The Council on Ethical and Judicial Affairs of the American Medical Association examines physicians’ professional ethical responsibility in the event that the security of patients’ electronic records is breached.

Predictive judicial analytics holds the promise of increasing efficiency and fairness of law. Judicial analytics can assess extra-legal factors that influence decisions. Behavioral anomalies in judicial decision-making offer an intuitive understanding of feature relevance, which can then be used for debiasing the law. A conceptual distinction between inter-judge disparities in predictions and inter-judge disparities in prediction accuracy suggests another normatively relevant criterion with regards to fairness. Predictive analytics can also be used in the first step of causal (...) inference, where the features employed in the first step are exogenous to the case. Machine learning thus offers an approach to assess bias in the law and evaluate theories about the potential consequences of legal change. (shrink)

En este trabajo se explora el rol que la verdad de los enunciados fácticos juega en la aplicación de normas jurídicas y en la justificación de las decisiones judiciales. Se sostiene que la verdad es irrelevante respecto de la aplicación de normas jurídicas, entendida esta última en términos «inferenciales», y que lo es también respecto de la justificación interna de las decisiones que aplican esas normas. Se argumenta luego que la verdad de la premisa fáctica tampoco es condición necesaria de (...) la justificación externa, en diferentes sentidos. Se sostiene, en definitiva, que la verdad de la premisa fáctica no es condición necesaria de la justificación de la decisión judicial en ningún sentido plausible en que dicha justificación pueda ser evaluada. Esto no significa, sin embargo, que la verdad de dicha premisa sea irrelevante. (shrink)

Rejecting judicial supremacy in constitutional interpretation, this paper argues that understanding the interpretation of constitutions to be a solely legal and judicial undertaking excludes citizens from such activity. The paper proffers a two-pronged classification of analyses of constitutional interpretation. Implicit accounts discuss interpretation without reflecting on whether such activity can or should be performed by non-judicial institutions as well. Explicit accounts ask whether interpretation of constitutions is a matter to be dealt with by courts and answer affirmatively. (...) I criticise both camps. Implicit accounts fail to explain why constitutional interpretation is purely judicial in character. Explicit accounts do not provide enough reasons why the judiciary is allegedly the ideal institution to give constitutions meaning with final authority, both in instrumental and normative terms. The paper closes by suggesting avenues for future research. (shrink)

In my article, I want to focus on the critique Cristina Lafont makes to expertocracy and epistocracy, mainly through the institution of judicial review, to which she dedicates chapter 7 and part of...

H.L.A. Hart’s lost and found essay ‘Discretion’ has provided new insight into the issue of how legal systems can cope with indeterminacy in the law. The so-called ‘open texture’ of law calls for the exercise of judicial discretion, which, I argue, renders judges susceptible to the problem of dirty hands. To show this, I frame the problem as being open to an array of appropriate emotional responses, namely, various senses of guilt. With these responses in mind, I revise an (...) example from Michael Walzer’s original analysis in a way that highlights purely personal sacrifices in solutions to dirty hands situations. I then turn to an account of moral emotions in legal decision-making and show how judges—in failing to advance all interests—might be left with a unique sense of guilt. With an application of this account to Hart’s legal positivism, it can be seen that a judge’s hands are often dirtied in resolving borderline cases. If discretion leaves judges in situations where they must do wrong in order to do right, Hart’s endorsement of a closure view of wrongdoing will lead to difficulties in how he can explain the presence of moral remainders in jurisprudence. (shrink)

This article shows that judicial review has a democratic justification even though judges may be no better at protecting rights than legislatures. That justification is procedural, not consequentialist: reflecting the ability of judicial review to express and protect citizen’s interests in political participation, political equality, political representation and political accountability. The point of judicial review is to symbolize and give expression to the authority of citizens over their governors, not to reflect the wisdom, trustworthiness or competence of (...) judges and legislators. Above a threshold level of competence – which may be impossible to determine a-priori – the legitimacy of judicial review does not turn on the special wisdom, virtue or personal qualities of judges. Instead, it reflects the importance that democracies properly attach to the ordinary virtues and competences of individuals in justifying power and authority. Hence, this article takes issue with the defence of judicial review in Eisgruber and Brettschneider, as well as with the critiques of judicial review found in Waldron and Bellamy. (shrink)

