Tort Law and Climate Change

Tort law presents doctrinal barriers to plaintiffs seeking remedies for climate change harms in common law jurisdictions. However, litigants are likely to persist in pursuing tortious causes of action in the absence of persuasive policy and regulatory alternatives. Ongoing litigation in Smith v Fonterra Co-operative Group Ltd in New Zealand and Sharma v Minister for Environment in Australia highlights tensions between torts doctrine and climate change litigation in both countries. Regardless of its ultimate outcome, that litigation provides a valuable opportunity to integrate theoretical questions about the legitimacy of judicial lawmaking, and intersectional critical legal perspectives, into the teaching of torts.

An Application of the Principles of Environmental Law in Resolution of Environmental Disputes

This article examines principles of environmental law been applied by courts in their dispute resolution activities. The aim of the study is to systematize the applied in certain categories of cases principles. The tasks set by the author are to identify the correctness of the application, the correspondence of the meaning of the principle to which the court refers and the need set before the court – the dispute under consideration. Methods used in the article are method of analysis and synthesis that suits the goal. Environmental requirements and their corresponding principles are universal. The considered principles of environmental and land law are important in resolving legal disputes, playing the role of pillars of law, they are referenced in almost every court decision. Whether their indication in decisions is limited judicial lawmaking or elimination of a conflict, as well as the use of an analogy of law or law in the absence of an appropriate rule of law, is to be clarified in this study based on the analysis of judicial practice. Currently, there are a number of problems related to the application of the principles of environmental law, for example, the need to expand the list of principles of environmental law enshrined in legal norms with insufficient legislative support for the implementation. The environmental doctrine is developing actively nowadays; it provides a high probability of improving legal regulation in the field of environmental legal relations and the principles of environmental law in the future. Keywords: principles of environmental law, judicial practice in environmental disputes, application of the principles of environmental law by the courts, inconsistency of judicial practice with the essence of the principle

SUBSIDIARY APPLICATION OF LEGAL NORMS: CIVIL STUDIES

Субсидиарное применение правовых норм является одной из технологий усмотренческой деятельности суда и других компетентных субъектов - наряду с конкретизацией норм и правоотношений, аналогией права и закона, разрешением коллизии и судебным правотворчеством. В отличие от аналогии, необходимость в которой возникает в связи с пробелом в законодательстве, означенный вид деятельности обусловлен системным характером связей между отраслями права и целесообразностью экономии нормативно-правового материала. В пространстве цивилистики взаимодействие трех отраслей (гражданского, семейного и трудового права) по линии субсидиарности осуществляется в основном с акцентом на использование гражданско-правовых конструкций для двух других цивилистических блоков. Это обусловлено как характером «генетических» связей между указанными тремя отраслями законодательства, так и ключевыми позициями гражданского права в цивилистической семье в настоящее время. Однако субсидиарное воздействие последнего существенно ограничивается онтологическими характеристиками семейных и трудовых отношений и присутствием в методах их правового регулирования ярко выраженной публичной компоненты, социального начала. Приводятся наиболее яркие образцы взаимного обогащения нормативным материалом на основе технологии субсидиарности - при очевидном доминировании предложений со стороны гражданского законодательства Subsidiary application of legal norms is one of the technologies of the judgmental activity of the court and other competent subjects - along with the specification of norms and legal relations, the analogy of law and law, conflict resolution and judicial lawmaking. In contrast to the analogy, the need for which arises in connection with a gap in legislation, this type of activity is due to the systemic nature of the links between branches of law and the expediency of saving regulatory material. In contrast to the analogy, the need for which arises in connection with a gap in legislation, this type of activity is due to the systemic nature of the links between branches of law and the expediency of saving regulatory material. In the space of civil law, the interaction of three branches (civil, family and labor law) along the line of subsidiarity is carried out mainly with an emphasis on the use of civil law structures for the other two civil law blocks. This is due to both the nature of the «genetic» links between these three branches of legislation, and the key positions of civil law in the civil law family at the present time. However, the subsidiary impact of the latter is significantly limited by the ontological characteristics of family and labor relations and the presence in the methods of their legal regulation of a pronounced public component, social principle. The most striking examples of mutual enrichment with normative material based on the technology of subsidiarity are given - with the obvious dominance of proposals from civil legislation.

Taking the Judges Seriously v. Grand Theories

Chapter 1 describes the approach of reflexive tort scholarship and how it depends on a clear understanding of the environment of judicial decision-making. Part of that environment is the conception that judicial ‘lawmaking’ is ‘retrospective’, by which is usually meant that it is imposed retroactively. Yet retroactivity is in sharp tension with the fundamental principle that situations should be judged according to the law as it was at that time. To resolve this tension, the text offers a conception of the common law as ‘living’, that it evolves in line with changes in society. Later, litigation invites the ultimate court to articulate this evolution and how the law stood at the time that the parties interacted. The descriptive claims of Grand Theories are contrasted with reflexive tort scholarship, which accommodates key aspects of judicial decision-making, such as the heterogeneity of judicial reasons, in ways that those descriptive claims cannot.

