Journal articles: 'Judicial dissent'

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Bobrova, Yu Yu. "Judicial dissent: gender discourse." State and Regions. Series: Law, no. 2 (2019): 4–8. http://dx.doi.org/10.32840/1813-338x-2019-2-1.

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Primus, Richard A. "Canon, Anti-Canon, and Judicial Dissent." Duke Law Journal 48, no. 2 (November 1998): 243. http://dx.doi.org/10.2307/1373107.

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Niblett, Anthony, and Albert H. Yoon. "Judicial disharmony: A study of dissent." International Review of Law and Economics 42 (June 2015): 60–71. http://dx.doi.org/10.1016/j.irle.2014.12.002.

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Tiede, Lydia B. "The political determinants of judicial dissent: evidence from the Chilean Constitutional Tribunal." European Political Science Review 8, no. 3 (March 20, 2015): 377–403. http://dx.doi.org/10.1017/s1755773915000090.

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Many judicial scholars argue that judicial dissent stems from partisanship or political differences among judges on courts. These arguments are evaluated using the variation in political backgrounds on a constitutional court, Chile’s Constitutional Tribunal, using case-level and vote-level data from 1990 until 2010. The analysis shows that the rate of dissent rises after major reforms to the powers and judicial selection mechanism of the Tribunal in 2005 and that the dissent rate corresponds to periods of greater partisanship on the court. Further, decisions regarding the unconstitutionality of laws intensify the propensity to dissent at both the case and judge level. In further examination of variation across judges’ voting records, judges who have identifiable partisan associations of any kind are generally more likely to dissent than those with limited political backgrounds.

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Strayhorn, Joshua A. "Competing signals in the judicial hierarchy." Journal of Theoretical Politics 31, no. 3 (June 6, 2019): 308–29. http://dx.doi.org/10.1177/0951629819850626.

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Political principals often face information deficits. This is especially true of the US judicial hierarchy; extant theories of ideological monitoring in this setting have therefore explored informational cues such as lower court ideology or dissent. Canonical models of this setting, however, have omitted litigants, implicity assuming they are not an important source of information. This paper develops a formal model that considers whether litigants can credibly signal information about noncompliance, and how litigants’ signals interact with the cues of ideology and dissent. The model shows that litigant signals can be highly informative about doctrinal compliance, sometimes even crowding out the need for other signals. By contrast, litigants face difficulty communicating information about case importance; dissent, however, can be highly informative on this dimension. Accordingly, some informational cues may only influence limited aspects of the high court’s case selection process.

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Garoupa, Nuno, Marian Gili, and Fernando Gómez Pomar. "Mixed Judicial Selection and Constitutional Review: Evidence from Spain." European Constitutional Law Review 17, no. 2 (June 2021): 287–313. http://dx.doi.org/10.1017/s1574019621000110.

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Spanish Constitutional Court – Judicial behaviour – Mixed judicial selection – Empirical testing – Decisions of the Spanish Constitutional Court, 1980-2018 – Judicial background – Government – Senate – Congress – Spanish Judicial Council – Invalidation of statutes –Dissent opinions – Shaping politicisation.

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Naurin, Daniel, and Øyvind Stiansen. "The Dilemma of Dissent: Split Judicial Decisions and Compliance With Judgments From the International Human Rights Judiciary." Comparative Political Studies 53, no. 6 (October 16, 2019): 959–91. http://dx.doi.org/10.1177/0010414019879944.

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The mutual dependence between courts and their compliance constituencies is a fundamental feature of judicial power. Actors whose rights and interests are reinforced by court decisions may use these as legal ammunitions while contributing to ensuring that court decisions are effectively implemented. We argue that judgments that contain dissenting opinions are less powerful in this regard, compared with unanimous decisions. The reason is that dissent reduces the perceived legal authority of the judgment. Using data from the international human rights judiciaries in Europe and the Americas, we provide evidence of a negative relationship between judicial dissent and compliance. Our findings have important implications for questions relating to the institutional design of courts, for courts’ ability to manage compliance problems, and for understanding the conditions for effective international judicial protection of human rights.

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Rogers, Owen. "‘I beg to differ’: Are our courts too agreeable?" South African Law Journal 139, no. 2 (2022): 300–339. http://dx.doi.org/10.47348/salj/v139/i2a4.

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If dissenting judgments perform a valuable function in the administration of justice, too little dissent may indicate that the administration of justice is not reaping the benefits of dissent. South Africa belongs to the common-law tradition, which has always allowed dissenting judgments. The civil-law system traditionally did not, and this is still the position in many countries. In the modern era, considerations of transparency and accountability favour the disclosure and publication of dissenting judgments. Although they can play a role in the development of the law, their most valuable function is to improve the quality of judicial output by requiring majority judgments to confront the dissenting judgments’ reasoning. Factors which may affect the extent of dissent in appellate courts include case complexity and control over rolls; panel sizes; judicial diversity, personality and turnover; court leadership; research resources; modes of judicial interaction; and protocols on the timeliness of judgments. Data on dissent in South Africa’s Constitutional Court, Supreme Court of Appeal and Labour Appeal Court, as well as in the United Kingdom, Australia, Canada and the United States, suggest that there is less dissent in our intermediate appellate courts than might be expected. Changes in work procedures could yield a healthier pattern.

