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- John Ip, A Comparative Assessment of the Supreme Court and House of Lords in the War on Terror.The period since the terrorist attacks of September 11, 2001 has witnessed the implementation of aggressive counterterrorism measures around much of the Western world. This is exemplified by the two jurisdictions with which this paper is concerned: the United States and the United Kingdom. Since 9/11, both states have, for example, detained terrorist suspects indefinitely without trial, and created a plethora of new counterterrorism laws. These measures raise questions about the appropriate boundaries of state power and have serious implications for individual liberty. As affected individuals have sought to challenge the legality of their treatment, the United States Supreme Court and the House of Lords, the highest courts in their respective jurisdictions, have been forced to grapple with these difficult issues. This paper is an attempt to situate the major decisions of the Supreme Court and the House of Lords concerning aspects of the war on terror in the historical context of judicial behaviour in times of war. The conventional account of judicial behaviour during such times posits that courts are ineffective guarantors of individual liberty because they inevitably defer to executive claims of national security. Only after the period of war has passed do the courts re-assert themselves, resulting in a cyclical pattern of contraction and expansion of liberty. How do the relevant post-9/11 decisions of the Supreme Court and House of Lords fit within this pattern, if at all? This paper considers five possible ways of understanding the relevant decisions in light of the conventional account of judicial behaviour described above. First, the conventional account may simply be incorrect or incomplete. Second, the decisions of the Supreme Court and House of Lords post-9/11 may represent a break in the historical pattern of judicial deference in times of war. The three other explanations are consistent with the conventional account. First, these cases may be sufficiently remote in time from the relevant events such that courts feel confident in reasserting their authority. Second, the courts may view the current war on terror as being in some way qualitatively different from traditional war. The final explanation is that the relevant post-9/11 decisions may have had less impact than first thought, and as such, ultimately represent a form of disguised deference consistent with the conventional account of judicial behaviour in times of war.No categories
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In this paper, I have analyzed the right to trial by jury in civil cases as reflected in decisions of the Michigan Supreme Court over approximately a 20 year period dealing with three areas affecting the right to trial by jury in civil cases: (1) entitlement to a jury trial; (2) summary disposition; and (3) directed verdicts. The study was constructed to cover cases over a substantial period of time, so that it would be possible to analyze whether the changing composition of the Michigan Supreme Court, beginning in the late 1990's, impacted on the Court's decisions in these three areas.The conclusion that emerges from the is that the Court, as currently constituted, has diminished the right to trial by jury in civil cases in Michigan. The Court is more inclined than it was prior to 1999 to hold in more cases that there is no genuine issue of material fact, justifying summary disposition, and has now heard cases in which it has held that the defendant is entitled to a directed verdict. And the fact that the Court is more inclined to uphold the granting of summary disposition and directed verdicts is likely to have a demonstrable impact on these kinds cases when they are presented to the Court of Appeals and the trial courts. These courts, following the precedents of the Supreme Court and the results of the cases coming before that Court, will be more likely to rule in favor of granting motions for summary disposition and motions for directed verdicts.Given the Court's view of the diminished role of the jury in resolving factual disputes in civil cases, litigating lawyers must make the best of a bad situation and do everything that they can in order to protect the right to trial by jury in civil cases. They must try to ensure in the early stages of the litigation that their cases are strong enough to survive a motion for summary disposition and get to the jury, and at the trial they must make a determined effort to present sufficient evidence to survive a directed verdict. Hopefully the Court's view of the diminished role of the jury will not have dealt a fatal blow to the right to trial by jury in civil cases in Michigan. Time will tell how well the lawyers of Michigan have succeeded in preserving this fundamental constitutional right.
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| | Scholar | More options ... This article is intended to provide an overview of recent Supreme Court jurisprudence on private international law. It will discuss several cases that have been brought to the Supreme Court over the past few terms, and will utilize these cases as a lens through which to view the movement of the Court toward or away from an increased awareness of and international consensus on private international law issues. Interspersed throughout this discussion will be mention of other issues of private international law that may be brought before the Court in the future. The article concludes that while the Court has embraced its role in defining the extraterritorial reach of federal laws, bringing about much needed predictability for international sovereign and private interests, it has separately continued to defer questions of personal jurisdiction to the authority of lower federal and state courts with little regard for internal (and international) harmony.
