Supreme Courts in the 21st Century: should organisation follow the function?

2019 ◽  
Vol 81 ◽  
pp. 125-139
Author(s):  
Alan Uzelac
Keyword(s):  
Supreme Court ◽  
21St Century ◽  
Special Functions ◽  
Comparative Law ◽  
Legal Research ◽  
Supreme Courts ◽  
Organisational Structures ◽  
Per Capita

The text discusses different aspects connected with organisation of supreme courts. It argues that the focus should be shifted to the “how” question. If the supreme courts aspire to fulfil certain special functions, a necessary precondition towards fulfilling this goal entails appropriate organisational structures, means and personnel. The organisation, framework and methods of work of a supreme court should reflect the functions that it is supposed to serve. Although most supreme courts have staff, departments and offices that are entrusted with legal research and analysis, the rise in importance of international jurisprudence is putting on the agenda the need for restructuring and reinforcing the existing departments. The author claims that supreme courts are becoming less and less self-centred in their adjudication, which requires legal research of international and comparative law. The text also deals with other aspects of supreme courts’ organisation. For instance, it shifts focus towards the relation between the number of judges in a supreme court and its impact on the uniformity of jurisprudence. It also emphasises the need to further examine the relation between the number of judges per capita and the efficiency of the court’s work.

Malpractice & Negligence: State Supreme Courts Limit Therapists’ Duties to Third Parties

1999 ◽  
Vol 27 (2) ◽  
pp. 204-205
Author(s):  
Megan Cleary
Keyword(s):  
Sexual Abuse ◽  
Child Sexual Abuse ◽  
Supreme Court ◽  
New Hampshire ◽  
Third Parties ◽  
State Supreme Courts ◽  
Recovered Memories ◽  
Supreme Courts ◽  
Repressed Memory ◽  
University Of Colorado

In recent years, the law in the area of recovered memories in child sexual abuse cases has developed rapidly. See J.K. Murray, “Repression, Memory & Suggestibility: A Call for Limitations on the Admissibility of Repressed Memory Testimony in Abuse Trials,” University of Colorado Law Review, 66 (1995): 477-522, at 479. Three cases have defined the scope of liability to third parties. The cases, decided within six months of each other, all involved lawsuits by third parties against therapists, based on treatment in which the patients recovered memories of sexual abuse. The New Hampshire Supreme Court, in Hungerford v. Jones, 722 A.2d 478 (N.H. 1998), allowed such a claim to survive, while the supreme courts in Iowa, in J.A.H. v. Wadle & Associates, 589 N.W.2d 256 (Iowa 1999), and California, in Eear v. Sills, 82 Cal. Rptr. 281 (1991), rejected lawsuits brought by nonpatients for professional liability.

COMPARATIVE METHOD IN CONSTITUTIONAL LAW: BETWEEN PRESUMPTIONS OF SIMILARITIES AND DIFFERENCES

2019 ◽  
Vol 14 (5) ◽  
pp. 84-113
Author(s):  
ALEXANDRA A. TROITSKAYA
Keyword(s):  
Political Philosophy ◽  
Theoretical Model ◽  
Constitutional Law ◽  
Comparative Method ◽  
Comparative Law ◽  
Middle Level ◽  
Legal Research ◽  
Universal Principles ◽  
The World ◽  
Similarities And Differences