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Hall, Kermit L. "Dissent on the California Supreme Court, 1850-1920." Social Science History 11, no. 1 (1987): 63–83. http://dx.doi.org/10.1017/s0145553200015698.

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This essay probes two matters. First, it establishes the extent and pattern of partisan-based dissent on the California Supreme Court during the so-called “party period” of American history, the years from roughly 1840 to 1920 (McCormick, 1979). It concludes that the concept of judicial independence retained great vitality despite a strongly partisan scheme of accountability. Second, it suggests that constitutional arrangements and environmental conditions were important in conditioningjudicial behavior. While these findings are preliminary, they nonetheless constitute an important first step toward unraveling the character of California’s and the nation’s judicial cultures during this extraordinary period of party development (Hall, 1984).

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Sanchez Urribarri, Raul A. "Courts between Democracy and Hybrid Authoritarianism: Evidence from the Venezuelan Supreme Court." Law & Social Inquiry 36, no. 04 (2011): 854–84. http://dx.doi.org/10.1111/j.1747-4469.2011.01253.x.

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This article offers a theoretical discussion about courts in “hybrid regimes” that evolve from formerly democratic countries. The evolution toward authoritarianism typically allows governments more latitude to reduce judicial independence and judicial power. Yet, several reasons, including legitimacy costs, a tradition of using courts for judicial adjudication and social control, and even the use of courts for quenching dissent may discourage rulers from shutting down the judicial contestation arena and encourage them instead to appeal to less overbearing measures. This usually leads to a decline of the judiciary's proclivity to challenge the government, especially in salient cases. To illustrate these dynamics, I discuss the rise and fall of judicial power in Venezuela under Chávez's rule, focusing on the Constitutional Chamber of the Supreme Court. Formerly the most powerful institution in the country's history, the Chamber briefly emerged as an influential actor at the beginning of the regime, but a comprehensive intervention of the judiciary in 2004 further politicized the court and effectively reduced its policy-making role.

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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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Hazelton, Morgan, Rachael K. Hinkle, and Jee Seon Jeon. "Sound the Alarm? Judicial Decisions Regarding Publication and Dissent." American Politics Research 44, no. 4 (March 14, 2016): 649–81. http://dx.doi.org/10.1177/1532673x16628640.

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Daughety, Andrew F., and Jennifer F. Reinganum. "Speaking up: A Model of Judicial Dissent and Discretionary Review." Supreme Court Economic Review 14 (January 2006): 1–41. http://dx.doi.org/10.1086/scer.14.3655307.

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Goźdź-Roszkowski, Stanisław. "Communicating Dissent in Judicial Opinions: A Comparative, Genre-Based Analysis." International Journal for the Semiotics of Law - Revue internationale de Sémiotique juridique 33, no. 2 (May 16, 2020): 381–401. http://dx.doi.org/10.1007/s11196-020-09711-y.

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Bodnár, Eszter. "Judicial Dissent in European Constitutional Courts: A Comparative and Legal Perspective." International Journal of Constitutional Law 17, no. 3 (July 2019): 1007–10. http://dx.doi.org/10.1093/icon/moz070.

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Gibson, Katie L. "In Defense of Women's Rights: A Rhetorical Analysis of Judicial Dissent." Women's Studies in Communication 35, no. 2 (January 2012): 123–37. http://dx.doi.org/10.1080/07491409.2012.724526.

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Lodhi, Maleeha. "Deterring Dissent in Education." Index on Censorship 14, no. 2 (April 1985): 28–30. http://dx.doi.org/10.1080/03064228508533866.

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‘Real scholars have been silenced and pseudo-scholars and sycophants have been promoted. It seems that the forces of darkness and obscurantism have succeeded in arresting the processes of scientific research.’ Pakistan under General Zia-ul Haq has had a regime of Martial Law since July 1977. According to a 1984 report on a mission to Pakistan published by the Paris-based International Federation of Human Rights, a climate of insecurity and arbitrariness has existed in the country since that date. It is characterised by the facility with which the Martial Law authorities may arrest whomever they wish, whenever they wish, and hold them for indefinite periods, as often as they choose; the absence of any scope for appeal against such decisions; and the absence of judicial surveillance of any kind whatsoever. In the following three articles, Pakistani writers describe the effects which Martial Law and the Islamic Law (Sharia) have had on higher education, the press and cultural life. Maleeha Lodhi teaches Politics at the London School of Economics and also works as a journalist with South magazine. The writer on Pakistan's press is a senior journalist who wishes to remain anonymous. And Farhad is the pseudonym of a Pakistani writer and journalist. For other articles on Pakistan see John Melville Williams ‘The Press in Pakistan’ (Index 5/1978), Shahid Nadeem ‘Imprisoned In Pakistan’ (Index 5/1979), Feroz Ahmed ‘Pakistan Curbs the Press’ (Index 4/1980), and Behroze Gandhy ‘Jamil Dehlavi Interviewed (Index 4/1981); and, of course, the Index Index section generally.

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Hanretty, Chris. "Judicial Disagreement need not be Political: Dissent on the Estonian Supreme Court." Europe-Asia Studies 67, no. 6 (July 3, 2015): 970–88. http://dx.doi.org/10.1080/09668136.2015.1054260.

