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Šadl U: Good Judgment

Good Judgment

The European Court of Justice as a Context-Conscious Lawmaker

1. Introduction a. The Main Claim b. The Structure i. The Premise ii. Contribution c. The Outline d. In Sum Part One: The Analytical Framework 2. Context Conscious Judging a. Four Perspectives on Context Conscious Judging i. Maximising Legal Values with Sound Legal Arguments ii. Maximising Power with Strategic Solutions iii. Maintaining Authority iv. Minimising Conflict by Muddling Through b. The Court's Context Conscious Reasoning and Political Power 3. Good Judgement a. From Context Conscious Judging to Good Judgment i. The Baseline: Model Application of Law and the Structure of Typical Justification ii. Non-binary Decisions: An Illustration iii. Conflicting Interests iv. Distinctions b. Three Types of Good Judgment c. Conclusion 4. Operationalising Good Judgment a. Three Steps of the Analysis b. The Parameters of Case Law i. Legal Characteristics ii. Case Characteristics c. Annotation of Judgments Conclusion to Part One Part Two: The Mechanics of Good Judgment 5. Persons a. Introduction b. The Rules Governing the Free Movement of Persons and European Citizens i. Treaty Rights, Legislative Acts, and the Competence to Regulate Free Movement ii. Citizenship Rights Directive: Consolidating Legislative Instruments, Case Law and Conflict c. Free Movement Disputes: Legal Issues d. The Parameters of Good Judgement i. Non-sanctioning Europeanisation of National Policies through the Prism of Proportionality, Discrimination and Compatibility Review ii. Individual Protection and Deferral of Authority in Judgments Upholding European Rights and Principles iii. Preserving State Autonomy in Judgments Advancing Free Movement of Persons Law iv. Relevant Information About Free Movement of Persons Cases e. Emblematic Judgments: Facts, Justification, Context, Implications i. Non-sanctioning Europeanisation of National Policies ii. Deferential Upholding of European Rights iii. Bounded Undesirable Interpretation f. Upholding Conflicting Interests - The Long Term 1954 - 2022 6. Goods a. Introduction b. The Legal Framework of Free Movement of Goods i. The Ambiguous Heart of the System ii. Rights at Stake and Interests at Play in the Case-law c. Free Movement Judgments: An Overview of Legal Questions d. The Parameters of Good Judgment i. Non-sanctioning Europeanisation of National Policies through the Prism of Proportionality, Discrimination and Compatibility Review ii. Deferral of Authority in Judgments Upholding Free Movement Rights and Principles iii. Preserving State Autonomy in Judgments Advancing Free Movement of Goods: Bounded Undesirable Interpretation iv. Relevant Information about Free Movement of Good Cases e. Emblematic Judgments: A Close Up i. The Non-sanctioning Europeanisation of National Policies ii. The Deferential Upholding of Free Movement Rights iii. The Bounded Undesirable Interpretation f. Upholding Conflicting Interests: The Long Term Part Three: The Mechanisms of Good Judgment Introduction i. Main Finding ii. Unpacking the Findings: The Roadmap a. Case Motivated Good Judgment i. The Applicants ii. The Case iii. The Institution (Idiosyncratic Good Judgment) b. Context-Motivated Good Judgment i. Recognising the Stakes ii. Honouring Fragile Consensus/Equilibrium iii. Adjusting to the Climate c. Alternative Tools of Context Conscious Judging i. Reframing Disputes ii. Mixed Signals iii. Low Stakes/Waiting for the Tide to Turn d. Appraisal 8. Conclusion a. Summary of the Argument b. Contribution c. Is Good Judgment a Good Idea?

This open access book establishes an interpretative framework by means of a functionalist-originalist reading of EU law and comparative federalism, in particular US constitutional law. 

The EU is undergoing one of the most profound structural crises of its history, relating to the rule of law and fundamental rights. The author conceptualises the existential question in terms of ontology, constitutional legitimacy, doctrine and institutional process. By providing the first conceptual methodology (based on comparative federalism and focusing on law and rights) the book develops proposals which can be used to address the EU's current constitutional challenges.

The ebook editions of this book are available open access under a CC BY-NC-ND 4.0 licence on bloomsburycollections.com.

A Comparative Perspective

The Diagonality Problem of the EU Rule of Law

Constitutional Systems of the World

Following the successful formula of the series, this book offers an introductory but authoritative overview to the Constitution of Bangladesh. It looks at the shape and working of the Constitution, while introducing the reader to it key stakeholders. It sets out the features unique to the Bangladeshi situation and the specific challenges that rise. With the opening key words and end of chapter further reading recommendations, this is the ideal starting point for students if this fascinating state and its governing framework.

