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Journal articles on the topic 'Dissenting opinions'
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Nefedieva, E. A., and Yu G. Khamnuev. "Judge’s dissenting opinion of the Constitutional Court: characteristics of a legal institute." Siberian Law Herald 3 (2021): 14–17. http://dx.doi.org/10.26516/2071-8136.2021.3.14.
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The institute of judicial dissenting opinions in the different fields of procedure law was actively studied from 2005 to 2021 in Russia. At the same time, dissenting opinions are regulated sparsely and fragmentarily in law. A content analysis of scientific articles about dissenting opinions helped to form a relevant selection of articles about the institute of dissenting opinions. A semantic analysis of the articles showed that dissenting opinions was studying mostly in the constitutional judicial procedure. The institutional characteristics of dissenting opinions were not studied separately. It has been proved that a dissenting opinion in a constitutional court has institutional characteristics which settled in the theory of law. The regulation of this institute is a homogeneous nature, the rules are systematically arranged, interrelated, isolated in separate articles of the law. Thus, these conclusions will help to find gaps and defects in the current regulation of dissenting opinions in constitutional judicial procedure.
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Simanjuntak, Louis Fernando, Elis Rusmiati, and Budi Arta Atmaja. "Dissenting Opinion of Corruption Court Judges as a Form of Freedom and Legal Reform in Indonesia." Corruptio 4, no. 2 (December 22, 2023): 117–26. http://dx.doi.org/10.25041/corruptio.v4i2.3050.
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The existence of dissenting opinions is a step in organizing law enforcement. This is also an important issue in organizing judicial power in relation to the 1945 Constitution and Law No. 48/2009 on Judicial Power. In Indonesia itself, judges are allowed to give dissenting opinions, although there has never been a clear definition of dissenting opinions. In Anglo-Saxon law, dissenting opinions have become commonplace, and these dissenting opinions often form new laws. This is in line with the term "judge made law". Therefore, the existence of dissenting opinion is very important, because it can continue to update the existing law.This research includes normative or doctrinal legal analysis because it wants an accurate and clear picture of the judge's dissenting opinion on the verdict of a corruption case. To explain and find answers to problems, theories are used as the basis for analysis, namely Legal Certainty Theory, Judicial Power Theory, Evidence Theory, Legal Construction Theory, and Sentencing Theory.The impact of the application of dissenting opinions by judges is an instrument towards a better quality of law enforcement, not just a matter of majority and minority in the consideration of judges but a consideration of whether or not a criminal offense has been proven. Therefore, further regulation of the conception of dissenting opinions in Indonesia is important. Legal reform of the Criminal Procedure Code in Indonesia and dissenting opinions must be regulated in the Criminal Procedure Code, precisely in the decree article 197, so that it becomes part of the consideration of a decision. The mechanism for entering dissenting opinions needs to be further regulated so that it becomes a form of transparency to the public.
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Goryacheva, Anastasia, and Natalia Kisliakova. "Non-recognition of Dissenting Opinions in CAS as a Controversial and Unresolved Matter." Journal of International Arbitration 39, Issue 2 (March 1, 2022): 233–62. http://dx.doi.org/10.54648/joia2022010.
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In this article the authors cover the problem of expressly established non-recognition of dissenting opinions (separate opinions) in the Court of Arbitration for Sport (CAS) being uncommon for arbitration institutes. In particular, the authors analyse approaches to dissenting opinions in various national legal systems and arbitration institutes (as well as other dispute resolution bodies) which mainly allow dissenting opinions (as described below). The main focus and goal of this article is to explore possible considerations that might have led to non-recognition of dissenting opinions in CAS proceedings and whether this is common in arbitration and international justice. Having researched this question, the authors conclude that the origins of such a substantive influence on the existing regulation could be: (1) the CAS’s precedent role; and (2) the influence of Swiss law as lex arbitri. The authors also conduct substantial analysis of existing views, asking whether the lack of dissenting opinion is a positive or a negative feature and conclude that the dissenting opinion is still very controversial regarding its impact. The chosen topic is important because the approach of various dispute resolution bodies seems not to be unanimous and there is no global tendency in this respect. The topic is especially timely, considering the recent decision of a Frankfurt Court of Appeal which refused to enforce an International Chamber of Commerce (ICC) award due (among other reasons) to the existing dissent which in the opinion of the court violated public policy. dissenting opinions, separate opinions, concurring opinions, arbitral awards, the Court of Arbitration for Sport (CAS), sports arbitration, international arbitration, decision, award, alternative dispute resolution, arbitrators, deliberation, joint or individual opinions
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Harahap, Arbi Mahmuda, Catur Wido Haruni, and Sholahuddin Al-Fatih. "Juridical Analysis of Dissenting Opinions of Constitutional Judges in Constitutional Court Decisions." Jurnal Scientia Indonesia 8, no. 1 (April 30, 2022): 89–114. http://dx.doi.org/10.15294/jsi.v8i1.36048.
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This research will raise the issue that will be studied is, First, the regulation of dissenting opinion in the Constitutional Court's Event Law. Second, the legal power of dissenting opinion in the Constitutional Court Decision. Third, the legal implications of dissenting opinion in the Constitutional Court Decision. This resulted in the conclusion First, the arrangement of dissenting opinions in the constitutional court's guidelines in this case in the FMD cannot be found as a whole. The arrangement of dissenting opinion in the PMK independence of constitutional judges in conveying their opinions is still maintained. Second, explicitly, there is no setting on dissenting opinion. The phrase used in Law No. 24 of 2003 concerning the Constitutional Court is "the opinion of different members of the panel of judges". Third, the legal implications of dissenting opinion in the Constitutional Court's decision are legal uncertainty, violation of the hierarchy of laws and regulations, and the absence of legal order. The formulation of dissenting opinion is necessary to clarify its position in the law of events in the Constitutional Court. This can only be done if the legal instruments that govern it give full legitimacy to constitutional judges in dissenting. The author's advice in this study is to strengthen the legal power of dissenting opinion, as a preventive measure against future legal reforms to ensure certainty, justice. and the usefulness of the law for the whole society
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KARPENKO, Konstantin V. "DISSENTING OPINION IN THE CONSTITUTIONAL JUSTICE AND THE EVOLUTION OF LEGAL SCIENCE." Tyumen State University Herald. Social, Economic, and Law Research 7, no. 4 (2021): 167–82. http://dx.doi.org/10.21684/2411-7897-2021-7-4-167-182.
