FID Recht - 342 - Verfassungs- und Verwaltungsrecht

The Decline of Legal Classicism and the Evolution of New Deal Constitutionalism, 89 Notre Dame L. Rev. 2051 (2014)

2026-08-14T03:19:43+00:00

This Article explores how some of the salient characteristics of classical legal thought influenced the evolution of the Supreme Court's constitutional jurisprudence during the New Deal era. It focuses upon the Court's jurisprudence of economic liberty in the context of substantive due process. Though a similar pattern of evolution occurred in the Court's Commerce Clause jurisprudence, examination of this area of constitutional development is beyond the scope of this Article. Part I provides an [...]

The First Thing We Do, 47 J. Marshall L. Rev. 1275 (2014)

2026-08-14T03:19:43+00:00

There is currently a concerted effort to dumb down America. In the midst of this, the American Bar Association’s Council of the Section on Legal Education and Admissions to the Bar recently agreed to propose that tenure for law professors be eliminated as a requirement for accreditation of law schools. This article analyzes the arguments for and against tenure in legal academia, and concludes that the main proposed justifications for eliminating tenure are highly questionable, at best. A lawyer [...]

The U.N. Convention on the Rights of the Child

2026-08-14T03:19:43+00:00

This comprehensive text goes beyond the usual debate surrounding children's rights and the Convention on the Rights of the Child. It provides a detailed analysis of how U.S. ratification of the Convention would impact American law. The chapters are written by leading advocates and scholars in the field, aimed at a general audience. The authors emphasize that it is crucial for all Americans to be informed about the Convention and the broader topic of children's rights. By increasing awareness of [...]

Are Two Clauses Really Better Than One? Rethinking the Religion Clause(s), 80 U. Pitt. L. Rev. 1 (2018)

2026-08-14T03:19:43+00:00

The First Amendment begins with two references to the relationship between government and religion. The prohibition on establishment of religion and the guarantee of free exercise of religion, despite their obvious interaction, are generally regarded as separate clauses, and analyzed under tests developed under one or the other. The current state of Establishment Clause doctrine and Free Exercise doctrine is sharply contested and by no means clear. Supreme Court justices will usually classify a [...]

The Color of Perspective: Affirmative Action and the Constitutional Rhetoric of White Innocence, 11 Mich. J. Race & L. 477 (2006)

2026-08-14T03:19:43+00:00

This Article discusses the Supreme Court's use of the rhetoric of White innocence in deciding racially-inflected claims of constitutional shelter. It argues that the Court's use of this rhetoric reveals its adoption of a distinctly White-centered perspective, representing a one-sided view of racial reality that distorts the Court's ability to accurately appreciate the true nature of racial reality in contemporary America. This Article examines the Court's habit of using a White-centered perspect[...]

The F Word - An Early Empirical Study of Trademark Registration of Scandalous and Immoral Marks in the Aftermath of the In re Brunetti Decision, 18 J. Marshall Rev. Intell. Prop. L. 404 (2019)

2026-08-14T03:19:43+00:00

This article seeks to create an early empirical benchmark on registrations of marks that would have failed registration as “scandalous” or “immoral” under Lanham Act Section 2(a) before the Court of Appeals for the Federal Circuit’s In re Brunetti decision of December 2017 and to briefly examine the possible outcome of the Supreme Court’s grant of certiorari on that case. The Brunetti decision followed closely behind the Supreme Court’s Matal v. Tam and put an end to examiners denying registrati[...]

Can a State Attorney General Intervene in a Case to Defend a State Anti-Abortion Law after an Appellate Panel Struck the Law, When a Different Attorney General Previously Voluntarily Withdrew from the Case, Renounced Authority to Enforce the Law, and Agreed to Abide by the Court's Ruling?

2026-08-14T03:19:43+00:00

The legal culture in Poland before the foundation of the Academy of Cracow ; Kultura prawna w Polsce przed założeniem Akademii Krakowskiej

2026-08-14T03:15:48+00:00

Culture is a very complex reality of human existence, which is comprehended in its different aspects. By the object of culture they are all products of human activity, events, behaviors ordered in certain examples present in societies in the form of rules of conduct which are determined by customs, morality and legal regulations. The acceptance of Baptism by Mieszko I of Poland in 966 was the turning point in the Polish history. The country of the first Polish Piast was rooted in the culture of [...]