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Lang, Andrej. "Das „Kooperationsverhältnis“ zwischen Bundesverfassungsgericht und Europäischem Gerichtshof nach dem PSPP-Urteil." Der Staat 60, no. 1 (January 1, 2021): 99–131. http://dx.doi.org/10.3790/staa.60.1.99.

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Der Beitrag diskutiert die Konsequenzen des PSPP-Urteils für das Kooperationsverhältnis zwischen dem BVerfG und dem EuGH. Dabei wird für eine nüchternere Perspektive statt martialischer Zuspitzungen und gegen einseitige Schuldzuweisungen plädiert. Vielmehr sind wechselseitige Kooperation und Konfrontation in der netzwerkartigen Struktur der Gerichtsbeziehung angelegt. Deshalb markiert das Urteil zwar eine Krise, aber noch nicht das Ende des „Kooperationsverhältnisses“. Die Vorstellung, der Gerichtskonflikt lasse sich nur durch Dritte lösen, sei es in Form eines Vertragsverletzungsverfahrens, sei es durch eine spezielle Gerichtskammer für Kompetenzkonflikte, unterschätzt die fein ausbalancierte Funktionsweise des Gerichtsdialogs und birgt ein bedenkliches Eskalationspotenzial. Der Impuls, die Wiederherstellung der europäischen Rechtseinheit trotz grundlegendem Dissens rechtlich zu erzwingen, kann den Gerichtskonflikt auch eskalieren und eine Lösung zusätzlich erschweren. The article analyzes the consequences of the PSPP ruling for the cooperative relationship between the German Constitutional Court and the European Court of Justice. It argues for a sober perspective instead of martial exaggerations and against apportioning one-sided blame. Rather, reciprocal cooperation and confrontation are inherent in the network structure of the judicial relationship. Although the ruling creates a crisis, it does not yet mark the end of the “cooperative relationship”. The idea that the judicial conflict can only be resolved by third parties, whether in the form of infringement proceedings or by a Mixed Grand Chamber for the delimitation of EU competences, underestimates the delicately balanced functioning of the judicial dialogue and harbors a worrying potential for escalation. The impulse to legally enforce the restoration of European legal unity despite fundamental dissent may end up escalating the judicial conflict and making a solution even more difficult.

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Rand, Erin J. "Fear the Frill: Ruth Bader Ginsburg and the Uncertain Futurity of Feminist Judicial Dissent." Quarterly Journal of Speech 101, no. 1 (January 2, 2015): 72–84. http://dx.doi.org/10.1080/00335630.2015.994898.

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Leonard, Gerald. "Law and Politics Reconsidered: A New Constitutional History of Dred Scott." Law & Social Inquiry 34, no. 03 (2009): 747–85. http://dx.doi.org/10.1111/j.1747-4469.2009.01164.x.

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This essay synthesizes recent writing on the constitutional history of slavery, featuring Mark Graber's Dred Scott and the Problem of Constitutional Evil (2006). It offers a historical and legal analysis of Dred Scott that attempts to clarify the roles of both law and politics in controversial judicial decisions. It joins Graber in rehabilitating Chief Justice Taney's Dred Scott opinion as a plausible implementation of a Constitution that was born in slavery and grew only more suffused with slavery over time. It integrates much recent writing on the social, political, and constitutional history of slavery to develop the context in which the Dred Scott opinions must be read. And it finds that Justice Curtis's celebrated dissent amounted to an unjudicial manipulation of the law, albeit for the higher purpose of striking at the political hegemony of the slaveholding class. This essay is an abridgement of a longer work (Leonard 2009) that offers, among other things, further analysis of the unjudicial character of Curtis's dissent.

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Hanretty, Chris. "The Decisions and Ideal Points of British Law Lords." British Journal of Political Science 43, no. 3 (September 24, 2012): 703–16. http://dx.doi.org/10.1017/s0007123412000270.

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Policy-sensitive models of judicial behaviour, whether attitudinal or strategic, have largely passed Britain by. This article argues that this neglect has been benign, because explanations of judicial decisions in terms of the positions of individual judges fare poorly in the British case. To support this argument, the non-unanimous opinions of British Law Lords between 1969 and 2009 are analysed. A hierarchical item-response model of individual judges’ votes is estimated in order to identify judges’ locations along a one-dimensional policy space. Such a model is found to be no better than a null model that predicts that every judge will vote with the majority with the same probability. Locations generated by the model do not represent judges’ political attitudes, only their propensity to dissent. Consequently, judges’ individual votes should not be used to describe them in political terms.

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Bricker, Benjamin. "Breaking the Principle of Secrecy: An Examination of Judicial Dissent in the European Constitutional Courts." Law & Policy 39, no. 2 (January 13, 2017): 170–91. http://dx.doi.org/10.1111/lapo.12072.

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Yolcu, Serkan. "‘Judicial Dissent in European Constitutional Courts: A Comparative and Legal Perspective’, written by Katalin Kelemen." European Journal of Comparative Law and Governance 6, no. 4 (December 2, 2019): 405–10. http://dx.doi.org/10.1163/22134514-00604001.

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Garoupa, Nuno, and Peter Grajzl. "Spurred by legal tradition or contextual politics? Lessons about judicial dissent from Slovenia and Croatia." International Review of Law and Economics 63 (September 2020): 105912. http://dx.doi.org/10.1016/j.irle.2020.105912.

