May,Should, or Do,Administrative Judges Participate in the Management of the Public Sphere in the Rule of Law?

The article concerns the actual impact of courts controlling the activity of public administration on the direction of its activities and the content of issued decisions. In particular, it concerns sovereign individual decisions that affect the sphere of civil rights and freedoms. The aim of the article is to seek an answer to the question of whether independent judges actually participate in the process of management in the public sphere, which is characterised by elements of politics and (regardless of the answer to this question) whether such participation is allowed or (even) necessary in modern rule of law states. The main argument is that regardless of whether the courts controlling the administration have reformatory or exclusive cassation powers, they influence the decision-making process in the public sphere. At the same time, such influence not only does not violate the fundamental values of the rule of law, but is even sometimes necessary. This does not mean that courts should interfere in the management processes in the public sphere in every case.

     

Grandparent contact: another presumption?

ABSTRACT

This article reviews the debate about the enhancement of grandparents’ legal status in relation to their grandchildren. In particular, it observes that calls for a legal presumption in favour of grandparent contact with their grandchildren when family relationships break down were emboldened by the enactment in s1(2A) of the Children Act 1989 of a presumption that involvement of both parents in their children’s lives furthers children’s welfare. Proponents of grandparent rights argued that there should be a similar statutory presumption in favour of grandparent involvement. It is also argued that courts should strictly enforce child arrangement orders that give grandparents time with grandchildren. The article examines the welfare case for such involvement and concludes that there is no unequivocal evidence to support it. It also considers the effect of the presumption in s1(2A). The article concludes that to enact a similar presumption in favour of grandparents, to apply a de facto presumption, to enforce orders strictly and even to remove the leave requirement that currently exists, could prejudice the interests of mothers as well as children.     

Argumentative Arbitrariness and Legal Discourse

To make sense of the legal decisions courts offer, oftentimes we cannot rely on a strict judicial sense. Sometimes our explanations require us to engage in juridic-political speculation. This I call argumentative arbitrariness. This concept can serve us well in helping us to make sense of matters of justice as well as in developing critiques of legal order.     

Corpus Linguistics as a Method of Legal Interpretation: Some Progress,Some Questions

Corpus linguistics is becoming a respected method of statutory and constitutional interpretation in the United States over the past decade, yet it has also generated a backlash from a group of scholars that engage in empirical work. This essay attempts to demonstrate both the contributions and the risks of using linguistic corpora as a primary tool in legal interpretation. Its legitimacy stems from the fact that courts routinely state that statutory terms, when not defined as a matter of law, are to be given their ordinary meaning. Judges have responded to this challenge, with the assistance of the linguistics community, by using corpora to determine which meanings are ordinary. However, legal analysts have not determined exactly what makes one meaning ordinary and another not ordinary. This gap has led to a level of disagreement in the field. Moreover, while linguists who engage in corpus linguistic analysis typically emphasize the importance of context, the legal application is peculiarly context-free, in keeping with legal philosophies that eschew reliance on reference to a law’s purpose and the intent of the legislature that enacted it. This move adds a political dimension to corpus analysis as a means of legal interpretation. Yet, the article concludes that by relying on a blend of general and specialized corpora, the legal system can substantially reduce the problem of contextualization, as some linguists and practitioners have already recognized.

     

Statutory Nuisance: The Sanitary Paradigm and Judicial Conservatism

Despite its long history, statutory nuisance law is still consideredimportant in dealing with localised environmental problems.But it is an area of law that is now beginning to creak—theresult of both its historical origins and the attitude of contemporaryjudges to its modern application. Key recent decisions of theBritish courts are examined, and the judiciary is shown to haveadopted an unduly narrow approach and one that is based on amisinterpretation of legislative intention. A detailed examinationof Parliamentary debates in the middle of the nineteenth centuryduring the development of statutory nuisance laws shows thatthe concept was promoted as being broad, flexible and expansive.Modern courts have singularly failed to adapt statutory nuisanceto contemporary needs, a lost opportunity since the statutorynuisance regime can provide an effective means for local governmentto deal rapidly with environmental problems as well as an accessibleremedy for the private individual.     

