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This chapter presents a framework for reconceptualizing due process in juvenile justice with the ultimate aim of striking an optimal balance between fairness, accuracy, and efficiency in handling delinquency cases. The first part recaps the procedural history of the juvenile court. Its primary message is that the Supreme Court's procedural reform of the juvenile justice system was based on the Due Process Clause and general principles of fundamental fairness, which leaves the door open to flexible approaches to juvenile justice procedure. The second part then plumbs developments in the broader constitutional jurisprudence of procedure, particularly in the administrative and civil law arenas, which enthusiastically endorse a flexible view of due process. With the legal groundwork laid for the proposition that juvenile justice procedure can be rethought, the third part summarizes research on “procedural justice,” which suggests that the adversarial model of procedure is not necessarily the most “just” model, whether viewed from a subjective or objective perspective. The chapter closes with a discussion of the implications of this research, and a proposal that due process in juvenile justice be reconceptualized in a way that allows empirical research and a performance-based management system to identify those procedures that best promote fairness, accuracy, and efficiency.

This chapter describes the existing system of civil procedure in England and Wales, and identifies the changing procedural principles that have underpinned English procedure over the past century. It discusses the key problems associated with cost and delay, drawing on available statistical information. Finally, it describes the proposed reforms, and considers the extent to which these reforms are likely to reduce the problems associated with cost, delay, and complexity.

This chapter focuses on a concrete change which Woolf's reforms have made to English civil justice and procedural reform. Woolf intended to bring about a reduction in complexity, cost, and delay through improving the structure of the civil justice system and its procedural rules. The Woolf Reforms were fundamentally new, in that Lord Woolf called for a new approach to civil justice, a reform of litigation culture among legal practitioners, those they represent, and the judiciary. The change in litigation culture was achieved through three innovations: the introduction of active case management, the introduction of the overriding objective, and the imposition of a duty on litigants and their representatives to assist the court in furthering the overriding objective.

The French investigative procedural tradition developed around Roman–Canonical procedure. This chapter describes its development and that of the Conseil d'Etat's expressly inquisitorial judicial procedures. It shows how the various developed procedures of the Conseil d'Etat enable it to address the complex repercussions of judicial intervention in polycentric administrative disputes. The chapter contrasts the English adversarial tradition, the origins and development of which it explains. With reference to the Factortame litigation and leading cases on liability, estoppel, and proportionality, it shows how adversarial procedures have handicapped English courts in administrative disputes. It describes the Order 53 procedural reforms to the peculiarly restrictive prerogative remedies, their culmination in the Application for Judicial Review, the attempt in O'Reilly v Mackman to prevent circumvention of its technical safeguards, the extent of the consequent criticism, and Lord Woolf's further proposal for a Director of Civil Proceedings. By not addressing the need for inquisitorial procedures, it argues, the reforms have failed to entrench an English distinction between public and private law, which is thus not in convergence with the French.

This chapter begins with a description of the characteristics of Spanish civil procedure. It then discusses the Spanish hierarchy of the courts, sources of civil procedural law, the basic Spanish procedure, the Spanish legal profession, appeal procedure, the nature of civil litigation in Spain, principal problems of civil justice, legal aid, and alternative modes of dispute resolution, and the Civil Procedure Bill (1997).

For many years, French justice, like all other systems, has faced the dramatic consequences of the exploding volume of litigation. The long delays and high costs which this explosion causes are, to a certain extent, the counterpart of democratized access to law and justice. Although several reforms have been initiated, one should not forget that the current difficulties originate largely from the fact that the resources of the justice system have not risen proportionately to the sharp increase in the volume of litigation with which courts have been faced. The solution to the crisis is essentially financial. This chapter begins with a description of the French system of civil procedure. It then presents an outline for procedure. This is followed by discussions of the main problems encountered in the administration of civil justice, historical perspective of reform, alternative modes of dispute resolution, and the present state of affairs.