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| | Scholar | More options ... A pair of U.S. Supreme Court cases in the mid-1980s created the exhaustion doctrine of federal Indian law - that cases within federal jurisdiction that raise a colorable claim of tribal jurisdiction should be litigated first in tribal court. Only when tribal remedies are exhausted may the losing party seek review in federal court. This federal post-exhaustion review raises two central questions: First, what standard of review should the federal courts employ in reviewing tribal court determinations? And second, what exactly are the federal courts entitled to review once tribal remedies have been exhausted? Underlying these questions is the issue of differentiating between tribal law and federal law. The existing standard of review between the two varies dramatically. Tribal court determinations of tribal law are entitled to absolute deference while tribal court determinations of federal law are generally reviewed de novo. Although federal courts may redetermine at least some issues of federal law on post-exhaustion review, proper respect for tribal courts and legislatures mandates that federal courts not review issues of tribal law. Thus, this article argues that proper deference to the sovereign powers of Indian tribes and tribal courts requires the federal courts, on post-exhaustion review, to scrupulously distinguish tribal court rulings on tribal law from rulings on federal law. Given that federal courts have apparently taken de novo review powers over all questions of federal law decided by tribal courts (whether that is legitimate or not), tribal courts are in some danger of serving merely as preliminary fact finders for federal district courts. This article proposes that federal courts can preserve the rights and values of tribal courts as instruments of tribal self-government only by carefully limiting questions of federal law to appropriate issues.
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| | Scholar | More options ... By lopsided majorities, the U.S. Supreme Court, in a series of cases, persistently commanded the lower courts to condition the admission of proffered expert testimony on the demonstrated validity of the proponents’ claims of expertise. In at least one broad area – the so-called forensic sciences – the courts below have largely evaded the Supreme Court's holdings. This paper aims to try to explain this massive defiance by the lower courts in terms of social epistemology.
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| | Other links: eupjournals.com euppublishing.com dx.doi.org | Scholar | At my library | More options ... With the decision in Strate v. A-1 Contractors, the United States Supreme Court overstepped the bounds of the government-to-government relationship between Tribal Nations and the United States. The Strate decision follows a recent trend in the Supreme Court's decisions or judicial activism in terms of federal Indian law, and also signals a return to former anti-Indian underpinnings in its decisions of the early 1900s. This article will examine: Part I, the legal background of the Strate v. A-1 Contractors decision; Part II, the Strate v. A-1 Contractors by the United States Supreme Court; Part III, the inherent sovereignty of Tribal Nations and the conflicts with the Strate decision; and Part IV, the pragmatic future impact of the Strate decision on the exercise of tribal jurisdiction.
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| | Scholar | More options ... A comparison between the judicial reasoning adopted by the House of Lords in Belmarsh and Torture Evidence cases, and the High Court of Australia’s administrative detention cases (especially Al-Kateb) reveals stark differences in the approach to common law rights, judicial reasoning, and constitutional rhetoric. Using the language of historically-based identity-informing constitutional values, their Lordships’ speeches can be seen as exercises in public and political persuasion, made within the idiom of constitutional veneration which is enjoying a renaissance in the UK. This emerging judicial rhetoric combines an appeal to a mythologised constitutional past with an emphasis on the quintessentially ‘British’ nature of the rights at stake to consolidate both the constitutional status of the ‘principle of legality’ and an inclusive notion of ‘equality’. By contrast, the High Court’s majority decisions are virtually devoid of the language of values, and are silent on the nature or status of the rights which Parliament was impliedly abrogating. The decisions are instead shrouded in the equally powerful rhetoric of strict legalism. Behind this purportedly valueless methodology, however, their Honours’ decisions reveal attitudes towards aliens as ‘illegal,’ ‘unlawful’ and ‘unwanted’ rather than rights-bearers, and a judicial deference to Parliament to ‘protect’ an undefined Australian community. The arrival of French CJ to the helm of the High Court might see a reinvigoration of common law rights via the principle of legality.
