Making sense of the case law on Ombudsman schemes

This article analyses the case law on ombudsman schemes in the UK, with the purpose of identifying some of the key trends that underpin this branch of law pre-the first Supreme Court decision in this area, JR55 v Northern Ireland Commissioner for Complaints. While the law on ombudsman schemes remains based on legislation and the various grounds of administrative law available in judicial review, distinct bespoke principles have also been relied upon. These principles are beginning to provide consistent guidance on how the law should be used and interpreted in cases involving an ombudsman scheme. One task of the Supreme Court in JR55 will be to confirm these principles, or rationalize any departure from them.     

最高人民法院关于无效行政行为的探索

最高人民法院从司法审查引发出对无效行政行为制度的探索,虽没有使用“自始没有任何法律效力”和“无效”等概念,却在民事诉讼领域形成了有关基础行为的构成要件,在对行政行为的司法审查中形成了重大明显瑕疵的类型化和明显性判断标准,并形成了排除具有重大明显瑕疵行政行为公定力、相对人拘束力和司法强制执行力的无效行政行为制度雏形,为我国今后立法积累了丰富的素材。从最高人民法院的探索轨迹及其重大明显瑕疵的类型化,可以发现无效行政行为规则的鲜明中国特色,司法的制度生成意义和生成机制。     

Does Chevron Matter?

In this article we evaluate whether the Supreme Court's much-discussed decision in Chevron v Natural Resources Defense Council (1984) signaled a lasting difference in how the justices decide administrative law cases, by comparing and testing the predictions of three distinct theories of Supreme Court behavior. The legal model predicts an increase in deference to administrative agencies. This prediction is shared by the jurisprudential regime model, which also predicts that the justices evaluate key case factors differently before and after Chevron . The attitudinal model predicts no change in the justices' behavior as a result of Chevron . Although we find that attitudes matter, the fact that we also find support for the legal and jurisprudential regime models undermines the assertion of the attitudinal model that law cannot explain Supreme Court votes on the merits.     

Supreme Court to Hear Landmark Case on Climate Change Emissions: Judgment Day Comes in Global Warming Litigation

The Supreme Court has historically been reluctant to involve itself in environmental matters, especially those relating to the regulation of releases or emissions of harmful substances. The court has typically been content to allow the legislative branch to fashion appropriate regulations to address environmental issues and for the executive branch to enforce those regulations. The acceptance of certiorari in the Second Circuit's Connecticut v. AEP case was a surprise because it not only involves environmental regulation, but also the common law applicable to public nuisance actions seeking redress for climate change damage allegedly caused by emissions of greenhouse gases (GHGs). The AEP case is shaping up to be a blockbuster in the climate change debate in the United States, and the decision could have broad repercussions in not only future litigation involving climate change, but also GHG legislation and the insurance available to address damage due to weather-related events.     

Devotion to Legalism: On the Brexit Case

This note examines the UK Supreme Court's judgment in the Brexit case, Miller v Secretary of State for Exiting the European Union. The case upheld the decision of the High Court, which rejected the claim that the foreign affairs prerogative provided a legal basis for giving notice to EU institutions of the UK's intention to withdraw from the EU. But the Supreme Court's preferred basis for dismissing that claim rested on the more general proposition that significant constitutional change can only be effected by statute. This position offers the germs of a jurisprudence of constitutional change and was substantiated by means of an analysis of Parliament's dual capacity as legislator and constituent agent. Miller also includes important and potentially innovative dicta on the relationship between international and domestic sources of law.     