Judicial review (richterliches Prüfungsrecht), administrative review (Verwaltungsgerichtbarkeit), and constitutional review (Verfassungsgerichtsbarkeit) are three different ways in which the judiciary has sought to control the executive and legislative powers of the state. Historically and functionally they are closely linked. I intend to discuss them in their German context, focussing, in particular, on the Weimar Republic, that is to say, on the period between 1919 and 1932. Although I shall not be addressing the highly interesting parallels with the U.S. Supreme Court, (...) or with the comparable courts in Italy, France, and, especially, Austria, I should like to invite attention to them, for there is really no Sonderweg in Germany as far as these developments are concerned. (shrink)

This article focuses on strategic manoeuvring that takes place in Dutch administrative judi- cial decisions. These decisions may be seen as a distinct argumentative activity type. Starting from the char- acteristics that traditionally are per- tinent to this activity type, I will explore how implications of current discussions on the changing task of the administrative judge may be- come manifest in the judge’s strate- gic manoeuvring by means of the presentation of argumentation and the introduction of additional stand- points. The (...) case study of Dutch administrative law serves to demon- strate what consequences changing institutional demands may have for the starting points of the analysis of argumentation in judicial decisions. (shrink)

Jeremy Waldron is well known for his disdain of U.S. jurisprudential doc- trine that allows courts to invalidate democratically enacted legislation on the ground it violates certain fundamental constitutional (and quasi-moral) rights. He believes that where disagreement on the relevant substantive is- sues is widespread among citizens and officials alike, it is illegitimate for judges to impose their views on the majority by invalidating a piece of enacted law. Even if we assume, plausibly enough, there are objective moral constraints on (...) what restrictions on behavior may be enacted into law, judges have no privileged access to the objective truth and must, like everyone else, rely on their own subjective intuitions and views. Given that judges are hence no more likely than citizens or legislators to reach the correct decision about what morality requires, these disagreements should be democratically resolved. As he puts it, if disagreement about rights is to be sorted out by counting heads, it should be the heads of citizens who have ultimate sovereignty in a democracy, rather than those of unelected judges, that ought to count.In this essay, I consider Wilfrid Waluchow’s response to Waldron’s argument in his outstanding new book, A Common Law Theory of Judicial Re- view, in which he attempts to provide the practice of judicial review with something akin to the foundation that justifies allowing judges authority over the development of the common law. I will begin with a short explication of Waldron’s argument and then consider Waluchow’s objections to Waldron, as well as Waluchow’s living-tree conception of a common-law constitution with content that evolves through a common law approach to reasoning in constitutional disputes.Resumen:A Jeremy Waldron se le conoce por el desprecio que ha manifestado con relación a la doctrina constitucional estadounidense que permite a los tribunales invalidar legislación que ha sido promulgada de manera democrática, dado que según Waldron lo anterior constituye una violación a ciertos derechos constitucionales (y cuasi-morales). Él piensa que si existe un desacuerdo importante entre los ciudadanos y oficiales del derecho en relación con cierto tema sustantivo, es ilegítimo que los jueces impongan sus puntos de vista sobre los de la mayoría de la población al invalidar una ley promulgada. Incluso si suponemos, de manera lo suficientemente plausible, que existen limitantes morales objetivas sobre las restricciones que el derecho puede contemplar en relación con el comportamiento de los ciudadanos, los jueces no gozan de un privilegio especial con el que puedan acceder a estas verdades objetivas y deben, como todos los demás, basarse en sus propios puntos de vista e intuiciones subjetivas. Entonces, dado que los jueces al igual que los ciudadanos y legisladores no pueden llegar a mejores y correctas decisiones en relación con lo que exige la moralidad, estos desacuerdos se deben decidir de manera democrática. Como sostiene Waldron, si los desacuerdos sobre los derechos se deben decidir con un recuento de manos, deben ser las manos de los ciudadanos, los cuales tienen la soberanía última en una democracia, no así los jueces que no son electos.En este artículo, el autor analiza la respuesta de Wilfrid Waluchow a los argumentos de Waldron, los cuales se encuentran plasmados en el nuevo e interesante libro: A Common Law Theory of Judicial Review, donde Waluchow intenta justificar la práctica del judicial review a través de algo parecido a la justificación que otorga a los jueces autoridad para desarrollar el common law. El autor inicia con una breve explicación del argumento de Waldron y continúa con las objeciones de Waluchow a Waldron, entre las cuales destaca la concepción de Waluchow de la Constitución como árbol viviente. (shrink)