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The article deals with the influence of the dissenting opinions of constitutional judges on the development of legal science. This issue is usually very important for constitutional and legal science as its understanding and practical resolution influence the authority of constitutional justice in a state. The dissenting opinion of any judge is their right to express their reasoned disapproval of the rendered decision, formulated in writing and attached to the court decision. Dissenting opinions in constitutional proceedings are of increased importance, because decisions of constitutional courts are aimed to protect law and order in general and are addressed to entire population. The dissenting opinions of constitutional judges contribute to the development of legal science in two aspects. On the one hand, they can contain new ideas, theories and approaches to law, with the help of which new categories and concepts are introduced into scientific discussion. On the other hand, dissenting opinions make often wide references to foreign experience in resolving legal conflicts. In this case, dissenting opinions fit into the framework of comparative legal research and allow taking into account the judicial practice and judicial argumentation of other countries and legal systems. Both aspects contribute to the expansion of the doctrinal base of legal science, pose and solve new problems, increase the need for scientific discussion. This study is based on a formal-dogmatic scientific method, which is aimed at disclosing the true meaning of legal positions of judges presented in dissenting opinions. A systematic method is also used, which allows to identify and classify single areas of scientific knowledge. The author also applies the comparative legal method, which consists in comparing different legal positions in the dissenting opinions of judges. The novelty of the research is in determination of contribution of dissenting opinions of constitutional judges to the development of legal science.
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Nefedyeva, Evgeniya. "The Purpose and the Functions of the Institute of Dissenting Opinion of Judge in the Constitutional Proceeding." Academic Law Journal 22, no. 4 (December 27, 2021): 369–78. http://dx.doi.org/10.17150/1819-0928.2021.22(4).369-378.
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At the end of October 2021, the Constitutional Court of the Russian Federation celebrated its 30-year anniversary. Dissenting opinions of constitutional judges was playing an important role in the establishment and development of constitutional justice in Russia, democratic foundations and principles and the protection of human rights. Judges actively used their right to express dissenting opinions. Thus, during the whole period of the Constitutional Court›s work 27 of 32 judges used the right to express dissenting opinions. 418 dissenting opinions were published. However, quantitative indicators do not fully reflect the purpose and role of this institution for the development of Russian law and science. Functions and goals of the legal institute allows to determine its mission in the legal regulation and help to evaluate the effectiveness of its work. In other words, we can understand the purpose for which this institute is built into the relevant legislative regulation. In this article, author identifies the sole purpose of the institute of dissenting opinion in constitutional proceeding: the development of law and the rule of law. By further decomposing the purpose, three groups of functions of this institution are identifi ed: intrasubjective, organizational and external, which are divided into a number of subfunctions. The practice of the Constitutional Court of previous years demonstrates that in the case of granting to a judge the right to express dissenting opinion with its further publication, not only all three groups of functions of this institution are fulfi lled, but also the achievement of the institution's purpose is inevitable. In the current legal regulation, after the 2020 reform, two groups of functions are blocked and are not fulfi lled due to the fact that dissenting opinions are no longer published. This leads to the conclusion that the judge's right to express a dissenting opinion is not properly implemented, and the institution itself is not working effectively.
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Hinkle, Rachael K., and Michael J. Nelson. "How to Lose Cases and Influence People." Statistics, Politics and Policy 8, no. 2 (December 20, 2017): 195–221. http://dx.doi.org/10.1515/spp-2017-0013.
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Abstract Dissenting opinions are common in the US Supreme Court even though they take time and effort, risk infuriating colleagues, and have no precedential value. In spite of these drawbacks, dissents can potentially contribute to future legal development. We theorize that dissenting justices who use more memorable language are more successful in achieving such long-term impact. To test this theory, we amass an original dataset of citations to dissenting opinions extracted directly from majority opinion text. We further leverage these texts to build an algorithm that quantifies the distinctiveness of dissenting language within a dynamic context. Our results indicate that dissents using more negative emotion and more distinctive words are cited more in future majority opinions. These results contribute to our understanding of how language can influence long-term policy development.
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Bradbury, Michael E., and Julie A. Harrison. "The FASB's Dissenting Opinions." Accounting Horizons 29, no. 2 (January 1, 2015): 363–75. http://dx.doi.org/10.2308/acch-51037.
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SYNOPSIS This paper provides a commentary on the results of a content analysis of dissenting opinions in Financial Accounting Standards Board (FASB) standards. During 1973 to 2009 the FASB issued 171 financial accounting standards. Half of these standards contained dissenting opinions. We identify and classify dissenting opinions based on whether the arguments are conceptual (conceptual framework-related or non-framework-related) or non-conceptual (e.g., scope, due process). We examine whether the types and frequencies of arguments change over time in response to the development of the FASB's conceptual framework and provide a commentary on the role of these opinions and the usefulness of analyzing them for research and practice. Our main finding from our analysis is that conceptual arguments are the most frequently used in the dissenting opinions, both before and after the introduction of the conceptual framework. However, of note is that many of the arguments raised, while conceptual in nature, are not from the conceptual framework. We suggest this indicates either a need for the conceptual framework language to be more widely used by the authors of dissenting opinions and/or the emergence of new conceptual arguments that may be relevant for future revisions of the conceptual framework.
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Kelemen, Katalin. "Dissenting Opinions in Constitutional Courts." German Law Journal 14, no. 8 (August 1, 2013): 1345–71. http://dx.doi.org/10.1017/s2071832200002297.
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Although long considered alien to the civil law tradition, the publication of separate dissenting or concurring opinions is now permitted by the majority of European constitutional courts, the only exceptions being the Austrian, Belgian, French, Italian, and Luxembourgish constitutional courts. The decades-long history of dissenting opinions in the practice of several European constitutional courts calls for an analysis. While there is an extensive literature in the United States regarding the use of dissenting opinions, comprehensive empirical research is still absent in Europe. American scholars have conducted research from several different points of view. Legal scholars have dealt primarily with the relationship between dissenting opinions and the doctrine of binding precedent, and have tried to solve the problem of the precedential value of plurality decisions, e.g. decisions lacking a reasoning shared by the majority of the judges. Political scientists, for their part, have studied the policy-making role of judges and strategic opinion-writing. Scholars of law and economics have analyzed the costs and benefits of writing separately. Even judges themselves have often expressed their own thoughts in essays or conference speeches on the matter.
