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The Administration of Justice

Hiroshi Oda

in Japanese Law

This chapter focuses on the administration of justice in Japan. It begins with a discussion of the history of Japan's system of courts. It then discusses justice system reform, the court system, lay ... More

This chapter focuses on the administration of justice in Japan. It begins with a discussion of the history of Japan's system of courts. It then discusses justice system reform, the court system, lay participation, speeding up of court proceedings, alternative dispute resolution, and international commercial arbitration.Less

The Court System

Maurizio Viroli

in The Liberty of Servants: Berlusconi's Italy

This chapter discusses the court system. When an enormous or arbitrary power establishes itself in a country, the court system is created. A court exists when a person, by virtue of his enormous ... More

This chapter discusses the court system. When an enormous or arbitrary power establishes itself in a country, the court system is created. A court exists when a person, by virtue of his enormous power, constantly occupies a more elevated and central position in relation to a relatively large number of individuals who depend on him in order to gain, keep, and increase their wealth, status, and chance of appearing and being seen and admired. This system depends on the effective power of the signore to distribute to the courtiers material and symbolic benefits and to threaten them, equally effectively, with the loss of those goods. In the court system, the prince too depends to a certain degree on the courtiers and all those whom he can benefit or threaten. However, the superior power of the signore and his central position are not in question. Ultimately, the most important reason for a court's existence is the practice of servitude.Less

Litigation and Late Roman Judges

Caroline Humfress

in Orthodoxy and the Courts in Late Antiquity

This chapter begins with a discussion of the court system in the late Roman Empire. It then discusses lower-level judicial hearings and their interaction with the higher courts, training for ... More

This chapter begins with a discussion of the court system in the late Roman Empire. It then discusses lower-level judicial hearings and their interaction with the higher courts, training for magistrates, and the iudex as a ‘creative’ interpreter of law.Less

THE FUTURE OF COURT SYSTEM TRANSPARENCY

Lynn M. LoPucki

in Confidentiality, Transparency, and the U.S. Civil Justice System

This chapter argues that existing technology is capable of rendering the court system almost completely transparent at nominal cost. “Transparent” means that the public would have online access not ... More

This chapter argues that existing technology is capable of rendering the court system almost completely transparent at nominal cost. “Transparent” means that the public would have online access not only to the documents in court files, but also to the answers to millions of the most important questions regarding the system's performance. The chapter summarizes a larger project in which the author sought to project the consequences of elimination of the two most important remaining barriers to federal court system transparency: the current charge of eight cents per page for obtaining court documents through PACER (Public Access to Court Electronic Records) and the need for human intervention to extract data from the PDF forms posted on PACER. It begins by describing the technological challenge of converting PACER data into useful views of the court system. It then turns to the substantial benefits that would flow from providing those views. Lastly, it lists and responds to the objections that have been, and will be, made to the federal courts' efforts to render their operations transparent.Less

Public Health and the Judiciary

Daniel D. Stier and Diane M. Nicks

in Law in Public Health Practice

This chapter explores the relations between public health and the judiciary, defined broadly as the U.S. court system, essential functions of the court system, essential people within the court ... More

This chapter explores the relations between public health and the judiciary, defined broadly as the U.S. court system, essential functions of the court system, essential people within the court system (e.g., judges and juries), and procedural rules and customs under which the courts resolve disputes and operate. It introduces the structure and function of federal and state courts, and describes how federalism requires state and federal courts to share power. It then discusses several public health law-related cases decided by courts. While showing that courts generally grant broad deference to officials endeavoring to protect the public's health, the cases also illustrate judicial insistence on the existence of underlying legal authority; the attention paid by courts to the facts on which public health actions are based; the judicial balancing of protection of public health and individual rights; the impact of federalism on judicial decisions; and the potential for judicial interpretation to change over time. Finally, the chapter addresses the emerging issue of the courts' roles in and preparedness needs for public health emergencies.Less

