Constitutionalizing Necessity Through Suspension

Overcoming Necessity ◽

10.12987/yale/9780300181616.003.0003 ◽

2020 ◽

pp. 59-86

Author(s):

Thomas P. Crocker

Keyword(s):

Decision Making ◽

Constitutional Rights ◽

Habeas Corpus ◽

American Constitution ◽

Constitutional Order ◽

Normal Part ◽

Normative Constraint ◽

Chief Justice ◽

Ex Ante ◽

Governing Relation

This chapter explores how the American Constitution embeds authority to suspend the writ of habeas corpus in extraordinary times, which allows executive officials to detain individuals without judicial oversight during emergencies. It analyzes the provision that functions as a temporary “emergency constitution” but does not license anything like a complete suspension of the constitutional order. It also looks at how the Suspension Clause works and what it does not authorize, which sheds light on how to incorporate and overcome necessity through ex ante constitutional means. The chapter mentions Chief Justice Marshall that explained in McCulloch how necessity has an ordinary governing relation to normative constraint. It also highlights necessity as a normal part of governing decision–making and subject to review in proportion to how much it invades protected constitutional rights and liberties.

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Going Beyond Panaceas: The Diversity of Land Observatory Forms in Africa

Land ◽

10.3390/land9030070 ◽

2020 ◽

Vol 9 (3) ◽

pp. 70 ◽

Cited By ~ 1

Author(s):

Quentin Grislain ◽

Jeremy Bourgoin ◽

Ward Anseeuw ◽

Perrine Burnod ◽

Eva Hershaw ◽

...

Keyword(s):

Decision Making ◽

Participant Observation ◽

Video Conferencing ◽

Analytical Framework ◽

Informed Decision ◽

Informed Decision Making ◽

Information Production ◽

Dynamic Data ◽

Ex Post ◽

Ex Ante

In recent decades, mechanisms for observation and information production have proliferated in an attempt to meet the growing needs of stakeholders to access dynamic data for the purposes of informed decision-making. In the land sector, a growing number of land observatories are producing data and ensuring its transparency. We hypothesize that these structures are being developed in response to the need for information and knowledge, a need that is being driven by the scale and diversity of land issues. Based on the results of a study conducted on land observatories in Africa, this paper presents existing and past land observatories on the continent and proposes to assess their diversity through an analysis of core dimensions identified in the literature. The analytical framework was implemented through i) an analysis of existing literature on land observatories, ii) detailed assessments of land observatories based on semi-open interviews conducted via video conferencing, iii) fieldwork and visits to several observatories, and iv) participant observation through direct engagement and work at land observatories. We emphasize that the analytical framework presented here can be used as a tool by land observatories to undertake ex-post self-evaluations that take the observatory’s trajectory into account, or in the case of proposed new land observatories, to undertake ex-ante analyses and design the pathway towards the intended observatory.

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Chameleonic knowledge: a study of ex ante analysis in large infrastructure policy processes

Policy Sciences ◽

10.1007/s11077-021-09423-5 ◽

2021 ◽

Author(s):

Lars Dorren ◽

Wouter Van Dooren

Keyword(s):

Decision Making ◽

Decision Makers ◽

Policy Outcomes ◽

Knowledge Use ◽

Short Term ◽

Cost Overruns ◽

Substantive Content ◽

Infrastructure Policy ◽

Decision Outcomes ◽

Ex Ante

AbstractUsing ex ante analysis to predict policy outcomes is common practice in the world of infrastructure planning. However, accounts of its uses and merits vary widely. Advisory agencies and government think tanks advocate this practice to prevent cost overruns, short-term decision-making and suboptimal choices. Academic studies on knowledge use, on the other hand, are critical of how knowledge can be used in decision making. Research has found that analyses often have no impact at all on decision outcomes or are mainly conducted to provide decision makers with the confidence to decide rather than with objective facts. In this paper, we use an ethnographic research design to understand how it is possible that the use of ex ante analysis can be depicted in such contradictory ways. We suggest that the substantive content of ex ante analysis plays a limited role in understanding its depictions and uses. Instead, it is the process of conducting an ex ante analysis itself that unfolds in such a manner that the analysis can be interpreted and used in many different and seemingly contradictory ways. In policy processes, ex ante analysis is like a chameleon, figuratively changing its appearance based on its environment.

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Gender, Internal Armed Conflict, and High Court Decision-Making in Transitioning Societies

International Studies Quarterly ◽

10.1093/isq/sqab067 ◽

2021 ◽

Author(s):

Lee Demetrius Walker ◽

Melissa Martinez ◽

Christopher Pace

Keyword(s):

Decision Making ◽

Court Decision ◽

Internal Conflict ◽

Political Rights ◽

Habeas Corpus ◽

High Court ◽

Men 2 ◽

Civil And Political Rights ◽

And Gender ◽

Conflict Intensity

Abstract Building on research that applies the policy deference model to high court decision-making during external war, we propose that conflict intensity, political government's preference on liberalization, and the gender of appellant impact the manner in which courts follow policy deference during internal war in transitioning countries. Contextually, we argue that shifts in women's roles and gender relations during internal conflict in transitioning societies condition the manner in which civilian courts make decisions on civil and political rights cases. During external war in advanced democracies, policy deference infers that courts will rule more conservatively on civil and political rights cases. Using habeas corpus cases as a representation of civil and political rights’ protection from El Salvador's civil war period (1980–1992) and two measures of conflict intensity, our findings indicate that the court's decision-making process deviates from conventional expectations derived from the policy deference model in three ways: (1) conflict intensity solely affects the court's decision-making on habeas corpus cases involving men; (2) the political government's choice for political liberalization affects the court's decision-making on both women and men cases; and (3) gender conditions the manner in which policy deference applies in a society that is experiencing societal change.