In a new book-length treatment, Tara Smith, who has written extensively on the intersections of Objectivist philosophy and law, explains how judicial review, a feature of non-Objectivist jurisprudence, should function in a truly Objectivist legal system. Divided into two halves, Judicial Review in an Objective Legal System first sets forth what Objectivism is and how Objectivists understand law. Of particular importance in this regard, Smith stresses, is the written constitution, which Smith, following the logical premises of Objectivism, calls (...) “bedrock legal authority.” In the second half of the book, Smith moves to narrower considerations of judicial review proper. Smith’s first task in those sections is to critique the “failures” of “the reigning accounts” to understand judicial review. After dispensing with the various mistaken versions of judicial review as she sees them, Smith defines Objectivist judicial review before providing a handful of examples of how such a process might work in “contemporary conditions.”. (shrink)

Americans cannot live with judicial review, but they cannot live without it. There is something characteristically American about turning the most divisive political questions - like freedom of religion, same-sex marriage, affirmative action and abortion - into legal questions with the hope that courts can answer them. In Judicial Review in an Age of Moral Pluralism Ronald C. Den Otter addresses how judicial review can be improved to strike the appropriate balance between legislative and judicial power (...) under conditions of moral pluralism. His defense of judicial review is predicated on the imperative of ensuring that the reasons that the state offers on behalf of its most important laws are consistent with the freedom and equality of all persons. Den Otter ties this defense to a theory of constitutional adjudication based on John Rawls's idea of public reason and argues that a law that is not sufficiently publicly justified is unconstitutional, thus addressing when courts should invalidate laws and when they should uphold them even in the midst of reasonable disagreement about the correct outcome in particular constitutional controversies. (shrink)

In this lecture Justice Breyer examines three classical criticisms of constitutional judicial review. Those criticisms say that a grant to unelected judges of the power to set aside legislation as contrary to a written constitution leads to judicial decision-making that is (a) undemocratic, (b) subjective, and impractical. Justice Breyer describes features of the constitutional decision-making that do not dictate results in individual cases, but none the less hold the judges' 'subjective' will in check. He also describes necessary (...) class='Hi'>judicial efforts to focus upon considerations of administrative practicality. The description seeks, not to refute the criticisms in their entirety, but to help evaluate the extent to which those criticisms militate against the adoption of a system of constitutional judicial review. (shrink)

This article reconsiders how to judge judicial independence by using the Japanese judicature, one of the allegedly-most dependent judiciary branches. In their influential work, Ramseyer and Rasmusen argue that judges who once belonged to a leftist group take longer to reach a under the long-term conservative rule of Japan. Their method does not, however, deal appropriately with the possibility of judges not reaching this position because the judge dies, retires early, or is still at the early stage of her (...) career. Ramseyer and Rasmusen also mistakenly assume that all judges will eventually obtain this position. This article develops a survival analysis model of judicial careers and attempts to solve the problems of censoring, left truncation, and split population. We also offer a way to utilize a matching procedure to estimate average treatment effects on censored time-to-event as well as event occurrence. We re-analyze a corrected version of Ramseyer and Rasmusen's data using their and our methods. One of the most important findings is that, contrary to what Ramseyer and Rasmusen argue, leftist judges are not discriminated against in terms of the timing of promotion. (shrink)

How should judges deal with the manifestation of religious symbols in public educational institutions? In light of the important role of human rights in our legal and political system, courts should grant maximum protection under the freedom of religion or belief. The central thesis of this article is that the European Court of Human Rights fails to live up to this standard. In order to reach this conclusion, the article analyzes relevant case law of the European Court and compares its (...) case law with that of the high courts of Canada and South Africa. In addition, the article assesses the case law of all three courts from the angle of interpretation theory and particularly Cass R. Sunstein’s theory of judicial minimalism. Adoption of a more consistently minimalist methodology by the European Court might lead to a greater protection granted to individuals and groups. However, a wide and deep ruling is first required to overturn the current line of reasoning. The European Court can draw inspiration from Canada and South Africa for such a judgment. (shrink)