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Goźdź-Roszkowski, Stanisław. "Marriage, Liberty and Constitution: a Corpusassisted Study of Value-Laden Words in Legal Argumentation." Research in Language 17, no. 1 (March 30, 2019): 71–91. http://dx.doi.org/10.2478/rela-2019-0006.
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This paper investigates the interplay between judicial argumentation and evaluative or emotive language identified in two US Supreme Court landmark cases on the right of same-sex couples to marry. The analysis of both majority and dissenting opinions leads to two main observations. First, marriage and liberty are indeed emotive words and they represent two major sites of contention between the concurring and dissenting judges. Second, there are important differences within the argumentative strategies employed by the judges. While (re)defining the concepts remains the major argumentative goal for both types of opinion, the majority opinions tacitly integrate the redefined concept of marriage into their argumentation. It is the dissenting opinions that explicitly raise the issue of (re)definition in order to defend and retain the original sense of marriage.
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Salenko, Alexander. "Dissenting opinions on the freedom of peaceful assembly." Sravnitel noe konstitucionnoe obozrenie 30, no. 3 (2021): 17–38. http://dx.doi.org/10.21128/1812-7126-2021-3-17-38.
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The main purpose of the article is to analyze the content of dissenting opinions of the judges of the Constitutional Court of Russia regarding the implementation of freedom of peaceful assembly. The author concluded that in 2009–2020, there were three judgements (postanovlenie) and one decision (opredelenie) by the Constitutional Court of Russia (hereinafter also referred to as the CCR) that were accompanied by dissenting opinions of CCR judges. In 2013, one single judgment of the CCR was accompanied by three dissenting opinions. This research analyzes the six dissenting opinions of the judges of the Russian Constitutional Court, which considered various problematic issues regarding the implementation of freedom of peaceful assembly in the contemporary Russian Federation. The author also analyzes the role and significance of the dissenting opinions in the context of amendments to the Russian Constitution in 2020, and changes in legislation that significantly limited the publicity of dissenting opinions of CCR judges. This article shows the role of dissenting opinions as: a means to raising the level of legal consciousness in society, a guarantee of a fair and open trial, a guarantee of the independence of judiciary and judicial democracy, and a means of improving legislation and law enforcement practice. The author concludes that the CCR judges’ dissenting opinions could in some cases be regarded as “sleeping law”, because the European Court of Human Rights later confirmed the judges’ minority report in findings. The article uses traditional research methods such as analysis, synthesis, induction, deduction, logical method, and comparative legal methods. The author expresses that it is necessary to keep the democratic tradition of constitutional justice, which allowed the publicity of dissenting opinions of CCR judges during 1991–2020. It is also concluded that the dissenting opinions of the Constitutional Court judges enable a deeper understanding of the political and legal nature, features, and main stages of the development of Russian public assembly law, one of direct democracy’s most important institutions alongside elections and referendums. The author argues that dissenting opinions of the judges of the Constitutional Court of Russia make it possible to identify gaps and defects in the legal regulation of public events in Russia. The study was funded by the Russian Foundation for Basic Research (RFBR) and the Expert Institute for Social Research (EISR) in the framework of the research project no.20-011-31740.
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Turenne, Sophie. "Advocate Generals’ Opinions or Separate Opinions? Judicial Engagement in the CJEU." Cambridge Yearbook of European Legal Studies 14 (2012): 723–44. http://dx.doi.org/10.5235/152888712805580309.
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AbstractIn this article, we challenge that assumption that the Court of Justice of the European Union does not need to accommodate dissenting opinions because the necessary arguments and policy perspectives can be outlined in the AG’s Opinion. We examine the greater legitimacy that may be gained from permitting dissenting and concurring opinions in cases which involve the determination of fundamental rights before the Court. We ultimately argue that our discussion on the quality of judgments is closely related to a discussion on the selection process and criteria for membership of the Court. In the current context, however, the AG’s Opinions continue to provide a more robust field for articulating national and European norms and a larger space for interpretive innovation than the Court’s ordinary forum.
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Boginskaya, O. A. "BOOSTING IN DISSENTING OPINIONS: TYPES AND LEXICAL REALIZATIONS." Voprosy Kognitivnoy Lingvistiki, no. 3 (2023): 106–11. http://dx.doi.org/10.20916/1812-3228-2023-3-106-111.
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The paper explores the role of boosting as a metadiscourse feature used by justices in dissenting opinions to challenge the majority decisions and convince an audience. The aim is to identify the types of boosting and lexical items used for indicating certainty and commitment. As the study aims to analyze how boosting is realized linguistically, the methods of quantitative and interpretative analysis were applied. The study revealed that the justices make extensive use of boosters to show disagreement and persuade the audience to agree with their views. For this purpose, they use four types of boosting, including certainty boosters, intensity boosters, solidarity boosters, and extremity boosters with a quantitative predominance of the first type.
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Aumann, Moshe, Yehuda B. Band, Howard D. Greyber, Lawrence Cranberg, Reuben Rudman, Edward Witten, Freeman Dyson, and Richard Wilson. "Dissenting Opinions about Tayseer Aruri." Physics Today 42, no. 8 (August 1989): 13–88. http://dx.doi.org/10.1063/1.2811107.
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Liebman, Bonnie F. "Dissenting Opinions in Nutrition Research." JAMA 323, no. 10 (March 10, 2020): 1000. http://dx.doi.org/10.1001/jama.2020.0490.
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Astuti Lauris, Nur Mohamad Kasim, and Suwitno Yutye Imran. "Dissenting Opinion Hakim Dalam Perkara Pembatalan Hibah di Pengadilan Agama Gorontalo." Demokrasi: Jurnal Riset Ilmu Hukum, Sosial dan Politik 1, no. 2 (March 15, 2024): 96–105. http://dx.doi.org/10.62383/demokrasi.v1i2.131.
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This research aims to find out and analyze whether the judge's dissenting opinion in case No.0687/Pdt.G/2017/PA.Gtlo regarding the cancellation of this grant provides justice for the parties. The method used in this research is normative juridical with a statutory approach (statute aproach) and a case approach (case aoprouch). The results of this research show that dissenting opinions provide justice for the parties because having a dissenting opinion provides something that is really needed by the parties where the parties feel that their arguments are heard and considered and not set aside by the panel of judges.