A Contextual Analysis

The Constitution of Bangladesh

This book considers the derivative action, an important corporate governance tool which is commonly considered to serve two basic functions, i.e., enabling shareholders to gain redress for a wrong done to their company and deterring potential breaches of directors’ fiduciary duties. This book critically examines the derivative action from theoretical, evolutionary, and comparative perspectives. It considers how controversial issues such as locus standi, demand requirements, indemnity cost orders, information asymmetry and res judicata are approached in selected civil law countries as well as throughout the Commonwealth. The book also assesses whether derivative litigation could fulfill a similar role in China, which is one of the most rapidly developing economies in the world, yet lacks adequate corporate governance mechanisms. The ultimate aim discussed in the book is how to establish a remedial mechanism which makes derivative actions more accessible and consistent, while maintainingthe balance between corporate efficiency and protecting minority shareholders’ interests. Lastly, based on different approaches in the latest reforming infrastructure, it explores whether there is a general converging trend for derivative actions between the two major legal systems.

The Comparative Perspectives on Derivative Actions

Corporate Governance in China

The architect is a principal target in all types and levels of construction disputes. This book provides informal and practical advice explained in simple terms so that practicing architects can avoid the pitfalls inherent in the architect's role throughout the construction process. Written by a practicing architect who has acted as expert witness in over 200 cases, the book covers the key areas of vulnerability - design, design co-ordination, late information, inspection and certification. Using detailed case studies of built projects, the author identifies the law, how the problems arose and what remedies were put in place to resolve the issues. This is a book no architect can afford not to read.

A Guidebook for the UK Architect

Why Architects Get Sued

Key Ideas in Law

This book explores several key ideas relating to the 'principle of legality'. In the United Kingdom, the 'principle of legality' is an interpretive tool applied by courts to legislation that is deemed to be unclear. The term is used as shorthand for the idea that Parliament may only override fundamental legal or constitutional norms using clear legislation. This deceptively simple notion has a rich and complex historical pedigree. Since the end of the twentieth century, a 'breach of the principle of legality' has become a discrete ground of judicial review rooted in the common law. But its status, definition, and reach all remain deeply contested. In recent years, recourse to 'the principle of legality' in public law claims has become increasingly controversial. As the corpus of case law has grown, the application of the 'principle of legality' has been identified by judges, academics, and politicians as both a source of legal uncertainty in its own right, and a vehicle for potential judicial overreach. By building on a rigorous analysis of relevant case law, this book considers the intellectual foundations of 'the principle of legality'. As the analysis unfolds, we will see that there is no singular 'principle of legality' which we can accurately pinpoint. Instead, it makes sense to talk about multiple principles of legality, doing distinct, but related, work. This becomes apparent when we explore the history of the principles of legality in the context of not just public law, but the wider legal system. Moving beyond the historical context, the book explores where and how the principles of legality apply in the contemporary legal system. Subsequent chapters explore the difficulties and uncertainties of determining whether the principles of legality are engaged. Thereafter, attention turns to what norms legality does and does not protect and how courts decide upon this. The final chapter sets the principles of legality in their broader constitutional context. Overall, it will demonstrate that concerns about relating to judicial overreach are overstated. In fact, the reverse is true: the application of the principles of legality do introduce a dimension of legal uncertainty, but ultimately fall short of their constitutional potential.

Key Ideas in Law: The Principle of Legality

This book traces the evolution of the rule of forfeiture in the UK and other common law countries (Australia/NZ/Canada) alongside the development of the US public policy doctrine.

The Modern Law of Forfeiture

AI, Big Data, the Environment and the Courts

The Future of Justice

This is a treatise and commentary on French arbitration law including the updates brought in by the 2011 Decree. It follows the logical structure of the new decree itself, providing detailed analysis of both domestic and international arbitration law conducted under French arbitral procedure.

Law and Practice

Arbitration in France

The story of the movement to establish the International Criminal Court, its tumultuous first decade, and its continuing struggle to make a difference.

The International Criminal Court in a World of Power Politics

Rough Justice

This book examines intermediate appellate courts by using the Irish Court of Appeal as a case study. The operation and contribution of intermediate appellate courts are often overlooked in legal scholarship, which tends to focus on apex courts, most frequently national supreme courts. However, intermediate appellate courts perform a series of vital functions, including error prevention, the development of doctrine, and ensuring that apex courts are free to concentrate on issues of exceptional public importance. The significance of intermediate appellate courts has increased in recent decades in tandem with an increase in the volume and complexity of litigation in many countries. The Irish Court of Appeal was established in 2014 and this enables a number of dimensions of non-apex courts to be examined, including the rationales for, and challenges of, inserting such a court into an existing and well-established legal system. Institutional aspects of the court such as the appointment and promotion of its judges and its rules on dissent are analysed. The process of 'setting up court' is described. In addition, its contribution to some areas of substantive law over the first 10 years of its operation is evaluated. Interviews with judges who have served on the Court enrich the book's account of its operation and development. In addition, comparative perspectives from Northern Ireland and England and Wales enhance the analysis of an integral part of many legal systems.

The First Decade of an Intermediate Appellate Court

The Irish Court of Appeal

Studies in Private International Law - Asia

Private International Law in Uzbekistan

This book critically examines the international drug control regime's legal framework, implementation challenges, and emerging tensions, exploring its failures, the debates on its modernization, and potential reform pathways to address expanding drug markets, public health crises, and human rights concerns in a rapidly evolving global landscape.

Trends and Reform Challenges

International Drug Control Law

Good Judgment

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