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BOIVIN, MICHEL. "The Isma‘ili – Isna ‘Ashari Divide Among the Khojas: Exploring Forgotten Judicial Data from Karachi." Journal of the Royal Asiatic Society 24, no. 3 (May 28, 2014): 381–96. http://dx.doi.org/10.1017/s1356186314000224.

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AbstractThis paper explores the interaction between a religious leader, the Aga Khan, and a cluster of castes, the Khojas, in Colonial India. While scholars have usually investigated the Bombay judicial sources, claiming that the Aga Khan Case of 1866 put an end to dissent among the Khojas who rejected his authority, the Karachi judicial sources provide a new perspective on the issues. It will be argued that the so called dissenters were fighting for the autonomy of the Khojas as a caste that they were able to keep in turning to Isna ‘Ashari. Therefore, this paper deals with how the British colonials attempted to control the people of India through the courts, but also how Indian actors used the courts for reaching their goals. Furthermore, the religious discourse through which the claims were expressed was but a shell concealing economic pursuits as well as issues of social rank.

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Basabe-Serrano, Santiago. "Determinants of Judicial Dissent in Contexts of Extreme Institutional Instability: The Case of Ecuador's Constitutional Court." Journal of Politics in Latin America 6, no. 1 (April 2014): 83–107. http://dx.doi.org/10.1177/1866802x1400600103.

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Deckha, Maneesha. "Initiating a Non-Anthropocentric Jurisprudence: The Rule of Law and Animal Vulnerability Under a Property Paradigm." Alberta Law Review 50, no. 4 (July 1, 2013): 783. http://dx.doi.org/10.29173/alr76.

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This article discusses a recent Canadian entry to the accretion of legal texts which question, to various degrees, law’s anthropocentrism: the dissenting judgment of the Alberta Court of Appeal in Reece v. Edmonton (City of). Written by Chief Justice Catherine Fraser, the 162-paragraph dissent stands out in the Canadian landscape (and is impressive even in the international scene) given the existing Canadian law addressing animal issues that either regulate animals as objects and/or subordinate animal interests to human or corporate ones. This article argues that the dissent in Reece departs from the standard legal instrumentalist view of animals by providing a non-anthropocentric analysis of the animal interests at stake. The decision thus provides a new way of thinking about animals when compared to the existing Canadian jurisprudence. The dissent’s departure from the traditional anthropocentric legal view of animals is seen in three main ways: (1) the level of importance it assigns to the animal interest legally at issue by connecting it to the rule of law; (2) the respect it affords to critiques of animals’ current legal status (including the animal rights critique seeking to abolish the property status of animals and the default subordination of animal interests to human or corporate ones); and (3) the empathy and respect it gives to the individual animal at the heart of the legal dispute by recognizing her as a sentient and vulnerable being whose subjectivity matters. The cumulative effect is a judgment that not only provides the most sophisticated Canadian judicial analysis to date of the law’s relationship to animals, but impugns the traditional anthropocentric paradigm through which the law minimally responds to (some) animal suffering.

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Dressel, Björn, and Tomoo Inoue. "Megapolitical Cases before the Constitutional Court of Indonesia since 2004: An Empirical Study." Constitutional Review 4, no. 2 (December 31, 2018): 157. http://dx.doi.org/10.31078/consrev421.

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The Constitutional Court of Indonesia is considered one of Asia’s most activist courts. Here we investigate empirically possible determinants of the decisions of its judges over the period 2003–18. The findings are based on a unique data set of 80 high-profile political cases, complemented by data on the socio-biographic profiles of 26 judges who served during that period. Testing for common perceptions of the Constitutional Court since its inception, we first describe patterns in judicial decision-making across time and court composition before testing specifically for the impact of the judges’ professional backgrounds, presidential administrations, the influence of the Chief Justice, and cohort behaviour. The analysis finds declining dissent among justices on the bench over time and also provides evidence of strategic behaviour of justices at the ending of their own terms. But there is little statistical evidence that judicial behaviour has been affected by work background (except for those coming from the executive branch), appointment track or generation – hence suggesting that justices seem to retain more independence than the public seems to perceive. We then discuss the results in the context of Indonesia’s evolving constitutional democracy and look at the implications for comparative studies of judicial behaviour.

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Hartman, Brett. "Recent Case Developments in Health Law." Journal of Law, Medicine & Ethics 37, no. 2 (2009): 380–88. http://dx.doi.org/10.1111/j.1748-720x.2009.00382.x.

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In January 2009, the California Court of Appeal for the Fifth District held that an individual suffering from paranoid schizophrenia could be forcefed and medicated despite his refusal of consent. The patient was a prison inmate, who engaged in a hunger strike to protest imagined abuses by prison guards. The court, reconciling conflicting provisions of California law, upheld the appointment of a conservator to make treatment decisions because the patient could not participate in those decisions “by means of a rational thought process.” However, in tying mental capacity to the plausibility of a protestor’s claims, the court risks placing political dissent at the mercy of judicial discretion.

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Bentsen, Henrik Litleré. "Court Leadership, Agenda Transformation, and Judicial Dissent: A European Case of a “Mysterious Demise of Consensual Norms”." Journal of Law and Courts 6, no. 1 (March 2018): 189–213. http://dx.doi.org/10.1086/695555.