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Mahadew, Roopanand, and Arzeena Bhowarkan. "Dissenting Opinions of Judges of the unclos Tribunal in the Chagos Case." Afrika Focus 34, no. 1 (June 9, 2021): 28–49. http://dx.doi.org/10.1163/2031356x-34010004.
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Abstract Mauritius won its first victory when the “tribunal constituted under Annex vii of the United Nations Convention on the Law of the Sea” delivered its award “in the matter of the Chagos Marine Protected Area (mpa) Arbitration, between the Republic of Mauritius and the United Kingdom”. The award declared that the mpa established around Chagos by the United Kingdom was against international law. However, the decision desired by both Mauritius and the Chagossians is found in the dissenting opinion, which is, as a matter of law, non-binding. The dissenting opinion is to the effect that the tribunal had jurisdiction to consider the issue of sovereignty over Chagos and that if such issue was considered, Mauritius had a strong case for winning back sovereignty over Chagos. This article aims to make the dissenting opinions more widely known and reflect on the legal value of such opinions, alongside their high political and moral value and relevance to Mauritius and the Chagossians.
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Ioannidis, John P. A. "Dissenting Opinions in Nutrition Research—Reply." JAMA 323, no. 10 (March 10, 2020): 1000. http://dx.doi.org/10.1001/jama.2020.0491.
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van Bijsterveld, Sophie. "A Typology of Dissent in Religion Cases in the Grand Chamber of the European Court of Human Rights." Religion and Human Rights 12, no. 2-3 (October 7, 2017): 223–32. http://dx.doi.org/10.1163/18710328-12231159.
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Abstract Dissenting opinions in European Court of Human Rights judgments are a familiar phenomenon. Nevertheless, they receive little or no systematic attention. This essay presents a typology of dissenting opinions in religion cases in the Grand Chamber of the European Court. It identifies patterns of dividing lines within Grand Chamber decisions in religion cases and discusses these patterns.
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McCormack, Timothy L. H. "A non liquet on nuclear weapons — The ICJ avoids the application of general principles of international humanitarian law." International Review of the Red Cross 37, no. 316 (February 1997): 76–91. http://dx.doi.org/10.1017/s0020860400084321.
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The Advisory Opinion delivered by the International Court of Justice (ICJ) on the legality of the Threat or Use of Nuclear Weapons was a somewhat disappointing if not entirely unexpected decision. After the final paragraph, which constitutes the dispositif, all fourteen judges appended either personal declarations, separate opinions or dissenting opinions to indicate the extent to which they agreed or disagreed with specific findings and particular aspects of the reasoning behind the Opinion.
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Susanti, Heni, and Ferry Adi Fransista. "DISSENTING OPINION DALAM MENENTUKAN BATAS UMUR ANAK." Jurnal Yudisial 12, no. 3 (January 20, 2020): 345. http://dx.doi.org/10.29123/jy.v12i3.325.
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ABSTRAK Perbedaan pendapat hakim (dissenting opinion) sangat dimungkinkan terjadi sebagai konsekuensi independensi personal hakim ketika mengadili perkara pada sidang yang dilakukan oleh Majelis Hakim. Dalam Putusan Nomor 81/PID.SUS/2015/PN.PRP telah terjadi perbedaan pendapat antara majelis hakim mengenai batas minimal hukuman dikarenakan terjadi perbedaan pendapat mengenai batas umur anak (terdakwa). Jenis penelitian adalah penelitian hukum non-doctrinal, dan sifat penelitian adalah deskriptif, dikarenakan penulis ingin menggambarkan dasar dari pertimbangan dan dampak dari adanya dissenting opinion yang dilakukan hakim. Pertimbangan hukum yang dikemukakan hakim dengan dissenting opinion dapat diterima sebagai pandangan mayoritas majelis hakim. Hal ini dipengaruhi oleh faktor keadilan dan juga keputusan yang dihasilkan ketika majelis hakim memeriksa para saksi dalam perkara. Akibat hukum dari penentuan batas umur yang telah disepakati dalam Putusan Nomor 81/ PID.SUS/2015/PN.PRP ini, yaitu pada saat musyawarah terjadi perbedaan pendapat (dissenting opinion), sehingga keputusan diambil dengan suara terbanyak yakni terdakwa dihukum di bawah batas minimal, yang seharusnya batas minimal hukuman adalah 5 (lima) tahun menjadi 2 (dua) tahun dan 6 (enam) bulan.Kata kunci: dissenting opinion; batas umur anak; penemuan hukum. ABSTRACTThe dissenting opinion is possible to occur as a consequence of independent judges when judging cases at a trial conducted by the panel of judges. In the Decision Number 81/PID.SUS/2015/PN.PRP, there has been a different opinion regarding the minimum sentence due to differences opinions over the children’s age limit (the defendant). This type of research is nondoctrinal legal research, and the character of this research is descriptive because the writer wants to describe the basis of the consideration and the impact of the dissenting opinion. The legal concerns that delivered by the judge with a dissenting opinion should be accepted as the majority view of the panel of judges by considering the justice factor and examining testimonies of the witnesses. As decided in the consensus of the panel of judges, the legal consequence on the determination of the age limit is that the judges should change the penalties for the defendant, from five years becoming six months imprisonment.Keywords: dissenting opinion; child’s age limit; judicial law-making.
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Kupyanska, A. M. "Separate opinions in international justice: doctrine and practice." Analytical and Comparative Jurisprudence, no. 3 (July 18, 2023): 467–72. http://dx.doi.org/10.24144/2788-6018.2023.03.85.