Genesis of court practice and judicial precedent

The problem of judicial lawmaking is one of the urgent problems for modern legal science. The subject of the study is the genesis of judicial practice and judicial precedent to identify the possibility of using them as full-fledged sources of Ukrainian law, the development of this problem is associated with improving the quality of legislation. Сonsiders the issues of judicial practice and judicial precedent in the world of judicial lawmaking in the field of jurisprudence.The article, based on a historical approach, examines in detail the nature of judicial precedent and judicial practice,analyzes the factors that influenced their development and formation. A historical and legal analysis of the peculiarities of formation and development of judicial practice, and judicial precedent in the Anglo-Saxon and Romano-Germanic legal families. Attention is drawn to the uncertainty about the role of judicial precedent in the legal system during the formation and development of the Romano-Germanic legal family. Keywords: case law, judicial precedent, source of law, legislation, court decisions.

Legal technique of judicial practice and its role in state legislation

Purpose. The purpose of the study is to reveal the features of the legal technique of judicial practice and its role in law-making of the state. Methodology. First of all, the principles and techniques of formal-logical methodology are used.Elements of the structural-functional approach have been widely used. Thus, the identification of intersectoral links in judicial practice is based on the functional nature of law in general and procedural means in particular, which allowed us to see intersectoral links in judicial lawmaking. In addition, dialectical, system-structural and functional methods, the method of interpretation were used in the work. Judicial lawmaking is a separate area where completely different approaches are possible. Questions about the reflection of the legal technique of judicial practice and its role in the law-making process are considered in terms of both natural law and positivist and other areas of jurisprudence. Originality. The scientific novelty lies in the theoretical understanding and delineation of the legal technique of contract lawmaking, which is interpreted as a set of methods, tools and techniques used in developing the content and structure of judicial acts of any instance in the relevant proceedings. The specifics of judicial lawmaking are shown, which consists in the presence of such features that characterize it as an independent legal phenomenon that differs from other types of lawmaking. According to its functional purpose, judicial lawmaking creates the conditions for resolving specific court cases; eliminates gaps and ambiguities of certain legislation during the trial; complements the law-making system as a whole, consistently eliminating its shortcomings. The essence of such means of legal technique in judicial law-making as judicial interpretation and judicial concretization of norms of law is revealed. Results. The study found that the effectiveness of the courts depends not only on the number and content of judicial acts, but also on their technical and legal excellence. The role of judicial practice in law-making activity is strengthened, which is manifested in the need to take it into account, in the possibility of identifying shortcomings of current legislation, identifying possible law-making ways to overcome shortcomings in current legislation. Judicial law-making is an independent type of law-making that takes place within the competence of judicial bodies, when existing defects of legal regulation are eliminated by law-making court decisions as a result of interpretation and concretization of excessively generalized and abstract rules of law and by filling gaps in law. Practical importance. The results of the study can be used in law-making activities in order to identify shortcomings in current legislation and identify possible law-making ways to overcome shortcomings in current legislation. Keywords: legal technique, law-making, law-enforcement act, court practice, court precedent.

Legal nature of administrative precedent as a source of law

The article deals with the study of the legal nature of administrative precedent as one of the types of legal precedent. A reviewof scientific research on this topic shows that in different periods the issue of the legal force of legal precedent as a source of law andits various types have been in the focus of domestic and foreign scholars.However, examining precedent as a source of law, the main focus was on judicial lawmaking, that is, judicial precedent, whichis created by judges when considering specific cases, which in turn led to a certain one-sidedness of the study.The article identifies the need to study the legal nature of different types of legal precedent with an emphasis on the legal forceof administrative precedent. The main features of precedent as a source of law, as well as the peculiarities of its formation and functioningin different legal systems are considered.

The Cross-Complaint Procedure as a Result of Law Making of the Supreme Court of the Russian Federation

The subject of research is critical analysis of legal position of the Supreme Court of the Russian Federation on the need to go through the pre-claim procedure when filing a counterclaim. The reason for the analysis was the adoption on July 22, 2020 by the Presidium of the Russian Supreme Court of the Review of the practice of application by commercial courts of the provisions of procedural legislation on mandatory pre-trial claim. Point 17 of this document enshrined as a general rule the obligation of the defendant to file a pre-trial claim upon filing a counterclaim. The article shows the inexpediency and absence of any clear grounds for such an approach. Particular attention is paid to the fact that the nature of the pre-trial claim and the nature of the counterclaim are incompatible. Those exceptions were also criticized for which, according to the instructions of the Supreme Court of the Russian Federation, a counter-claim procedure is not needed. Thus, the article comes to a fundamental conclusion that there is no need to comply with the claim procedure when filing a counterclaim. Along with this, the study touches upon other issues raised in connection with the adoption of the Review on the complaint procedure: about judicial lawmaking and the quality of clarifications of the highest court instance.