scholarly journals The Politics in the Canadian Judicial Decision Making Process: Economic Analysis of Tax Litigation

1994 ◽  
pp. 741
Author(s):  
Berry F. C. Hsu
Keyword(s):  
Decision Making ◽  
Economic Analysis ◽  
Economic Reform ◽  
Law And Economics ◽  
Decision Making Process ◽  
Supreme Court Of Canada ◽  
Judicial Decision ◽  
Judicial Decision Making ◽  
Starting Point ◽  
Economic Tools

The application of economic theories, rightly or wrongly, has a major impact on our lives. Economic reform inevitably leads to political reform. However, it remains unanswered whether economic reform leads to reform in the judicial decision making process. Although there are a number of studies on the economic analysis of taxation, that is, the study of economics and tax policies, there is virtually no literature on the economic analysis of tax cases. The time is ripe for a study of the connection between economic analysis and case law in taxation as Canada approaches the twenty-first century. This article investigates whether the federal courts in Canada have taken economic reality into consideration in making their decisions on tax matters. This is the first attempt to address the issue; although somewhat exploratory and speculative, it provides a starting point. This article first discusses tax scholarship in Canada. Then, the relevance of law and economics is discussed with special emphasis on the use of economic tools to analyse common law cases. From these discussions, the theories of economics are linked to tax cases. Finally, the author analyses trend of applying economic analysis in federal tax cases. This article should serve as a starting point for a future analysis of the cases determined by the Supreme Court of Canada.

scholarly journals Internalizing Contestation in Process-Based Judicial Review

2019 ◽  
Vol 20 (8) ◽  
pp. 1167-1181
Author(s):  
Laura M. Henderson
Keyword(s):  
Decision Making ◽  
Judicial Review ◽  
Theoretical Basis ◽  
Decision Making Process ◽  
Constitutional Theory ◽  
Judicial Decision ◽  
Constituent Power ◽  
Judicial Decision Making ◽  
European Stability Mechanism

AbstractThe cases challenging the European Stability Mechanism in Eurozone creditor states show the concern courts have with protecting and promoting democratic contestation. This Article shows how John Hart Ely’s theory of process-based review provides the theoretical basis for understanding how attention to democratic contestation contributes to the legitimacy of courts reviewing legislation against constitutional norms. By focusing on promoting democratic procedures, Ely argues that courts can avoid substantive decisions that are best left to the legislature. Yet, as my discussion of the constitutional theory of constituent and constituted powers shows, no form of constituted power can avoid some exercise of constituent power. In other words, even a process-based approach cannot avoid substantive judgments. The legitimacy of these decisions depends on the availability of avenues for contestation in the judicial decision-making process itself.

The judicial pursuit of the sexual victimization of children

2016 ◽  
Vol 23 (2) ◽  
pp. 123-144
Author(s):  
Josep M Tamarit Sumalla ◽  
Mª Jesús Guardiola Lago ◽  
Albert Padró-Solanet ◽  
Patricia Hernández-Hidalgo
Keyword(s):  
Decision Making ◽  
Criminal Justice ◽  
Justice System ◽  
Decision Making Process ◽  
Judicial Decision ◽  
Sexual Offences ◽  
Judicial Decision Making ◽  
Factors Associated ◽  
English Speaking ◽  
Low Rate

This article analyses the criminal justice system’s treatment of those sexual offences against children of which it is made aware. The findings reported in this article draw on a quantitative study based on data ( n = 97) taken from judicial files from a province of Catalonia, Spain. The study examines prosecution, trial and conviction rates, analysing the possible variables involved to provide a better understanding of the reasons behind the successful prosecution of complaints made. The study points to a low rate of prosecution, similar to other studies carried out in English-speaking countries. This leads us to conclude that differences in legal systems do not give rise to significant differences in dealing with cases. There is no evidence that a legalistic system such as that of Spain acts as a restraining element against the influence of non-legal factors in the judicial decision-making process. However, similarities with other studies are not found with regards to some factors associated with it. The findings provide no confirmation of the hypothesis that the Spanish criminal justice system is particularly reluctant to prosecute cases of intrafamilial victimization.

scholarly journals Book Review: Moseneke D All Rise: A Judicial Memoir (Pickado Africa Johannesburg 2020)

2021 ◽  
Vol 24 ◽  
pp. 1-6
Author(s):  
Hoolo 'Nyane
Keyword(s):  
Decision Making ◽  
Decision Making Process ◽  
Constitutional Court ◽  
Judicial Decision ◽  
Same Sex ◽  
Judicial Decision Making ◽  
Chief Justice

The contribution is the review published by former Deputy Chief Justice, Dikhang Moseneke, about his illustrious 15-year term in the Constitutional Court as both the judge and Deputy Chief Justice. The book uniquely provides a rare window into the dynamics of judicial decision-making at the apex court. Often, legal academics only interact with the judiciary through the judgements. Yet, Moseneke gives the reader much more to the judicial decision-making process than just the judgements. The book further traverses one of the most controversial aspects of the Constitutional Court’s jurisprudence, such as same-sex marriages, succession to chieftainship.