The Face and Arms of Military Justice: Judges and Prosecutors

Lisa Hajjar

in Courting Conflict: The Israeli Military Court System in the West Bank and Gaza

This chapter concentrates on military court judges and prosecutors. It specifically investigates their legal roles and practices and explores variations in their perspectives on the functioning of ... More

This chapter concentrates on military court judges and prosecutors. It specifically investigates their legal roles and practices and explores variations in their perspectives on the functioning of the military court system and the legitimacy of Israeli military rule over Palestinians in the West Bank and Gaza. The issue of the judge's anger provided another narrative device to reflect on the influence of emotion in individuals' relations with others in the military court system. The intifada raised long-simmering concerns about the negative consequences of protracted military occupation on Israeli society. The tendency of judges to prefer prosecution evidence is openly acknowledged. Israel's continuing ability to prosecute and punish Palestinians took on new meanings under the changed political arrangements. There is a possibility that those Jewish Israelis who have been critical of the occupation in the past will be critical if it continues into the future.Less

The Path to Freedom

Maurizio Viroli

in The Liberty of Servants: Berlusconi's Italy

This concluding chapter assesses Italy's path to freedom. The Italians, at least the better individuals among that people, succeeded in being reborn from servitude to liberty when they developed a ... More

This concluding chapter assesses Italy's path to freedom. The Italians, at least the better individuals among that people, succeeded in being reborn from servitude to liberty when they developed a healthy scorn for the life of a courtier. However, although predictions are always chancy things in the field of politics, it appears unlikely that the enormous power that has been established in Italy can be replaced by a power that is other than that of the court. The only alternative to the liberty of servants is the liberty of citizens, and only a political leader who understands what this liberty consists of and loves it with his whole being will be able to construct in Italy the political and social ethos that is likely to prevent the rebirth of a court system.Less

Introduction

Lisa Hajjar

in Courting Conflict: The Israeli Military Court System in the West Bank and Gaza

The Israeli military court system is the central subject of this book. It is also a sociological inquiry into law and conflict in Israel, the West Bank, and Gaza, an area that is referred to ... More

The Israeli military court system is the central subject of this book. It is also a sociological inquiry into law and conflict in Israel, the West Bank, and Gaza, an area that is referred to collectively as “Israel/Palestine.” This chapter tries to describe the contents and contours of the debates and to connect these debates both to the workings of the military court system and to the politics of the conflict. It also explores the military court system to see how law is enforced and what is done or not done in the name of the law. Part One of this book provides a general overview of the empirical context and the theoretical issues that inform this study. Part Two offers a sociolegal ethnography of the military court system.Less

A Suq of Deals: Plea Bargaining

Lisa Hajjar

in Courting Conflict: The Israeli Military Court System in the West Bank and Gaza

This chapter describes the legal process, which is dominated by plea bargaining. In particular, it investigates the factors that affect plea bargaining, compares how outcomes are achieved, and ... More

This chapter describes the legal process, which is dominated by plea bargaining. In particular, it investigates the factors that affect plea bargaining, compares how outcomes are achieved, and discusses how legal work and the legal process are perceived by those directly involved in military court system. Time and money bear heavily on the prevalence of plea bargaining. Some lawyers certainly lack the professional skills needed to handle the pressures of a trial, so they “need” to plea-bargain. But in this court system, plea bargaining is the norm, not the exception. Legally and politically, the prevalence of plea bargaining in the military court system is a rational response to the carceral nature of military occupation and the constricted options available to Palestinian defendants and their lawyers. But plea bargaining also reveals that people can and do maneuver for advantages, even under such conditions.Less

Political Subjects, Legal Objects: Defendants

Lisa Hajjar

in Courting Conflict: The Israeli Military Court System in the West Bank and Gaza

This chapter turns to Palestinians who are prosecuted and defended in the military court system. It specifically considers the carceral nature of government in the West Bank and Gaza as it affects ... More