在政治与法律之间——气候变化诉讼中的政治问题理论

气候变化问题越来越引起全球关注,与此相应,气候变化诉讼案件在世界各国法院大量涌现。无论在美国还是在其他国家,气候变化诉讼都面临一个法律障碍:法院是否有权进行裁决。这取决于各个国家是否将气候变化问题视为法律问题。在美国,气候变化诉讼从产生之日起就面临所谓的"政治理论问题"的困扰。根据美国最高法院判例,政治性的问题或者那些被宪法和法律授予行政部门负责的问题,决不能由本法院来处理。气候问题是不是政治问题,引起了法律界的广泛关注。美国法院的判决在双方面也没有一个明确的答案。随着跨国气候变化诉讼的增加,联合国也开始关注这一问题。中国作为世界最大的碳排放国,应该及早在法律上作出应对。     

Black Spiders Weaving Webs: The Constitutional Implications of Executive Veto of Tribunal Determinations

In R (Evans) v Attorney General, the Supreme Court quashed the Attorney General's statutory veto of the Upper Tribunal's original determination made under freedom of information legislation. The Upper Tribunal had held that so‐called ‘advocacy’ memos should be published after a full hearing on the merits. The Supreme Court split five to two, with the lead judgment of Lord Neuberger using constitutional rather than administrative language and focusing on the rule of law. This note raises four objections to the lead judgment. First, it argues that the Upper Tribunal was acting in an executive not judicial capacity and the veto was not therefore a breach of the rule of law. Secondly it suggests the veto clause is best understood as a variant Henry VIII clause. Thirdly, it suggests Lord Neuberger's judgment is founded on a paradox. Finally, it argues that the judgment undermines parliamentary sovereignty. Future implications are then considered.     

俄罗斯公司立法综论——兼与中国公司立法比较

俄罗斯的公司立法起步很早,但发展缓慢,直到20世纪90年代才形成相对独立的公司法体系。传统上,俄罗斯采民商合一的立法体例,但在民法典之外,仍制定有公司单行法,并与调整公司关系的总统命令和政府规章等规范性法律文件以及联邦最高法院和最高仲裁法院所作的司法解释一并行使调整公司关系的职能。俄罗斯公司立法注重对私权利的维护,以任意性规范为主。但在向市场经济过渡时期,实践中的公司利益冲突不仅危害社会公共利益,最终也损及股东权益。有鉴于此,立法者不得不修订法律条文,增加强制性规范,强化公权力对公司活动的干预。这虽然与我国公司立法的趋向刚好相反,但两国立法的最终目标都是在寻找一个自由与干预的最佳平衡点。     

Michael H. v. Gerald D.

The author attempts to apply semiotic analysis to a question of family law. By examining the language used by the Supreme Court in the title case, Michael H. v. Gerald D., along with the case briefs, lower court opinions, other Supreme Court cases and prior legal scholarship, the author attempts to determine the requisite relationships between father–child and father–mother in order for a legal tie to exist between a father and his biological child. The author tries to not only determine the necessary circumstances but also the political ideology that distinguishes these familial ties. The author further attempts to analyze the goals of these underlying political ideologies.     

指导性案例的法源意义与确认路径——以最高人民法院公布的私法性指导性案例为研究对象

《最高人民法院关于案例指导工作的规定》确立了我国案例指导制度,由于该规定相关内容的模糊性,产生了两个需要回答的问题,一是指导性案例与英美法系判例法是否存在相同的裁判逻辑与法律效力,进而指导性案例是否具有法源意义;二是指导性案例的功能是对法官自由裁量权的控制,还是应该重视从法解释学层面去理解。建议以民法解释学为视角对最高人民法院公布的私法性指导性案例进行梳理和剖析,明确私法性指导性案例具有确认和发现法规则的功能和价值。从"法与法律区别"的自然法观视角,认为私法性指导性案例所确认和发现的法规则在我国当代具有私法法源意义。最后,从解释论和立法论两个方面,提出私法性指导性案例确认和发现的法规则的法源地位确认路径和具体建议。     

On the Use of Law in Transatlantic Relations: Legal Dialogues between the EU and US