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PANKE, DIANA. "Why discourse matters only sometimes: effective arguing beyond the nation-state." Review of International Studies 36, no. 1 (January 2010): 145–68. http://dx.doi.org/10.1017/s0260210509990544.

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AbstractPre- and post-agreement discourses are an integral part of international relations. Yet, they only matter sometimes as an empirical analysis of European judicial discourses shows. State of the art Habermasisan and social psychology approaches on effective arguing cannot sufficiently explain variation in the success of discourses. This requires a fine-grained perspective: Only if actors share yardsticks fitting to the issue at stake, they can commonly assess the quality of arguments and incrementally develop a consensus. If such issue-specific reference standards are absent, actors talk at cross-purposes and dissent prevails. The article empirically illustrates the importance of intersubjective validity for the effectiveness of discourses and tests its central claim against alternative constructivist and rationalist explanations.

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Pereira, Anthony W. "“Persecution and Farce”: The Origins and Transformation of Brazil's Political Trials, 1964-1979." Latin American Research Review 33, no. 1 (1998): 43–66. http://dx.doi.org/10.1017/s0023879100035755.

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The containment of communismwas for the United States aproblem of external defense;for the underdeveloped countrieslike Brazil, it was a problemof internal development.Roberto Campos, A lanterna na popaThe authoritarian regimes that in recent decades ruled Argentina from 1976 to 1983, Brazil from 1964 to 1985, Chile from 1973 to 1990, and Uruguay from 1973 to 1984 all used violence to crush dissent and the law to regulate and legitimate that violence. Repression under the Brazilian regime was particularly legalistic in the sense that the number of killings was relatively low but the rate of judicial prosecution high. Available evidence suggests that more individuals were brought into military courts for political crimes in Brazil than in any of the other authoritarian regimes in the region.

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Tsampi, Aikaterini. "The new doctrine on misuse of power under Article 18 ECHR: Is it about the system of contre-pouvoirs within the State after all?" Netherlands Quarterly of Human Rights 38, no. 2 (June 2020): 134–55. http://dx.doi.org/10.1177/0924051920923606.

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The case-law on Article 18 of the European Convention on Human Rights has been evolving recently in a dramatic fashion. This evolution, which shaped a new doctrine on the misuse of power, focuses on the criminalisation of dissent within a State where undemocratic tendencies arise. The purpose of this article is to highlight these undemocratic tendencies and demonstrate that Article 18 ECHR addresses the systemic deficiencies in the balance of powers within a State. A violation of Article 18 ECHR occurs when the executive branch of government male fide tries to erode the social, political and economic contre-pouvoirs within a State and when the institutional contre-pouvoirs, namely the judicial and the legislative branch of government, fail to avert this erosion.

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Denysenko, V. I. "Victor Yanukovych’s entourage seizing legislative, executive and judicial power in Ukraine (2010 – early 2011)." SUMY HISTORICAL AND ARCHIVAL JOURNAL, no. 35 (2020): 42–53. http://dx.doi.org/10.21272/shaj.2020.i35.p.42.

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The article describes the President Yanukovych and his entourage’s actions taken to establish control over the key branches of power in Ukraine. The role of the Donetsk clan’s particular representatives, mainly AndriiKliuev and SerhiiLyovochkin, in implementing the authority concentration schemes, is explored. The context of building up the floor-crossers coalition (officially named “Stability and Reforms”) in 2010 is highlighted. The reasons for Donetsk clan choosing the non-constitutional way of seizing control over the Parliament are explained, such as: rate of action, low price of deputies’ engagement, keeping up the ideological confrontation façade with Julia Tymoshenko’s Bloc and «Our Ukraine – People’s Self-Defence» parliamentary alliance. MykolaAzarov’s cabinet (named March 11, 2010) is analyzed, with specific influential groups identified within its composition, such as MykolaAzarov’s, AndriiKliuev’s, RinatAkhmetov’sDmytroFirtash’s and Victor Yanykovych’s clientele. The quotas of Litvin’s Block, Ukraine’s Communist Party and Russian lobbies have been distinguished. The responsible assignments in security ministries data has been generalized. The fact that Victor Yanukovych’s entourage had established full actual control over top officials of the Prosecutor General’s Office of Ukraine in the eve of the Presidential Elections 2010 decisive second ballot is emphasized. The Prosecutor General’s Office, Security Service, Foreign Intelligence, Border Police and National Security and Defense Council’s governing authorities personnel has been analyzed. Specific attention has been paid to AndriiPortnov’s role in implementing the judicial reform aimed at depriving the Ukrainian judiciary of any independence, with the Presidential Office, namely AndriiPortnov, gaining the decisive impact over its activities and preserving but formal procedures and formulas from the relatively autonomous judiciary built under Victor Yushchenko. The facts of placing pressure upon the judges voicing dissent over the reform have been revealed.

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Garant, Patrice. "Les exigences de l'impartialité quasi-judiciaire." Chronique de jurisprudence 18, no. 2-3 (April 12, 2005): 585–94. http://dx.doi.org/10.7202/042178ar.