Enforcement of the judgment of the administrative court declaring an act of local law invalid ; Wykonanie orzeczenia sądu administracyjnego stwierdzającego nieważność aktu prawa miejscowego

2026-08-14T03:15:48+00:00

The constitutional right to the court is the right to effective legal protection. It may be exercised if the law provides for the legal measures to ensure enforceability of the judgments. Local law enacted by the local government authority constitutes the source of universally binding law. Polish administrative courts exercise the control over hierarchical compatibility of a local legal act with the higher-order acts. This control is of comprehensive character, as the administrative court is not[...]

Reliability and quality of law, and the ancient-Roman and contemporary law-making factors in Poland ; Pewność i jakość prawa a starorzymskie i współczesne czynniki prawotwórcze w Polsce

2026-08-14T03:15:48+00:00

This publication analyzes three legislative factors functioning in Roman law, i.e., the activity of a praetor – creating law through appropriate handling of processing means and sanctions, jurisprudence – whose opinions by ius publice respondendi, had the force of law in force, and the emperor – who, as the supreme judge, issued decrees which were binding interpretations of the law as well as rescripts, which were replies to individual inquiries of citizens on legal matters. The aim of this anal[...]

Regulating Prosecutorial Independence and Impartiality in The Indonesian Criminal Justice System

2026-08-12T13:57:54+00:00

This article examines prosecutorial independence in Indonesia by analyzing three key aspects: the status of prosecutors as civil servants, the constitutional position of the Prosecution Service, and the role of prosecutors in the criminal justice system. It applies an interdisciplinary legal research method by reviewing laws, regulations, and relevant theories. Understanding these aspects helps assess whether the current legal framework adequately protects prosecutors from external influence and[...]

The Role of the Public Prosecutor in settlement of Child Cases Through Diversion at the Purwokerto District Attorney

2026-08-12T13:57:54+00:00

Wherever possible, the child is avoided from examination in court. As long as it fulfills the conditions specified, juvenile criminal cases must be resolved through Diversion. The Indonesian Child Protection Commission states that there are 7000 cases of children facing court proceedings every year. This study aims to determine the role of the public prosecutor in resolving child cases through Diversion and the obstacles to implementing Diversion at the Purwokerto District Attorney. The method u[...]

R v Christian (No 2) [2005] PNSC 1; [2005] LRC 745 (24 May 2005)

2026-08-07T03:46:19+00:00

"Supreme Court Blackie CJ, Johnson and Lovell-Smith JJ 18-22, 26-27 April, 24 May 2005" As posted on the Pacific Islands Legal Information Institute (PacLII) website.

Функциональные и организационные принципысудебной власти в деятельности высшегоспециализированного суда

2026-08-07T03:17:51+00:00

This article investigates the functional and organizational principles of the judiciary with respect to activities of higherspecialized court. ; В статье исследуются функциональные и организационные принципы судебной власти применительно к деятельности высшего специализированного суда.

Efectul util în materia protecţiei drepturilor omului prin prisma jurisprudenţei constituţionale

2026-08-07T03:17:51+00:00

The European Convention on Human Rights is intented to guarantee not rights that are theoretical or illusory but rights that are practical and effective, as per the settled case-law of the European Court of Human Rights. Therefore, it falls on each Member State to ensure the effective protection of the fundamental rights. In this regard, the Constitutional Court of the Republic of Moldova has guided itself by the case-law of the Strasbourg Court on a regular basis, and continues to do so, making[...]

Legalitatea procesului penal

2026-08-07T03:17:49+00:00

Subiectul cercetat în articol este unul de o importanță covârșitoare, imposibil de subestimat. În rândurile de mai jos voi analiza rolul legislației și practicii internaționale și a celei naționale cu privire la aplicarea și respectarea principiului legalității, rolul Curții Constituționale, efectul hotărârilor explicative ale Plenului Curții Supreme de Justiție asupra urmăririi penale și judecării cauzelor penale, rolul și efectele hotărârilor Curții Europene a Drepturilor Omului și deciziilor [...]