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The article examines the institution of a separate opinion in international courts. Emphasis is placed on the activities of the International Court of Justice of the United Nations and its practice regarding the exercise by judges of the right to a separate opinion. Emphasis is placed on the positive approval of certain opinions by researchers, in favor of which several arguments are given. First, it is argued that the very fact of separate opinions leads to an improvement in the arguments and style of the decision made by the majority of judges. Secondly, the majority then makes decisions more responsibly. Third, dissent has a positive effect on the confidence of the parties in the process and the perception of the decision by the losing party, who sees that his arguments have been heard and convinced at least a minority. After all, separate opinions have a positive effect on the development of international law. In legal sources, three categories of separate opinions are distinguished: (1) «good», among which he includes opinions that are short, polite and restrained, that express reasons, not emotions; (2) «bad» - if the separate opinion states that the majority fundamentally erred in making a decision or showed ignorance; (3) «unpleasant» opinions in which the dissenting judge accuses the majority of misconduct. As the practice of the judges of the European Court of Human Rights shows regarding the writing of separate opinions, these opinions may have a format that is not laid down in the prescriptions of the mentioned international acts, and be marked not only as a «concurring» or «disagreeing» separate opinion of the judge, but also as a «partial concurring, partially dissenting» and «partially dissenting» separate opinion of the judge, as well as «separate opinion of the judge joined by the judge», «joint concurring opinion of the judges», «joint dissenting separate opinion of the judges». That is, the method of presenting a separate opinion is chosen by the judges who decided to express it.The right of judges to a separate opinion came to international justice from the countries of the common law system, although the latest studies of comparativists prove that this is far from the case. Separate opinions first spread in international commercial arbitration, and then penetrated into international courts and arbitrations created to resolve disputes involving states. In our national legal system, the right of a judge to express a separate opinion is a recognized tool for ensuring the internal independence of each judge of the Constitutional Court and is enshrined in Article 93 of the Law of Ukraine «On the Constitutional Court of Ukraine» and in § 74 of the Rules of Procedure of this Court. These provisions contain general requirements for the expression of a separate opinion by a judge of the Court and do not detail the types of separate opinions and the manner in which they are presented by a judge of the Court. It was concluded that the realities of modern international justice consist in the fact that there are no procedural mechanisms that separate «good» separate opinions from «bad», and everything is determined only by the restraint and character of the judge himself, who was in the minority, as well as by culture and traditions the court itself. The older and more authoritative the court, the more resistant it is to surprises that can bring bad and unsuccessful individual opinions, the higher its immunity to such opinions. And, on the contrary, the younger the court, the more damage it and its decisions can be caused by the separate opinions of the judges, if the authors (judges) do not approach this issue responsibly.
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Wijayanta, Tata, and Hery Firmansyah. "PERBEDAAN PENDAPAT DALAM PUTUSAN-PUTUSAN DI PENGADILAN NEGERI YOGYAKARTA DAN PENGADILAN NEGERI SLEMAN." Mimbar Hukum - Fakultas Hukum Universitas Gadjah Mada 23, no. 1 (February 7, 2011): 38. http://dx.doi.org/10.22146/jmh.16201.
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Judges may write a dissenting opinion in court judgments. However, this practice seems to be rarely observed in both civil and criminal cases at Yogyakarta District Court and Sleman District Court. From 2004- 2010, only 4 out of 6.634 court judgments are rendered with dissenting opinions appended. Hakim dapat menulis pendapat yang berbeda dalam putusan pengadilan. Namun praktik penulisan perbedaan pendapat ini belum banyak diikuti di Pengadilan Negeri Yogyakarta dan Pengadilan Negeri Sleman. Perbedaan pendapat hanya terdapat dalam 4 putusan dari 6.634 putusan pengadilan selama tahun 2004 sampai 2010.
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Prather, William R. "Dissenting Opinions Regarding Telephone Communication;Editor's Note:." Journal of the American Geriatrics Society 38, no. 4 (April 1990): 489. http://dx.doi.org/10.1111/j.1532-5415.1990.tb03552.x.
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Levy, L. "Dissenting Opinions in International Arbitration in Switzerland." Arbitration International 5, no. 1 (March 1, 1989): 35–42. http://dx.doi.org/10.1093/arbitration/5.1.35.
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Fernández Segado, Francisco. "El justice Oliver Wendell Holmes : «The great dissenter» de la supreme court." Teoría y Realidad Constitucional, no. 25 (January 1, 2010): 129. http://dx.doi.org/10.5944/trc.25.2010.6890.
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La dissenting opinion es una institución que ha sido a lo largo de dos siglos el sello del Poder Judicial en Norteamérica. El nombramiento de John Marshall como Presidente del Tribunal Supremo supuso el abandono de las seriatim opinions, una herencia inglesa, y su sustitución por las opinions of the Court. Del mismo modo, las dissenting opinions iban a aparecer bajo la Corte presidida por Marshall. El Juez Oliver Wendell Holmes es considerado como el «gran disidente» del Tribunal Supremo, no sólo por el elevado número de sus votos particulares, sino por su impacto y por su enorme trascendencia. En efecto, un porcentaje muy poco común de sus dissenting opinions llegaron a convertirse en Derecho. La Corte posterior a 1937 adoptó, efectivamente, el criterio requerido por el Juez Holmes en su clásica serie de disidencias sostenidas durante las tres primeras décadas del siglo. Holmes fue, y aún lo es, la figura mejor conocida que siempre se ha vinculado con el Tribunal Supremo y una de las cuatro o cinco personas más admiradas de la historia del sistema de gobierno norteamericano. Ha sido llamado el «apóstol de la libertad» y considerado un gran liberal. Como el Juez Frankfurter dijo, la piedra filosofal que el Juez Holmes ha empleado constantemente para el arbitraje es la convicción de que nuestro sistema constitucional descansa sobre la tolerancia y de que su gran enemigo es lo absoluto. Holmes fue un decidido partidario del realismo legal. El común denominador de las teorías del realismo legal será la concepción del Derecho como un medio para los fines sociales y no como un medio en sí mismo. Nadie como Holmes combatió tanto la tiranía de los tópìcos y las etiquetas. Su rechazo de la lógica y del método lógico es bien conocido. Para Holmes, ninguna proposición concreta sería «per se» evidente. Posiblemente, su dissent en el caso Lochner sea el más relevante en la Corte anterior a Roosevelt. En él, Holmes consideraría que la Constitución no debe entenderse que encarne una teoría económica particular, sea la del paternalismo y la relación orgánica del ciudadano con el Estado, sea la del laissez faire. Su dissent en el caso Lochner fue un elemento decisivo en la legitimación del instituto de las dissenting opinions.
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Wojciechowski, Maciej. "Collegiality and Dissent in Polish Administrative Courts." Bratislava Law Review 8, no. 1 (July 7, 2024): 49–66. http://dx.doi.org/10.46282/blr.2024.8.1.741.