Does the effective protection of constitutional rights require a system of robust judicial review? This differs from the question of whether judicial review is democratically legitimate, although the two are often merged. The dominant liberal constitutional discourse concerning the requirement of judicial review has arguably suffered from a degree of insensitivity to the actual effects of specific judicial review systems. In contrast to a fact‐insensitive approach, I suggest that the ‘matrix’ of rights‐protection in any specific system (...) of judicial constitutional review must incorporate two types of calculation. The first must compare incidences of the invalidation of ‘wrong’ statutes (on the ‘gains’ side) with invalidations of ‘right’ statutes and cases of upholding ‘wrong’ statutes (on the ‘losses’ side). The second looks at the gains and losses resulting from the very existence of the system of judicial review (rather than the specific cases that have been upheld or invalidated). It thus recognizes the deep disagreement between individuals about their preferred interpretations of constitutional rights. Under some conditions, the results of this matrix may be modified by arguments about an overlap in preferred articulations of constitutional rights, prudence, and the deliberative nature of the courts that exercise constitutional review, and the paper concludes with a discussion of how this can occur. We do not have to have a court that will strike down laws—a court with the power of judicial review—to have a vibrant language of fundamental rights available to us. (shrink)

Mitchel Lasser's Judicial Deliberations compares the argumentative practices of the French Cour de cassation, the US Supreme Court, and the European Court of Justice (ECJ), and examines how they achieve judicial legitimacy. In this review I firstly question the models of judicial legitimacy presented by Lasser. I believe that the French ‘institutional’ model relies far more on the interplay between the Cour de cassation and the legislature than on the system of selection of those who take part (...) in the judicial discourse or on their conception of law which would deny judicial decision a place among the sources of law. I also have doubts about the lack of institutional means of judicial control and the emphasis on ‘argumentative transparency’, which lies at the core of Lasser's presentation of the US system. Finally the ECJ, somewhat included rather as an afterthought in the book's central analysis, in my opinion faces rather different problems from those identified in the book. Secondly, I discuss a deeper problem of Judicial Deliberations: its lack of conceptual clarity and the rather scant evidence it provides for some of its bold claims. In conclusion I make the case for a ‘comparative jurisprudence’ approach, suggested some time ago by William Ewald, which in my view Judicial Deliberations follows only in name. (shrink)

This paper addresses the phenomenon of judicial greatness by developing a general concept of greatness and applying it to law. Under the view offered in the paper, greatness is connected to theoretical or methodological diversification. When applied to adjudication, this means that great judges are revered because they successfully make a prima facie case for their novel adjudicative methods. This is not a judicial duty but rather a voluntary project. However, once a judge succeeds in making such a (...) prima facie case, he is exempt from other judicial duties. This thesis challenges many theories of judicial duty, which do not allow normative room for supererogatory actions in law. The paper demonstrates these claims by discussing two paradigmatic great judges – Chief Justice Marshall and Justice Holmes. (shrink)

O artigo científico visa esclarecer acerca do judicial review com enfoque no originalismo e no interpretativismo. Neste trabalho pretendemos demonstrar ser o interpretativismo um construto da Suprema Corte dos Estados Unidos oriundo do precedente Brown. Em primeiro lugar, examinaremos os precedentes da Suprema Corte, cujos fundamentos foram obtidos a partir da corrente originalista, até chegarmos ao citado caso Brown e em seguida analisaremos filosoficamente o precedente. Em conclusão, antes se buscava a intenção original do constituinte, no entanto, modernamente, almeja-se (...) controlar a constitucionalidade com parâmetro nos princípios constitucionais. (shrink)

Most of us think that states are justified in incarcerating criminals, sometimes for decades. In this paper I suggest that if states are justified in this, they are also justified in inflicting certain forms of corporal punishment. Many forms of corporal punishment are less burdensome than long-term incarceration, and arguably, they are also cheaper, fairer, more deterring, and less destructive of the social and economic networks that convicts often depend on for future reintegration into society. After presenting a pro tanto (...) case for corporal punishment, I consider a number of objections. I conclude that although there are genuine downsides to corporal punishment that must be taken very seriously, the case for the judicial use of this punishment method is much stronger than what is commonly assumed. (shrink)

This paper examines Jeremy Waldron’s ‘core case’ against judicial review. Waldron’s arguments, it shows, exaggerate the importance of voting to our judgements about the legitimacy and democratic credentials of a society and its government. Moreover, Waldron is insufficiently sensitive to the ways that judicial review can provide a legitimate avenue of political activity for those seeking to rectify historic injustice. While judicial review is not necessary for democratic government, the paper concludes that Waldron is wrong to believe (...) that it is a threat to democracy. (shrink)