This chapter turns to Palestinians who are prosecuted and defended in the military court system. It specifically considers the carceral nature of government in the West Bank and Gaza as it affects and is perceived by Palestinians who are prosecuted in the military court system. The Israeli-Palestinian conflict is at the root of structural violence and social suffering in the West Bank and Gaza. The institutionally passive role of the defendant begins to take shape from the point after the interrogation is finished. Arrest and interrogation are two complementary and coordinated means for a state to exercise its law enforcement powers. Prison release poses another set of problems as ex-prisoners reintegrate with their families and society. Carceralism is premised on presumptions of Palestinian criminality and guilt.Less

Possible Means for an Impossible Task: Accommodating Regional Differences through Judicial Design—the Canadian Experience

AndréE Lajoie

in Building the UK's New Supreme Court: National and Comparative Perspectives

This chapter demonstrates that it is not possible to accommodate differences within the UK into the institutional design of the proposed new supreme court. It examines the Canadian experience of ... More

This chapter demonstrates that it is not possible to accommodate differences within the UK into the institutional design of the proposed new supreme court. It examines the Canadian experience of attempts to incorporate minority interests (principally those of francophone Canadians and the civilian legal traditions of Quebec) within the court system through (i) bilingualism; (ii) ‘bijuridism’ — practices of legislative drafting and judicial interpretation aimed at harmonizing common law and civilian law concepts in Federal law; and (iii) territorial representation on the bench of the supreme court. Despite these attempts, accommodation of regional difference has not happened in Quebec where it mattered — that is on issues relating to the Canadian version of ‘devolution’, the constitutional division of legislative and executive powers. It is argued that far from being an exceptional failure, the experience of the Canadian court system is typical of that in any legal order.Less

A First Look at Judicial Specialization

in Specializing the Courts

This chapter introduces judicial specialization, and also considers the book's first question: The extent of judicial specialization in the United States. People assume that specialization is both ... More

This chapter introduces judicial specialization, and also considers the book's first question: The extent of judicial specialization in the United States. People assume that specialization is both inevitable and desirable, a source of benefits to the organizations. Judicial specialization is sufficient in extent to constitute a significant feature of the judiciary, one that merits the attention of people who seek to understand the courts. The extent of specialization in the courts and the growth in specialization make it an important phenomenon. Judicial specialization is best thought in terms of the link between individual judges and fields of legal policy. The chapter turns to the landscape of specialization in the federal and state court systems. A significant portion of the work of federal courts is handled by specialized bodies. Finally, an overview of the other chapters included in the book is given.Less

The Politics of Language: Translators

Lisa Hajjar

in Courting Conflict: The Israeli Military Court System in the West Bank and Gaza

This chapter considers the politics of language in the military court system, highlighting the roles, practices, and perspectives of translators, most of whom are Druze. The state's policies toward ... More

This chapter considers the politics of language in the military court system, highlighting the roles, practices, and perspectives of translators, most of whom are Druze. The state's policies toward the Druze community provide a vivid case of social engineering to politicize and manage identity in ways that conform to and serve state interests. Moreover, the chapter discusses how Druze Israelis became bilingual. The Druze are preferred for the role of translators because they have both bilingual skills and a sociopolitical status as “non-Arab Arabs.” The role translators perform contributes to maintaining an appearance of due process and the availability of defendants' legal rights by enabling judges, prosecutors, and defense lawyers to understand one another and to communicate their points effectively. Druze translators are deterred from adopting or expressing views critical of the Israeli occupation of the West Bank and Gaza.Less

A Brief History of the Circuit Courts

William M. Richman and William L. Reynolds

in Injustice On Appeal: The United States Courts of Appeals in Crisis

This chapter discusses the history of the circuit courts of appeals. For the first hundred years, there was no separate set of intermediate courts of appeals, though Congress had experimented with ... More

