Legal development and human rights in Uruguay: 1985–2002

This article attempts to explain why Uruguayan judges have lagged behind judges in Chile and Argentina in the prosecution of the military for human rights violations committed during the dictatorship period in the 1970s and 1980s. By tracing judicial human rights activity in Uruguay from the transition to democratic rule in 1985 until the end of 2002, I argue that Uruguayan judges have been actively restricted by an aggressive anti-human rights policy expressed through a national amnesty law and explicit executive interference in judicial matters. Structural changes to the judiciary might have aided Uruguayan judges to overcome these barriers. Instead, failure to reform the judiciary has prolonged its conservative nature and made judges slow in responding to international legal development in the human rights field.     

Getting Their Way: Bias and Deference to Trial Courts

How much do trial judges influence the law in the United States? I analyze a model of adjudication by a trial judge who engages in fact finding before deciding a case, but whose decision may be reversed. The model makes three broad points. First, it provides an informational rationale for ex post deference to biased trial judges that does not require an ex ante commitment by an appellate court to a standard of review. Second, it shows how procedural discretion can bring biased trial judges' rulings closer to appellate doctrine despite enabling trial judges to “get their way” more often. Third, de facto law as represented by trial judges' case‐by‐case adjudication will differ substantially from de jure law. As long as there are not too many extremist trial judges, de facto law will reflect the predispositions of trial judges, not legal doctrine.     

PUBLIC AND CORPORATE DUTIES: THE LLOYD CASE IN WESTERN AUSTRALIA

Abstract: In its broadest sense, this paper is about public and corporate accountability in Australia. In its narrowest sense, it examines the implications for senior public officers of the trial of Tony Lloyd in Western Australia. Lloyd was convicted in 1991 of acting improperly in his capacity as a director of Western Colleries Ltd during one of the last attempted rescues of Rothwells Ltd by the state government and the Bond Corporation in 1988. He successfully appealed, not against the conviction, but against the two-year sentence of imprisonment. The comments of the three judges of the Supreme Court are directly relevant to contemporary interpretations of the roles and relationships between business and government, and between public servants, government advisers and company directors.
The first section of the paper examines obligations and constraints imposed on individuals who have public duties, and how these are currently being interpreted in Western Australia. It refers to the uncertainties and imprecision which have developed in understandings of private and political interests, company and public duties, in both convention and the law. This discussion is the background for the detailed analysis which follows of the Lloyd case and its implications for Australian public servants.     

When ‘Anxious Scrutiny’ of Arms Exports Facilitates Humanitarian Disaster

How is it that the UK government continues to export weapons to Saudi Arabia for use in the war in Yemen, despite an explicit commitment to international humanitarian law (IHL)? And how is it that the High Court recently dismissed a case of judicial review, confirming that the government was ‘rationally entitled to conclude’ that arms exports pose no clear risk to IHL in Yemen? In what follows, I explain how a flexible interpretation of risk, reliance on secret information, and deference of the Court to the executive serve to facilitate rather than restrict arms exports. The judges’ decision provides a stamp of approval to an arms export policy that has directly contributed to the deaths of thousands of civilians in Yemen. Attention to the Saudi/Yemen case shows the political and legal manoeuvring that goes into managing the contradictions in government arms export policy.     

THE "NEW ADMINISTRATIVE LAW": SOME ASSUMPTIONS AND QUESTIONS

Abstract: Sweeping changes in administrative review legislation and procedures have occurred in Australian Federal government very quickly and with little debate. There have been several assumptions underlying the proposals for administrative law reform, including the notions that government has expanded greatly, that it has intruded into citizens' lives, that it is scarcely restrained by parliament, and that the specialist administrative tribunals established at various times are only partly effective. While these assumptions are all correct in certain respects, they do not necessarily support the demands for administrative law reform in the manner and to the extent that has generally been proposed. Closer examination of these assumptions suggests that comprehensive administrative review might itself lead to further expansion of government; that political decisions will have to be made about degrees of intrusion by government; that political avenues for redress of grievances should not be ignored, and could possibly be developed further; and that the need to prevent administrative errors is at least as great as the need to correct them after they have occurred. There is a good case for comprehensive administration review, but it needs to be examined more closely so that future problems can be anticipated and avoided.     

Change over Tenure: Voting, Variance, and Decision Making on the U.S. Courts of Appeals

Existing scholarship on the voting behavior of U.S. Courts of Appeals judges finds that their decisions are best understood as a function of law, policy preferences, and factors relating to the institutional context of the circuit court. What previous studies have failed to consider, however, is that the ability to predict circuit judge decisions can vary in substantively important ways and that judges, in different stages of their careers, may behave distinctively. This article develops a theoretical framework which conceptualizes career stage to account for variability in voting by circuit judges and tests hypotheses by modeling the error variance in a vote choice model. The findings indicate that judges are more predictable in their voting during their early and late career stages. Case characteristics and institutional features of the circuit also affect voting consistency.     