Silverstein's Allure

Using multiple case studies, Gordon Silverstein's Law's Allure (2009) examines the many ways in which courts interact with other governing institutions. He convincingly argues that legal advocates fare best when they use the leverage created by courtroom victories to increase their influence in other arenas, particularly legislatures. His more ambitious effort to explain when court intervention improves rather than displaces politics is less successful. He favors using court decisions as battering rams to break through the institutional barriers created by our allegedly outmoded Constitution. Such an open-ended justification for judicial policy making places virtually no limits on the juridification that Silverstein decries for distorting democratic politics.     

In-house or in court? Legal challenges to university decisions

Every day, decisions are made in universities that affect students. When a decision adversely affects a particular student, what means of redress does that student have? The circumstances in which a student has a legal claim against their university are generally unclear. Courts have traditionally tended to draw a distinction between ‘purely academic’ decisions and disciplinary decisions. There has been reluctance on the part of courts to intervene in non-disciplinary decisions which involve academic judgment, for example, the grade to be given to a student's work. On the other hand, where the decisions are purely disciplinary, for example, in relation to a student's behaviour towards others or towards university property, the courts have made it clear that there is essentially no difference between this and disciplinary matters within any other public institution or organization. However, disciplinary decisions that are connected with allegations of academic misconduct, for example, cheating and/or plagiarism, have been more problematic for the courts. Historically, the debate was whether any such decision was justiciable in public law. Recently the question has also been whether an aggrieved student may succeed in a private law action against a university. The legal issues raised by university decisions affecting students have not yet been clearly resolved in all jurisdictions. Indeed, in some cases, judges have raised many more questions than they have answered. This article will review the framework for legal challenges to university decisions against a background of recent judicial attitudes in Australia, New Zealand, the UK and the US.     

麦考密克法律论辩理论的经济学解读

麦考密克描述阐释了司法审判中主要的法律论辩形式，包括演绎性证明，后果主义论辩，协调性论辩及一致性论辩。通过对此理论的经济分析，发现论辩主体为什么会采用这些论辩方式、应该如何运用及它们的功能为何，最终都立基于经济学的逻辑。     

Problems Related to the One Right Answer Thesis*

Abstract. The author discusses the conditions necessary to accept the one right answer theory. The argument is based on an analysis of the deep structure of the justified fractional decisions pertaining to the substantive decisional model of the judicial application of law within the statutory law system. The role of evaluative choices is needed to justify the decisions in question at least in hard cases. This makes the theory of one right answer unacceptable in a noncognitivist axiological framework.     

Seeking rents through class actions and legislative lobbying: a comparison

This article analyzes class actions as a technology that groups may use in their rent-seeking activity, in addition to other rent-seeking methods such as legislative investment within the political market, when they seek to achieve favorable decisions from decision-makers—courts and legislators. It claims that groups may make their choice between various rent-seeking technologies according to their sensitivity to the problem of free riding. Therefore, it analyzes the effect of the legal instruments that facilitate class action lawsuits and collective litigation in most countries upon the rent-seeking strategies of groups, as compared to rent-seeking through legislation.     

The Influence of Administrative Law Judge and Political Appointee Decisions on Appellate Courts in National Labor Relations Board Cases

Scholars have long been simultaneously concerned with the factors that influence appellate court decision making and the level of deference that the courts allow for agencies. However, scholars have treated administrative agencies as unitary actors with a single level of decision making, but in reality agency decisions involve input from multiple actors within the agency. I argue that appellate courts rely more heavily on decisions made by actors in the bureaucracy with greater levels of expertise and who are less politically motivated as cues in their decision making. This theory is bolstered by legal precedent in the area of administrative law that suggests courts should more heavily rely on the expert judgment of administrative judges. Thus, as a result of their increased expertise, appearance of political neutrality, and institutional support, courts will be more reliant on decisions issued by administrative law judges (ALJs) than those issued by the political appointees as cues in their decision making. Using over 300 unfair labor practice decisions issued by the federal appeals courts on review of cases from the National Labor Relations Board (NLRB or Board), I develop a model of appeals court decision making in unfair labor practice cases as a function of the initial decision of the ALJ, the final order of the political appointees of the NLRB, case characteristics, the ideology of the deciding appeals court panel, Supreme Court influence, and economic factors. Though the ideology of the court plays a role in its decision making, cues from ALJ decision making and that of the Board weigh more heavily in appellate court outcomes. However, cues from ALJ decisions play the most consistent role in appellate court decision making, even in more difficult cases. This has important implications for agency strategy in courts and suggests that future research should consider the influence of lower‐level decision making over appellate court decision making in the area of administrative law.     