In this paper, I compare the extent of Anglo-American judicial engagement in response to civil disobedience with that of the French judiciary. I begin by examining what the civil disobedient can realistically expect to achieve in a court of law. I shall argue that his priority should be to require the judge, acting as a mouthpiece for the law, to respond to his complaints. To do this, the civil disobedient must be able to deny liability for the offence he (...) has allegedly committed by urging a different interpretation of the law on the basis of an alternative -- but plausible -- reading of constitutional or human rights. If the civil disobedient can do this, he can claim a victory of sorts, even if his claims are ultimately unsuccessful. But legal culture can present a further barrier. Judges have different roles in different jurisdictions and therein lie further difficulties for the French civil disobedient. (shrink)

The legal reasons that bind a judge and the moral reasons that bind all persons can sometimes pull in different directions. There is perhaps no starker example of such judicial dilemmas than in criminal sentencing. Particularly where mandatory minimum sentences are triggered, a judge can be forced to impose sentences that even the judge regards as “immensely cruel, if not barbaric.” Beyond those directly harmed by overly harsh laws, some courts have recognized that “judges who, forced to participate in (...) such inhumane acts, suffer a loss of dignity and humanity as well.” When faced with such a judicial dilemma—a powerful tension between the judge’s legal and moral reasons—the primary question is what a judge can do to resolve it. We argue that the two standard responses—sacrificing morality to respect the law (“legalism”), or sacrificing the law to respect morality (“moralism”)—are unsatisfying. Instead, this Article defends an underexplored third response: rather than abandoning one ideal to maximally promote the other, we argue that judges should seek to at least minimally satisfy the demands of both. Judges should, in other words, look for and employ what we dub Satisficing Options. These are actions that enjoy sufficient support from both the legal reasons and the moral reasons, and thus are both legally and morally permissible—even if the acts in question would not strictly count as optimal by the lights of the law or morality. This common sensical response to the problem is not only underappreciated in the literature, but also has great practical import. Focusing on the sentencing context, this Article demonstrates that judicial dilemmas can be systematically resolved, mitigated or avoided through a range of concrete strategies that on their own or in conjunction can constitute Satisficing Options: these strategies include seeking out legally permitted but morally preferable interpretations of the law, expressing condemnation of unjust laws in dicta, and seeking assistance or cooperation from other actors to help defendants facing substantively unjust mandatory sentences. While these strategies can at times also go too far, we argue that in certain contexts they can be sufficiently defensible on both legal and moral grounds to be a justifiable response to judicial dilemmas. This Article thus provides both a novel theoretical framework for understanding the justification of judicial responses to unjust laws, as well as a practical a menu of options which judges can use to guide their responses to the judicial dilemmas that they are increasingly likely to encounter within our criminal justice system. (shrink)

A variety of theoretical positions are emerging to explain the judicial process from such perspectives as hermeneutics, semiotics, critical theory and argumentation/rhetoric. They ask such questions as these: What is the source of judicial authority? How do judges arrive at their decisions? By what logic are decisions to be tested? In this essay I argue that a focus on decisions and their justifications alone masks the broader process in which judges, along with all the other relevant groups, engage (...) in a continuing and evolving dialogue to structure their normative universe through the complementary processes of dialectic and rhetoric. Contemporary concepts of argumentation can serve to analyze this process critically. (shrink)

The normally staid topics of judicial ethics and the standards for judicial recusal have become the focus of political debates, editorials and letter writing campaigns. Most of the recent focus falls on conservative justices of the US Supreme Court and in particular on their anticipated participation in what is expected to be an important ruling on the constitutionality of the heath care reforms championed by President Obama and the Democratic Party. But the issue is not simply about partisan (...) politics. It's also about the structure of the US federal judiciary and the need to think about the impact of two-career couples on the judicial recusal rules. (shrink)

Por medio del rechazo a la supremacía judicial en la interpretación constitucional, este artículo argumenta que entender la interpretación de una constitución como un práctica estrictamente legal y judicial, excluye a la ciudadanía de dicha actividad. El artículo ofrece una clasificación de análisis de interpretación constitucional. Primero, las tesis implícitas discuten sobre la interpretación sin reflexionar sobre si dicha actividad puede ser también llevada a cabo por instituciones no judiciales. Segundo, las tesis explícitas cuestionan si la interpretación constitucional (...) es un asunto que ha de ser tratado por los tribunales, y responden afirmativamente. Crítico ambos grupos de argumentos. Las tesis implícitas no explican porqué la interpretación constitucional es de naturaleza puramente judicial. Las tesis explícitas no justifican suficientemente por qué la judicatura es la institución ideal para dotar de significado final a la constitución de manera autoritativa, tanto en términos instrumentales como normativos. Finalizo sugiriendo caminos para investigaciones futuras. (shrink)