Public choice and tort reform

The common law originally was thought to be immune to rent seeking. More recently, scholars have recognized that attorneys are engaged in exactly that activity. Rent seeking by the legal profession has greatly expanded the scope of US tort law, and generated efforts to reverse its expansion. Organized groups (attorneys, businesses and doctors) are active on both sides of the issue and the partisans have numerous tools available for advancing their agendas, such as litigating, lobbying for favorable rules and attempting to elect sympathetic legislators and judges. All of this creates an ideal setting for public choice analysis.     

Choosing between the government and the regions: An empirical analysis of the Italian constitutional court decisions

In this article the extent to which political variables can explain the behaviour of constitutional judges in Italy when dealing with conflicts between the central government and regions is explored. Two competing hypotheses are tested. One hypothesis argues that one should expect some alignment between the political preferences of the judges and the success of the central government primarily due to the appointment mechanism. The other hypothesis suggests that there should be no systematic alignment between the political preferences of the judges and the success of the central government. Unlike previous literature, the empirical results presented in this article seem to confirm that when the Rapporteur and the court's majority are allegedly affiliated with the Prime Minister's coalition, the odds of success of the Prime Minister go up.     

The Government Deference Dimension of Judicial Decision Making: Evidence from the Supreme Court of Norway

Past research has revealed conflicting findings regarding the degree to which judges on European apex courts enact their policy preferences or instead disagree on the basis of divergent legal views. We investigate disagreement between judges on the Norwegian Supreme Court between 1996 and 2016. During this period, the court dealt with a greater volume of policy-relevant cases than previously. The method of appointment to the court was also changed to a judicial appointments commission. We analyse non-unanimous cases using item response theory models. We find that judges are not divided along left–right lines but instead disagree about the appropriate degree of deference to give to public authorities. There is no significant association between the appointing government and judges' ideal points either before or after the reform to appointments. Judges who were formerly academics are however much less deferential than career judges or judges who were previously lawyers in private practice.     

Not Taking it on Faith: State and Religious Influences on European Court of Human Rights Judges in Freedom of Religion Cases

I analyze freedom of religion case law from the European Court of Human Rights (ECHR), arguing that the ECHR has been inconsistent and deferential to state governments. To account for this phenomenon, I consider two theoretical frameworks. First, I ask whether the religious affiliation of applicants matters when it comes to judges’ willingness to decide in their favor. Second, I consider whether ECHR judges are influenced by the preferences of the states that nominated them. Employing logistic regression analysis on an original dataset of 538 judge votes on 70 freedom of religion cases, I find that Muslim applicants are substantially less likely to receive favorable judge votes, and that judges are more likely to vote in favor of the states that nominated them. Additionally, I find that West European states are especially likely to receive favorable rulings, even when controlling for differences in state protections of religious liberty.     

Judicial Use of Foreign Law in Human Rights Cases: Illegitimate and Unacceptable Practice?

The use of foreign law by national courts when deciding cases that concern fundamental rights has provoked a debate on the legitimacy of the judiciary to resort to this practice. Indeed, many arguments have been made by legal scholars to support the proposition that judges should not take account of unincorporated international human rights instruments or the decisions of foreign courts when they decide cases that concern fundamental rights. This article puts these arguments to scrutiny, and discusses whether this judicial practice should be resorted to.     

Judicial policy‐making and the evolving rotection of human rights: The European court of human rights in comparative perspective

This contribution is a comparative analysis of three attempts to strengthen the supranational protection of human rights in an increasingly transnational world. It focuses on the Human Rights Committee of the United Nations, the European Court of Human Rights and the Inter‐American Court of Human Rights. The recent decision by the Inter‐American Court on the forced disappearance of individuals by state or para‐state forces illustrates the important role of cross‐pollenisation from the European Court and the United Nations. It further demonstrates how judges on supranational courts attempt to make law in the face of uncertain government compliance.     

The use of EU soft law by national courts and bureaucrats: how relation to hard law and policy maturity matter

Abstract

Soft law instruments account for a sizable share of EU legal acts, with growing importance over time. Yet, while the implementation of hard EU law has been widely studied, little is known about the use of EU soft law at the national level. In the article, it is firstly argued that the type of soft law instrument will affect national usage. Administrators and judges may welcome interpretative guidelines to complicated pieces of legislation, while more open-ended instruments may be ignored. It is further argued that the maturity of the policy field matters. National actors in mature policy fields will be routinely exposed to EU rules and they are socialized into responding to impulses from Brussels. The article probes the plausibility of these expectations in case studies on the use of EU soft law instruments by German administrations and courts in four policy fields: financial market regulation, competition, environmental protection and social policy.     

