Comparative Judicial Process - Study Guide

Comprehensive practice flashcards for the Comparative Judicial Process exam, covering constitutional models, judicial behavior theories, national and international court structures, and international law principles of law.

What are the three models of constitutions according to Garcia-Villegas?

Aspirational, Protective, and Restrictive.

What is the defining characteristic of an Aspirational constitution?

It serves as a creative political foundation linking past, present, and future goals; it is often maximalist and arises during social/political unrest.

Which country's constitution is cited as the quintessential example of a Protective constitution?

The United States Constitution.

What is the primary objective of a Restrictive constitution?

To set strict boundaries on government without granting extensive positive rights to citizens.

According to the transcript, what is a significant risk of Aspirational constitutions?

Decreased consistency, weakened rule of law, and a condition of "almost permanent condition of legal reformism."

How does the constitution type affect judicial behavior?

Aspirational constitutions lead to more judicial activism and discretion, while Protective constitutions result in a more restrained judicial role focus on limiting government.

What are the components of an American legal opinion?

Parties, Facts, Procedural history, Judgment, Holding, Dicta, and Concurrences/Dissents.

What is the difference between 'Holding' and 'Dicta' in a legal opinion?

The Holding is the specific legal principle applied to the facts, while Dicta are remarks not essential to the decision and are not binding precedent.

What is a major shortcoming of the European Court of Justice (ECJ) compared to American courts?

Low transparency due to a collective voice that obscures reasoning and lacks dissents or concurrences.

What is the focus of the field of Comparative Judicial Behavior?

Understanding why judges act and decide the way they do, examining motivations and attitudinal models.

Describe the Attitudinal model of judicial behavior.

The model where judges decide cases based on their ideological beliefs, primarily applicable in apex courts.

What are the three essential components of strategic accounts according to Epstein and Weinshall?

Goal orientation, Strategic/interdependent decision-making, and Institutional structure.

What unique characteristics distinguish Apex courts from lower courts?

They control their own dockets, hear high-stakes cases, have greater discretion, and their decisions have broader policy implications.

According to Epp's support structure theory, what is the most critical component for a rights revolution?

Support structures, which include organized supporters providing litigation resources, NGOs, and a diverse legal community.

What were the primary driving factors for High Judicial Activism in Colombia after the $1991$ Constitution?

A large lawyer population, a flawed political system, and a judiciary sensitive to human rights due to national violence.

What is the function of the Sala IV in Costa Rica?

It is a specialized constitutional chamber within the Supreme Court that issues binding and unappealable rulings.

In civil law systems, what is the role of an Inquisitorial judge?

The judge asks questions, calls witnesses, and appoints experts, focusing on truth-seeking rather than just an adversarial contest.

What are the sources of French law?

The Civil Code, Jurisprudence, and Academic doctrine.

How is a French legal opinion styled differently from an American one?

It is very short, often a single-sentence determination, using a collective voice with no dissents or concurrences.

What is the definition of 'Substantive' judicial independence?

The freedom for a judge to decide cases subject only to law and conscience, without external pressure.

Identify Shetreet's principle of the 'Standard-judge.'

The use of pre-established criteria to determine which judges hear specific cases to ensure fairness.

What is the difference between Vertical and Horizontal accountability?

Vertical accountability involves citizens checking the state through elections, while Horizontal accountability involves state agencies overseeing and checking one another.

In the context of the Pinochet regime, what was the 'Legal positivism' explanation for judicial compliance?

Judges adopted a narrow, formalistic, and "apolitical" identity to avoid conflict with political actors, seeing themselves as subservient to laws regardless of the regime.

What are the two requirements for international customary law?

Evidence of consensus (duration/consistency) and opinio juris (the belief that the practice is legally obligatory).

What is the difference between Dualism and Monism in international law?

Dualism views national and international law as separate systems; Monism views them as a single, interlocking system.

How many judges serve on the International Court of Justice (ICJ) and what is their term length?

There are $15$ judges serving $9$-year terms.

What is the significance of the Barcelona Traction case ($1970$)?

It introduced 'erga omnes' obligations, which are obligations owed toward the entire international community, such as prohibiting genocide.

Describe the Judicial Trilemma identified by Runoff and Pollack.

Courts can maximize only two of three values at any time: Judicial independence, Judicial accountability, or Judicial transparency.

What is the most important mechanism for the Court of Justice of the European Union (CJEU) to influence policymaking?

Preliminary rulings, where national courts refer questions about EU law interpretation to the CJEU.

What is 'Conventionality control' in the IACHR system?

The requirement that internal national policies must be consistent with the rulings of the Inter-American Court of Human Rights.

What are the four principles of the Law of Armed Conflict (LOAC)?

Distinction, Proportionality, Necessity, and No unnecessary suffering.

What is the 'Complementarity principle' of the International Criminal Court (ICC)?

The ICC is a court of last resort; cases are inadmissible if a state is willing and able to prosecute the crime itself.

What are the four crimes falling under ICC jurisdiction as per Articles $5$-$8$?

Genocide, Crimes against humanity, War crimes, and the Crime of aggression.