America is the litigation superpower, or at least it seems to think it is. It berates itself for having more lawyers, more laws, and more lawsuits than any other place on earth. As a consequence of this self-perception, over the last generation it has periodically flailed itself for these supposed national characteristics. This chapter begins with a basic primer on the relatively elaborate apparatus available for civil litigation in America, and follows that with a sampler of statistical information about American civil litigation. It then provides a somewhat more expansive historical overview of the procedural reform efforts of the past, focusing principally on the procedures used in the US federal courts, as a prelude to profiling problems of the cost of delay and the legal retrenchment that has occurred in recent years. After separate consideration of case management, it closes with some reflections on prospects and portents.

This chapter identifies ninety procedural reforms from the British, French, Swedish, and German legislatures during the years 1866–2015 which will be analysed in Chapters 5–7. For all these reforms, original data have been collected, mostly consisting of parliamentary documents (committee reports and plenary proceedings). The details and sources of all reforms can be found in the Appendix of the book. All legislatures started their procedural development in the legislative state of nature. Only seventeen of the ninety reforms are substantial (eight path changes and nine substantial reforms) while 72 are expressions of institutional conservatism (54 incremental and 18 failed reforms). This chapter also contextualizes these reforms by discussing the evolution of the legislative workload, extra-legislative institutions, and party systems in the four countries under investigation. None of these features systematically covaries with the procedural development of the respective legislatures.

The present system of dispute resolution in Australia cannot cope with the increase in the number and classes of litigants and in the complexity of litigation. The system is too labour intensive for that. And because it is too labour intensive it is too costly; in most cases in the system the costs of those that go to trial are disproportionate to the amount or value in dispute and, for the losing party of average means, they may be ruinous. Reducing the cost of dispute resolution must therefore be the primary objective of civil justice reform. This chapter discusses the main defects in the existing civil justice system and how they are being or should be remedied. It begins by describing the existing system and its history. It is argued that the starting point of civil justice reform in Australia must be the acceptance by lawyers and judges of a new concept of just dispute resolution; one which involves greater frankness between disputants, which is less adversarial, and which accepts that costs, the rights of others, and the public interest are relevant considerations. It is only if this is accepted that a system will evolve which resolves disputes without undue delay, at a reasonable cost, and with little or no diminution in the quality of result.

This chapter considers how legal procedural reforms might help increase legitimacy and effectiveness by controlling the pace and extent of contractualisation in contemporary Britain. It suggests that a major role for responsive law should be to structure the exercise of discretion by ministers and officials in respect of both the development of general policy and its implementation by public agencies in particular instances. The availability of information at all levels of decision making on public contracting is shown to be an essential component of proceduralisation. The chapter also explores how legal frameworks might be reformed in order to help increase effectiveness and fairness through the strengthening of institutions governing administrative contracts, economic contracts, and social control contracts.

In Italy there seems to be a sharp contrast between the law as it is written in the books and its operation in reality. Article 24 of the Italian Constitution (Costituzione) gives every citizen the right to take legal action in the courts to protect his or her rights and interests. Further, Article 24 requires the state to provide legal aid to those who cannot otherwise afford legal proceedings. Yet, the reality is very different from these declamations. In practice, whenever the provision of access to justice proves difficult, the state fails to take adequate measures to overcome the difficulties. This chapter discusses the deterioration of ordinary proceedings in civil justice, the evolution of procedural science, the paradox of civil justice, explanations for the deformation of Italian civil procedure, special proceedings m protect privileged interests, interests served by ordinary process delays, prospects for change, and the spread of alternative dispute resolution.

This chapter centres on the procedural reforms introduced and passed by the government of William Gladstone in 1882. It argues that while the obstructive tactics of Charles Stewart Parnell led Gladstone to introduce his procedural reforms, the passing of these reforms was contingent upon the emergence in parliamentary culture of a new way of thinking about time, one which played on the tropes of rapid democratic and technological progress in order to stress the unique and unprecedented character of the present as well as the contingent nature of the future. This new understanding of time transformed the ‘grand inquest of the nation’ into the ‘parliamentary machine’. It produced a new executive-centred constitutional discourse whereby the cabinet became the embodied will of ‘the people’ and any attempt to exercise opposition to the sitting Ministry represented an anti-British clogging of the ‘legislative machine’ and a ‘waste’ of the nation’s time.