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This article addresses a gap in existing research by focusing on the often-neglected realm of judicial interactions and internal dynamics within specific courts concerning the phenomenon of votum separatum. We examine the forms and practices of collegiality within Polish administrative courts and their influence on judges' decisions to file dissenting opinions. Additionally, we investigate the reactions of fellow judges when a dissent is announced. Our qualitative research methodology relies on in-depth interviews to prevent the imposition of predefined categories. Participants were encouraged to recount their experiences related to composing or participating in decisions involving dissenting opinions. This approach led to the emergence of categories related to collegiality, its functions, and inherent tensions. Our findings reveal that collegiality manifests in various forms beyond panel deliberations. Notably, our research uncovers the existence of departmental meetings in provincial administrative courts where issues addressed in dissenting opinions are discussed. Furthermore, judges' perspectives indicate that the most common scenario leading to dissenting opinions arises when judges from different panels reach opposing decisions. This dilemma prompts judges to choose between adhering to the initial panel's decision or voting for a divergent position proposed by the second panel. Finally, our observations within courtrooms highlight that the ideal of the dispassionate judge does not exclude subtle expressions of surprise or disappointment. These findings enrich our understanding of judicial interactions, shedding light on the complexities of collegiality and dissent within the context of Polish administrative courts.
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Lamus, Andrés Sarmiento, and Rodrigo González Quintero. "The Practice of Appending Declarations at International Courts and Tribunals." Law & Practice of International Courts and Tribunals 20, no. 2 (August 17, 2021): 289–317. http://dx.doi.org/10.1163/15718034-12341448.
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Abstract The possibility for judges and arbitrators to append individual opinions is a discretionary right that has existed since the early stages of international adjudication. From its inception, clear boundaries have existed between the three different kinds of individual opinions, namely, declarations, separate opinions and dissenting opinions. Despite these boundaries, the practice on appending declarations shows that they have never been circumscribed, to merely record the fact of the concurrence or dissent of a judge. In consequence, some analyses exist in an attempt to explain what the differences between declarations and other individual opinions are. The most recent practice from judges when appending declarations, however, seems to run counter to the conclusions provided in the said analyses. This fact leads to the question as to what is, in the light of this recent practice of appending individual opinions, the difference between declarations and separate or dissenting opinions. This article attempts to address the said question and as a consequence the relevance of declarations in international adjudication.
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Rees QC, P. J., and P. Rohn. "Dissenting Opinions: Can they Fulfil a Beneficial Role?" Arbitration International 25, no. 3 (September 1, 2009): 329–46. http://dx.doi.org/10.1093/arbitration/25.3.329.
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Ispolinov, Alexei. "Dissenting Opinions at International Courts: Doctrine and Practice." Law. Journal of the Higher School of Economics, no. 1 (March 10, 2018): 218–33. http://dx.doi.org/10.17323/2072-8166.2018.1.218.233.
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ZOBEL, KATHARINA. "Judge Alejandro Álvarez at the International Court of Justice (1946–1955): His Theory of a ‘New International Law’ and Judicial Lawmaking." Leiden Journal of International Law 19, no. 4 (December 2006): 1017–40. http://dx.doi.org/10.1017/s0922156506003736.
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Judge Alejandro Álvarez had already developed a theory of a ‘new international law’ when he joined the first bench of the International Court of Justice in 1946. During his time at the Court, he elucidated his theory by means of Individual or Dissenting Opinions, always stressing the importance of the Court for judicial lawmaking. The aim of this article is to present Álvarez's concept of a ‘new international law’ and to analyse some of his individual and dissenting opinions with respect to his theory, with additional emphasis on the lawmaking function of the Court as an integral part of his approach.
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Roberts, Rodney C. "Dissent and Fallay in Dickerson v. United States." Texas Wesleyan Law Review 8, no. 1 (October 2001): 1–5. http://dx.doi.org/10.37419/twlr.v8.i1.1.
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In his dissent from the majority in Dickerson, Justice Scalia (joined by Justice Thomas) argues that the Court "acts in plain violation of the Constitution when it denies effect to this Act of Congress." This Essay aims to show that an important part of the reasoning in his dissent is fallacious, and insofar as the dissent is influenced by this reasoning, it is without value. Because dissenting opinions generally, and those of the Supreme Court especially, can become valuable in subsequent legal opinions and analyses, and because logic has a clear and important role to play in legal reasoning, it is important to recognize when fallacies occur in dissenting Supreme Court opinions and to understand the precise nature of any such fallacy.
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Bogucka-Felczak, Monika, Magdalena Budziarek, Monika Kapusta, and Patryk Kowalski. "SURVEY ON DISSENTING OPINIONS IN THE JURISPRUDENCE OF COLLEGIAL PUBLIC FINANCE BODIES IN POLAND." Studia Iuridica 99 (2024): 363–78. http://dx.doi.org/10.31338/2544-3135.si.2024-99.20.
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Dissenting opinions to the rulings of state bodies are submitted very rarely. The purpose of this article was to identify the reasons for this phenomenon in case of rulings of collegial public finance bodies, such as committees adjudicating on cases of violation of public finance discipline (including joint adjudication committee, inter-ministerial adjudication committee, adjudication committee at the Chief of Staff of the Prime Minister Chancellery, regional adjudication committees at regional accounting chambers, the Main Adjudication Committee) and rulings of local government appeal boards adjudicating on tax matters. The research was conducted using the Computer-Assisted Web Interview research technique. The research material included 67 questionnaires completed by a group of employees-adjudicators of the above-mentioned bodies. Their analysis led to the following research findings which explained why dissenting opinions to the decisions of collegial public finance authorities are submitted so seldom: rare occurrence of controversies among the members of the adjudicating panel, personality traits of the members of these bodies, and more specifically, striving to ensure their independence and a sense of collegiality. The shape of the procedural provisions governing the rules for submitting dissenting opinions cannot be seen as one of such reasons.
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Ren, Yida. "Independent Directors' Opposition, Earnings Management and the Risk of Stock Price Crash." Frontiers in Business, Economics and Management 15, no. 3 (July 11, 2024): 229–41. http://dx.doi.org/10.54097/ess44z54.
