2. The Court at work (1)

2020 ◽  
pp. 13-26
Author(s):  
Linda Greenhouse
Keyword(s):  
Supreme Court ◽  
Separation Of Powers ◽  
Administrative State ◽  
The Supreme Court ◽  
Administrative Agencies ◽  
Over Time

A very small percentage of cases reach the Supreme Court. “The Court at Work” explains that even if a case meets all the criteria, the justices are still at liberty to refuse it. The Court has navigated debates about the separation of powers and conflicting approaches to interpretations of the statutes. The growth of the administrative state means that the Court is now more often tasked with determining whether administrative agencies are carrying out their duties correctly. What do cases and controversies mean to the Supreme Court? Why are these terms important, and how have the Court’s interpretations of them changed over time?

scholarly journals The Road to the Promised Land Runs Past Conway: Administrative Tribunals and Charter Remedies

2011 ◽  
Vol 48 (3) ◽  
pp. 783
Author(s):  
Ranjan K. Agarwal
Keyword(s):  
Supreme Court ◽  
Administrative State ◽  
Canadian Charter ◽  
The Road ◽  
Promised Land ◽  
The Supreme Court ◽  
And Function ◽  
Case Basis ◽  
Over Time

In the 30 years since the Canadian Charter of Rights and Freedoms was proclaimed, one of the most litigated issues has been the role of administrative tribunals in deciding Charter claims. Early Supreme Court jurisprudence suggested that only the provincial superior courts had the jurisdiction to decide Charter claims and remedy a Charter breach. Over time, and in concert with the expansion of the administrative state in Canada, the Supreme Court recognized that administrative tribunals could in fact decide Charter questions. However, the issue of whether they could remedy a Charter breach became bogged down by the test from Mills v. R.: tribunals and courts had to analyze the tribunal’s jurisdiction on a case-by-case basis by examining the remedy being sought, as opposed to analyzing jurisdiction on an institutional basis, which would examine the tribunal's statutory mandate and function.

Scientific Commentary on the Review of Judicial Practice on Some Issues of the Application of Legislation on Business Entities

2021 ◽  
Vol 6 ◽  
pp. 27-32
Author(s):  
V. K. Andreev ◽  
Keyword(s):  
Public Relations ◽  
Supreme Court ◽  
Russian Federation ◽  
Separation Of Powers ◽  
Civil Code ◽  
Judicial Practice ◽  
The Supreme Court ◽  
The Russian Federation ◽  
Business Entities ◽  
Law Making

The article discusses the forms of clarification on matters of judicial practice by the Plenum of the Supreme Court of the Russian Federation, the Presidium of the Supreme Court, as well as in the Review of judicial practice on some issues of the application of legislation on business companies dated December 25, 2019. Clarifications of the Supreme Court of the Russian Federation on issues of judicial practice are characterized as the positions of the courts identified in the course of studying and summarizing the judicial practice of the corresponding category of cases, which are acts of individual regulation of public relations. Focusing on Art. 6 of the Civil Code of the Russian Federation and Section 6, Art. 12 of the APC RF shows the validity of dividing wrong into two types of wrong: the «moderate» type of «judicial law-making and the position of the court» and the «radical» type of «judicial law-making», when the court develops the rule of law, which contradicts the constitutional principle of separation of powers. When resolving corporate disputes, it is necessary to investigate whether the charter of a non-public company does not contain the rights and obligations of its participants, which they themselves created by making a unanimous decision and including them in the charter of the company (paragraph 3 of Art. 66.3 of the Civil Code of the Russian Federation, paragraph 3 of Art. 14 of the Law about LLC).

Part IV Separation of Powers, Ch.21 Jurisdiction

2016 ◽  
Author(s):  
Vakil Raeesa
Keyword(s):  
Supreme Court ◽  
Separation Of Powers ◽  
Appellate Court ◽  
Constitutional Court ◽  
Constitutional Interpretation ◽  
Indian Constitution ◽  
The Supreme Court ◽  
Indian Supreme Court ◽  
Exercise Of Discretion

This chapter explores how the jurisdiction of the Indian Supreme Court has evolved as an appellate court, a constitutional court, and a ‘final’ court. It begins by reviewing the four kinds of appeal that may be heard by the Supreme Court as specified in the Indian Constitution: civil, criminal, questions of constitutional interpretation, and appeals by special leave of the Court. It then considers the uncertainty and expansion in the Supreme Court’s appellate jurisdiction, with particular emphasis on the imbalance in jurisdictional reforms, the absence of guidelines for the exercise of discretion, and inconsistency in implementing constitutional provisions. It also discusses the Court’s advisory jurisdiction, adjudication of federal disputes, and jurisdiction to interpret the Constitution, along with its power to enforce justice and its claim to inherent powers. The chapter concludes by outlining some of the challenges faced by the Court today.