This article provides an exploration of the relationships between a procedural account of epistemic democracy, illegitimate laws and judicial review. I first explain how there can be illegitimate laws within a procedural account of democracy. I argue that even if democratic legitimacy is conceived procedurally, it does not imply that democracy could legitimately undermine itself or adopt grossly unjust laws. I then turn to the legitimacy of judicial review with regard to these illegitimate laws. I maintain that courts (...) do not have a moral privilege on the overthrow of illegitimate laws; in this respect the refusal of royal assent has the same status. I also explain how the rule of the clear mistake fails to restrict the action of courts to only illegitimate laws. Finally, I argue for the positive epistemic inputs of weak judicial review. (shrink)

There have been few studies of the Law Lords, and no study of them by a political scientist for more than ten years. This book concentrates on the arguments the Law Lords use in justifying their decisions, and is concerned as much with the legal methodology as with the substance of their decisions. Very close attention is paid to the different approaches and styles of judicial argument, but the book is not restricted to this traditional analytic approach. One chapter (...) applies the statistical techniques Americans call 'jurimetrics' and have successfully used on the US Supreme Court. The main theme is that the Law Lords enjoy and fully utilise far more discretion in their judgements than is normally admitted, and that much depends on exactly which judges happen to hear a case. the second part of the book shows the impact this extreme discretion has had in shaping both public law and areas of civil law. (shrink)

Abstract Even judiciaries that do not have histories of serious or pervasive corruption need to be watchful lest what I refer to as judicial corrosion occurs. Drawing on studies of institutional entropy, I identify some of the external and internal sources of such corrosion and comment briefly on challenges that face its prevention or repair within the judicial realm.

The general assumption that underlines Richard Posner’s argument in his book Not a Suicide Pact is that decisions concerning rights and security in the context of modern terrorism should be made by balancing competing interests. This assumption is obviously correct if one refers to the most rudimentary sense of balancing, namely, the idea that normative decisions should be made in light of the importance of the relevant values and considerations. However, Posner advocates a more specific conception of balancing, both substantively (...) and institutionally. Substantiality, he argues for balancing based on a consequential moral theory that rejects the ideas of deontological rights and particularly absolute or very weighty deontological rights. More specifically, it seems that Posner assumes a utilitarian theory that also rejects intrinsic concern for distributive justice. Institutionally, Posner argues that this method of reasoning should be adopted by judges when interpreting the constitution. These substantive and institutional background assumptions are of course controversial, but I do not dispute them in this Article. My critique concerns Posner’s conclusions based on these assumptions. Posner’s main claim is that given the magnitude of the danger of modern terrorism, even a small probability that an act of terror may occur justifies extreme anti-terror measures. While the general idea that even a slight risk of very serious harm justifies significant cost is plausible, I doubt Posner’s assumptions regarding the cost of various means of preventing these dangers, his claim that judicial review in this context should be very limited, and his suggestion of an absolute formal prohibition that is not strictly enforced in the context of measures such as interrogational torture. (shrink)

Many scholars believe that it is procedurally undemocratic for the judiciary to have an active role in shaping the law. These scholars believe either that such practices as judicial review and creative statutory interpretation are unjustified, or that they are justified only because they improve the law substantively. This Article argues instead that the judiciary can play an important procedurally democratic role in the development of the law. Majority rule by legislatures is not the only defining feature of democracy; (...) rather, a government is democratic to the extent to which it provides egalitarian forms of political participation. One such form of participation can be the opportunity to influence the law through the courts, either directly by participating in a case or indirectly by advocating litigation. Arguing from several examples, this Article shows that judicial decision-making allows different voices to be heard that may not necessarily have influence or power in majoritarian legislative structures or popular initiatives. Giving citizens the opportunity to change, to preserve, and to obtain authoritative clarification of the law through the courts can thus make a government procedurally more democratic. (shrink)

In this revised and updated edition of a classic text, one of America's leading constitutional theorists presents a brief but well-balanced history of judicial review and summarizes the arguments both for and against judicial activism within the context of American democracy. Christopher Wolfe demonstrates how modern courts have used their power to create new "rights" with fateful political consequences and he challenges popular opinions held by many contemporary legal scholars. This is important reading for anyone interested in the (...) role of the judiciary within American politics. Praise for the first edition of Judicial Activism: "This is a splendid contribution to the literature, integrating for the first time between two covers an extensive debate, honestly and dispassionately presented, on the role of courts in American policy. —Stanley C. Brubaker, Colgate University. (shrink)

