EXCLUSION OF JUDICIAL REVIEW, THE PUBLIC AND PRIVATE LAW BOUNDARY, HABEAS CORPUS

1998 ◽  
pp. 109-144
Keyword(s):  
Judicial Review ◽  
Private Law ◽  
Habeas Corpus ◽  
Public And Private ◽  
The Public

scholarly journals The possibilities of consensual resolution of judicial conflicts with the Public Administration

2018 ◽  
Vol 18 (72) ◽  
pp. 31-50
Author(s):  
Gabriel Perlingeiro
Keyword(s):  
Public Interest ◽  
Judicial Review ◽  
A Priori ◽  
Public Law ◽  
Clear Understanding ◽  
Private Law ◽  
Public Authorities ◽  
Public And Private ◽  
The Public ◽  
Legal Studies

This text endeavors to define the theoretical limits of the capacities of the public administrative authorities to reach consensual solutions to disputes within the framework of judicial review. It is motivated by the lack of a clear understanding in Brazilian law of the border area between the legal relations of public and private law involving the public authorities, and the expressions “inalienable right” (or “inalienable interest”) and “public interest” as shown by the inexplicable asymmetry between what the public administrative authorities can do within a judicial proceeding and outside one. Based on a comparative study of common law versus civil law legal systems and an examination of the treatment of the subject in Brazilian statutes, case law and legal studies, this article reviews the relationship between the public interest and inalienability, demonstrating, in conclusion, that the possibility of the administrative authorities to enter into settlements or follow similar practices should not be rejected a priori, even in cases of public law. According to the author, there are three possible scenarios in which public administrative authorities may resort to consensual dispute resolution in the context of the judicial review: in private-law relationships, in public-law relationships with respect to the exercise of administrative actions prescribed by law and public-law relationships with respect to the exercise of discretionary powers.

Interim relief in the public law context

1999 ◽  
Vol 58 (1) ◽  
pp. 1-48
Author(s):  
Nicholas Bamforth
Keyword(s):  
Judicial Review ◽  
Administrative Law ◽  
Public Law ◽  
Private Law ◽  
Public And Private ◽  
The Public ◽  
Private Citizens ◽  
The Subject ◽  
The Individual ◽  
Law Commission

THE remedial aspects of judicial review illustrate in particularly vivid form the divergent nature of public and private law proceedings. The prerogative orders–mandamus, certiorari and prohibition–are available only via judicial review. Leave is required for judicial review but not for private law actions. By contrast with the private law writ procedure, judicial review must be brought promptly and within three months. In judicial review, a remedy can still be denied to the applicant who establishes a substantive case. As the Law Commission made clear in its Report Administrative Law: Judicial Review and Statutory Appeals, “[j]udicial review often involves values and policy interests, which must be balanced against and may transcend the individual interests, which are normally the subject of litigation between private citizens” (Law Com. No. 226, para. 2.1).

13. The nature of judicial review

2020 ◽  
pp. 277-308
Author(s):  
Neil Parpworth
Keyword(s):  
Decision Making ◽  
Judicial Review ◽  
Public Law ◽  
Executive Power ◽  
Decision Making Process ◽  
Private Law ◽  
The Public ◽  
Procedural Reform ◽  
Actual Decision ◽  
Public Bodies

Judicial review is a procedure whereby the courts determine the lawfulness of the exercise of executive power. It is concerned with the legality of the decision-making process as opposed to the merits of the actual decision. Thus it is supervisory rather than appellate. Emphasis is also placed on the fact that the jurisdiction exists to control the exercise of power by public bodies. This chapter discusses the supervisory jurisdiction of the courts, procedural reform, the rule in O’Reilly v Mackman, the public law/private law distinction, collateral challenge, and exclusion of judicial review. The procedure for making a claim for judicial review under the Civil Procedural Rules (CPR) 54 is outlined.