Law plays a significant role in contemporary transatlantic relations outside of the bilateral context which, from the perspective of EU external relations law, might seem neither conventional nor apparent. Non‐bilateral transatlantic relations increasingly deploy law as a communication tool between the two legal orders. For example, in 2011, the US intervened informally and anonymously in the formulation of EU legislation, while the US House of Representatives passed legislation to prohibit the impact of EU law upon the US legal order. Another example is constituted by EU amicus curiae submissions before the US Supreme Court in death penalty cases. The so‐called Brussels effect is also the subject of recent scholarship, assessing the perceived spillover effect of EU regulatory standards onto US rules. The paper provides many vivid examples of the variable institutional and legal components of transatlantic relations not usually accounted for in scholarship on transatlantic relations.     

From Hyderabad to Harvard: how US law schools make it worthwhile to clerk on India's Supreme Court

Since the 1990s, judges of the Supreme Court of India have hired law clerks to help them perform some of their routine tasks. However, while clerkships on the U.S. Supreme Court are considered very prestigious and are extensively written about, clerkships on India's Supreme Court are considered to be of significantly lower value by the local legal profession and teaching market in India. Instead, ironically, clerkships on the Supreme Court of India are often pursued by students interested in getting an advanced law degree (usually an LL.M.) at a U.S. law school. Relying on interviews conducted with law clerks and interns who have served on the Supreme Court of India, and using India as a case study, this paper argues that ambitious Indian law students are adopting strategies to “Americanize” themselves in order to culturally arbitrage U.S. law schools' misunderstandings of the global legal profession.     

司法解释对行政法学理论的发展

最高人民法院《关于执行（中华人民共和国行政诉讼法）若干问题的解释》通过对行政诉讼法的解释和补充,发展了我国行政法律关系主体的有关理论、行政行为的理论和行政救济理论。这种发展不仅是贯彻依法治国方略的需要,而且是经济全球化、政治民主化的需要;不仅是建立社会主义民主政治的需要,而且是尽快提高行政法学理论的品味,赶超世界先进法律文化的需要。     

Case Baiting

In 2014, New Jersey passed the Sports Wagering Act, permitting sports betting at state casino and racetrack venues, in direct conflict with the federal Professional and Amateur Sports Protection Act. In 2017, South Dakota passed Senate Bill 106, requiring that certain e-commerce retailers collect and remit sales tax, in violation of federal law. The two U.S. Supreme Court decisions arising from challenges to these state statutes—South Dakota v. Wayfair and Murphy v. NCAA—exemplify U.S. Supreme Court “case baiting.” Case baiting is a tactic states implement to challenge federal directives by passing state legislation that directly conflicts with federal law to lure the Court into granting certiorari and ruling in their favor. This article argues that South Dakota's and New Jersey's triumphs pave the way for other jurisdictions to pursue similar strategies across multiple legal issues such as abortion restrictions and immigration law. In addition, this article suggests that case baiting invites further scholarly exploration of important policy considerations, including the use of this tactic as a novel approach to the application of law and strategy, whether case baiting promotes the Court's progression toward a more quasi-legislative role, and whether passing conflict legislation violates state legislators’ oaths of office.     

RR v Secretary of State for Work and Pensions: Empowering Tribunals to Enforce the Human Rights Act 1998

In RR v Secretary of State for Work and Pensions – follow-on litigation from the high-profile bedroom tax cases – the Supreme Court handed down a judgment which has significant implications for social security law, the interpretation of the Human Rights Act, the tribunals system, the judicial control of delegated legislation, and access to justice. Central, however, was the issue of the enforceability of human rights. We argue that the Supreme Court was not only justified in its interpretation of the Human Rights Act but that it has made the protections of the Act more easily enforceable.     

