Procedural Issues and Improvement of Judicial Review in Criminal Proceedings

The article addresses the issues of the modern development of judicial forms in relation to appellate proceedings in criminal proceedings in a systematic manner and in connection with the development and formation of cassation proceedings, as well as the exceptional procedures for review – judicial supervision and consideration of cases in newly discovered circumstances. This approach has not yet been developed and in terms of the systemic approach has some ambiguities and imperfections. At the same time, this use of almost all the main forms of judicial review takes place in Russia for the first time and needs in-depth analysis. In turn, the appellate procedure for judicial activity in the criminal process has reached a new level, it has significantly expanded and strengthened. A special judicial unit has been established in the judicial system, five appellate courts, which, in the light of the improvement of the procedural procedure for reviewing an appeal, significantly changes its position in the criminal justice system, due, in particular, to the properties of freedom of appeal and appellate validity of decisions and actions.

Assessing President Obama's Appointment of Women to the Federal Appellate Courts

A major legacy of the Obama presidency was the mark he left on the federal courts with respect to increasing judicial diversity. In particular, President Obama's appointments of women to the federal judiciary exceeded all previous presidents in terms of both absolute numbers and as a share of all judges; he also appointed a record-setting number of women of color to the lower federal courts. In this Article, I take an intersectional approach to exploring variation in the professional backgrounds, qualifications, and Senate confirmation experiences of Obama's female appeals court appointees, comparing them with George W. Bush and Bill Clinton appointees. These data reveal that women of color appointed by Obama differ from both white women and minority men in terms of ABA ratings, the types of professional experiences they bring with them, and whether they were confirmed by a roll call vote.

Partial defences to murder: changed landscape and nomenclature

The reformed partial defences to murder, enacted under the Coroners and Justice Act 2009, reflect Parliament’s attempt to align those defences with modern social norms and medical experience whilst retaining the existing definition of ‘murder’, being an offence that attracts a mandatory fixed sentence of imprisonment or detention. However, Parliament departed from the recommendations of the Law Commission in important respects and the appellate courts have added their ‘voice’ to the scope of the partial defences. This article, which is written from a practitioner’s perspective, discusses the existing law and considers the extent to which, since 2009, the aims of policy-makers and law-makers have been fulfilled or have fallen short of expectations. The author contends that the reforms did not go far enough, that the term ‘diminished responsibility’ is no longer apt, that rules relating to ‘loss of control’ are unnecessarily complex and unsatisfactory, and that expert opinion evidence remains problematic.

The Appellate Court’s Reformatory Powers in ECtHR Case Law – between the Efficiency of the Procedure and the Guarantees of the Fair Trial in Criminal Proceedings

Appeal proceedings in criminal cases are regulated in various ways by European legislators. The ECtHR case law does not impose any particular model of appeal proceedings; however, Article 6 is applicable to appeal proceedings and the manner of its application is contingent on the specific features of the proceedings in question. One of the key problems in this respect is the way the issue of the reformatory powers of appellate courts is regulated. This article seeks to reconstruct the rules worked out in the Strasbourg Court’s case law pertaining to this matter, as well as to formulate proposals as regards applying the principle of immediacy in appeal proceedings and the issue of the appellate court’s differing assessment of facts established by the court of first instance. The possible developments of case law in this area are also discussed.

DIRECTION OF THE CASE ON JURISDICTION: PROBLEMS OF LEGAL REGULATION AND FEATURES OF PROCEDURAL REGISTRATION

The paper presents a research of the new legal regulation for such an institute in relation to a regional and equal court, as the referral of a case received in accordance with part 4 of Article 39 of the Arbitration Procedure Code of the Russian Federation to a court of general jurisdiction, which is in jurisdiction to hear a case as it is assigned by law. The absence of procedural legal regulation of this action, which is, in author’s opinion, has an obvious procedural nature, and researched practice general jurisdiction courts demonstrate the uncertainty in implementation of the considered reform. The author analyzes the new procedural institution on the basis of his own vision of a number of procedural norms, as well as scholar works and historical experience. In particular, the author reasoning that the courts are to issue special rulings on the referral of cases received from arbitration to the courts of general jurisdiction. Moreover, the author considers the mechanism for adopting such a judicial act. The article presents a wide range of practical examples of the implementation of considered provision, as well as the difference in the approaches of the appellate courts to assess these implementation practice. In conclusion, the article presents the proposals for further improvement of the regulation of considered issue. Most likely such an improvement will be impossible without the universal approach established by the Supreme Court of the Russian Federation. Such improvements should result in uniform judicial practice, as well as further developments of procedural legislation.

