Does Ginsburg’s Judicial Voice Get the International Level?

Global Jurist ◽  
2021 ◽  
Vol 0 (0) ◽  
Author(s):  
Cesare Cavallini ◽  
Stefania Cirillo
Keyword(s):  
Decision Making ◽  
Crucial Role ◽  
Civil Law ◽  
Public Acceptance ◽  
International Guideline ◽  
International Level ◽  
The U.S

Abstract In several civil law systems of justice, the judiciary’s role traditionally gives rise to an institutional debate due to the absence of precedent as a source of formal law. The courts’ ability to operate thus depends, among other matters, upon public acceptance of their function. However, in the U.S. system, Justice Ginsburg, as a “judge’s judge,” properly sustained the role of the judiciary’s legitimacy by defining her considerations of “substitutes of consent”: deference to precedent, judicial restraint, collegiality, judicial interdependence, and procedural accountability. Among these factors, deference to precedent played a crucial role that emerged from Ginsburg’s “measured motion” of decision-making. Should her values framework thus have an impact on civil law systems of justice? To answer this question, we will examine two civil law procedure institutions, along with their jurisprudence, through the lens of Justice’s Ginsburg judicial philosophy. The results show how the traditional debate concerning these institutions must move from the institutions themselves to the judiciary’s role and its “motions”, following the path traced by Ginsburg’s judicial voice. Thus, her judicial philosophy now represents an international guideline to delineate those “substitutes of consent” and the courts’ decision-making approach to enhance the courts’ judicial legitimacy.

scholarly journals Can philosophy contribute to a change of ethos? (The road from the law of the ethos toward European law

2003 ◽  
pp. 117-135
Author(s):  
Jovan Arandjelovic
Keyword(s):  
Decision Making ◽  
Crucial Role ◽  
European Law ◽  
The Road ◽  
European Institutions ◽  
Democratic State ◽  
The Law ◽  
Sense Of Justice ◽  
New Criteria

The author examines the character of the changes taking place in contemporary Serbian society. He emphasizes at the same time that contemporary Serbian philosophy is facing these crucial questions as well, which without it cannot be even addressed, let alone solved. The key difference between modern West European and contemporary Serbian societies, seen from the perspective of philosophy, is demonstrated most clearly in the manner of constituting institutions and transforming the modern Serbian society. In the process of building modern institutions philosophy, not just in our country but throughout the Slavic East, has not had the role it played in Europe. Here lies the explanation why natural consciousness and an original ethos, though considerably modified, still remain unadapted and today represent a major obstacle to the establishment of the rule of European law. Without a change in the sense of justice and respect for the law it is impossible to accomplish the transformation of the society in which the law recognized by a democratic state could not be super ordinate to any reason. The crucial role of philosophy in this process is seen by the author not only in establishing modern European institutions and acceptance of the principle of European legislation, but above all in its influence on the transformation of the original ethos and establishment of new criteria on which the reflection, decision making and action of any individual would be based. .

scholarly journals The role of conviction and narrative in decision-making under radical uncertainty

2017 ◽  
Vol 27 (4) ◽  
pp. 501-523 ◽  
Author(s):  
David Tuckett ◽  
Milena Nikolic
Keyword(s):  
Decision Making ◽  
Crucial Role ◽  
Narrative Theory ◽  
Mental States ◽  
Causal Models ◽  
Approach And Avoidance ◽  
Rules Of Thumb ◽  
The Future ◽  
Radical Uncertainty

We propose conviction narrative theory (CNT) to broaden decision-making theory in order to better understand and analyse how subjectively means–end rational actors cope in contexts in which the traditional assumptions in decision-making models fail to hold. Conviction narratives enable actors to draw on their beliefs, causal models, and rules of thumb to identify opportunities worth acting on, to simulate the future outcome of their actions, and to feel sufficiently convinced to act. The framework focuses on how narrative and emotion combine to allow actors to deliberate and to select actions that they think will produce the outcomes they desire. It specifies connections between particular emotions and deliberative thought, hypothesising that approach and avoidance emotions evoked during narrative simulation play a crucial role. Two mental states, Divided and Integrated, in which narratives can be formed or updated, are introduced and used to explain some familiar problems that traditional models cannot.