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The Supreme Court decision commented upon is another important administrative law decision which relates to principles of natural justice, and especially to the nemo judex rule (freedom from bias). Speaking for the majority, Mr. Justice Laskin states that the function exercised by the National Energy Board under section 44 of the National Energy Board Act is quasi-judicial although it consists in issuing a licence according to an extensive discretionary power. Consequently, principles of natural justice must be applied. The nemo judex rule means that if there is a "reasonable apprehension of bias" due to the past behavior or actions of a member of a quasi-judicial tribunal, that member must be disqualified from acting. Otherwise, the decision rendered by the tribunal must be quashed. Two years before his appointment to the Board, the chairman of the National Energy Board had in fact participated actively in operations and decisions bearing on the very subject-matter subsequently submitted to the Board. That placed the chairman in a situation of conflict of interest, although he had no personal pecuniary interest in the matter involved. The majority of the Supreme Court dissagrees with Mr. Justice de Grandpré's dissent as well as with the decision of the Federal Court of Appeal. Each expresses a point of view which is worth reading. The majority of the Supreme Court applies to administrative boards or tribunals exercising quasi-judicial functions the same critérium as the one applied under the common law to any inferior court. Another remarkable judgment of our Supreme Court.

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Iddins, Annemarie. "The digital carceral: Media infrastructure, digital cultures and state surveillance in post-Arab Spring Morocco." International Journal of Cultural Studies 23, no. 2 (April 26, 2019): 245–63. http://dx.doi.org/10.1177/1367877919842575.

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This paper analyzes Moroccan discourses around media infrastructures and their intersection with carceral culture, taking up Mamfakinch’s responses to state-sponsored spyware attacks and judicial harassment as symbolic of shifting imaginaries of the digital. This work is situated within a growing subset of the media and communication literature on media infrastructures, which works to connect the materiality of media systems with everyday media cultures, practices and power. Mamfakinch’s experience with spyware and subsequent evolution into a digital rights organization are indicative of attempts to transfer a lingering carceral culture into digital spaces and a shift in state and activist internet imaginaries. In a global era and as part of a hypersurveillant state, Mamfakinch demonstrates how the digital becomes an increasingly important site for the surveillance and policing of dissent while presenting new modes of publicness and activism that directly challenge those endeavors.

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McCall, Madhavi. "Gender, judicial dissent, and issue salience: the voting behavior of state supreme court justices in sexual harassment cases, 1980–1998." Social Science Journal 40, no. 1 (March 1, 2003): 79–97. http://dx.doi.org/10.1016/s0362-3319(02)00260-4.

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Hilliard, Bryan. "Evaluating the Dissent in State of Oregon v. Ashcroft: Implications for the Patient-Physician Relationship and the Democratic Process." Journal of Law, Medicine & Ethics 33, no. 1 (2005): 142–53. http://dx.doi.org/10.1111/j.1748-720x.2005.tb00216.x.

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Over the past decade or so, no issue in medical ethics or bioethics law has raised more concerns about federal intervention in the practice of medicine, about judicial attempts to craft health policy, or about the wisdom of public mandates directing specific health care initiatives than the issue of physician-assisted suicide. State voter referenda, lower and federal court cases (including two U.S. Supreme Court decisions), proposed legislation in both houses of Congress, and orders and determinations from agencies within the executive branch of two administrations are representative of the kinds of actions taken in the last ten years implicating medical care at the end of life. Whether the intent was to codify into law physician-assisted suicide, to deny a constitutional right of assisted suicide, or to make “easier” physicians' efforts to alleviate intractable suffering at the risk of hastening death, or to prohibit physician aid in dying altogether, the impact on the patient-doctor relationship and on our understanding of what constitutes dignified and humane care at the end of life is undeniable.

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David Ellenson. "The Supreme Court, Yeshiva Students, and Military Conscription: Judicial Review, the Grunis Dissent, and its Implications for Israeli Democracy and Law." Israel Studies 23, no. 3 (2018): 197. http://dx.doi.org/10.2979/israelstudies.23.3.24.

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Olga, Krapivkina. "Judicial Dissents: Why Are They Gaining Popularity?" Russian Law 2013, no. 1 (April 1, 2013): 131–35. http://dx.doi.org/10.18572/1811-9077/2013-1-131-135.

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Top, Sibel. "Prosecuting political dissent: Discussing the relevance of the political offence exception in EU extradition law in light of the Catalan independence crisis." New Journal of European Criminal Law 12, no. 2 (April 27, 2021): 107–27. http://dx.doi.org/10.1177/20322844211004762.

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Most extradition treaties contain a political offence exception clause, which precludes extradition from taking place when the concerned crime is considered to be political by the requested state. This clause has been abolished within the European Union (EU), where mutual trust prevails among Member States, allegedly rendering such safeguards obsolete. This article, however, seeks to question the commonly agreed outdatedness of the political offence exception clause within the EU framework, looking at the context of its abolition, the role Spanish authorities played in it at the time of its abolition, the way they have handled the Catalan crisis since 2017 and the exportation of the latter at the EU level. It argues that the situation in which Catalan exiles are today casts doubt over the obsolescence of safeguards such as the political offence exception and further contends that human and political rights safeguard mechanisms should not be perceived as hampering mutual trust and judicial cooperation in criminal matters in the EU.