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| | Scholar | More options ... The Indian Supreme Court has invited a great deal of interest for its alleged activism and the role which it has begun to play in Indian governance. Recent years have been witness to substantial debate on the Court’s functioning, with scholars positing views and raising concerns with considerable passion. This paper analyzes the judicial activism discourse in the Indian Supreme Court by focusing on the contributions of Professor Upendra Baxi. It argues that despite the attention the Court has received on the question of judicial activism, the debate in this area has, for the large part, failed to engage with the meaning of the term “judicial activism” and examine the manner in which it is determined. This paper contends that a recent model to measure judicial activism proposed by Cohn and Kremnitzer can fill this void. It applies the model to three major cases of the Indian Supreme Court, to demonstrate how it can enable us to arrive at a sophisticated understanding of when decisions are activist; and how decisions may be activist by some parameters and restrained by others. In particular, it illustrates that commentary on the Court needs to evolve and engage with judicial decision-making in a far more rigorous fashion. Through its qualitative analysis, this paper suggests that the Cohn-Kremnitzer model can play an important role in moving beyond the current impasse in the debates on judicial activism in the Indian Supreme Court.
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| | Scholar | More options ... This paper critically examines three key recent cases of superior courts concerning restrictions on religious symbols: a prohibition on wearing headscarves in Turkish universities, upheld by the Grand Chamber of the European Court of Human Rights (Sahin v Turkey)(2005); a restriction on a particular kind of Islamic dress in an English school, upheld by the British House of Lords (R (on the Application of Begum) v Headteacher and Governors of Denbigh High School)[2006]; and an absolute ban on wearing a Sikh kirpan (a symbolic dagger) in a Quebecois school, struck down by the Canadian Supreme Court (Multani v Commission scolaire Marguerite-Bourgeoys)[2006]. Each case focused on similar arguments about freedom to manifest one's religion, and dealt with subsidiary arguments about the impact of the respective restrictions on the right to education. While each case proceeded from different factual circumstances, there are considerable differences in their approaches to what were essentially the same human rights law questions. The decision of the European Court of Human Rights is the least satisfactory in both its reasoning and its result; the House of Lords arguably reached the correct result but its reasoning was abbreviated; and the Canadian Supreme Court properly reasoned its way to a correct result.
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| | Scholar | More options ... Since former President Soeharto was forced to resign in 1998, the Indonesian judiciary has been significantly reformed. A Judicial Commission was established to monitor its performance. A Constitutional Court was also created; one of its tasks is to decide disputes between state institutions and to review the constitutionality of statutes. This paper discusses the Constitutional Court case in which several Supreme Court judges alleged that the Constitution’s guarantee of judicial independence precluded the Judicial Commission from supervising the Supreme Court’s performance by critically analysing its decisions. The Constitutional Court accepted this argument, declaring that the Indonesian Constitution prohibited the Judicial Commission from performing this function. This paper discusses this case and its potential ramifications.
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| | Scholar | More options ... While overshadowed by rulings concerning the rights of detainees, executive power and judicial review in the "war on terror," the Supreme Court recently issued three surprisingly significant decisions on international law. These cases show a realistic reaffirmation by the Supreme Court of international law's central importance to U.S. jurisprudence, the rejection of a post-war conservative belittlement as well as an apparent disdain for it, and a prudent determination of Congressional intent and judicial precedent in global commerce. While dealing with quite technical issues of the federal courts' subject-matter jurisdiction in alien torts, sovereign immunity and antitrust, these three decisions suggest a return to pragmatism by the Supreme Court. Taken together they provide a sensible balancing of foreign policy concerns within the context of the separation of powers and foreign relations. They also serve as a counterweight to the political degradation of international law that started with the Reagan-Bush era and continued through the current Bush administration.
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| | Scholar | More options ... Discussion of John Ip, A comparative assessment of the supreme court and house of lords in the war on terror
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