El presente trabajo es el resultado de mi participación en el evento de discusión de la revista Problema. Anuario de Filosofía y Teoría del Derecho, que llevó por nombre “La construcción del precedente en el Civil Law: debates, conceptos y desafíos”, en el cual participaron varios colegas con un amplio conocimiento en el tema del precedente judicial; de igual forma, ahonda en los temas de mayor debate dentro de lo referente al precedente judicial, enfocado al caso chileno. Todo (...) ello, con la finalidad de proponer algunas soluciones al respecto, así como dilucidar ciertos aspectos importantes dentro del precedente. Partiendo de conceptos tan trascendentes como la prescriptibilidad, la racionalidad y el uso argumentativo, se logra llegar a ciertas problemáticas provocadas por el mal uso de los conceptos previamente mencionados, que a su vez nos conduce al stare decisis, término que mal utilizado puede resultar en un acto contrario a la independencia interna de la cual gozan los jueces. (shrink)

This paper is the result of my participation in a discussion event of Problema. Anuario de filosofía y teoría del derecho entitled “The Construction of Precedent in Civil Law: Debates, Concepts and Challenges”. Several colleagues with a vast knowledge on the subject of judicial precedent participated in this seminar, which also delved into the widely debated aspects of judicial precedent focused on the case of Chile. The entire discussion aimed at proposing solutions, as well as shedding some light (...) on some of its important aspects.Starting from such transcendental concepts as, rationality and argumentative use, it is possible to find certain problems arising from the improper use of the above concepts, which in turn leads us to stare decisis, a term that if used incorrectly may result in an act against the internal independence of judges. (shrink)

Judicial formalism is perceived as fully compliant with the requirements of the rule of law. With its reliance on plain meaning and its reluctance to apply historical, purposive and functional interpretative premises, it seems an ideal tool for constraining discretionary judicial powers and securing the predictability of law’s application, which latter is one of the main tenets of the rule of law. In this paper, I argue that judicial formalism is based on a misguided model of language, (...) and as such cannot deliver what it promises. In fact, judicial decisions based on formalistic reasoning are surprising to their addressees and instead of promoting predictability, they undermine it. A judicial strategy fully compliant with the rule of law requires a different vision of language than that proposed by judicial formalism, and as a consequence, a different, moderately non-formalistic conception of legal interpretation. (shrink)

Judicial activism is in serious, though undeserved, trouble. The current impasse over its role in constitutional discourse pits two opposed positions committed to different paradigms of judicial activism against one another. One side condemns activist judges for engaging in ultra vires adjudication by reading their idiosyncratic values into the Constitution. In this view, the charge of judicial activism has significant content and should be deployed to restrain renegade judges. The other side insists that calling someone a " (...) class='Hi'>judicial activist" has only emotive content and is used merely as an empty epithet denouncing judges with whom one disagrees. This Article redirects the controversy over judicial activism by distinguishing between two different, but interrelated, levels of constitutional discourse: the surface level and the deep level. The problem of judicial activism exists on the surface level of constitutional discourse and will remain irresolvable on that level. However, once we attend to the deep level of constitutional discourse, the role of judicial activism becomes clear. The presence of judicial activism on the surface structure of constitutional discourse reveals on the deep structure reasonable disagreement over the meaning of key constitutional provisions. The idea of "reasonable disagreement" is profitably explicated by combining what social theorist W.B. Gallie called "essentially contested concepts" with the political philosopher John Rawls' important categorization of "the burdens of judgment." These obstacles to rational consensus are endemic to a republican democracy. Consequently, reasonable disagreement over key constitutional provisions should not be regarded negatively; it is an inevitable and positive feature of any society championing liberty, equality, and pluralism. However, the inevitability and desirability of reasonable disagreement has institutional consequences for constitutional review. When reasonable disagreement is inevitable, legislatures, not courts should have the last word on constitutional meaning. (shrink)

'A clear, readable and fair account of the development of judicial review.'-Ashley Montagu.