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Parolin, Gianluca P. "‘Modern’ Law and Its Subjects in Tawfīq al-Ḥakīm’s Diary of a Country Prosecutor (1937)." Journal of Arabic and Islamic Studies 21 (September 2, 2021): 57–77. http://dx.doi.org/10.5617/jais.8998.

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State law as the main transformative device to build a ‘modern’ Egypt has encountered tremendous resistance, yet legal scholars seem utterly uninterested in the matter while historians struggle to account for the reasons of the subjects’ resistance by using archival materials often produced by state officials themselves. In this article, I turn to literature to explore and interrogate literary representations of the rural subjects of ‘modern’ law, and their various forms of resistance to ‘modern’ law itself. In an effort to highlight the benefits of ‘turning to literature’ for legal scholars, I begin with one of the most acclaimed masterpieces and foundational works of the modern Egyptian literary canon: Tawfīq al-Ḥakīm’s Diary of a Country Prosecutor (1937). Listening to the awkward silences and garrulous voices of the Diary’s subjects opens a window onto the strained relations between ‘modern’ law and its subjects in which class, language, and centre/periphery dynamics all play a role. Considering what repertoire these subjects ‘spontaneously’ mobilise to challenge the ‘modern’ law further brings into view their alternative doxic understanding of law and justice. Keywords: ‘Modern’ law, hegemonic legal modernity, everyday resistance, extra-judicial justice, vocal dissent, rural subjects, rural courtroom, Egypt, 20th-century fiction, Tawfīq al-Ḥakīm, Diary of a Country Prosecutor.

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Benedet, Janine. "Children in Pornography after Sharpe." Les Cahiers de droit 43, no. 2 (April 12, 2005): 327–50. http://dx.doi.org/10.7202/043710ar.

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In its recent decision in R. v. Sharpe, the majority of the Supreme Court of Canada upheld the Criminal Code provisions prohibiting the possession and making of child pornography, subject to two exceptions. Despite a narrow construction of the definition of child pornography and a broad reading of the statutory defences, the majority found that prohibiting individuals from making and possessing some kinds of child pornography was an unjustifiable limit on the freedom of expression guaranteed by s. 2(b) of the Canadian Charter of Rights and Freedoms. The dissent would have upheld the legislation in its entirety. This article argues that the majority of the Court erred in considering the value of freedom of expression in a detached and abstract manner. Operating in this abstract plane led the Court to approve two significant exceptions on the basis of hypothetical examples of overbreadth, without considering the reality of the exceptions as they relate to documented child pornography cases. As a result, the Court extended constitutional protection to some categories of material that are clearly harmful to children. This result should make us sceptical of the use in Charter cases of broad reading in remedies that create complex judicial amendments with unexamined consequences.

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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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Bruinsma, Fred J., and Matthijs De Blois. "Rules of Law from Westport to Wladiwostok. Separate Opinions in the European Court of Human Rights." Netherlands Quarterly of Human Rights 15, no. 2 (June 1997): 175–86. http://dx.doi.org/10.1177/092405199701500204.

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Whereas lawyers usually pay only attention to the added value of majority judgments in courts, we have taken an interest in the separate opinions of the European Court of Human Rights (the Court). The jurisdiction of this court stretches from Westport (Ireland) to Wladiwostok (Russia), and from Iceland to Cyprus. Member States of the Council of Europe have a right to select a national for the Court, and are politically expected to accept the Court's jurisdiction. The Preamble of the European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR) states that the participating European countries have ‘a common heritage of political traditions, ideals, freedom and the rule of law’. Article 51(2) ECHR entitles any judge to deliver a separate opinion, and pursuant to Article 43 the judge of the State in the dock sits ex officio. These two articles taken together inspired us to hypothesise about the separate opinion: does a judge dissent more often if the majority finds a violation of the Convention by his/her own country? A separate concurring opinion might be understood if we consider the judge as an intermediary between the international court and national audiences. Both ways, separate opinions are seen as expressions of a national orientation. On the basis of a quantitative research of the voting pattern from 1991 to 1995 we may conclude that the Court has become a truly international court, since it does not show any impact of national backgrounds. However, underneath the surface of figures we found some striking examples of national bias in separate opinions. In the second half of this article we bring them together under the heading of conservatism and judicial restraint – a separate undercurrent of the Court's mainstream of liberalism and judicial activism. There is not just one rule of law in Europe, there are many rules of law. But to see them you have to look beyond the majority judgment.

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Sarzo, Matteo. "Res judicata, Jurisdiction ratione materiae and Legal Reasoning in the Dispute between Nicaragua and Colombia before the International Court of Justice." Law & Practice of International Courts and Tribunals 16, no. 2 (December 5, 2017): 224–44. http://dx.doi.org/10.1163/15718034-12341355.

