is by filing of an action, and in the latter instance it represents a form of a legal remedy, most often extraordinary legal remedy - request for repetition of a trial, against final and binding decision of the court by which the settlement was either accepted or rejected. Theoretical dilemma about the legal nature of the court settlement, had an effect on normative regulations, as well as on court practice. In the Serbian law, this dilemma was resolved by enactment of the Civil Procedure Code which explicitly regulates that court settlement is challenged by an action before the court. As a result of this, the idea of a court settlement, as a form of an agreement, prevailed in the legal system. However, considerable procedural effects of the court settlement cannot be ignored. The principal procedural effect is that the litigation is terminated. Further, the court settlement represents a form of an executive title.

Health care reform and immigration reform currently rank as the most controversial topics in the United States. Since President Barack Obama signed historic legislation establishing America's unive...

A field—new technologies and human rights or, more broadly, law and technology—is in the process of being framed. Should the European Court of Human Rights be seen as part of that process? To find out, we searched the Court’s case-law using HUDOC, a database on the Council of Europe website which contains both judgments and admissibility decisions. We entered 155 keywords, all in English, and in this article we report and analyse what we found. The overall conclusion is twofold: first, it is too early to attempt a complete characterisation of the Court’s position on new technologies; and second, the Court is however ‘one to watch’.

This article examines the argument that people in India are strongly oriented towards litigation in court as against other forms of negotiation or advising. In spite of the centrality of the court system to Indian public life, the flow of cases arriving at court does not reflect any such fixed preference. Going to court may simply be a choice which the parties make in the first instance, but which will eventually be abandoned in favour of private forms of compromise. By drawing on the ethnography of a court case followed in a district court of Himachal Pradesh, this contribution will show how even in serious criminal cases where no private compromise is allowed, it often happens that all the prosecution witnesses deny before the judge what they are supposed to have previously stated to the police. The analysis of court interactions and out-of-court narratives will show how nonofficial forms of conciliation may internally unsettle the rules of evidence followed in criminal proceedings.

In 1857, U.S. Supreme Court Chief Justice Roger B. Taney stated in the Dred Scott case that if one African American was free to move unhindered throughout the United States, then all African Americans, enslaved or otherwise, would have ‘the right to enter every other State’. Such a situation, he argued, was untenable. The Supreme Court thus suggested that if U.S. citizenship included a de facto right to mobility, then African Americans could not be considered citizens. Although not formally written into the U.S. Constitution, numerous Supreme Court rulings since 1857 have underpinned the right to mobility in the United States. Yet the ability to be mobile in the United States has been fundamentally intertwined with the construction of racial identities. It was the white settlers that were free to move westward, the mobile nomadic lifestyles of the peoples they encountered being understood as primitive and inferior. Native peoples subsequently became immobilized on reservations. Similarly, African...

This article provides an overview of the key institutional aspects of both the Supreme Court of Canada (SCC) and the Office of the Registrar. The mandate of the SCC is to have and to exercise a general appellate jurisdiction in all areas of law, within and throughout Canada. The Office of the Registrar of the Supreme Court of Canada (the Office) provides the full range of services and administrative support which the Court needs in order to hear cases and to render decisions. It also serves as the interface between the litigants and the Court. The SCC operates under the parameters described in the Supreme Court Act. The Act specifies, among other things, the number of judges on the Court (nine); the fact that there must at all times be at least three judges from the province of Quebec; the minimum qualifications for appointees and the means of their appointment. After describing the setup and function of the Office, this article describes some of the continuing challenges, including: Maintaining Judicial ...

The Supreme Court of the United Kingdom (UKSC) was established by section 23 of the Constitutional Reform Act 2005 and it commenced its sittings on 1 October 2009. The procedure of the Supreme Court is governed by the Supreme Court Rules 2009 which were made by the President of the Supreme Court. With the 14 Practice Directions which supplement the Rules, the Rules provide the practice and procedure to be followed by the Court. The Constitutional Reform Act 2005 requires that the Rules are ‘simple and simply expressed’ and that the Court is ‘accessible, fair and efficient’. These words are very important in underpinning the approach adopted by the Court. The attitude of the Registry staff is to be of assistance to practitioners. Also, the Judicial Committee of the Privy Council (JCPC), has moved from its purpose‐built courtroom in 9 Downing Street to be accommodated within the new UK Supreme Court.

The Registry of the International Criminal Court (ICC) is responsible for the non‐judicial aspects of the administration of the Court – the judicial aspects being the responsibility of the Judges – and for ‘servicing of the Court’. This article examines three instances in which the Registry of the ICC has specific obligations with respect to: (1) victims’ and witnesses’ protection and support; (2) legal aid for defendants and victims; and (3) the organization of family visits to detained persons.

The governing principle has long been settled. It is that a court will not redress a wrong when he who invokes its aid has unclean hands. The maxim of unclean hands comes from courts of equity. But the principle prevails also in courts of law. . . . Then aid is denied despite the defendant’s wrong. It is denied in order to maintain respect for law; in order to promote confidence in the administration of justice; in order to preserve the judicial process from contamination. . . . It is sometimes spoken of as a rule of substantive law. But it extends to matters of procedure as well. – Louis D. Brandeis

The recent growth of international dispute resolution has led to a reinforcement of the intersection between private and public international law. The International Court of Justice is no stranger to this phenomenon. In reality, several disputes that have been or will be resolved by the International Court of Justice involve individuals or show aspects of private international law. The recently initiated case regarding jurisdiction and enforcement of judgments in civil and commercial matters, opposing Belgium to Switzerland, illustrates this evolution in the nature of the Court’s case load. This article examines, on an empirical basis, what has been so far the World Court’s approach to issues of private international law. It further argues that the Court, as the principal judicial organ of the United Nations, has a role to play in the development of private international law.