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In recent years, stock price crash events have occurred from time to time, resulting in the unstable operation of the capital market. The risk of stock price crash has drawn wide attention from all walks of life. This paper examines the data of A-share listed companies from 2007 to 2021 to study the impact of independent directors' dissenting opinions on the risk of stock price crash. The study found that the independent directors' dissenting opinions were negatively correlated with the risk of a stock price crash, and this conclusion was still valid after a series of robustness tests. The mechanism analysis shows that the independent directors' objection can exert the governance effect, restrain the abnormal related party transactions and earnings management behavior of the majority shareholders, and thus reduce the risk of corporate stock price crash. The above results are consistent with the logic that independent directors exert signaling and governance effects by expressing dissenting opinions to control the risk of stock price collapse. This conclusion has certain significance for preventing the risk of stock price collapse and promoting the stable development of capital market.
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Butt, Simon. "The Function of Judicial Dissent in Indonesia’s Constitutional Court." Constitutional Review 4, no. 1 (May 31, 2018): 1. http://dx.doi.org/10.31078/consrev411.
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Indonesian judges are permitted to issue dissenting opinions. Constitutional Court judges regularly hand them down. However, neither judges nor academics have outlined the purposes of dissenting opinions in Indonesia. This article aims to promote discussion about what these purposes are, or should be, in Indonesia, with a view to increasing the utility of dissents. It begins by considering the international scholarly literature details some purposes recognised in other countries, such as increased transparency and accountability, but also some disadvantages, such as the perceived weakness of a divided court. It then considers how the Constitutional employs dissents, before exploring some of the uncertainties and unanswered questions about dissents and their use in Indonesia.
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Stojadinovic, Sonja. "Political Influence on the Constitutional Court in the Republic of Macedonia: Reflections through the Dissenting Opinions in the Period of 2012-2015." Constitutional Review 5, no. 1 (May 31, 2019): 069. http://dx.doi.org/10.31078/consrev513.
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The demo Christian political party VMRO-DPMNE had a long period of ruling of the Republic of Macedonia, (2006-2016). During that period many cases of political pressure on the state institutions have occurred. The Constitutional Court wasn’t an excepted of that political pressure. Starting from the process of appointment of new judges, through the shocking decisions upon official citizens’ complaints and human rights appeals, to a complete reflection of the political interference and pressure through the dissenting opinions written and published by some constitutional judges. The former government has used all the tools, legal and non-legal, to put under control the Constitutional Court. If we put aside the political interference into the appointment of new and incompetent judges, one of the most used tools as a form of resistance was the dissenting opinion. This legal tool is present in the Book of Rules of the Constitutional Court of the Republic of Macedonia, but also in the legal systems in the Eastern Europe, Germany, Spain, Greece and all other states whose legal systems are created by the German legal system. It gives space and chance for one or several constitutional judges to express disagreement upon a decision brought by the majority in the court. This tool was frequently used by several judges from the Constitutional Court in the Republic Macedonia in the given period through which we can see strong political influence on their work. Therefore, the research questions are as follows: What were the “models” of political influence that were used on the Constitutional Court during the period of 2012-2015? How were they used and what are the dissenting opinions reflecting? To answer the said questions, the model of qualitative research will be used together with several dissenting opinions as case studies. The aim of this approach is to explain the different aspects of political influence on the work of the Constitutional Court within the given period. The findings of this research can be used for further development of the interest for researching of the work and role of the Constitutional Court in the Republic of Macedonia.
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Daily, Thomas A. "Arkansas." Texas Wesleyan Law Review 18, no. 3 (March 2012): 467–71. http://dx.doi.org/10.37419/twlr.v18.i3.4.
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Unlike some other jurisdictions, Arkansas does not typically have large annual volumes of oil and gas related cases or legislation. The most recent year was pretty normal in that respect. This Article will review several changes in Arkansas oil and gas law: (a) one legislative change, itself inspired by a Justice's dissenting opinion in a case interpreting the previous statute; (b) three fairly unremarkable opinions of the Arkansas Court of Appeals; (c) and two noteworthy federal district court opinions-the first determined the ownership of coal-bed methane gas between competing gas and coal owners, and the second, rather interesting ruling, involved a group of landmen's possible unauthorized practice of law.
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Kowalski, Patryk. "Polish Administrative Court’s Dissenting Opinions in Excise Duty Cases." Kyiv-Mohyla Law and Politics Journal, no. 6 (December 24, 2020): 197–220. http://dx.doi.org/10.18523/kmlpj220752.2020-6.197-220.
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van Bijsterveld, Sophie. "‘Dissenting opinions’ in religiezaken voor het Europees Hof (I)." Tijdschrift voor Religie, Recht en Beleid 6, no. 3 (November 2015): 26–46. http://dx.doi.org/10.5553/tvrrb/187977842015006003003.
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van Bijsterveld, Sophie. "‘Dissenting opinions’ in religiezaken voor het Europees Hof (II)." Tijdschrift voor Religie, Recht en Beleid 7, no. 1 (May 2016): 27–58. http://dx.doi.org/10.5553/tvrrb/187977842016007001004.
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Kowalski, Patryk. "Article: Statistical Picture of the European Court of Human Rights’ Tax-Related Cases Containing Separate Opinions." EC Tax Review 32, Issue 1 (January 1, 2023): 26–37. http://dx.doi.org/10.54648/ecta2023004.
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The aim of the study was to select tax-related cases from the European Court of Human Rights (ECtHR) case law in the years 1959 – 2020 and analyse all such cases using empirical legal studies method, focusing mostly on separate opinions. This analysis led to the selection of research material covering 176 tax-related cases (179 judgments, sixty-nine separate opinions). The most important research findings include, e.g., small number of ECtHR judgments in tax matters, low frequency at which they are issued, the fact that judges submit separate opinion more frequently in a situation when a judgment finding no violation is delivered rather than when a judgment finding violation is delivered. Moreover, the article contains an extensive review of the literature with regard to the undertaken subject. separate opinion, dissenting opinion, concurring opinion, tax-related cases, empirical legal studies
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Piszcz, Anna. "Stosowanie prawa a kontrola jego konstytucyjności zdania odrębne Profesora Leona Kieresa do wyroków Trybunału Konstytucyjnego." Przegląd Prawa i Administracji 114 (August 10, 2018): 195–205. http://dx.doi.org/10.19195/0137-1134.114.12.
