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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?

Clear and comprehensive guide examining the scope of each substantive protection in international investment law and providing an authoritative commentary to relevant case law.

Analysis, Cases and Commentary

Substantive Protections in International Investment 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.

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 fills a gap in the existing literature by providing a thorough assessment of EU regulations as a source of secondary legislation and their application in all twenty-seven Member States. It also explores that application in neighbouring countries. EU regulations are perceived as the strongest and the most effective sources of EU secondary legislation and it is well-established by the Court of Justice of the European Union that their provisions have vertical and horizontal direct effect. Part 1 of this book examines these points, providing a backdrop to the analysis in the remaining chapters. Parts 2 and 3 focus on the national reception of EU regulations in Member States, and in selected neighbouring jurisdictions. Written by leading practitioners and academics, the book offers both a conceptual underpinning to this element of the European Union's law-making, as well as its practical application.

This book fills a gap in the existing literature by providing a thorough assessment of EU regulations as a source of secondary legislation and their application in all twenty-seven Member States. It also explores that application in neighbouring countries. 

EU regulations are perceived as the strongest and the most effective sources of EU secondary legislation and it is well-established by the Court of Justice of the European Union that their provisions have vertical and horizontal direct effect. Part 1 of this book examines these points, providing a backdrop to the analysis in the remaining chapters. Parts 2 and 3 focus on the national reception of EU regulations in Member States, and in selected neighbouring jurisdictions. 

Written by leading practitioners and academics, the book offers both a conceptual underpinning to this element of the European Union’s law-making, as well as its practical application.

Legislative and Judicial Approaches

EU Regulations in Practice

Great Debates in Law

Great Debates in International Law

An expert companion to the political and legal issues that led to Brexit, the challenges the UK now faces, possible outcomes of the negotiations, and the implications for the future of the UK and EU.

On 23 June 2016 voters in the United Kingdom voted unexpectedly in favour of departure from the European Union. The United Kingdom left the European Union on 31 January 2020. This book explains these two events, how led to the other, and what may now follow.

Brexit was not inevitable. There may well have not been a referendum in 2016 or at all. The result of the referendum could have gone the other way. The government may have made the exit notification on another date. The European Union and the United Kingdom could have approached the negotiations and withdrawal agreement in other ways. The departure may have been without a deal as early as March 2019 or postponed indefinitely. There was even, at times, the prospect of a further referendum where the Brexit mandate could have perhaps been reversed. It all could have been very different.

The way Brexit did happen was the result of a sequence of events and non-events, any of which could have gone differently. It also took place at a time of significant changes in media and social media, and also in domestic and international politics, all of which shaped the course and manner of the departure. Brexit may not have been inevitable but if Brexit had not happened between 2016 and 2020, it is possible the question of the United Kingdom's place in the European Union could have been forced in other ways.

Brexit also happened against the background of longer-term trends in politics and constitutional arrangements in the UK. Support for membership among mainstream politicians had been wide for fifty years but that consensus turned out to be shallow. The structural changes brought by the Good Friday Agreement of 1998 confined the actions of politicians twenty years later.

On Brexit sets out, in a sequence of interlinked essays, why and how Brexit turned out the way it did and not otherwise, and the text emphasises matters of law, policy and process as much as the course of political events. Brexit cannot be explained by structural and procedural matters but it cannot be fully explained just by politics either. On Brexit also sets out the political, media and constitutional contexts in which Brexit can be better understood.

By understanding how Brexit has so far taken the form it has, one is in a better position for understanding what will happen next, as the United Kingdom and the European negotiate their longer-term relationship.

This book was originally to be published as Brexit: what everyone needs to know

On Brexit

Melland Schill Perspectives on International Law

International Organisations, Non-State Actors, and the Formation of Customary International Law

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 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

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

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.

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

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.

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

Hart Studies in Commercial and Financial Law

Stay ahead of the curve with this essential book, offering a concise, comprehensive and up-to-date analysis of the Prospectus Regulation (including its recent amendment by the EU Listing Act) and the pathbreaking Regulation on European Crowdfunding Service Providers (ECSPR). Placing the discussion in the context of the Capital Markets Union (CMU), this book provides a fresh and insightful perspective on the ever-evolving regulatory landscape of EU primary capital markets, setting out a practical roadmap for achieving effective and inclusive regulation. With a keen focus on the dynamic relationship between legal uniformity and differentiation, the book addresses 2 pivotal questions: how can the imperative of investor protection be balanced with the goal of providing businesses with improved and cost-effective access to EU primary securities markets, and how can the pursuit for greater unification be practically reconciled with the growing demand for regional solutions in a post-Brexit era? Unveiling a unique normative framework, the book provides a holistic perspective; it explores the underlying objectives and intricate complexities of the CMU, critically evaluates the transformative potential of regulatory actions, sheds light on potential inconsistencies, and offers insightful suggestions for future reforms. A must-read for policymakers, scholars, legal practitioners and anyone seeking to comprehend the current and emerging challenges in the regulation of EU primary capital markets.

Between Uniformity and Differentiation

Regulating Primary Markets in the Capital Markets Union

Good Judgment

Bibliografische Angaben

Inhaltsverzeichnis

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Bibliografische Angaben

Inhaltsverzeichnis

Schlagworte

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