The two main approaches to the use of the comparative method in legal research, functional and cultural, have some "predetermined" considerations regarding the results that will (or should) be discovered by comparing various legal phenomena — should the emphasis be on similarities or differences between these phenomena. These considerations are based on the vision of, respectively, the universal or pluralistic nature of law of various societies, and in fact they are able to correct substantially the process of cognition of legal phenomena using the comparative method, adjusting it to the desired result. In the case of similarities, we can talk about artificially narrowing the circle of countries under investigation. In the case of differences, the isolation of systems and the uniqueness of their cultural characteristics are unreasonably exaggerated. The alternative assumptions presented in the theory of comparative law regarding the existence of universal principles of law or the fundamental uniqueness of each legal system require a critical rethinking of constitutional provisions and practice in comparative studies. The use of the comparative method in constitutional law is not reducible to the implementation of the ideas of political philosophy, and objective conclusions should not be replaced by predetermined normative guidelines. The similarities and differences revealed by the researcher of constitutional ideas, norms and practices can be considered as a result of comparison of independent value.Constitutional law is associated with a variety of substantial constructs existing in the world, not excluding, however, their intercommunication. Understanding these constructions requires attention to both the similarities and the differences in specific legal orders (as well as the reasons for their functioning in this, and not another form). The use of the comparative method in the absence of striving for predetermined results is simultaneously aimed at understanding the laws of development of constitutional institutions and maintaining the horizon of their diversity as an important component of this development. Each time, the researcher should distance himself from his prejudices regarding the similarities or differences between the institutes under study, rechecking whether the obtained results are really the results of applying the comparative method, and not the initial constructions.The logic of a comparative study corresponds to the construction of theories of "middle level", aimed at forming the theoretical model of a particular legal in-stitution, taking into account the practice of implementing this institution in specific states. The focus on middle-level theories within the framework of the comparative method allows one to go beyond the description of single systems, formulate conclusions at the level of generalization that ensure the comparability of the studied objects, and at the same time maintain an understanding of the diversity of constitutional models.

scholarly journals THE PROBLEMS OF CONSTITUTIONAL ORDER STABILITY IN THE EURO-ASIAN REGION

2018 ◽  
pp. 17-26
Author(s):  
MARAT SALIKOV ◽  
SVETLANA KUZNETSOVA ◽  
ARTUR MOCHALOV
Keyword(s):  
Case Studies ◽  
Electoral Systems ◽  
Comparative Law ◽  
Ethnic Relations ◽  
Social Changes ◽  
Legal Research ◽  
Constitutional Order ◽  
Asian Region ◽  
Recent Developments

Introduction: Problems of stability of constitutional order have both theoretical and practical dimensions and touch all states. In the article, constitutional stability in the context of social changes is discussed. Methods: Doing the analysis, the authors use special methodology of legal research. In particular, a comparative-law is broadly applied as well as case studies. Analysis: In the first part of the article the authors discuss recent developments in the Russian constitutional legislation concerning electoral systems and informational technologies. In particular, the «Yarovaya Act» is criticized. In the authors’ opinion, legislation that does not meet social demands undermines constitutional stability. Frequent amendments of the Constitution and constitutional legislation (especially electoral one) do not contribute to constitutional stability as well. In the second part the authors analyze constitutional stability through the prism of inter-ethnic relations. They discuss some cases from Indian, Nigerian and Ethiopian experience. Results: The authors make a conclusion that stable constitutional order does not mean inflexible order. There should be a balance between social changes and maintenance of basic values and institutions. The constitutional order should be rigid enough for social changes not to be able to undermine the constitutional basis and trust of citizens to values, aims and principles proclaimed by the main law of the country.

scholarly journals The Complicated Business of State Supreme Court Elections: An Empirical Perspective

2017 ◽  
Author(s):  
Michael Heise
Keyword(s):  
Supreme Court ◽  
Campaign Contributions ◽  
Data Set ◽  
Supreme Courts ◽  
Judicial Elections ◽  
Business Interests ◽  
State Supreme Court ◽  
Proper Role ◽  
New Findings ◽  
Judicial Outcomes

