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Article: A Preliminary Framework for Measuring Judicial Deference in Rights Reasoning

TitleA Preliminary Framework for Measuring Judicial Deference in Rights Reasoning
Authors
Issue Date2016
Citation
International Journal of Constitutional Law (forthcoming 2016),  How to Cite?
AbstractThis paper proposes a methodology for measuring how deferential judicial reasoning is in human rights cases. The proposed framework ranks four strategies of exercising deference – rights definition, standard of justification, burden of justification and cogency of evidence – along a triadic scale of not deferential, moderately deferential and highly deferential. The proposed framework is designed for common law jurisdictions that embrace a two-stage approach to rights adjudication in which courts initially ask whether there has been a prima facie limitation of rights and then, if so, proceed to assess that limitation using a proportionality test. The framework provides both the criteria for qualitative evaluations of, and the methodological foundation for quantitative studies of, the increasingly important phenomenon of judicial deference.
Persistent Identifierhttp://hdl.handle.net/10722/234627

 

DC FieldValueLanguage
dc.contributor.authorChan, CSW-
dc.date.accessioned2016-10-14T13:48:07Z-
dc.date.available2016-10-14T13:48:07Z-
dc.date.issued2016-
dc.identifier.citationInternational Journal of Constitutional Law (forthcoming 2016), -
dc.identifier.urihttp://hdl.handle.net/10722/234627-
dc.description.abstractThis paper proposes a methodology for measuring how deferential judicial reasoning is in human rights cases. The proposed framework ranks four strategies of exercising deference – rights definition, standard of justification, burden of justification and cogency of evidence – along a triadic scale of not deferential, moderately deferential and highly deferential. The proposed framework is designed for common law jurisdictions that embrace a two-stage approach to rights adjudication in which courts initially ask whether there has been a prima facie limitation of rights and then, if so, proceed to assess that limitation using a proportionality test. The framework provides both the criteria for qualitative evaluations of, and the methodological foundation for quantitative studies of, the increasingly important phenomenon of judicial deference.-
dc.languageeng-
dc.relation.ispartofInternational Journal of Constitutional Law (forthcoming 2016)-
dc.titleA Preliminary Framework for Measuring Judicial Deference in Rights Reasoning-
dc.typeArticle-
dc.identifier.emailChan, CSW: corachan@hku.hk-
dc.identifier.authorityChan, CSW=rp01296-
dc.identifier.hkuros269954-

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