Theorizing the U.S. Supreme Court

2017 ◽  
Author(s):  
Charles M. Cameron ◽  
Lewis A. Kornhauser
Keyword(s):  
Supreme Court ◽  
Separation Of Powers ◽  
Supreme Court Decision ◽  
The United States ◽  
Voting Rule ◽  
The Supreme Court ◽  
The Status ◽  
The Difference ◽  
Judicial Studies ◽  
Judicial Actions

We summarize the formal theoretical literature on Supreme Court decision-making. We focus on two core questions: What does the Supreme Court of the United States do, and how can one model those actions; and, what do the justices of the Supreme Court want, and how can one model those preferences? Given the current state of play in judicial studies, these questions then direct this survey mostly to so-called separation of powers (SOP) models, and to studies of a multi-member (“collegial”) court employing the Supreme Court’s very distinctive and highly unusual voting rule.The survey makes four main points. First, it sets out a new taxonomy that unifies much of the literature by linking judicial actions, modeling conventions, and the treatment of the status quo. In addition, the taxonomy identifies some models that employ inconsistent assumptions about Supreme Court actions and consequences. Second, the discussion of judicial preferences clarifies the links between judicial actions and judicial preferences. It highlights the relationships between preferences over dispositions, preferences over rules, and preferences over social outcomes. And, it explicates the difference between consequential and expressive preferences. Third, the survey delineates the separate strands of SOP models. It suggests new possibilities for this seemingly well-explored line of inquiry. Fourth, the discussion of voting emphasizes the peculiar characteristics of the Supreme Court’s voting rule. The survey maps the movement from early models that ignored the special features of this rule, to more recent ones that embrace its features and explore the resulting (and unusual) incentive effects.

scholarly journals Crown and Foreign acts of State Before British Courts

2019 ◽  
pp. 714-732
Author(s):  
Eirik Bjorge ◽  
Cameron Miles
Keyword(s):  
United Kingdom ◽  
Supreme Court ◽  
Separation Of Powers ◽  
Case Law ◽  
The United Kingdom ◽  
The Supreme Court ◽  
Full Picture ◽  
The Relationship ◽  
Made In

The Supreme Court of the United Kingdom undertook in Rahmatullah v. Ministry of Defence and Belhaj v. Straw to demarcate the relationship between the judiciary and the executive with respect to Crown and foreign act of state. This chapter aims to unpack Rahmatullah and Belhaj for the reader and further to use these decisions to enquire into the constitutional underpinnings of the British act of state doctrines—particularly as they pertain to the separation of powers. The chapter concludes that there exists a general uncertainty regarding the scope of the doctrines, and a lack of jurisprudential development with respect to their constitutional underpinnings. But it is undeniable that progress, however minor, has been made in these decisions. The scene has been set in Rahmatullah and Belhaj for further developments—even if litigants will still need to refer to the earlier case law in order to get the full picture.

scholarly journals An Inquiry into the Limits of Judicial Intervention in the Impeachment Process of Governors in Kenya

2020 ◽  
Vol 5 (1) ◽  
pp. 139-156
Author(s):  
Andrea Munyao
Keyword(s):  
Supreme Court ◽  
Separation Of Powers ◽  
The Other ◽  
County Government ◽  
Judicial Intervention ◽  
The Supreme Court ◽  
Problematic Issue ◽  
Duty To Protect ◽  
The One

Article 181(2) of the 2010 Constitution of Kenya instructs Parliament to enact a law highlighting the process of impeachment of a county governor. This has been realised through the County Government Act, Section 33. Section 33 recognises the County Assembly and the Senate as the bodies responsible for this process. However, the County Government Act fails to address at what point the courts can intervene in the impeachment process of governors. This is often a problematic issue as the doctrine of separation of powers requires each arm of government to perform their functions independently. Nonetheless, Kenyan courts have the duty to protect aggrieved parties whenever their rights are threatened. However, the point at which they can intervene is not stated under any law and this creates confusion between the role of courts of law in the impeachment process, on the one hand, and that of the County Assembly and the Senate, on the other. It is not clear which role should be discharged first. This paper, therefore, seeks to address this confusion through a critique of the Wambora case, a case that was appealed up to the Supreme Court. The paper also suggests a complimentary system whereby the Senate, County Assembly and the courts can work in harmony, and, do away with the confusion.