Creatures of the State: A Hard Look at the Supersession of Municipal Power in New York's Mineral Resources Law

The controversial method of gas extraction known as hydraulic fracturing has revealed a critical issue within New York's Mineral Resources Law: Can a local government prohibit the practice through its zoning power? This piece analyzes supersession clauses found in other New York statutes, as well as the statutes of other jurisdictions. It criticizes the construction of the law by two lower courts in the recent decisions concerning the towns of Dryden and Middlefield, and applies recognized principles of statutory construction to determine that towns may not effect a prohibition of gas mining through local zoning ordinances.     

Informed consent in the electroconvulsive treatment of geriatric patients.

The past 15 years have been marked by an increasingly stringent regulatory atmosphere regarding the administration of ECT, leading to delays in treatment and declines in usage. Regulatory changes requiring judicial intervention in clinical decisions are driven by the notion that only the courts can provide adequate due process protections when legal rights and clinical need conflict. We retrospectively reviewed the documentation of the informed consent process for 62 geriatric patients receiving ECT to assess the degree to which clinicians conformed to the spirit of the informed consent doctrine in a state that allows significant clinical discretion in decisions to administer ECT to patients lacking decisional capacity. In the eight cases in which the patient's decisional capacity was questioned, we found appropriate documentation of the patient's failure to comprehend his condition or the proposed treatment, evidence of a high degree of family involvement in decision making, and extensive use of outside consultants to document decisional incapacity and the need for treatment. Evidence of family participation in decision making was present for a high percentage of cases in which decisional capacity was unquestioned. Our review demonstrated high compliance with the procedural safeguards contained in the state regulation and with the spirit of the informed consent doctrine.     

公众意见在裁判结构中的地位

从裁判依据的类型分析,公众意见只能作为一种事实依据,参与个案裁判。在常规案件中,公众意见作为一种准用的辅助性依据,可以通过弱的裁量成为合理化判决结论的说明性事实。在遇有法律漏洞的疑难案件中,与社会性主张相一致的公众意见,如果耦合法律体系中的法律原则或基本权利规范,可以籍由强的裁量充当个案推理的运作性依据,成为非常情形中正当化个案规则创制的立法性事实。在日趋多元化和复杂化的转型中国,法律系统必须在稳定性和灵活性、普遍正义和个案正义之间寻求一种平衡;判断公众意见的个案裁判地位,同样需在辅助性依据或运作性依据、说明性事实或立法性事实之间寻求一种平衡。     

论德国行政诉讼中司法权的边界

德国行政诉讼中法院的受案范围几乎不受限制。行政法院对行政案件有完全的管辖权,可以主动、全面、深入地审查事实问题与法律问题,一般无须尊重行政机关在事实判断方面的专业知识与经验。不过,自上个世纪70年代以来,由于行政判断余地等理论的发展,行政法院对行政主体进行强势监督与制约的格局有所松动。另外,行政法院在判决与执行中恪守权力分立原则。德国行政诉讼中这一权力边界格局的形成,是与其宪政体制、法院分工、法定法官原则、二战后对公民权利的重视以及发达的公法理论等紧密相关的。     

About the Meaning of the Legal Aspect of Practical Semantics in Estonian Legal Order

This article is aimed at regarding, from the author’s viewpoint, one possible jurisprudential theory for rational understanding of legal order – the structuring theory of law. It is very important that cognition of a legal order should be based on the rules which could be designated as “laws of jurisprudence”. Naturally, this does not mean legislation within the concept of objective law. Rather, these laws can be referred to as certain regularities, ignorance of which would, however, either impossibly or substantially complicate the legal process of decision-making, both in law-making (as the so-called decisional function is contained in law itself¹) or the practical legal process of making decisions (the application of law). In recent years, a conception involving cooperation between linguists and jurists has emerged in the discussion of jurisprudential methodology. This constitutes an interdisciplinary approach to motivation of legal decision-making and involves, on the one hand, “practical semantics” and researchers thereof,² and on the other hand, representatives of the so-called structuring theory of law.³ In specialist literature, the structuring theory of law has also been referred to as the Müller Schoo1.⁴ The role of language and linguistic arguments in the discussion and practice of legal working methods serves as a connective principle in such interdisciplinary approach (co-operation).     