Justiția și principiile ei diriguitoare

2026-08-07T03:17:49+00:00

In a democratic society the existence of an independent justice is the general objective of law. Ensuring a fair trial where the rights of the subjects will be respected and settled disputes according to the law and the principles of law is the responsibility of the courts. Guarantees established in this respect, such as ensuring the right to a defense, the right to have an interpreter, the independence of judges and their submission to the law, the presumption of innocence, and free access to j[...]

Inovații juridice privind modalitățile de exercitare a dreptului de proprietate a statului și a unităților administrativ teritoriale

2026-08-07T03:17:49+00:00

In this article we intend to analyze the legal innovations made by the ordinary legislator, concerning the ways of exercising the public or private property rights of the state or of the administrative territorial units: 1. innovations validated by the Constitutional Court; 2. innovations invalidated by the Constitutional Court 3. clearly unconstitutional legislative solutions in force not yet subject to constitutional review. The case law of the Court was also the starting point for the regulat[...]

Accesul cetăţenilor la Curtea Constituţională prin ridicarea excepţiilor de neconstituţionalitate

2026-08-07T03:17:49+00:00

Article 135.1.g of the Constitution of the Republic of Moldova referring to thesettlement of exceptional cases of unconstitutionality through submission ofpleas to the Constitutional Court by the Supreme Court of Justice, constitutesat present one of the guarantees for citizens in view of sticking up for their fundamentalrights and liberties. The exception of unconstitutionality represents aprocedural means for putting in place citizen’s access to constitutionality controlof laws as bearer of fu[...]

Revendicarea drepturilor social-economice în contextul jurisprudenței constituționale

2026-08-07T03:17:49+00:00

Social-economic rights are an indicator of the possibilities of the person, but also of the state, to produce and distribute goods necessary for human existence. These rights result from the social nature of man, and from the solidarity of the membres of society. Claiming these constitutional rights is a process, which includes both the actual request, and the action of the state authorities on these request. In addition to citizens, the state authorities are involved in the respective process, [...]

Renunțarea la probe și modificarea învinuirii de către procuror

2026-08-07T03:17:48+00:00

The legal classification of the deed plays a crucial role in the criminal proceedings, or in accordance with the legal basis of the charges brought against him, a person can organize an effective defence, which represents an essential condition of a fairness trial guaranteed by article 6 of the European Convention. Thus, any changes in the legal classification, even in the mitigating process that is done by the court, when it does not constitute the object of judicial investigation, is likely to[...]

Проблемные аспекты эффективной защиты прав детей Уполномоченным при президенте Украины по правам ребенка

2026-08-07T03:17:48+00:00

Статья посвящена исследованию особенностей создания и функционирования Уполномоченного по правам ребенка. Осу-ществляется сравнение правового статуса действующего омбудсмена по правам ребенка и его соответствие основным между-народным принципам и стандартам в сфере осуществления и защиты прав людей. В частности, исследуются такие вопросы, как независимость Уполномоченного Президента Украины по правам ребенка и гарантии обеспечения его деятельности и объем полномочий, с учетом прав и обязанностей[...]

Identifying minority communities and persons belonging to national minorities in light of the case-law of the Constitutional Court of Hungary

2026-07-31T03:53:34+00:00

Constitutional Amendments: Making, Breaking and Changing Constitutions (2019). Oxford: Oxford University Press, 338 pages, ISBN 9780190640484

2026-07-31T04:30:18+00:00

When a constitutional judge willing to spend his time to give a review to a book, it is a great sign that the book has some appeals to offer. Yet, the book that is currently will be reviewed is not only discussed by one but two constitutional judges. At the end of November 2019, two constitutional judges, Saldi Isra and I Dewa Gede Palguna, discussed a book entitled â€œConstitutional Amendment: Making, Breaking and Changing Constitutionsâ€ written by Richard Albert. The attention to the book did[...]

Post Amendment of Judicial Review in Indonesia: Has Judicial Power Distributed Fairly?

2026-07-31T04:30:18+00:00

Distribution of power in Indonesian constitutional system not only occur amongst state organs but also within Indonesian judicial system. The Supreme Court and Constitutional Court share their power to review several regulations. The 1945 Constitution delivers power to review act against constitution for Constitutional Court and to review regulations below an act for the Supreme Court. However, this distribution of power is vulnerable to contradicting each other, with the possibility of having c[...]