scholarly journals Admissibility of Lis Pendens in International Commercial Arbitration: A Comparative Insight of Different Legal Systems

2020 ◽  
Vol 13 (4) ◽  
pp. 134
Author(s):  
Ximei Wu ◽  
Abid Hussain Shah jillani
Keyword(s):  
Common Law ◽  
Effective Means ◽  
Civil Law ◽  
Deep Understanding ◽  
International Level ◽  
Legal Systems ◽  
Commercial Arbitration ◽  
International Commercial Arbitration ◽  
Domestic Level

An attempt has been made to investigate the role of the doctrine of Lis Pendens in international commercial arbitration while making a comparison of civil and common law traditions. Arbitration is regarded to be less painful and an effective means for resolving any type of commercial disputes. Sources of the law to investigate Arbitration's regulation on a national, institutional, and international level. However, it is known that the lis pendens doctrine has been rarely codified; thus, scholarly writings and case laws were consulted by the research for determining its adoption and content. It is important to note that the lis pendens is initially regarded as a tool, which has been developed to manage the proceedings of parallel court on a domestic level. The study concludes while arguing that when it comes to civil law tradition, lis pendens is regarded as an independent doctrine in international commercial arbitration since it shares the same claim of being tried in various forums simultaneously. In contrast, lis alibi pendens in the jurisdiction of common law is not known as a doctrine, but it is viewed as one of many factors whole applying the forum non-convenience principle. Both civil and common law need identity between various parties and their claims to constitute lis pendens in two proceedings, and therefore, they have a conform and deep understanding of the concept.

scholarly journals ON THE ROLE OF POLITICAL FACTORS IN INTEGRATION PROCESSES (ON THE EXAMPLE OF MERCOSUR)

2016 ◽  
Vol 1 (6) ◽  
pp. 0-0
Author(s):  
Дина Пайгина ◽  
Dina Paygina
Keyword(s):  
Decision Making ◽  
Driving Force ◽  
The Political ◽  
International Level ◽  
Integration Process ◽  
Political Factors ◽  
International Integration ◽  
Economic Context ◽  
Mutual Relations

The article analyzes the role of political factors in integration processes. Their implementation is a key component of the foreign policy of any state. As is generally known, the strategy of mutual relations of various countries is determined by a number of political factors, taking into account the interests of the community or competition in various spheres of cooperation. At the same time political factors are seen as the driving force of any process imposed by a public authority. It seems that the effect of political factors in this context is reflected in the fact that during the decision-making the stakeholders of the international integration seek to satisfy their own interests. The condition of mutually beneficial relationships, which has a clear political and economic context, is one of the key conditions in resolving the issue of states’ entering into the integration process. The content of political factors includes not only the political nature of states’ activities at the international level, but also the causes and the circumstances under which these decisions were taken. Thus, political factors are one of the major reasons for making key decisions in the implementation of international integration processes.

Defense Attorneys and Plea Bargains

2019 ◽  
pp. 37-55 ◽  
Author(s):  
Kelsey S. Henderson
Keyword(s):  
Decision Making ◽  
Supreme Court ◽  
Plea Bargaining ◽  
Psychological Processes ◽  
Defense Attorneys ◽  
Adversarial System ◽  
Federal Standard ◽  
Extralegal Factors ◽  
The U.S

In the landmark Gideon v. Wainwright decision (1963), the U.S. Supreme Court established the federal standard of appointed counsel for indigent defendants as fundamental to fairness. This right has been upheld throughout the years and is central to our adversarial system. The attorney’s responsibility is to zealously serve as the accused’s strongest counselor and advocate. In the context of plea bargaining, the attorney can assist the defendant in making a voluntary, knowing, and intelligent plea decision. The attorney may act as a “debiaser,” counteracting irrationality on the defendant’s part. However, research suggests structural influences and psychological processes may impede the role of the attorney. This chapter explores how legal and extralegal factors affect attorneys’ plea decision-making, which ultimately influence defendants’ decisions to waive or invoke their right to trial.

