How to manage a growing cultural and religious diversity with its origin in human mobility across the globe is a pressing theme in Europe. A process of shrinking tolerance of diversity in favour of the imposition of prohibitions of certain acts grounded in culture is now observed. Both female genital mutilation involving unjustified violence against children and women and other cultural practices believed to be oppressive, such as the full-face Islamic veil in public places, have been criminalized. This development prompts the question about the role of European judges in the enforcement and review of these bans. More generally, it brings into focus the prospects of judicial governance in times of diversity, whether it is to provide justice in individual cases, protect fundamental rights, or promote transparency in law-making processes. In this light, the aim of this paper is to examine the nature and degree of European judicial engagement with cases involving law-breaking depending on cultural differences. Of main interest are the challenges currently facing European judges in the process of judging and sanctioning the new crimes as well as in the performance of judicial review.
{"title":"Global Judicial Governance of Cultural Diversity: The Role of the European Judge","authors":"Jessica Almqvist","doi":"10.2139/SSRN.2709627","DOIUrl":"https://doi.org/10.2139/SSRN.2709627","url":null,"abstract":"How to manage a growing cultural and religious diversity with its origin in human mobility across the globe is a pressing theme in Europe. A process of shrinking tolerance of diversity in favour of the imposition of prohibitions of certain acts grounded in culture is now observed. Both female genital mutilation involving unjustified violence against children and women and other cultural practices believed to be oppressive, such as the full-face Islamic veil in public places, have been criminalized. This development prompts the question about the role of European judges in the enforcement and review of these bans. More generally, it brings into focus the prospects of judicial governance in times of diversity, whether it is to provide justice in individual cases, protect fundamental rights, or promote transparency in law-making processes. In this light, the aim of this paper is to examine the nature and degree of European judicial engagement with cases involving law-breaking depending on cultural differences. Of main interest are the challenges currently facing European judges in the process of judging and sanctioning the new crimes as well as in the performance of judicial review.","PeriodicalId":150734,"journal":{"name":"LSN: Courts (Topic)","volume":"33 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2015-12-31","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"125729963","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
In Yakus v. United States (1944), the U.S. Supreme Court sustained the conviction of a Boston meat dealer accused of violations of the Emergency Price Control Act and of price regulations issued by the federal Office of Price Administration (OPA) — without affording the accused an opportunity to challenge the validity of the rules under which he was convicted. The case is now mostly forgotten; in Supreme Court opinions and scholarly treatises, it appears (if at all) as a wartime embarrassment or a marginal case about the exhaustion of administrative procedures. At the time, though, Yakus was viewed by combatants on all sides as a case that would define the contours of constitutional government and of the emerging administrative state. Prominent textbooks of the post-War era afford prominent status to Yakus as a foundational case for Administrative Law.This article tells the story of Yakus v. United States. Close examination of the litigation and its context, we argue, shows that Yakus was not an awkward wartime case that is easily cabined in technical exhaustion doctrines: it is in fact foundational to the modern administrative state. The Yakus lessons that we have forgotten are the ones that we want to forget.
{"title":"Yakus and the Administrative State","authors":"James Conde, M. Greve","doi":"10.2139/SSRN.2698833","DOIUrl":"https://doi.org/10.2139/SSRN.2698833","url":null,"abstract":"In Yakus v. United States (1944), the U.S. Supreme Court sustained the conviction of a Boston meat dealer accused of violations of the Emergency Price Control Act and of price regulations issued by the federal Office of Price Administration (OPA) — without affording the accused an opportunity to challenge the validity of the rules under which he was convicted. The case is now mostly forgotten; in Supreme Court opinions and scholarly treatises, it appears (if at all) as a wartime embarrassment or a marginal case about the exhaustion of administrative procedures. At the time, though, Yakus was viewed by combatants on all sides as a case that would define the contours of constitutional government and of the emerging administrative state. Prominent textbooks of the post-War era afford prominent status to Yakus as a foundational case for Administrative Law.This article tells the story of Yakus v. United States. Close examination of the litigation and its context, we argue, shows that Yakus was not an awkward wartime case that is easily cabined in technical exhaustion doctrines: it is in fact foundational to the modern administrative state. The Yakus lessons that we have forgotten are the ones that we want to forget.","PeriodicalId":150734,"journal":{"name":"LSN: Courts (Topic)","volume":"24 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2015-12-03","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"129062542","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Debate about the courts frequently focuses on fostering 'public confidence' in the legal system. In the Supreme Court’s recent decision in Caperton v. A.T. Massey Coal Co., both the majority and the dissent invoked 'public confidence' arguments in support of their competing positions. Though courts invoke such arguments frequently, they do not explain what target audience they mean by 'the public' and they do not explain how judicial decisions will foster confidence. In fact, such concepts are problematic when examined closely: the general public typically will not receive the messages courts are trying to send, because most people do not read or know about specific judicial opinions. Even for those highly salient cases in which the courts’ intended messages will be received, such messages often may not broadly enhance public confidence because the general public is often divided on the controversial issues courts handle. This article offers a different framework for analyzing 'public confidence' arguments. Drawing on psychological survey research about what gives people confidence in the courts, I argue that courts invoking 'public confidence' should focus not on the 'general public' but primarily on those who directly experience the court system, and should concentrate on improving basic elements of procedural fairness that are most important to people’s perceptions of the system. I analyze Caperton within that framework, and then address a specific issue involving jury selection (a context in which average citizens directly experience the court system): how the system should respond when the presiding judge and a potential juror have a close relationship to each other. I argue that even though specific legal rules do not appear to cover this issue, and even though many judges and lawyers might see no problem with it, courts should view the issue from the perspective of an average citizen, who will likely see a threat to basic procedural fairness if the presiding judge and a potential juror have a close relationship.