Constitutional and Judicial Interpretation of Environmental Laws in Nigeria, India and Canada

2026-07-31T04:30:17+00:00

The judiciary, an important branch of government responsible for legal interpretation, dispute resolution, and justice administration, holds a crucial role in national environmental protection. Courts play a key role in safeguarding a nation's environment by interpreting constitutional provisions related to environmental protection and other legislative frameworks. The effectiveness of a country's environmental protection is contingent on the assertiveness, creativity, and innovation of its judi[...]

Consultation and Mediation to Resolve Illegitimate Child Disputes by Prioritizing the Best Interest of the Child Principle

2026-07-31T04:30:17+00:00

Based on the convention on children's rights, there are four categories of children's rights to realize the principle of the best interest of the child, namely the right to survival, the right to protection, the right to grow and develop, and the right to participate in expressing opinions in all matters affecting children. The right to survival of children requires the state to ensure their survival, both with a conducive environment, decent living facilities and infrastructure to access to bas[...]

Controversial Criminal Punishment for Victim of the Spread of Immoral Chat

2026-07-31T04:30:17+00:00

The purpose of this research is to (1) analyze the Supreme Court's consideration of victims of the spread of sordid chatter in the Supreme Court's decision Number 574K / PID.SUS / 2018, and (2) analyze the arguments of the Public Prosecutor regarding the offense Article 27 paragraph (1) juncto Article 45 paragraph (1) of the Information and Electronic Transaction Law in decision No. 574K / PID.SUS / 2018. This type of research uses qualitative methods with a normative juridical approach. In this[...]

‘Hamlet Without the Prince’ – The U.S. Supreme Court on Religious Practice

2026-07-31T03:53:34+00:00

The Supreme Court of the United States of America has recently issued a decision in several cases that are closely related to First Amendment rights. In doing so, the Court has changed its own set of criteria from its earlier practice. The reasons for these decisions have attracted increased interest among practitioners and academics, as it is a long time since the Court has so clearly distanced itself from its own precedent and called lower courts to account for failing to take certain criteria[...]

Az egészséges környezethez való jog anyagi jogi és eljárásjogi kérdései az Alkotmánybíróság újabb gyakorlatában

2026-07-31T03:53:34+00:00

Az Alkotmánybíróság a 28/1994. (V. 20.) AB határozatában fektette le az egészséges környezethez való jog egyik legfontosabb elvét, a visszalépés tilalmát. A 16/2015. (VI. 5.) AB határozat megállapítása szerint az Alaptörvény a korábbi Alkotmány környezetvédelmi értékrendjét és szemléletét továbbfejlesztette. Jelen tanulmány keretei között azt vizsgálom, hogyan alakult át az Alkotmánybíróság egészséges környezethez való joggal kapcsolatos gyakorlata az Alaptörvény hatálybalépése óta eltelt tíz év[...]

The Power of the Courts, the Court of the Powerful – Reforming the U.S. Supreme Court?

2026-07-31T03:53:34+00:00

In recent decades, the courts have played an increasingly prominent role in both European and American politics. The merging of the legislative and executive powers has enhanced the role of the high courts as a constitutional counterweight. After the Second World War, Europe’s political elites felt a deep sense of remorse about the spread of communism and fascism, and for that reason post-war constitutions all regulated human rights in detail and set up constitutional courts with considerable po[...]

The Hungarian and German constitutional courts refused the ratification of the agreement on a Unified Patent Court. What’s next?

2026-07-31T03:53:34+00:00

The Right of Petition in Hungary

2026-07-31T03:53:34+00:00

The purpose of this article is to introduce the concept of the right of petition and its history and constitutional regulation in Hungary. Many say it is a long-forgotten right that has lost much of its relevance and has been replaced by more effective means of legal protection. However, it still exists today as a political right, it is present in national constitutions and has been given a new impetus in the European Union. It has its roots in the past and has always been available to the most [...]

Freedom of expression and the EU’s ban on Russian Today : a dangerous Rubicon crossed

2026-07-24T06:36:28+00:00

On 27 July 2022, in RT France v Council, the General Court of the European Union (‘General Court’) found that the ban on RT France in the EU did not violate the right to freedom of expression and media freedom, under Article 11 of the EU Charter of Fundamental Rights. Notably, the General Court sought to apply principles from case law of the European Court of Human Rights and international human rights law. This article argues that there are serious questions to be raised over the General Court’[...]