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Abstract With the aim of barring Nicaragua’s fresh request for the delimitation of the continental shelf beyond 200 nautical miles, Colombia raised the issue of the res judicata effect of the previous decision of 2012, rendered in the Territorial and Maritime Dispute, whereby the icj had apparently settled the case and dismissed on the merits the same request. In the Judgment on preliminary objections of 2016, relating to the “new” case Question of the Delimitation of the Continental Shelf between Nicaragua and Colombia beyond 200 nautical miles from the Nicaraguan Coast, the icj held that no binding force attached to the operative part of the 2012 ruling. The outcome of the incidental proceedings was not predictable as one might have expected, given that the decision was taken with the casting vote of the President and prompted a strong dissent among some judges. This occurrence gives clear evidence of the interplay between several intertwined issues of international law, which the majority was called upon to deal with and balance in the present case, such as the interpretation of Article 76, paragraph 8 of the unclos, the principles of res judicata and jurisdiction ratione materiae and the duty to give reasons. The article aims to demonstrate that the Court dismissed Colombia’s third preliminary objection for underlying reasons of judicial policy, namely to secure its previous judgment of 2012 from any potential claim relating to inadequate reasoning, if construed as a final rejection on the merits.

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Krapivkina, Olga A. "Judicial Dissents: Legal and Linguistic Aspects." Journal of Siberian Federal University. Humanities & Social Sciences 9, no. 10 (October 2016): 2449–59. http://dx.doi.org/10.17516/1997-1370-2016-9-10-2449-2459.

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Coglianese, Cary. "Dimensions of delegation." Revista de Direito Administrativo 279, no. 2 (August 18, 2020): 15. http://dx.doi.org/10.12660/rda.v279.2020.82004.

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Dimensões da delegação ABSTRACTHow can the nondelegation doctrine still exist when the Supreme Court over decades has approved so many pieces of legislation that contain unintelligible principles? The answer to this puzzle emerges from recognition that the intelligibility of any principle dictating the basis for lawmaking is but one characteristic defining that authority. The Court has acknowledged five other characteristics that, taken together with the principle articulating the basis for executive decision-making, constitute the full dimensionality of any grant of lawmaking authority and hold the key to a more coherent rendering of the Court’s application of the nondelegation doctrine. When understood in dimensional terms, the nondelegation doctrine remains alive, and is more manageable and coherent than alternatives recently suggested by Justice Gorsuch in his dissent in Gundy v. United States, even if the Court has almost never invoked the doctrine to strike down legislation authorizing lawmaking by executive officers. The Supreme Court’s infrequent use of the doctrine to invalidate legislation — even when these laws impose minimal constraints on executive decision-making — is not a function of judicial confusion or of the Court’s abandonment of the doctrine. It is instead a function of the doctrine itself being grounded in more than just an intelligible principle test — and of the fact that legislation only infrequently seeks to effectuate grants of authority that reach the extremes on all of the relevant dimensions of delegation.RESUMOComo a doutrina da não delegação ainda existe considerando que a Suprema Corte, ao longo de décadas, aprovou tantas leis que contêm princípios ininteligíveis? A resposta para esse quebra-cabeça surge do reconhecimento de que a inteligibilidade de qualquer princípio que dite a base para a legislação é apenas uma característica que define essa autoridade. O Tribunal reconheceu cinco outras características que, tomadas em conjunto com o princípio que articula a base da tomada de decisões executivas, constituem a dimensionalidade total de qualquer concessão de autoridade legislativa e mantêm a chave para uma interpretação mais coerente da aplicação da doutrina de não delegação pelo Tribunal. Quando entendida em termos dimensionais, a doutrina da não delegação permanece viva e é mais gerenciável e coerente do que as alternativas recentemente sugeridas pelo juiz Gorsuch, em sua dissidência em Gundy v. Estados Unidos, mesmo que o Tribunal quase nunca tenha invocado a doutrina para derrubar a legislação que autoriza a tomada de decisão pelos diretores executivos. O uso infrequente da doutrina da Suprema Corte para invalidar a legislação — mesmo quando essas leis impõem restrições mínimas à tomada de decisões executivas — não é uma função de confusão judicial ou do abandono da doutrina pela Corte. Em vez disso, é uma função da própria doutrina ser fundamentada em mais do que apenas um teste de princípio inteligível — e do fato de que a legislação raramente procura efetuar concessões de autoridade que atingem os extremos em todas as dimensões relevantes da delegação.

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Dunoff, Jeffrey L., and Mark A. Pollack. "The Judicial Trilemma." American Journal of International Law 111, no. 2 (April 2017): 225–76. http://dx.doi.org/10.1017/ajil.2017.23.

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AbstractInternational tribunals confront a “Judicial Trilemma.” More specifically the states that design, and the judges that serve on, international courts face an interlocking series of tradeoffs among three core values: (1) judicial independence, the freedom of judges to decide cases on the facts and the law; (2) judicial accountability, structural checks on judicial authority found most prominently in international courts in reappointment and reelection processes; and (3) judicial transparency, mechanisms that permit the identification of individual judicial positions (such as through individual opinions and dissents). The Trilemma is that it is possible to maximize, at most, two of these three values. Drawing on interviews with current and former judges at leading international courts, this article unpacks the logic underlying the Judicial Trilemma, and traces the varied ways in which this logic manifests itself in the design and operation of the International Court of Justice, European Court of Human Rights, Court of Justice of the European Union, and the World Trade Organization's Appellate Body. The Judicial Trilemma does not identify an “ideal” court design. Rather it provides a framework that enables international actors to understand the inevitable tradeoffs that international courts confront, and thereby helps to ensure that these tradeoffs are made deliberately and with a richer appreciation of their implications.

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Journal articles on the topic 'Judicial dissent'

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