The myth of popular justice under communism: A comparative view of the USSR and Poland

This paper describes two ‘popular justice’ institutions which exist in both the USSR and Poland: people's assessors and social courts (workers' courts and residential tribunals). An attempt is made to assess these developments in light of the official national ideology. In addition, these institutions are placed within the context of contemporary Western debates on popular justice in order to test the applicability of Western ideas to the reality of Soviet-style communism. While the paper does not attempt to assess the adequacy of the critical Western voices which warn against the dangers or illusory advantages of community justice in Western democracies, it demonstrates that these ideas are indeed validated when tested within the communist reality. The social courts tend not only to reflect the authoritarian relations prevailing in the communist economy, but also serve to perpetuate them. The lay assessors who accompany judges in ordinary courts are extremely passive and their influence on the process and outcome of the adjudication seems to be minimal. Above all, they cannot influence the law itself or the legal structures in which they are participating.     

ON CASES AGAINST CORPORATE MANAGERS FOR BREACHING THEIR DUTY OF LOYALTY AND/OR DUTY OF DILIGENCE IN CHINA

The statistics of 137 cases from 14 provinces or municipalities of China concerning the disputes of corporate managers’ duty of loyalty and duty of diligence shows that the majority of companies involved in such cases are those whose shares are not publicly traded (mainly limited liability companies and all sorts of foreign invested enterprises). Joint stock limited companies (including listed companies) rarely file lawsuit against their directors, supervisors, or senior officers. The duty of loyalty has been the center of most cases. Many cases pertain to issues that are not within the list of prohibited acts in the Company Law of the People’s Republic of China to directors, supervisors, and senior managers. Therefore, courts frequently make their judgments according to one of the general provisions of the Company Law. Courts conduct different forms of legal interpretations in their decisions. On one hand, in the majority of cases, courts tend to procedurally examine the questions of facts and to literally apply the law. Actually, the duty of loyalty and duty of diligence have been applied by many courts as “the duty of compliance with law.” On the other hand, a few decisions demonstrate that some courts examine cases under the doctrine of substance-over-form, showing their creative interpretations of the law. The focus of the judicial practice in this type of cases today in China is on how courts should explain and apply the general provisions in Article 148 (1) and Article 149 (1.8) of the 2005 Company Law of China (amended in 2013).     

过错及因果关系推定与证明责任倒置——从事实到价值的思考

过错及因果关系推定是法律在前提事实(某种情境下的损害)获得证明的条件下,绕过了法官对基础事实问题的认定,而对法律事实中的法律问题(过错及因果关系有无)给出的暂时性结论。证明责任本质上是要件事实真伪不明时当事人承担的败诉风险,是对法律事实中事实问题的解决。因此在大陆法系,法定推定必然导致证明责任倒置。英美法系情形不同。过错及因果关系推定具有相同的正当性基础,它们在现行法中的体现尚未得到全面认识。     

The approach in Scotland to child contact disputes involving allegations of domestic abuse

ABSTRACT

This article considers the approach taken in Scotland to the processing of child contact cases in which there are allegations of domestic abuse. Four key features of the processing of cases which may facilitate outcomes that prioritise safety are considered. These are: the availability of legal aid; the cautious process of successive child welfare hearings; the use of child welfare reports; and the taking of the child’s views. All these features occur within a policy context that recognises domestic abuse as gender-based violence and where courts have a statutory duty to protect a child from abuse. Drawing on the author’s court based analysis of papers from 208 child contact disputes and from interviews with sheriffs, this article discusses the strengths and limitations of all four process features in terms of protecting women and children, and the risks to these features posed by perpetually reducing government budgets.