European Court of Human Rights: Carolis et France Télévisions v. France

2026-07-24T06:36:27+00:00

The European Court of Human Rights has confirmed the robust Article 10 protection for investigative journalism expressed in a television documentary, holding that a conviction for defamation of a Saudi Arabia prince violated the right to freedom of expression.

European Court of Human Rights: Kalda v. Estonia

2026-07-24T06:36:27+00:00

For the first time the European Court of Human Rights has stated that denying a prisoner access to the Internet may amount to a violation of Article 10 of the Convention. In Estonia Mr Kalda, who is serving a life sentence in prison, requested from the governor of the prison access to the online version of the State Gazette, to the decisions of the Supreme Court and administrative courts, and to the HUDOC database of the European Court of Human Rights.

An exploration of the child's right not to use the internet : disentangling from the digital web

2026-07-24T06:36:22+00:00

Recent policy documents at international and European level emphasise how essential internet access is for the realisation of children’s rights, and more specifically for purposes of inclusion, education, participation and communication. Schools impose the use of online learning platforms, friendships are maintained predominantly through mobile apps and online gaming platforms have taken over from playgrounds. Amidst this digital transformation, the fundamental question emerges whether children [...]

The virtues and limits of transformative constitutionalism : Ecuador’s constitutional court decision on prisons

2026-07-24T06:36:22+00:00

In search of foreign influences, other than French, in nineteenth-century Belgian court decisions

2026-07-24T06:36:21+00:00

In many senses, nineteenth-century Belgium can be considered to be a 'legal province' of Belgium. In the tradition of the exegetical school, legislation is the one and only formal source of law for judicial decisions. This legislation is primarily composed of the Napoleonic codes. Judges seem to be afraid of referring to other sources. If a ‘foreign’ source is quoted, it is a French one.

Freedom of expression, the media and journalists : case-law of the European Court of Human Rights

2026-07-24T06:36:20+00:00

This e-book (also available in a printed version) offers a structured insight into the European Court of Human Rights’ case-law on freedom of expression and media and journalistic freedoms has been a widely appreciated. It is presented as a vade mecum on Article 10 of the European Convention on Human Rights. The target group includes lawyers, judges, law- and policy-makers, civil society actors, journalists and other media actors, academics, students, and indeed everyone with an interest in its [...]

Children’s rights in the digital environment

2026-07-24T06:36:18+00:00

In March 2021, the United Nations Committee on the Rights of the Child formally adopted its General Comment No. 25 on the Rights of the Child in relation to the Digital Environment. The General Comment strongly focusses on the child’s right to privacy and data protection. In this talk, Eva Lievens presents how this right is challenged, how the EU legislator attempts to protect this right and how children feel about it.

Submission to the Committee on the Rights of the Child in view of the intention to draft a General Comment on children’s rights in relation to the digital environment

2026-07-24T06:36:13+00:00

Children in the EU Digital Services Act and Artificial Intelligence Act : from acknowledging children’s rights to protecting and fulfilling children’s rights

2026-07-24T06:36:13+00:00

The Canons Fell Silent: An Analysis of the Supreme Court's Failure to Use Statutory Interpretation Tools in Sackett v. EPA

2026-07-17T03:20:30+00:00

In 2023, the United States Supreme Court denied decades of precedent, agency action, and the proper use of canons of interpretation in its decision in Sackett v. Environmental Protection Agency (Sackett). This case adopted the “continuous surface connection” test, which requires an indistinguishable surface water connection between a wetland and a navigable water to assert Clean Water Act jurisdiction over the wetland. This limitation on agency authority under the Clean Water Act was created thr[...]

Protecting Child Victims' Rights as Vigorously as Criminal Defendants' When Prosecuting Possession or Distribution of Child Pornography

2026-07-17T03:20:30+00:00

Among the devastating effects of the worldwide child pornography epidemic is a concerning legal dilemma. Until recently, courts have frequently held that a defendant charged with child pornography offenses has a nearly unrestricted right to receive and view copies of the pornographic evidence as part of discovery of the state’s evidence. The duplication, dissemination, and viewing of child pornography is not only a violation of federal law, but is also a further violation of the child victims’ p[...]