Part VI Constitutional Theory, D The Role of Constitutional Principles in Canadian Constitutional Law, Ch.47 Constitutional Principles in the Secession Reference

2017 ◽  
Author(s):  
Leclair Jean
Keyword(s):  
Supreme Court ◽  
Constitutional Law ◽  
Constitutional Theory ◽  
Supreme Court Of Canada ◽  
Constitutional Order ◽  
The Supreme Court ◽  
Over Time ◽  
Constitutional Changes ◽  
Political Compromises

In Reference Re Secession of Quebec, 1998, the Supreme Court of Canada concluded that the unwritten constitutional principles of federalism and democracy dictated that the clear repudiation of the existing constitutional order and the clear expression of the desire to pursue secession by the population of a province gave rise to a reciprocal obligation on all parties to the federation to negotiate constitutional changes to respond to that desire. To understand this astonishing decision, the author first examines how, over time, in Canada and Quebec, issues of identity(ies), constitutional law, and democracy came to be formulated in absolutist terms, making political compromises next to impossible. Only then does he analyse the Supreme Court’s decision and attempts to explain why the latter chose to decide as it did.

Appointment of Judges to the Supreme Court of India

2018 ◽  
Keyword(s):  
Supreme Court ◽  
South Asian ◽  
Rule Of Law ◽  
Separation Of Powers ◽  
Basic Structure ◽  
Judicial Appointments ◽  
The United Kingdom ◽  
Supreme Court Of India ◽  
The Supreme Court ◽  
History Of

In Supreme Court Advocates-on-Record Association v. Union of India [(2016) 5 SCC 1], a five-judge bench of the Supreme Court struck down the 99th Amendment to the Constitution and the National Judicial Appointments Commission (NJAC) Act, 2014, which replaced the existing collegium system with the NJAC, a new bipartisan model for appointing judges. This edited volume uses the judgment in the NJAC Case as a springboard to address the politics, doctrine, and developments pertaining to judicial appointments in India. It critically examines fundamental constitutional concepts such as rule of law, separation of powers, basic structure, and judicial independence which formed the basis of the judgment. It provides a rich and detailed history of post-Independence appointment of judges to locate the NJAC Case in its proper constitutional context. It also analyses reforms to judicial appointments in key South Asian and common law jurisdictions to understand what appointments in India might look like in the future. The volume has 21 essays across three parts—Part I provides an analysis of judicial appointments in India from the time prior to Independence to the present day, Part II analyses constitutional principles and their application in the NJAC Case, and Part III is a comparative enquiry into appointments processes in the United Kingdom, South Africa, Canada, Pakistan, Sri Lanka, and Nepal.

ABSTENTION AT THE BORDER

2018 ◽  
Author(s):  
Maggie Gardner
Keyword(s):  
Supreme Court ◽  
Separation Of Powers ◽  
Federal Courts ◽  
The Other ◽  
Judicial Discretion ◽  
Cross Border ◽  
The Supreme Court ◽  
Judicial Error ◽  
Hard Cases

The lower federal courts have been invoking “international comity abstention” to solve a wide array of problems in cross-border cases. In doing so, they are using a wide array of tests that vary not just across the circuits, but within them as well. That confusion will only grow, as both scholars and the Supreme Court have yet to clarify what exactly “international comity abstention” entails. Meanwhile, the breadth of “international comity abstention” stands in tension with the Supreme Court’s renewed embrace of the federal judiciary’s virtually unflagging obligation to exercise the jurisdiction given to the courts by Congress. Indeed, loose applications of “international comity abstention” risk undermining not only the interests of Congress, but the interests of the states as well.This Article argues against “international comity abstention” both as a label and as a generic doctrine. As a label, it has led courts to conflate abstention with other comity doctrines that are not about abstention at all, increasing the risk of judicial error and jeopardizing federalism protections. And as a generic doctrine, it encourages judges to decline their jurisdiction too readily, in contrast to the Court’s emphasis on the principle of jurisdictional obligation. The solution, however, is not to deny all judicial discretion to decline jurisdiction. Even if such a complete bar on abstention were intended as an act of judicial humility, it may serve to empower the judiciary instead. Absolute rules, whether based on constitutional limits or strict textualism, can override or exclude the other branches’ views regarding the proper scope of transnational litigation in U.S. courts. Leaving some space for judicial discretion to decline jurisdiction also leaves some space for the other branches to continue that conversation.In lieu of a single broad doctrine of “international comity abstention,” then, this Article proposes identifying more narrow bases for abstention in transnational litigation — bases that can be separately justified, candidly addressed, and analyzed through judicially manageable frameworks. In particular, the federal courts need a clear and consistent framework for when to stay cases in light of parallel litigation in foreign courts. A separate doctrine for deferring to foreign comprehensive remedial schemes may also be appropriate.Evaluating the doctrinal design of abstention in transnational litigation also serves as a lens through which to revisit a long-standing debate: To the extent that the principle of jurisdictional obligation reflects separation-of-powers concerns, those concerns can be addressed without insisting that judges’ hands are tied. True judicial humility recognizes both Congress’s role in defining the federal courts’ jurisdiction and the impossibility of asking judges to read Congress’s mind. Leaving space for carefully cabined discretion in hard cases recognizes both the complexity of life and the continuing need for inter-branch dialogue.

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