Yelling ‘Fire’ in a Crowded Occupation: Cynical Fire Hazard Claims and the Technocratic Containment of Dissent

2019 ◽  
Vol 29 (4) ◽  
pp. 549-573
Author(s):  
Honor Brabazon
Keyword(s):  
Public Space ◽  
Social Relations ◽  
Public Interest ◽  
Fire Hazard ◽  
Research Literature ◽  
Private Law ◽  
Public And Private ◽  
The Public ◽  
Private And Public ◽  
The Uk

While the privatisation of public space has been the subject of considerable research, literature exploring the shifting boundaries between public and private law, and the role of those shifts in the expansion of neo-liberal social relations, has been slower to develop. This article explores the use of fire safety regulations to evict political occupations in the context of these shifts. Two examples from the UK student occupation movement and two from the US Occupy movement demonstrate how discourses and logics of both private and public law are mobilised through fire hazard claims to create the potent image of a neutral containment of dissent on technical grounds in the public interest – an image that proves difficult to contest. However, the recourse to the public interest and to expert opinion that underpins fire hazard claims is inconsistent with principles governing the limited neo-liberal political sphere, which underscores the pragmatic and continually negotiated implementation of neo-liberal ideas. The article sheds light on the complexity of the extending reach of private law, on the resilience of the public sphere and on the significance of occupations as a battleground on which struggles over neo-liberal social relations and subjectivities play out.

scholarly journals Viešoji ir privatinė teisė: pamatinės klasifikacijos problemos

Teisė ◽  
2012 ◽  
Vol 82 ◽  
pp. 120-132
Author(s):  
Arnas Stonys
Keyword(s):  
Private Law ◽  
Relevant Article ◽  
Public And Private ◽  
Systematic Analysis ◽  
The Public

Straipsnio tyrimo objektas – sisteminė teisės skirstymo į viešąją ir privatinę problematikos analizė. Siekiant jos universalumo atsiribojama nuo specializuoto tam tikrų šakų ir institutų tyrimo, ir pasitelkiant praktinius pavyzdžius siekiama atskleisti klasikinio klasifikavimo nepakankamumą šiuolaikinėje teisinėje tikrovėje. Atsižvelgiant į nustatytą problematiką, aktualus tampa ne tik skirstymo galimybių, bet ir jo poreikio klausimas. Straipsniu nesiekiama pateikti atsakymo, ar tikslinga teisę skirstyti į viešąją ir privatinę, bet įvardijamos skirtingos vertinimo galimybės ir su tuo susiję potencialūs padariniai.The object of the article is a systematic analysis of the problems occurring when separating public and private law. With the purpose of the versatility and without association to any specialized branches or institutes of law, the article is seeking to disclose insufficiency of the usual classification in contemporary legal reality by using the practical examples. In view of the indicated problems not only classification possibilities but also their necessity question becomes relevant. Article is not intending to give the answer if the classification into the public and private law is expedient but rather identifies different assessment possibilities and related potential consequences.

13. The nature of judicial review

2018 ◽  
Author(s):  
Neil Parpworth
Keyword(s):  
Decision Making ◽  
Judicial Review ◽  
Public Law ◽  
Executive Power ◽  
Decision Making Process ◽  
Private Law ◽  
The Public ◽  
Procedural Reform ◽  
Actual Decision

Judicial review is a procedure whereby the courts determine the lawfulness of the exercise of executive power. It is concerned with the legality of the decision-making process as opposed to the merits of the actual decision. Thus it is supervisory rather than appellate. This chapter discusses the supervisory jurisdiction of the courts, procedural reform, the rule in O’Reilly v Mackman, the public law/private law distinction, collateral challenge, and exclusion of judicial review. The procedure for making a claim for judicial review under the Civil Procedural Rules (CPR) 54 is considered.

10. Judicial review: access to review and remedies

Public Law ◽  
2018 ◽  
Author(s):  
John Stanton ◽  
Craig Prescott
Keyword(s):  
Judicial Review ◽  
Case Law ◽  
Public Law ◽  
Private Law ◽  
Legal Basis ◽  
Legal Requirements ◽  
The Public ◽  
Meaning And Purpose

This chapter provides an introduction to judicial review and its various features and requirements. It starts by exploring the meaning and purpose of judicial review, explaining the particular functions of the courts and the jurisdiction that justifies their scrutiny of administrative matters. It then sets out the legal basis for judicial review and the process through which applications proceed, which while rooted in statute, has developed incrementally through both case law and the 1998 Woolf Reforms. The chapter considers issues relating to access to review, exploring the legal requirements that must be fulfilled before an application for judicial review can be entertained by the Administrative Court. This includes a discussion of standing, which determines who can bring a claim, and consideration of the issues relating to the public law/private law divide, which concerns against whom a claim can be brought and the matter upon which that claim can be founded.

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