Courts are sometimes called upon to review a law or some other official act of government to determine its constitutionality, its reasonableness, rationality, or its compatibility with fundamental principles of justice. In some jurisdictions, this power of judicial review includes the ability to ‘strike down’ or nullify a law duly passed by a legislature body. This article examines this practice and various criticisms of it, including the charge that it is fundamentally undemocratic. The focus is on the powerful critique (...) mounted by Jeremy Waldron, the foremost philosophical opponent of judicial review. (shrink)

In this paper the author discusses the legitimation of judicial review of legislation. He argues that such a legitimation is not just a moral matter but is to be considered more generally in terms of societal acceptability, since it is based on a wide range of reasons including moral, social and pragmatic concerns. Moreover, the paper stresses that the legitimation of judicial decisions should be properly viewed in a circular perspective, so that the relationship between legislators and judges (...) cannot be reduced to an absolute supremacy of those who are democratically elected over those who apply the law. On the contrary, the law is constantly made, adapted and developed in legal practice and legal decisions are basically legitimated through several processes of deliberative communication. (shrink)

This new book argues that at the core of legal philosophy’s principal debates there is essentially one issue judicial impartiality. Keeping this issue to the forefront,Raban’s approach sheds much light on many difficult and seemingly perplexing jurisprudential debates. Modern Legal Theory and Judicial Impartiality.

This chapter focuses on the theory surrounding judicial decision-making. The chapter concedes that if anyone is constrained in the reasons they should employ for decision and argument, it is judges. The restraint on judges is obvious in easy cases, where the existing law calls for straightforward answers; but it has been typically assumed that judges are substantially constrained even when the right result for a case is highly arguable. The chapter presents two challenges to the ideal decision-making theory in (...) the legal profession: the “reality” challenge and the “desirability” challenge. (shrink)

The judiciary is a key policy actor that is involved in deciding health rights and policy by intervening in the policy process through a variety of judicial mechanisms, yet the appropriate extent of its involvement remains contentious. Taking the competence objection seriously requires understanding it as an epistemic problem about how courts assess empirical and scientific evidence in order to competently adjudicate controversial health claims. This paper examines recent advances in social epistemology to develop insights for the epistemic competence (...) of the judiciary from a system‐oriented approach. I outline three epistemic features that set the judiciary and the judicial decision‐making process apart from other types of decision‐makers in health policy: the distribution of epistemic power, the epistemic authority of a justified believer, and the principle of disinterestedness. Finally, I relate these insights back to the judicial decision‐making process with a specific focus on recent court decisions in health rights and health policy in Chile. (shrink)

Many theories of liberal public reason exclude claims derived from religion on grounds that religious beliefs are not publicly ‘accessible’, because they are not amenable to meaningful evaluation by outsiders to the faith. Some authors, though, have argued that at least some religious beliefs are, in fact, publicly accessible. This paper examines the consequences of these arguments by exploring the accessibility requirement in relation to U.S. judicial precedent concerning religious accommodation. I first show that precedent accords de facto with (...) the accessibility requirement by precluding judicial evaluation of the content of religious beliefs. I then show that this norm is independent of the status of religious claims vis-à-vis accessibility: even granting the accessibility of religious beliefs, other important political ends weigh against judicial evaluation of the content of those beliefs. I then generalize this conclusion to the broader enterprise of public reason, suggesting the general inadequacy of the accessibility requirement. (shrink)

Legal Judgment Prediction (LJP) is an essential component of legal assistant systems, which aims to automatically predict judgment results from a given criminal fact description. As a vital subtask of LJP, researchers have paid little attention to the numerical LJP, i.e., the prediction of imprisonment and penalty. Existing methods ignore numerical information in the criminal facts, making their performances far from satisfactory. For instance, the amount of theft varies, as do the prison terms and penalties. The major challenge is how (...) the model can obtain the ability of numerical comparison and magnitude perception, e.g., 400 < 500 < 800, 500 is closer to 400 than to 800. To this end, we propose a judicial knowledge-enhanced magnitude-aware reasoning architecture, called NumLJP, for the numerical LJP task. Specifically, we first implement a contrastive learning-based judicial knowledge selector to distinguish confusing criminal cases efficiently. Unlike previous approaches that employ the law article as external knowledge, judicial knowledge is a quantitative guideline in real scenarios. It contains many numerals (called anchors) that can construct a reference frame. Then we design a masked numeral prediction task to help the model remember these anchors to acquire legal numerical commonsense from the selected judicial knowledge. We construct a scale-based numerical graph using the anchors and numerals in facts to perform magnitude-aware numerical reasoning. Finally, the representations of fact description, judicial knowledge, and numerals are fused to make decisions. We conduct extensive experiments on three real-world datasets and select several competitive baselines. The results demonstrate that the macro-F1 of NumLJP improves by at least 9.53% and 11.57% on the prediction of penalty and imprisonment, respectively. (shrink)