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THE APPLICATION OF LAW AND THE CONTROL OF ITS CONSTITUTIONALITY DISSENTING OPINIONS FILED BY PROFESSOR LEON KIERES REGARDING THE JUDGMENTS OF THE CONSTITUTIONAL TRIBUNALThis article provides readers with information relating to dissenting opinions fi led by Prof. Leon Kieres regarding the judgments of the Constitutional Tribunal. The intention of the author is to present Professor’s views on the application of law in various contexts. Therefore, separate subsections present a review of his ideas on the following topics: the application of law and the ability to complain to the Constitutional Tribunal, the incorrect application of law/ignorance of law and the assessment of constitutionality, the application of the unconstitutional law and the need for control, the future practice of applying the law and its constitutionality.
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Titi, Catharine. "Investment Arbitration and the Controverted Right of the Arbitrator to Issue a Separate or Dissenting Opinion." Law & Practice of International Courts and Tribunals 17, no. 1 (June 27, 2018): 197–216. http://dx.doi.org/10.1163/15718034-12341376.
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Abstract Although dissents are not generally encouraged in international arbitration, they are a reality of investment treaty disputes. About one in five cases includes at least one separate or dissenting opinion. The ICSID Convention is rare among investment arbitration rules to expressly recognise the right of the arbitrator to attach his or her personal opinion to the award. Other investment arbitration rules are silent on the topic. And yet dissenting opinions are an established feature of several international courts and tribunals and their role is often viewed more benevolently than in investment arbitration. The article explores the perceived advantages and disadvantages of dissents as identified in different legal settings, including in public international courts and municipal legal systems, and critically applies them to investment arbitration. Normatively, it expects that dissents function in a broadly similar manner in investment arbitration and in other public international courts and tribunals. But it also recognises that this is nuanced by particularities of context and notably the terms of appointment of the adjudicator.
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Musher, Daniel M. "Should Committees That Write Guidelines and Recommendations Publish Dissenting Opinions?" Mayo Clinic Proceedings 91, no. 5 (May 2016): 634–39. http://dx.doi.org/10.1016/j.mayocp.2016.01.018.
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Hou, Wenxuan. "Outside Directors and Firm Performance: New Evidence from Dissenting Opinions." Academy of Management Proceedings 2015, no. 1 (January 2015): 10322. http://dx.doi.org/10.5465/ambpp.2015.10322abstract.
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Condorelli, Luigi. "Nuclear weapons: a weighty matter for the International Court of Justice: Jura non novit curia?" International Review of the Red Cross 37, no. 316 (February 1997): 9–20. http://dx.doi.org/10.1017/s0020860400084278.
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It is easy to heap scorn on the Advisory Opinion handed down by the International Court of Justice on 8 July 1996 on the legality of the threat or use of nuclear weapons. No great cerebral effort is required; one need only choose any of the numerous and often harsh criticisms to be found in the declarations and the separate or dissenting opinions that all fourteen judges present took care to formulate, whether they agreed with the whole of the decision or voted against any of its paragraphs.
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Hariansah, Syafri. "Social Perspectives; Legal Policy Post-Constitutional Court Decision No. 46/PUU-XIV/2016 Concerning Immoral Provision of Indonesia Criminal Code." Berumpun: International Journal of Social, Politics, and Humanities 1, no. 1 (September 28, 2018): 36–45. http://dx.doi.org/10.33019/berumpun.v1i1.10.
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This paper examines the analysis of Court Decision Number 46 / PUU-XIV / 2016 concerning the application to extend criminal offenses in the Criminal Code (KUHP) related to adultery (Article 284), rape (Article 285), and lewd acts (Article 292). In the ruling, the Constitutional Court rejected the request for all. This verdict ends with differences of opinion among Constitutional Justices. Four of the nine Constitutional Court Justices presented dissenting opinions. Decision No. 46 / PUU-XIV / 2016 is very worthy to be studied in depth, because in its decision, there is a conflict of judges based on different perspectives and methods in answering constitutional issues.
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Hunter, Richard J., John H. Shannon, and Hector R. Lozada. "The “Big Five” Decisions of the United States Supreme Court from June 2022: Ten Days of Consequences for the United States Supreme Court and the American People." Global Journal of Politics and Law Research 10, no. 4 (April 15, 2022): 14–39. http://dx.doi.org/10.37745/gjplr.2013/vo10n4pp1439.
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This study on the United States Supreme Court will feature five opinions handed down by the Court relating to abortion, Second Amendment rights, two cases relating to religious liberty, and the confluence of “climate change” and administrative law that the Court decided before it adjourned for its 2022 summer recess. The paper will explain what the Supreme Court decided and then include critical passages from the holdings of the actual opinions handed down by the Court by quoting from the Supreme Court syllabus or summary, as well as pertinent portions of any majority or dissenting opinions.
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Bricker, Benjamin. "The (Very) Political Dissent: Dissenting Opinions and the Polish Constitutional Crisis." German Law Journal 21, no. 8 (December 2020): 1586–605. http://dx.doi.org/10.1017/glj.2020.94.
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AbstractThis Article examines changes in dissent patterns that occurred on the Polish Constitutional Tribunal during a period of intense constitutional and political change in Poland. An analysis of these dissents shows judges only rarely used this opportunity to express the traditional differences of opinion on law or policy. Instead, judges on the Tribunal increasingly used dissents in an altogether new form – as a way to broadcast allegations of legal and procedural violations that occurred within the court’s operation itself. More troublingly, some judges also used their dissents to advance distinctly political narratives and overtly attempt to de-legitimize the court’s announced decisions. Ultimately, these dissents show that constitutional judges may not be immune to participating in the larger social and constitutional battles within society. In fact, these dissent patterns suggest that, in a more fragmented and polarized era of politics, judges can and have made use of the dissent as a way to broadcast distinctly political messages.
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Connors, Ryan. "Veritatis Splendor at Thirty." National Catholic Bioethics Quarterly 23, no. 4 (2023): 655–68. http://dx.doi.org/10.5840/ncbq202323452.
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Ecclesial commentators often describe the corrective function Pope St. John Paul’s 1993 encyclical letter Veritatis splendor exercised at the end of the twentieth century. Dissenting theological opinions, both from revisionist theologians of the immediate post-conciliar period and dissenting authors today, can find magisterial clarity in the encyclical. The document’s importance for an adequate understanding of the subsequent moral magisterium has received less fulsome treatment. With this essay, we examine five important and challenging teachings of the moral magisterium since the publication of Veritatis splendor that rely on the wisdom of the encyclical. In fact, a proper conception of each of these teachings will require adherence to the truths expressed in the 1993 document.