{"title":"Beyond Caperton: 'Public Confidence' in Courts and Close Relationships between Judges and Jurors","authors":"Byron Lichstein","doi":"10.2139/ssrn.1910010","DOIUrl":"https://doi.org/10.2139/ssrn.1910010","url":null,"abstract":"Debate about the courts frequently focuses on fostering 'public confidence' in the legal system. In the Supreme Court’s recent decision in Caperton v. A.T. Massey Coal Co., both the majority and the dissent invoked 'public confidence' arguments in support of their competing positions. Though courts invoke such arguments frequently, they do not explain what target audience they mean by 'the public' and they do not explain how judicial decisions will foster confidence. In fact, such concepts are problematic when examined closely: the general public typically will not receive the messages courts are trying to send, because most people do not read or know about specific judicial opinions. Even for those highly salient cases in which the courts’ intended messages will be received, such messages often may not broadly enhance public confidence because the general public is often divided on the controversial issues courts handle. This article offers a different framework for analyzing 'public confidence' arguments. Drawing on psychological survey research about what gives people confidence in the courts, I argue that courts invoking 'public confidence' should focus not on the 'general public' but primarily on those who directly experience the court system, and should concentrate on improving basic elements of procedural fairness that are most important to people’s perceptions of the system. I analyze Caperton within that framework, and then address a specific issue involving jury selection (a context in which average citizens directly experience the court system): how the system should respond when the presiding judge and a potential juror have a close relationship to each other. I argue that even though specific legal rules do not appear to cover this issue, and even though many judges and lawyers might see no problem with it, courts should view the issue from the perspective of an average citizen, who will likely see a threat to basic procedural fairness if the presiding judge and a potential juror have a close relationship.","PeriodicalId":150734,"journal":{"name":"LSN: Courts (Topic)","volume":"10 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2011-08-15","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"128727976","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
I discuss in this article Judge Posner's decision in Kikalos v. United States, 400 F.3d 908 (7th Cir. 2005). I open with the following:I am a Judge Posner fan. My vantage point is tax procedure and tax crimes, areas in which I practice and teach as an adjunct at the University of Houston Law School. I require my students to read more Posner opinions than any other judge's opinions. Judge Posner is concise, erudite, pungent, and rigorously logical; and he avoids footnotes. His opinions are good for teaching and learning.In the article, I quibble, perhaps, on points of tax procedure, use of estimation methodologies by the taxpayer that are normally used by the Government, the presumption of correctness, and burdens of production and persuasion.
{"title":"Judge Posner's Opinion in Kikalos","authors":"John A. Townsend","doi":"10.2139/SSRN.2109619","DOIUrl":"https://doi.org/10.2139/SSRN.2109619","url":null,"abstract":"I discuss in this article Judge Posner's decision in Kikalos v. United States, 400 F.3d 908 (7th Cir. 2005). I open with the following:I am a Judge Posner fan. My vantage point is tax procedure and tax crimes, areas in which I practice and teach as an adjunct at the University of Houston Law School. I require my students to read more Posner opinions than any other judge's opinions. Judge Posner is concise, erudite, pungent, and rigorously logical; and he avoids footnotes. His opinions are good for teaching and learning.In the article, I quibble, perhaps, on points of tax procedure, use of estimation methodologies by the taxpayer that are normally used by the Government, the presumption of correctness, and burdens of production and persuasion.","PeriodicalId":150734,"journal":{"name":"LSN: Courts (Topic)","volume":"1 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2005-08-02","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"130245602","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 1900-01-01DOI: 10.4135/9781452229577.n8
C. Geyh
This piece argues that a significant gap in our understanding of judicial independence is attributable to a failure to analyze judicial independence with reference to the sources of that independence. The prevailing, though often unstated assumption is that the judiciary's independence derives largely from the text of the Constitution and court-generated doctrine, which in reality have little to say about the contours of the judiciary's autonomy. In contrast, Constitutional customs or norms that Congress employs in deciding whether and how to regulate the third branch exert far more influence over the judiciary's actual autonomy, but have been largely unstudied. The author proposes a research agenda to explore customary independence more fully, and illustrates the utility of exploring customary independence through the example of court-packing, which court doctrine has left largely untouched, but which Congress has rejected as a matter of norm or custom.
{"title":"Customary Independence","authors":"C. Geyh","doi":"10.4135/9781452229577.n8","DOIUrl":"https://doi.org/10.4135/9781452229577.n8","url":null,"abstract":"This piece argues that a significant gap in our understanding of judicial independence is attributable to a failure to analyze judicial independence with reference to the sources of that independence. The prevailing, though often unstated assumption is that the judiciary's independence derives largely from the text of the Constitution and court-generated doctrine, which in reality have little to say about the contours of the judiciary's autonomy. In contrast, Constitutional customs or norms that Congress employs in deciding whether and how to regulate the third branch exert far more influence over the judiciary's actual autonomy, but have been largely unstudied. The author proposes a research agenda to explore customary independence more fully, and illustrates the utility of exploring customary independence through the example of court-packing, which court doctrine has left largely untouched, but which Congress has rejected as a matter of norm or custom.","PeriodicalId":150734,"journal":{"name":"LSN: Courts (Topic)","volume":"35 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"1900-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"126490998","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
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