The “Law” and Economics of Judicial Decision-Making

2017 ◽  
Author(s):  
Emerson H. Tiller
Keyword(s):  
Decision Making ◽  
Political Institutions ◽  
Law And Economics ◽  
Policy Outcomes ◽  
Judicial Decision ◽  
Judicial Decision Making ◽  
Game Theoretic ◽  
Executive Action ◽  
The Law ◽  
Context Specific

Over the last three decades, the economics of judicial behaviour has revealed itself most prominently in the field now known as Law and Positive Political Theory (Law and PPT). Instead of the traditional focus of ‘law and economics’ on the normative efficiency of legal rules, Law and PPT identifies the role of competition among legal and political institutions for policy outcomes, with these outcomes usually taking the form of legislative enactments, executive action, judicial opinions, or administrative agency pronouncements (regulations). This article illustrates the ‘law’ features of Law and PPT, while keeping the economics of judicial decision-making — especially the efficiency-driven, game-theoretic, utility maximization features — at the forefront of the analysis. It begins by summarizing basic elements of Law and PPT as relevant to judicial decision-making. It then discusses context-specific applications of Law and PPT where the craft of law is revealed as strategy.

scholarly journals Transparency in Predictive Algorithms: A Judicial Perspective

2021 ◽  
Author(s):  
Md. Abdul Malek
Keyword(s):  
Decision Making ◽  
Black Box ◽  
Decision Making Process ◽  
Judicial Decision ◽  
High Stake ◽  
Judicial Decision Making ◽  
Predictive Algorithm ◽  
Predictive Algorithms ◽  
Good Cause ◽  
Privacy Invasion

<p><i>Although the apparent hyperbole about the promises of AI algorithms has successfully entered upon the judicial precincts; it has also procreated some robust concerns spanning from unfairness, privacy invasion, bias, discrimination, and the lack of legitimacy</i><i> to the lack of transparency</i><i> and explainability</i><i>, </i><i>etc.</i><i> Notably, critics have already denounced </i><i>the current use of the </i><i>predictive algorithm in the judicial decision-making process in many ways, and branded them as ethically, legally, and technically distressing.</i><i> So contextually, whereas there is already an ongoing transparency debate on board, this paper attempts to revisit, extend and contribute to such simmering debate with a particular focus from a judicial perspective. Since there is a good cause to preserve and promote trust and confidence in the judiciary as a whole, a searchlight is beamed on exploring how and why justice algorithms ought to be transparent as to their outcomes, with a sufficient level of explainability, interpretability, intelligibility, and contestability. This paper also ends up delineating the tentative paths to do away with black-box effects, and suggesting the way out for the use of algorithms in the high-stake areas like the judicial settings.</i></p>

scholarly journals Unrepresented litigants in Singapore: A prolegomenon to court typologies

2021 ◽  
Vol 11 (2) ◽  
Author(s):  
Helena Whalen-Bridge
Keyword(s):  
Decision Making ◽  
Dispute Resolution ◽  
Common Law ◽  
Legal Issues ◽  
Decision Making Process ◽  
Legal Knowledge ◽  
Judicial Decision ◽  
Legal Doctrine ◽  
Judicial Decision Making ◽  
Resolution Process

Unrepresented parties in litigation struggle with legal doctrine and puzzle over procedure. Judges provide some assistance in court, but they must exercise restraint so as not to raise questions of bias or favouritism. How do judges manage these interactions in the decision-making process? This article examines sample cases from one common law jurisdiction, Singapore, to identify the litigant in person (LIP) typologies in court-LIP interactions. There are likely a number of typologies that guide a court’s assessment and response to an LIP, but this article focuses on the typologies most relevant to judicial decision-making on legal issues, legal knowledge and credibility. Because legal knowledge and credibility typologies help courts evaluate LIPs, they assist courts to make decisions regarding unrepresented parties and allow cases to proceed to judgment. However, the typologies are not able to completely address the deficiencies LIPs bring to the dispute resolution process.

scholarly journals Filtering Tort Accidents

2020 ◽  
Author(s):  
Jef De Mot ◽  
Ben Depoorter ◽  
Thomas J Miceli
Keyword(s):  
Decision Making ◽  
Economic Analysis ◽  
Tort Law ◽  
Judicial Decision ◽  
Judicial Decision Making ◽  
Erroneous Decision ◽  
Institutional Aspects ◽  
Filtering Effect ◽  
Judicial Error ◽  
Liability Standards

Abstract Conventional wisdom in the economic analysis of tort law holds that legal errors distort incentives, causing behavior to depart from the optimum. If potential injurers know that courts err, they may engage in less or more than optimal precaution. This article revisits the effect of judicial error on the incentives of potential injurers by identifying a heretofore-neglected filtering effect of uncertainty in settings of imperfect judicial decision-making. We show that when courts make errors in the application of the liability standards, uncertainty about erroneous decision-making filters out the most harmful torts but leaves unaffected less harmful accidents. Our insight applies to various procedural and institutional aspects of legal adjudication, including the randomization of case assignment, the strength of precedent, and the use of standards versus rules.

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