From Substance to Shadows: An Essay on Salazar v. Buono and Establishment Clause Remedies

2026-07-17T03:20:30+00:00

Most disputes about the Establishment Clause center on its substantive meaning; whether, for example, a state subsidy promotes religion, the phrase “In God We Trust” can appear on currency, or a display of the Ten Commandments is unconstitutional. Often overlooked and lurking behind these substantive disputes is a question about what remedies are available when an Establishment Clause violation is found. Typically, an injunction prohibiting the subsidy, practice, or display is the choice. In Sal[...]

Diversification of the Japanese Judiciary

2026-07-17T03:20:30+00:00

Japan has a career judiciary. The Courts Act of 1947 provides that judges may be appointed from among prosecutors, attorneys, and law professors. In practice, however, the vast majority of judges come from a fourth category, “assistant judges,” who are appointed directly upon completion of the legal training program and typically serve through retirement. This continues a career tradition that dates back to the late nineteenth century. For nearly that long, the Japanese bar has been advocating t[...]

Judicial Reform and the State of Japan's Attorney System: A Discussion of Attorney Reform Issues and the Future of the Judiciary, Part II

2026-07-17T03:20:30+00:00

Based on the Judicial Reform Council's article, "Points at Issue in Judicial Reform," this paper analyzes basic issues regarding the current status of the Japanese attorney system and areas to be addressed in judicial reform. [This Article formed the basis of Mr. Nakabō's report at the thirteenth meeting of the Judicial Reform Council on February 22, 2000. It was originally published as the second part of a two part paper in SERIES JUDICIAL REFORM I: [LEGAL PROFESSIONAL TRAINING: THE LAW SCHOOL [...]

Policymaking by the Japanese Judiciary in the Criminal Justice Field

2026-07-17T03:20:30+00:00

When one speaks of policymaking by the judiciary, the image that often comes to tnind is the U.S. judiciary, especially the Supreme Court of the United States. That reaction is understandable. Examples abound of policymaking by courts in the United States; and a seemingly never-ending stream of books and articles discuss, analyze, and, depending on the authors'point of view, praise or decry "policymaking" or "judicial activism" by U.S. courts. The field of criminal justice frequently is offered [...]

The Supreme Constitutional Court of Egypt on Islamic Law, Veiling and Civil Rights: An Annotated Translation of Supreme Constitutional Court of Egypt Case No. 8 of Judicial Year 17

2026-07-17T03:20:30+00:00

The jurisprudence of the Supreme Constitutional Court of Egypt is creative and influential in the Arab world. Among its opinions, Case No. 8 of Judicial Year 17, decided on May 18, 1996, is particularly interesting. In this opinion, the SCC argues that a regulation on face-veiling in public schools is consistent not only with Islamic law, but with the Egyptian Constitution's guarantees of freedom of religion and freedom of expression. Not only does it illustrate the SCC's approach to Islamic leg[...]

The Elephant in the Room: Intentional Voter Suppression

2026-07-17T03:20:30+00:00

Since its inception, the Roberts Court has acquiesced in—and at times even abetted—the attempts of many states to make it harder for Americans to vote. Illustrative is a 2018 decision, Husted v. A. Philip Randolph Institute, in which the Court rejected a statutory challenge to a state’s expansive purges of voting lists. In Husted the Court dismissed the threat of voter suppression as simply not “relevant” to the case before it. By declining to look beyond states’ unsupported explanations for vot[...]

CONSTITUTIONAL RIGHTS OF ARTIFICIAL INTELLIGENCE

2026-07-17T03:20:30+00:00

On February 8, 2022, the Italian Parliament approved constitutional amendments to protect the environment. A member of Parliament stated that the environment is an element of Italy, and that safeguarding the environment means safeguarding humans. The need to protect the environment seems to have become a critical component of public conscience. Likewise, if society perceives that artificial intelligence is vitally important for humanity, does constitutional law allow constitutional rights for ar[...]