This chapter discusses the history of the circuit courts of appeals. For the first hundred years, there was no separate set of intermediate courts of appeals, though Congress had experimented with various court configurations to perform their function. Then in the Evarts Act (1891) and the Judges' Bill, Congress created the current appellate court system, intending that the circuit courts of appeals would perform the traditional functions of a common law appellate court—the correction of trial court error and the incidental law-giving function needed to explain the error correction results. The courts functioned this way for nearly eighty years until an explosion of appellate litigation required that these courts change in primary function, staffing, and internal operating procedure.Less

Congress and the Courts

Benjamin Ginsberg and Kathryn Wagner Hill

in Congress: The First Branch

This chapter turns to the relationship between the legislative and judiciary branches. It shows that in contemporary America, the judiciary has formed a de facto “union” with the executive and has in ... More

This chapter turns to the relationship between the legislative and judiciary branches. It shows that in contemporary America, the judiciary has formed a de facto “union” with the executive and has in some respects helped to diminish the role of Congress in the American governmental system. This was not always the case, however, as the constitutional system of checks and balances assigns Congress a good deal of power over the judiciary. When they created the Constitution's system of separated powers and checks and balances, the framers had regarded the Congress as the branch most likely to seek to expand its power and the judiciary as the “least dangerous branch.” Since then, however, Americans have come to accept the idea that the federal courts can declare acts of Congress to be inconsistent with the Constitution and, therefore, null and void.Less

A Political Geography of Law and Conflict

Lisa Hajjar

in Courting Conflict: The Israeli Military Court System in the West Bank and Gaza

This chapter addresses the history, politics, and contours of law and conflict, including a general discussion of the identities and ideologies of populations in Israel/Palestine. It is also ... More

This chapter addresses the history, politics, and contours of law and conflict, including a general discussion of the identities and ideologies of populations in Israel/Palestine. It is also interested in law's paradoxical capacity to serve and secure the authority of the state while also enabling means of resisting that authority. Nationalism and national differences are undeniably important for understanding the conflict between Jews and Palestinians in terms of their respective political institutions and the differing interests to which they lay claim as “peoples.” The sociology of law attends to the mutually constitutive relationship among law, society, and the state. In Israel/Palestine, the rights of sovereignty and self-determination are at the heart of the conflict, so this context illuminates the paradox. The military court system provides an important institutional setting for mapping the history and development of human rights in Israel/Palestine.Less

Programming in the Modern Juvenile Court

in Changing Lives: Delinquency Prevention as Crime-Control Policy

This chapter addresses the current role of programming in the U.S. juvenile-court system. Extensive programming has a central role to play within the juvenile-court system and thus should be an ... More

This chapter addresses the current role of programming in the U.S. juvenile-court system. Extensive programming has a central role to play within the juvenile-court system and thus should be an important component in society's responses to the most serious delinquents. The attempt to provide programmatic support to the juvenile courts' high-risk offenders is a critical part of the government's approach to providing services for the young. Any decent custodial setting can accommodate programming for a wide variety of goals such as drug and alcohol prevention, remedial education, anger management, and social skills training. The research on custodial programs has demonstrated that such programs can be effective in reducing recidivism, as well as in providing higher levels of public protection and accountability.Less

A Mechanism Design Approach to Legal Problems

Alon Klement and Zvika Neeman

in The Handbook of Market Design

The chapter describes a mechanism design framework that could help identify a set of procedural mechanisms that would minimize the resources used to achieve one of the main goals of the court system, ... More

The chapter describes a mechanism design framework that could help identify a set of procedural mechanisms that would minimize the resources used to achieve one of the main goals of the court system, which is to differentiate between those who obeyed the law and those who did not. The proposed framework can also help to formulate and evaluate procedural rules, and to identify necessary and sufficient conditions for deciding disputes according to substantive law with minimal costs of litigation and delay. The chapter illustrates our approach using three examples: fee-shifting rules, discovery rules, and third party alternative dispute resolution mechanisms.Less