Climate Change Litigation,Obsession and Expertise: Reflecting on the Scholarly Response to Massachusetts v. EPA

Climate change litigation is an obsessive preoccupation for many legal scholars. Three different “narratives” can be identified for why scholars find such litigation important to study: litigation is a response to institutional failure, legal reasoning holds authority, and litigation is a forum for the co‐production of facts and social orders. The nature and consequences of these narratives are considered in the context of the first U.S. Supreme Court “climate change” case—Massachusetts v. EPA (2007). This analysis has implications for both how scholars understand their expertise in this area, and how they should foster it.     

The Genesis of the Austrian Model of Constitutional Review of Legislation

Abstract The European model of the constitutional review of legislation, characterized by the concentration of the constitutional review power in a single constitutional court, had its origin in the Austrian Federal Constitution of 1920. This is all the more remarkable when one considers that this Constitution established at the same time a parliamentary system of government in a fairly radical form. As the author explains, this “invention” of a constitutional court is attributable to two factors. One factor is the federal aspect. The Court was conceived by the framers of the Austrian Federal Constitution of 1920 as an umpire between federal legislation and the legislation of the states or Länder. In this respect it was meant as a substitute for the principle of the priority of federal law over state or Land law. This is manifest in the initial draft of the Constitution, where actions on questions of the constitutionality of legislation could only be brought by the Federal government (against the legislation of one or another of the states or Länder) and by the State or Land governments (against federal legislation). Right from the beginning, however, the Court could examine a parliamentary act ex officio when it had to apply such an act in another proceeding. It was this power of the Court that triggered the development of constitutional review. Its exercise gradually transformed the Court into a guardian of the Constitution as a whole, in particular, the fundamental rights of citizens. The author traces this development in the context of the concept of state and law that prevailed in the late nineteenth and early twentieth century. This concept included specific restrictions on constitutional review. On the basis of a different understanding of the functions of a constitution, the Court gave up these restrictions and followed the examples of the European Court of Human Rights, the German Constitutional Court and—indirectly—the American Supreme Court.     

美国行政解释的司法审查标准——谢弗林案之后的发展

1984年,美国联邦最高法院通过判例确立了对行政机关的法律解释予以司法尊重的谢弗林原则。在之后二十多年里,这一原则经历了诸多发展变化,其核心是最高法院的法律解释方法。在对谢弗林案之后的相关判例和法官的法律解释方法进行考察的基础上,分析司法尊重标准对行政机关可能产生的影响以及行政机关和国会对此的回应,可以发现,行政和立法分支应当在法律解释和适用的过程中发挥更大的作用。     

Koushal v Naz: Judges Vote to Recriminalise Homosexuality

In Koushal v Naz the Indian Supreme Court overturned a High Court judgment which had declared unconstitutional section 377 of the Indian Penal Code criminalising ‘carnal intercourse against the order of nature’. In doing so, it has rebranded gay and transgendered Indians as criminals. This case note explores some of the structural problems that led to this judgment. The first problem is the transformation of the Indian Supreme Court into a populist, quasi‐legislative, institution that sees itself as a tool of governance. This has put significant pressure on its counter‐majoritarian role. The second relates to the sheer size of the Court's docket (given its wide jurisdiction and lax standing rules), coupled with the Indian legal academy's inability and unwillingness to continuously demand judicial fidelity to the law. These factors have led to the normalisation of unreasoned or poorly‐reasoned judgments and a breakdown of stare decisis.     

Liability for sexual harassment in criminal justice agencies

This article focuses on sexual harassment in criminal justice agencies from a legal perspective. The article briefly describes sexual harassment cases that address agency liability decided by the United States Supreme Court, discussing the standards of liability articulated in Burlington Industries Inc. v. Ellerth (1998), Faragher v. City of Boca Raton (1998), and Meritor Savings Bank v. Vinson (1986). A more precise understanding of when agencies are liable for the actions of their subordinates is developed through an examination of lower federal court decisions. Trends in the law are identified, as case law is categorized according to harassment by supervisors and co-workers. The article concludes by exploring the policy implications flowing from court decisions and by calling for further research on this troubling aspect of the criminal justice workplace.