“Unconstitutional Beyond A Reasonable Doubt” – A Misleading Mantra that Should Be Gone for Good

2026-07-17T03:20:30+00:00

For a century, Washington State Supreme Court opinions periodically have intoned that the body will not invalidate a statute on constitutional grounds unless it is “unconstitutional beyond a reasonable doubt.” This odd declaration invokes an evidentiary standard of proof as a rule of decision for a legal question of constitutionality, and it confuses practitioners and the public alike. “Unconstitutional beyond a reasonable doubt” is not peculiar to Washington State. Indeed, it began appearing in[...]

The Supreme Court and the Push for Transparency in Lower Court Appointments in Japan

2026-07-17T03:20:30+00:00

The theme of this symposium issue is ―Decision Making on the Japanese Supreme Court.‖ From that title, readers understandably might assume the focus is squarely on decisions in judicial cases. Yet, as Lawrence Repeta observes in his Article for this issue, the Japanese Supreme Court bears responsibility for another major category of decision making: judicial administration.1 One vitally important aspect of judicial administration for which the Supreme Court bears primary responsibility is the se[...]

Judicial Reform and the State of Japan's Attorney System: A Discussion of Attorney Reform Issues and the Future of the Judiciary

2026-07-17T03:20:30+00:00

Based on the Judicial Reform Council's article "Points at Issue in Judicial Reform," this paper presents basic issues on the current status of the Japanese attorney system and areas to be addressed in judicial reform. [[Translator's Note] This Article formed the basis of Nakabō's report at the twelfth meeting of Judicial Reform Council held on February 8, 2000. It was originally published as the first of a two part paper in SERIES JUDICIAL REFORM I: [LEGAL PROFESSIONAL TRAINING; THE LAW SCHOOL C[...]

Reasoning v. Rhetoric: The Strange Case of “Unconstitutional Beyond a Reasonable Doubt”

2026-07-17T03:20:30+00:00

An odd formulation has frequented American constitutional discourse for 125 years: a declaration that courts should not overturn a statute on constitutional grounds unless it is “unconstitutional beyond a reasonable doubt.” This concept has been thought of as a presumption, a standard, a doctrine, or a philosophy of coordinate branch respect and judicial restraint. Yet it has been criticized because “beyond a reasonable doubt” is at root an evidentiary standard of proof in criminal cases rather [...]

Beyond the Little Dutch Boy: An Argument for Structural Changes in Tax Deduction Classification

2026-07-17T03:20:30+00:00

One of the most active disputes in tax law today is the question of the proper tax consequences for a successful plaintiff, a portion of whose taxable damage award is paid to his or her attorney pursuant to a contingent fee arrangement. At issue is whether the plaintiff is taxable on the portion of the award that is payable to the attorney. One aspect of this problem was resolved prospectively by the adoption of the American Jobs Creation Act of 2004, but the problem continues to exist in other [...]

Finality, Habeas, Innocence, and the Death Penalty: Can Justice Be Done?

2026-07-17T03:20:30+00:00

In 1995, Judge Betty Binns Fletcher posed a question: In the context of the death penalty, can justice be done? She did not answer the question at the time. However, an examination of the procedural hurdles now facing condemned inmates seeking review of claims of constitutional violations suggests the answer is no. Too often courts, including the Supreme Court, have favored finality over fairness, elevating strict adherence to procedural rules over the responsibility to make sure justice is done[...]

The Collateral Consequences of Ex Post Judicial Review

2026-07-17T03:20:30+00:00

Judicial review produces disruptions to democratic preferences that are not constitutionally required. Judicial review produces these disruptions because the law the Court declares unconstitutional is not automatically replaced with the laws that policymakers would have enacted had they known their preferred policy was unconstitutional. The Court is institutionally ill-equipped to address these disruptions, and the coordinate branches are often unwilling or unable to do so—unwilling because thei[...]

Pregnant and Prejudiced: The Constitutionality of Sex- and Race-Selective Abortion Restrictions

2026-07-17T03:20:30+00:00

Six states currently restrict a woman’s access to abortion based on her personal motivations for seeking the procedure. These laws, which prohibit abortions that are sought based on the fetus’s sex or race, raise challenging constitutional issues, as the restrictions do not fit neatly into the U.S. Supreme Court’s abortion jurisprudence framework. The constitutionality of these laws is also unclear because no legal challenge has been brought against them. This Comment argues that motive-based ab[...]