A MATTER OF JUSTICE: JUDICIAL REVIEW AND NEW REMEDIES FOR THE 21ST CENTURY II
Panel formed with individual proposals.
The public policy exception is a well-established part of common law choice of law doctrine. But to use the exception, judges must confront a difficult conceptual issue: they must identify the forum‘s fundamental values that cannot be violated by foreign law. Private international law scholars have long argued that it is impossible to provide a compelling account of the exception‘s juridical role and the norms that should govern its use. In this paper, I argue that common law constitutionalism can offer a compelling account of the exception. Drawing on the work of David Dyzenhaus and TRS Allan, I argue that the exception is a means by which common law courts can ensure that foreign law does not violate the fundamental constitutional requirements of the common law. This offers a new way of understanding the role that public policy plays in choice of law and the values that should inform its use. It can also make sense of leading public policy jurisprudence, such as Somerset‘s case.
A system of constitutionality review is provided for in several countries. This ensures that even parliamentary acts remain within the boundaries of the constitution. Therefore, an important question is how the decision-making procedure can be organized in such a way that legal proceedings are avoided and, if they take place, the law passes the constitutionality test. It seems obvious that an ex ante legal test by an independent legal body would be a good guarantee. However, in order to safeguard the autonomy of parliament, such a ruling often has only advisory value. This implies that the success of such programs depend on the value given to it by politicians. An elaborated empirical research with a focus on Flanders will examine whether ex ante advisory opinions are able to signal red flags about the constitutionality of the present law.
This paper conceptualizes the role of Grand Chambers (GCs), special panels of a greater number of judges often employed by appellate courts sitting in panels. Ever since they were created, GCs and their role within their respective courts have attracted a great deal of attention. Some glorify them as the most important judicial formations, securing the quality of the courts' decision-making, others vilify them for being too big to be effective or too political. The role of GCs, however, has never been scrutinized as a theoretical concept. This paper aims to develop such conceptualization through distinguishing three components of the GCs‘ role: 1) the added value of GC‘ view - 2) the way in which that view gets asserted in the court‘s decision-making - and 3) the extent to which the court‘s decision-making is centralized around the GCs‘ view. By doing so, the paper provides tools for more complete and comprehensive accounts of how various GCs influence courts‘ decision-making.
This paper makes the case for a nuanced remedial judicial toolkit which is equipped to meet the challenges posed by 21st century judicial review. It does so primarily with reference to the decision of the Supreme Court of Canada in Attorney General (Ontario) v G  SCC 38, where a majority of the Court purported to restate its approach to remedies in judicial review. Ultimately, the paper argues that judges, operating in certain contexts, and regulated by certain conditions, ought to enjoy a principled level of remedial discretion. The paper is in three parts. Part I provides a brief overview of the development of the Court‘s remedial jurisprudence. Part II critically analyses the decision in G. And finally, Part III will argue that, while there are considerable issues with some of the majority‘s conclusions in G, a flexible, yet principled, approach to remedies is desirable in meeting the challenges posed by judicial review in the 21st century.
The purpose of this article focuses on exposing the legal formalities that will allow us to understand the operation of administrative precautionary measures, within the Ecuadorian judicial disciplinary regime. In order to explain the nature of the preventive measures in question, it becomes mandatory to know those legal doctrines and legal norms that impose on the executor of the legal component, those objective notions for the application of the mentioned legal mechanism. Subsequently, we will use real cases that would have been instituted in the disciplinary field against judicial servants, in order to reveal what type of conduct, is discretionary or constitutional, involves the resolutions issued by the administrative authorities of the Judiciary.
The Citizenship (Amendment) Act 2019 (‘CAA‘) relaxes the criteria for Indian citizenship for migrants who belong to certain religious communities. Arguably, the CAA breaches the constitutional guarantee of equality due to its underinclusive nature i.e. it does not include migrants who faced persecution similar to the persons it covers. However, many object that underinclusive laws are subject to a low standard of scrutiny, which increases the justificatory burden on those who question its validity. I argue, based on normative principles and case law, that underinclusive laws are not subject to lower scrutiny. Further, drawing on jurisprudence from India, Canada and the US, I show that courts must be mindful of other constitutional goals when framing remedies for underinclusive laws. Contrary to dominant opinion, I then argue that, were the CAA to be declared invalid, the appropriate remedy would be to extend its benefits to those hitherto uncovered by it, rather than striking it down.