我国近年来跨境追逃的特点及问题

近年来,犯罪后为逃避打击和惩罚逃往国外的犯罪分子日渐增多,我国政府和司法机关相继开展了跨境追讨工作。目前已初步形成了重点突出,追逃、追赃并重,手段多元化,多层次追逃法律体系并存的特点,但也存在国内法和国际法冲突凸显等问题。这些现象,既是我国转型期社会现实的反映,也是我国灵活务实的追讨政策和立法现状的体现。     

Reactive Responses: The Complementary Role of Federal and State Courts

The recent revival of state constitutional law has contributedsignificantly to the development of a dynamic judicial federalism.While interaction between federal and state courts is hardlynovel, acknowledgments of reciprocity have occurred more frequentlythan in the past. The Burger Courts receptivity to state judicialactivism inaugurated an era marked by creativity as well ascooperation. Thus far, major departures from established practiceshave been limited to a readily identifiable and recurring numberof state courts. All the same, the case studies included inthis article range across a variety of factual contexts andexplore an impressive array of links, both explicit and implied,between the federal and state courts. A disquieting new requirement,introduced as the result of a 1983 Supreme Court decision, exactsof state judges an unambiguous declaration of reliance on independentstate grounds as the price of ensuring federal nonintervention.Whether judicial federalism will continue to flourish withinso confining a framework remains problematic.     

市场经济现代转型中的法治与责任政府

政府在我国市场经济的建立和转型中发挥着重要的作用.然而诺斯"国家悖论"所揭示的两难困境告诫我们在充分利用政府作用的同时,必须对行政权力的不当干预和政府失责的负面影响加以防范.我国已建立了初级市场经济并正在向现代市场经济转型,现代市场经济的基础是法治,现代市场经济转型的关键在于法治的确立.而法治下的政府应该是一个责任政府,我国要顺利实现市场经济的现代转型,建立良好的市场秩序和有效保护产权,就要建立责任政府.法治是责任政府不可或缺的制度保障,责任政府是法治理念在公共行政领域的体现.责任政府作为现代市场经济体系的重要组成部分,是一切向现代市场经济转型国家必须确立的政治基础.责任政府需要一系列制度构架确保政府对人民责任关系的确立.责任政府制度构架的基本方面包括:政府责任规范体制、政府责任履行的评价制度和政府责任的问责制度.     

Violence,Nonviolence, and the Effects of International Human Rights Law

Under what conditions are individuals more likely to approve of human rights abuses by their governments? While various theoretical expectations have been offered about public approval of repression, many of them have not been directly tested. We analyze the effects of differing opposition tactics, differing government tactics, and legal constraints on approval of repression through a series of survey experiments in India, Israel, and Argentina. Our results indicate that violent action by opposition groups consistently increases support for government repression. In the context of contentious politics, we find that the effects of international law vary by national context. While our respondents in India were less likely to approve of their government when told the government violated international law, the same information likely increased approval of the government in our Israel experiment. The findings provide insights into the microfoundations of existing theories and suggest areas for theory refinement.     

Re-centralizing subsidiarity: Interpretations by the Italian Constitutional Court

Subsidiarity has become one of the key principles of European Union law since its introduction in the Treaty of Maastricht, but in recent years other federal or decentralized systems have cemented this principle into their constitutions: one example is Italy, where subsidiarity was encapsulated in art. 118 of the constitution as amended in 2001. This article surveys some of the contributions coming from Italian constitutionalism and adds to the debate on subsidiarity, especially with regards to the stimulating, yet controversial, interpretation of the principle offered by the Italian constitutional court, which permeated it with a “centralist” essence. The article explores how subsidiarity is construed beyond EU law and argues that, while revealing all the elasticity of this principle, the interpretation offered by the Italian constitutional judges presents some risky consequences.     

The Lega Nord Back in Government

Following the 2008 general election, the Italian regionalist populist party Lega Nord returned to government as part of a centre-right coalition led by Silvio Berlusconi. Since then, the party has been able to thrive thanks to its holding of key ministries and its consolidation of ‘issue ownership’ over its main themes of federal reform and immigration/law and order. In this period, it has also made major gains in the 2009 European Parliament and 2010 regional elections. This article analyses the Lega's success since 2008 by considering the actions of the party (in particular the legislation it has sponsored and the narrative offered of its time in government) as well as the reactions of mid-ranking leaders and activists. The authors argue that, contrary to the expectations of scholars, populists serving as junior coalition partners are not necessarily destined to tame their rhetoric, face splits or see their electoral support decline. On the contrary, by focusing on selected themes and policies and adopting effective communication strategies, the Lega has continued to enjoy electoral success and seen its membership grow. The article concludes, therefore, that claims about populists being inherently unable to survive in government and enjoy success seem to have been premature.     

The politics of neighbourhood institutions: The Italian case

This account is part of a larger research effort which is aimed at evaluating the significance for Italian society of the introduction of new government institutions at the neighbourhood level and of identifying the circumstances under which they are likely to be promoted and to succeed. The article looks at which types of neighbourhood government have been instituted and which cities in Italy have taken advantage of the provisions following the national legislation on neighbourhoods passed in 1976. An examination of conceptual models of neighbourhood government, secondary and interview data relating to the debate on the law, and neighbourhood electoral data are brought to bear on the two questions.