Why do lower courts treat Supreme Court precedents favorably or unfavorably? To address this question, we formulate a theoretical framework based on current principal-agent models of the judiciary. We use the framework to structure an empirical analysis of a random sample of 500 Supreme Court cases, yielding over 10,000 subsequent treatments in the U.S. Courts of Appeals. When the contemporary Supreme Court is ideologically estranged from the enacting Supreme Court, lower courts treat precedent much more harshly. Controlling for the ideological distance between the enacting and contemporary Supreme Courts, the preferences of the contemporary lower court itself are unrelated to its behavior. Hence, hierarchical control appears strong and effective. At the same time, however, a lower court's previous treatments of precedent strongly influence its later treatments. The results have important implications for understanding legal change and suggest new directions for judicial principal-agency theory.

James I's declaration to the Parliament of 1621 was quickly followed on March 31, 1621, by a proclamation abolishing “bills of conformity”—a remedy for insolvent debtors in the English courts of equity. MPs had raised conformity as a grievance early in the session, and debate was one-sided. James's admission, and the proclamation suppressing conformity that followed, explained that debtors exhibited the bills for “no other end or purpose, but to defeat or delay their just and honest Creditors.” Conformity was “so great an evill” that it had encouraged “wilfull Bankerupts,” caused a scarcity of money, and triggered a trade depression. A statute passed in the Parliament of 1624 closed the remaining loopholes and abolished conformity.

On 15 April 2008, the Italian Constitutional Court (ICC) raised for the first time a preliminary question to the European Court of Justice (ECJ). This decision (see judgment No 102/2008 and order No 103/2008) represented a turning point in the ICC's case‐law, and calls for a careful assessment of the motives backing such revirement as well as of the legal reasoning that the Italian judges used to wrap it up without repudiating their previous case‐law. In addition to this preliminary analysis, the aim of this essay is to explore two themes: i) the developments of the ICC's case‐law as regards the role of Community Law and the ECJ, and ii) the appraisal of the interplay between the ICC and the ECJ in the light of the notion of ‘interpretive competition’.

The creation of an International Criminal Court (ICC) to prosecute war crimes poses a real puzzle. Why was it created, and more importantly, why do states agree to join this institution? The ICC represents a serious intrusion into a traditional arena of state sovereignty: the right to administer justice to one's one nationals. Yet more than one hundred states have joined. Social scientists are hardly of one mind about this institution, arguing that it is (alternately) dangerous or irrelevant to achieving its main purposes: justice, peace, and stability. By contrast, we theorize that the ICC is a mechanism to assist states in self-binding, and draw on credible commitments theory to understand who commits to the ICC, and the early consequences of such commitments. This approach explains a counterintuitive finding: the states that are both the least and the most vulnerable to the possibility of an ICC case affecting their citizens have committed most readily to the ICC, while potentially vulnerable states with credible alternative means to hold leaders accountable do not. Similarly, ratification of the ICC is associated with tentative steps toward violence reduction and peace in those countries precisely least likely to be able to commit credibly to foreswear atrocities. These findings support the potential usefulness of the ICC as a mechanism for some governments to commit to ratchet down violence and get on the road to peaceful negotiations.

Since at least the seventeenth century, courts of equity have upheld the assignment of future property for valuable consideration. Despite this long lineage, however, there has been almost no scholarly analysis of how these principles might interact with the Torrens system. The present article addresses this deficiency. Generally, it argues that there are no reasons why principles of future property cannot be fully subsumed within the Torrens system.

This paper considers aspects of the law and practice governing the nomination and election of judges of the International Court of Justice. The processes have led, over the last 85 or so years, to major changes in the composition of the Court. How are those changes to be related to the changing procedural and substantive challenges faced by the judges? This paper suggests possible, if provisional, answers to that large question, which is to be seen in the context of the long struggle to subject State power to law and legal process.

Only recently, the jurisdiction of the Court of Justice of the Economic Community of West African States, which was hitherto opened only to Community States, was expanded to allow direct human rights violation claims by individuals. Though the court has since started to function, its impact is yet to be felt ‐ citizens of recalcitrant Community States still live in wanton violation of their rights in most of the States, where national courts are weak and effective remedies for rights violations largely nonexistent. This is consequent upon the failure of Community States to align their national laws with the new legal order represented by the Community Court; national laws and indeed national courts are still very hostile to the court and its judgements, thereby discouraging citizens from attending the court. This Article takes a look at the relevant provisions of the constitutions of Community States and advocates an urgent need for the cooperation to be forged between national legal systems and the community legal system through the amendment of hostile laws, as a prerequisite to the achievement of the virile community legal order.

This article deals with the possibility of changing the approach to appeals in the interest of law in Romania according to the relevant guidelines extracted from the case law of the European Court of Justice. It provides a comparative analysis of Romanian Supreme Court decisions with those of the European Court of Justice with respect to guiding principles versus a strict interpretation of written legislation. The author highlights a modern path for the Romanian Court to follow in light of the requirements of the twenty-first century.

This year's High Court Review analyses the major developments in the Court's composition and jurisprudence for the two-year period from 2007 to 2008, with a primary focus on the Court's role as chief interpreter of the Commonwealth Constitution, the political implications of the Court's vision of the federal compact and its interpretation of the concept of representative democracy in Australia. As an inherently political institution with considerable policy influence, the first part of the Review analyses the changing composition of the bench with reference to two new appointments made in 2008. The second half of the Review turns to developments in the Court's constitutional jurisprudence. The Court's role as an arbiter of federal-State relations is explored through two important section 51 decisions concerning the scope of the Commonwealth government's legislative power: Attorney-General (Vic) v Andrews and Thomas v Mowbray. Finally, the Review analyses the Court's construction of the Constitution as pro...