Why Business Unit Controllers Create Budget Slack: Involvement in Management, Social Pressure, and Machiavellianism

2010 ◽  
Vol 22 (2) ◽  
pp. 27-49 ◽  
Author(s):  
Frank G. H. Hartmann ◽  
Victor S. Maas
Keyword(s):  
Decision Making ◽  
Crucial Role ◽  
Social Pressure ◽  
Business Unit ◽  
Budgetary Slack ◽  
Management Accountants ◽  
The Creation ◽  
Personality Construct

ABSTRACT: This paper investigates business unit (BU) controllers’ inclination to engage in the creation of budgetary slack. In particular, we explore whether controllers who are involved in BU decision making are more susceptible to social pressure to engage in slack creation than controllers who are not. We expect, and find, a crucial role of the controller’s personality. Results from an experiment among 136 management accountants suggest that the personality construct Machiavellianism interacts with involvement to explain controllers’ responses to social pressure to create budgetary slack. Controllers scoring high on Machiavellianism are more likely to give in to pressure by BU management to create budgetary slack when they have been involved in decision making. In contrast, controllers scoring low on Machiavellianism are less likely to give in to pressure to create slack when they have been involved in decision making.

scholarly journals Comparing Clean Water Act Section 316(b) Policy Options

2002 ◽  
Vol 2 ◽  
pp. 106-138
Author(s):  
John Kadvany
Keyword(s):  
Decision Making ◽  
Clean Water Act ◽  
Assessment Process ◽  
Policy Framework ◽  
Clean Water ◽  
Policy Options ◽  
The U.S ◽  
New Facilities ◽  
Comparative Policy

This paper develops a comparative framework for policy proposals involving fish protection and Section 316(b) of the Clean Water Act (CWA). Section 316(b) addresses the impingement and entrainment of fish by cooling-water intake structures used principally by steam electric power plants. The framework is motivated by examining the role of adverse environmental impacts (AEIs) in the context of Section 316(b) decision making. AEI is mentioned in Section 316(b), but not defined. While various AEI options have been proposed over the years, none has been formalized through environmental regulations nor universally accepted. Using a multiple values approach from decision analysis, AEIs are characterized as measurement criteria for ecological impacts. Criteria for evaluating AEI options are identified, including modeling and assessment issues, the characterization of ecological value, regulatory implementation, and the treatment of uncertainty. Motivated by the difficulties in defining AEI once and for all, a framework is introduced to compare options for 316(b) decision making. Three simplified policy options are considered, each with a different implicit or explicit AEI approach: (1) a technology-driven rule based on a strict reading of the 316(b) regulatory text, and for which any impingement and entrainment count as AEI, (2) a complementary, open-ended risk-assessment process for estimating population effects with AEI characterized on a site-specific basis, and (3) an intermediate position based on proxy measures such as specially constructed definitions of littoral zone, sensitive habitat, or water body type. The first two proposals correspond roughly to responses provided, respectively, by the Riverkeeper environmental organization and the Utility Water Act Group to the U.S. Environmental Protection Agency (EPA)’s proposed 316(b) new facilities rule of August 2000; the third example is a simplified form of the EPA’s proposed August 2000 new facilities rule itself. The simplified policy positions are compared using the three dimensions of the comparative policy framework: (1) the role of CWA philosophy or vision, such as the use of technology-forcing rules, (2) regulatory policy implementation, and (3) the role for scientific information and the knowledge base. Strengths and weaknesses of all three 316(b) policy approaches are identified. The U.S. EPA’s final new facilities rule of November 2001 is briefly characterized using the comparative policy framework and used to further illustrate the approach.

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