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DEONTOLOGY, THRESHOLDS, AND EFFICIENCY

Legal Theory ◽

10.1017/s1352325211000176 ◽

2011 ◽

Vol 17 (4) ◽

pp. 301-317 ◽

Cited By ~ 1

Author(s):

Christopher T. Wonnell

Keyword(s):

Decision Making ◽

Degrees Of Freedom ◽

Moral Judgments ◽

Rule Following ◽

Threshold Functions ◽

Ex Post ◽

Ex Ante ◽

The Many ◽

The Relationship ◽

Public Decision

This article explores four topics raised by Eyal Zamir and Barak Medina's treatment of constrained deontology. First, it examines whether mathematical threshold functions are the proper way to think about limits on deontology, given the discontinuities of our moral judgments and the desired phenomenology of rule-following. Second, it asks whether constrained deontology is appropriate for public as well as private decision-making, taking issue with the book's conclusion that deontological options are inapplicable to public decision-making, whereas deontological constraints are applicable. Third, it examines the issue of the relationship between deontology and efficiency, asking whether deontological constraints should yield in situations where everyone would expect to benefit from their suspension, either ex ante or ex post. Finally, the article concludes that constrained deontology is susceptible to political abuse because of the many degrees of freedom involved in identifying constrained actions and the point at which those constraints yield to consequentialist benefits.

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How should we regulate artificial intelligence?

Philosophical Transactions of The Royal Society A Mathematical Physical and Engineering Sciences ◽

10.1098/rsta.2017.0360 ◽

2018 ◽

Vol 376 (2128) ◽

pp. 20170360 ◽

Cited By ~ 5

Author(s):

Chris Reed

Keyword(s):

Artificial Intelligence ◽

Neural Networks ◽

Decision Making ◽

Current System ◽

General System ◽

Fundamental Rights ◽

Ex Post ◽

Ex Ante ◽

Human Decision

Using artificial intelligence (AI) technology to replace human decision-making will inevitably create new risks whose consequences are unforeseeable. This naturally leads to calls for regulation, but I argue that it is too early to attempt a general system of AI regulation. Instead, we should work incrementally within the existing legal and regulatory schemes which allocate responsibility, and therefore liability, to persons. Where AI clearly creates risks which current law and regulation cannot deal with adequately, then new regulation will be needed. But in most cases, the current system can work effectively if the producers of AI technology can provide sufficient transparency in explaining how AI decisions are made. Transparency ex post can often be achieved through retrospective analysis of the technology's operations, and will be sufficient if the main goal is to compensate victims of incorrect decisions. Ex ante transparency is more challenging, and can limit the use of some AI technologies such as neural networks. It should only be demanded by regulation where the AI presents risks to fundamental rights, or where society needs reassuring that the technology can safely be used. Masterly inactivity in regulation is likely to achieve a better long-term solution than a rush to regulate in ignorance. This article is part of a discussion meeting issue ‘The growing ubiquity of algorithms in society: implications, impacts and innovations'.

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13 Conclusion

The Irish Supreme Court ◽

10.1093/law/9780198793731.003.0013 ◽

2019 ◽

Author(s):

Dickson Brice

Keyword(s):

Decision Making ◽

Supreme Court ◽

Common Law ◽

Supreme Courts ◽

Chief Justice ◽

The Future ◽

The Creation ◽

Conference Papers ◽

Court Of Appeal

This chapter attempts to sum up the conclusions that can be drawn about the Irish Supreme Court from the surveys and analyses in foregoing chapters. It highlights the constraints placed on the Court’s decision-making, especially its lack of power to turn away many appeals. Some of the Court’s principal achievements are reviewed but some of the opportunities it has failed to exploit are also referred to. The future of the Court is considered, especially in light of the creation of the Court of Appeal in 2014. Attention is given to the importance of strong leadership at the Chief Justice level and to the need for more public pronouncements from the judges in lectures and conference papers. Final remarks are made on how the Court compares to supreme courts in other common law countries.

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6 Extraterritorial Application of U.S. Law

International Law in the US Legal System ◽

10.1093/law/9780197525609.003.0006 ◽

2020 ◽

Author(s):

Bradley Curtis A

Keyword(s):

Due Process ◽

The United States ◽

Criminal Prosecution ◽

Constitutional Rights ◽

Habeas Corpus ◽

State Laws ◽

Guantanamo Bay ◽

The Supreme Court ◽

The Right

This chapter considers the application of federal and state law to conduct that takes place outside the territory of the United States. It begins by discussing the territorial scope of U.S. constitutional rights. Special consideration is given to the extraterritorial application of the right of habeas corpus in light of the Supreme Court’s 2008 decision in Boumediene v. Bush, concerning the habeas corpus rights of detainees at the Guantanamo Bay naval base in Cuba. The chapter then discusses the “presumption against extraterritoriality” that the Supreme Court applies when interpreting federal statutes. For situations in which the presumption is overcome or is inapplicable, the chapter explains how customary international law principles relating to prescriptive jurisdiction can be relevant in U.S. litigation through application of the Charming Betsy canon of construction. In addition, the chapter discusses the role of “universal jurisdiction” in U.S. litigation and criminal prosecution. Possible constitutional limitations on the extraterritorial application of both federal statutes and state laws, based on due process and other considerations, are also considered.

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