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This theoretical note presents a theory explaining the reactions of organizations to court orders that require the organizations to change some policy, program, or pro cedure. The theory is based on theories of "rational choice" and conceives of the change process in terms of four stages: (1) interpretation of the court decision, (2) evaluation of the decision, (3) searches for information and alternatives to the court decision, and (4) selection of one or more alternatives. A review of relevant judicial impact literature produces support for specific hypothesis derived from the theory. Finally, suggestions for further empirical research and theoretical developments are advanced.

When the Supreme Court decided United States v. Mead Corp. four years ago, Justice Scalia predicted that judicial review of agency action would devolve into chaos. This Article puts that prediction to the test by examining the court of appeals decisions applying the decision. Justice Scalia actually understated the effect of Mead. This Article suggests a remedy for the mess. In Mead, the Court held that an agency is entitled to deference under Chevron, U.S.A., Inc. v. NRDC only if Congress has delegated to that agency the authority to issue interpretations that carry the force of law, and the agency has used that authority in issuing a particular interpretation. Justice Scalia dissented, arguing that Mead makes an "avulsive change" in judicial review of agency action, the consequences of which "will be enormous, and almost uniformly bad." On his reading, "what was previously a general presumption of authority in agencies to resolve ambiguity in the statutes they have been authorized to enforce has been changed to a presumption of no such authority, which must be overcome by affirmative legislative intent." Lower courts, he warned, would not know what to make of the decision in practice: "We will be sorting out the consequences of the Mead doctrine, which today has replaced the Chevron doctrine, for years to come." Notwithstanding Justice Scalia's doomsday forecast, the majority believed that Mead was justified in principle. The Court stated that Mead "tailors deference to [the] variety" of administrative procedures that Congress envisions and agencies employ. An agency may receive Chevron deference as long as it chooses a proper procedure for issuing interpretations of the statute it administers. Thus, an agency may receive Chevron deference if it chooses a procedure that Congress generally intends to produce interpretations with the "force of law" - as with notice-and-comment rulemaking or formal adjudication. But an agency might not receive Chevron deference when it selects a more informal procedure unless the ...

Front Matter; Law as Fact, Law as Fiction; Lexical Indeterminacy; Topical Jurisprudence; Legal Speech Acts as Intersubjective Communicative Action; Who needs Fact when you've got Narrative? The Case of P, C & S vs. United Kingdom; Taking Facts Seriously; Transforming Ambiguity into Vagueness in Legal Interpretation; The Inclusive/Exclusive Nation; Global Values and Floating Borders in the Brazilian Amazon; Landmarks for Aboriginal Law in Australia; Back Matter.

This thesis focus on the possibility to review a final conviction upon a new and more favorable judicial interpretation. The work begins with the analysis of an Italian case law, which put the problem of the retroactivity of the judicial interpretation in the middle of the scientific and judicial debate. In particular, the case was related to the abolition of the crime of omission of the exhibition of the documents by a foreign person. In this case, both the Constitutional Court and the Court of Cassation dealt with the problem of the retroactivity of a new judicial interpretation, adopting two very different models: one based on the acknowledgment of the judicial law-making; the other one based on the assumption that only the Parliament can abolish a crime. So that, according to the first model, it would be always impossible to review a final conviction upon a new judicial interpretation; on the other hand, according to the second model, it would be possible to reverse a final decision only if the judge didn't expressly consider that question of law (with which the new interpretation is related). Therefore, in both the cases, the Italian jurisprudence admits the possibility to execute the sentence for a fact which is considered no longer a crime. The Author tries to follow a third path, based on the assumption that the jurisprudence is not a source of law, but it can change its interpretation in order to correct a former one and to reaffirm the Parliament willingness.

AbstractThis paper considers under what circumstances, and for what reasons, an international tribunal may want to range beyond the primary text of a treaty to determine its 'correct' meaning; such extraneous legal material potentially including rules of customary international law, other treaties between the parties, general principles of law, and documents of a 'soft law' nature. The paper suggests a variety of 'mechanisms' by which a tribunal may undertake a broader interpretative approach, though all ultimately raise the same inevitable tension between accusations of judicial activism and counter-arguments of inflexibility and insularity. Nevertheless, many tribunals and individual judges continue to utilize such techniques, particularly noticeable in some recent environmental disputes. The paper will conclude with a note of caution; that though such interpretations are becoming an increasingly significant part of modern judicial decision-making—something that is generally to be welcomed—tribunals must concurrently take care to ensure that they remain within the accepted parameters of the adjudicative function.

In several recent cases the Supreme Court has endorsed the idea that there are some general limits to incorporation of European Union law in the United Kingdom. The general limits stem from the Court's interpretation of the European Communities Act 1972, the statute that grounds domestic effect of EU law, construed both in the light of ordinary canons of interpretation and in the light of fundamental principles. This raises the question what are the legal consequences when an EU measure violates one of those limits. In this paper I propose an answer from the perspective of what a domestic court ought to do. My aim is to develop the legal position emerging from Assange, HS2 and Pham. I argue that sometimes UK courts are under a duty not to apply EU law. However, the circumstances where this is the case are even more limited than the focus on the general limits of incorporation of EU law may suggest. In particular, fundamental principles of UK law may work to expand the scope of domestic effect of EU law. I want to stress that neither the cited cases, nor the present paper, take a position of hostility towards EU law. The following discussion makes it clear that both EU law and UK law have many devices to avoid conflict and those devices need to be exhausted before a court concludes that it is under a duty not to apply EU law.