Part VI Terms and Interpretation, 19 Good Faith

There is some judicial interest in recognizing a principle of good faith performance in English contract law (the topic was introduced at [2.69]). The idea is gaining, or at least might gain, momentum. But the traditional view, to which the appellate courts in England and Wales have remained loyal, is that there is no general doctrine that contracts must be performed in good faith. In other words, there is no general implied term that a contract must be performed in good faith.

Unmixing the mixed questions: a framework for distinguishing between questions of fact and questions of law in contractual interpretation

In Sattva Capital Corp v Creston Moly Corp, the Supreme Court of Canada established that contractual interpretation generally involves questions of mixed fact and law subject to a standard of palpable and overriding error, unless an extricable error of law is identified. The Court confirmed and specified this holding in a number of subsequent decisions. The new approach to appellate deference has sparked criticism from various parties in the legal community. A tension has emerged between the Supreme Court shifting away from the historical common law approach to deference and the appellate courts’ attempts to restore it. This article examines the theoretical foundations of this new case law development and proposes a methodological framework for distinguishing between questions of law and question of fact in contractual interpretation. The ultimate goal is to provide guidance on the choice of the appropriate standard of appellate review in this area. First, it is argued that the recent case law development introduced by the Supreme Court lacks rigorous analytical foundations and fails to provide adequate guidance on choosing the appropriate degree of deference on appeal. Second, it is contended that a useful methodological approach for distinguishing between questions of fact and questions of law is 1) to identify the cognitive task performed by the judge when adjudicating the contended issue, and 2) to assess the relative advantage of adjudicating actors in performing that cognitive task. Cognitive task refers to the type of judicial reasoning, or inferential activity, the judge performs when deciding an issue.

Unmixing the mixed questions: a framework for distinguishing between questions of fact and questions of law in contractual interpretation

In Sattva Capital Corp v Creston Moly Corp, the Supreme Court of Canada established that contractual interpretation generally involves questions of mixed fact and law subject to a standard of palpable and overriding error, unless an extricable error of law is identified. The Court confirmed and specified this holding in a number of subsequent decisions. The new approach to appellate deference has sparked criticism from various parties in the legal community. A tension has emerged between the Supreme Court shifting away from the historical common law approach to deference and the appellate courts’ attempts to restore it. This article examines the theoretical foundations of this new case law development and proposes a methodological framework for distinguishing between questions of law and question of fact in contractual interpretation. The ultimate goal is to provide guidance on the choice of the appropriate standard of appellate review in this area. First, it is argued that the recent case law development introduced by the Supreme Court lacks rigorous analytical foundations and fails to provide adequate guidance on choosing the appropriate degree of deference on appeal. Second, it is contended that a useful methodological approach for distinguishing between questions of fact and questions of law is 1) to identify the cognitive task performed by the judge when adjudicating the contended issue, and 2) to assess the relative advantage of adjudicating actors in performing that cognitive task. Cognitive task refers to the type of judicial reasoning, or inferential activity, the judge performs when deciding an issue.

New Mexico

The New Mexico appellate courts issued no opinions relating to oil and gas in the past year.

From the Bird’s Eye

Criminal sentences are rarely reversed for being too long. Of the approximately one million federal sentences imposed in the past fifteen years, appellate courts have only held about two dozen substantively unreasonable. Judges have, even in public statements, described substantive reasonableness review as “functionally nonexistent” and “a waste of time.” Against this backdrop, three decisions from the Sixth Circuit published within the last year are nothing short of remarkable. In each case, the panel concluded that the district court, despite following standard processes and procedures, had nonetheless imposed a substantively unreasonable sentence. This Article examines these cases in detail, to glean lessons for scholars and practitioners. I argue that, in each decision, the Sixth Circuit took a bird’s eye perspective to the issues at hand, reaching a common-sense decision based on aggregative sentencing data, case law, and the defendant’s prior criminal history. These factors, I further argue, provide a model for other appellate courts who hope to engage in more searching substantive reasonableness review. I also acknowledge some limits to the Sixth Circuit’s approach. In each of these three cases, the appellate court reined in district courts for imposing above-guideline sentences. The decisions, however, say little about what—if any—role an appellate court should play in mitigating harsh sentences that are within (or even below) the guidelines. Reform of such sentences may require stakeholders to look elsewhere, including either legislative reform or appointment of a more diverse set of district judges.