Proponents of judicial elections and related campaign activities emphasize existing First Amendment jurisprudence as well as similarities linking publicly-elected state judges and other publicly-elected state officials. Opponents focus on judicial campaign contributions’ corrosive effects, including their potential to unduly influence judicial outcomes. Using a comprehensive data set of 2,345 business-related cases decided by state supreme courts across all fifty states between 2010–12, judicial election critics, including Professor Joanna Shepherd, emphasize the potential for bias and find that campaign contributions from business sources to state supreme court judicial candidates corresponded with candidates’ pro-business votes as justices. While Shepherd’s main findings generally replicate, additional (and alternative) analyses introduce new findings that raise complicating wrinkles for Shepherd’s strong normative claims. Findings from this study illustrate that efforts to influence judicial outcomes are not the exclusive domain of business interests. That is, judicial campaign contributions from non- (and anti-) business interests increase the probability of justices’ votes favoring non-business interests. As a result, critiques of judicial elections cannot properly rely exclusively on the influence of business interests. Moreover, that both business and non-business interests can successfully influence judicial outcomes through campaign contributions point in different (and possibly conflicting) normative directions. On the one hand, even if one agrees that the judicial branch qualitatively differs from the political and executive branches in terms of assessing campaign contributions’ proper role, that the potential to influence judicial outcomes is available to any interest group (willing to invest campaign contributions) complicates popular critiques of judicial elections. On the other hand, the same empirical findings also plausibly strengthen critiques of judicial elections, especially for those who view the judicial domain differently than other political domains.

Comparative Law in the NJAC Judgment

2018 ◽  
pp. 197-207
Author(s):  
Suhrith Parthasarathy
Keyword(s):  
Supreme Court ◽  
Comparative Law ◽  
Judicial Independence ◽  
International Experience ◽  
Judicial Appointments ◽  
The Supreme Court

This essay is an overview of the use of comparative law in the NJAC Case, and offers a critique of the Supreme Court’s analysis of comparative law in judicial appointments. The essay argues that the Supreme Court adopted an isolationist approach by shunning international experience from fifteen countries cited before it by the Union of India to drive home the point that executive presence in judicial appointments does not, by itself, impinge upon judicial independence. The author contests the Supreme Court’s cursory dismissal of relevant international experience on the ground that India, with its peculiar set of circumstances cannot replicate the experiences of other nations in judicial appointments. The author argues that this is self-serving and the judgment would have been better served by a surer grasp of comparative law and its rationales.

Indigenous Management and Bottom of Pyramid Countries

2016 ◽  
pp. 107-123
Author(s):  
Ron Berger
Keyword(s):  
21St Century ◽  
Capita Income ◽  
Positive Impact ◽  
Business Research ◽  
Indigenous Management ◽  
National Institutions ◽  
Bottom Of Pyramid ◽  
International Business Research ◽  
Per Capita

Recent research on indigenous management has created the potential for more diverse, and innovative international business research (Holtbrugge, Narayanan and Wang, 2011). In this conceptual chapter, I extend the existing literature on indigenous management, with an integration into, bottom of pyramid country research such as India (Prahalad and Hart, 2004; London and Hart, 2004; Berger, 2014). In the 21st century, eighty percent of the world's population is still considered developing, i.e. having a per capita income of less than U.S. $1,000 dollars per year. Most of these are emerging. This chapter focuses on the importance of national institutions and their potential lessons for, bottom of pyramid countries. I argue that national institutions play a key role in indigenous management research, through their positive impact on the, development of bottom of pyramid countries.

13 Conclusion

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.

1 Introduction

2019 ◽  
Author(s):  
Dickson Brice
Keyword(s):  
Supreme Court ◽  
Common Law ◽  
Legal Culture ◽  
Assessment Criteria ◽  
Supreme Courts ◽  
The Usa ◽  
The Uk

This chapter sets out the aims of the book, which are to evaluate the performance of the Irish Supreme Court through its 94 years of history to date and to assess what contribution it has made to Irish legal culture. It considers the difficulties in undertaking that task and surveys some of the evaluative literature which already exists on supreme courts in other common law countries such as the USA, Canada, Australia and the UK. It posits that the most important assessment criteria are clarity, fairness, efficiency and respect. The chapter then refers to existing literature on the Irish Supreme Court and explains what will be covered in subsequent chapters of the book.

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