This chapter begins with a description of the Greek system of civil procedure. It then discusses the main problems encountered in the administration of civil justice and alternative modes of dispute resolution. It is argued that Greek experiences with civil justice reform since the introduction of the Code of Civil Procedure (1967) show a mixed picture of legislative innovation and practical inertia. Parliament and government have been unusually active, and, in recent years, at an accelerated pace, in continuously amending, sometimes even at the price of increased complexity and short-lived impact, large parts of the Code in an effort to improve the administration of justice. But the actual improvements achieved have fallen short of both ambitions and expectations.

The German Code of Civil Procedure (Zivilprozeβordnung) of 1877 was inspired by the French Code de Procedure Civil of 1806. Following the French example, the German Code was geared towards the principles of orality and immediacy, and, at the same time, gave wide scope to liberal moral concepts. Party control over litigation extended not simply to procedural materials and the subject matter of the proceedings, but also to the course of the proceedings themselves. The judge was largely passive. Almost no precautions were taken to prevent the parties from drawing out cases over an unreasonably long period of time. However, towards the end of the 19th century, the view that proceedings are not purely the private business of the disputing parties, but a social duty of the state, began to be increasingly asserted in Germany. The relationship between the judge's power and party freedom was altered accordingly. This social conception of procedure has arisen alongside the pre-existing liberal conception of procedure, without completely relegating the liberal conception to a secondary role. As well as this change, civil proceedings now increasingly appear to be a mass phenomenon. The legislature repeatedly tries to accelerate the judicial process and to relieve the courts of superfluous work, so that the increasing number of pending proceedings can be dealt with within a reasonable time. This chapter discusses organization of civil jurisdiction in Germany, main problems in the administration of civil justice in Germany, historical perspective of reform, and alternative methods of dispute resolution.

This chapter is divided into two substantive sections which connect strains of thought in the time-culture of early to mid-nineteenth-century Britain with attempts to deal procedurally with Parliament’s increasing time burden. Cumulatively, these sections argue that while parliamentarians recognized the time problem posed by an increasing volume of parliamentary work, and while an increasingly prevalent commoditized understanding of time lent urgency to procedural reform, the possibility of a systematic overhaul of the House of Commons’ procedural code was precluded by the wider culture of time that enfolded early to mid-Victorian Britain. The Burkean idea of tradition, a culturally widespread sense of historical continuity with the past, and discourses of respectable masculinity which moralized time use, all conspired to lay the blame for parliamentary inefficiency at the feet of individual MPs. Consequently, the idea of thoroughly revising the procedural code of the House was widely seen as unnecessary and irrational.

This chapter begins with a description of the Portuguese system of civil procedure. It then discusses the problems of civil justice, reforms in the civil jurisdiction, and alternative modes of dispute resolution.

Analyzing the evolving nature of core features of adversarial and inquisitorial processes in an applied and dynamic way, this chapter examines the two traditions through a variety of lenses and contexts. Beginning with the organizing principles of both traditions, it examines how jurisdictions have adapted their procedures with the common ambition of avoiding a contested trial. Adopting an external standpoint, it then analyzes the adversarial tradition’s association with individual rights, fairness, and transparency, and its resulting appeal to systems seeking to move away from a more state-dominated process. It then examines the ways that different procedural values play out within the context of international criminal justice, concluding with an analysis of contemporary pan-European influences on criminal procedure and the challenges in developing common criminal justice values and standards of fair trial through the ECtHR and the EU that often run counter to domestic trends.

It seems that no description of the civil dispute resolution process in the legal system is complete without a catalogue of its attendant problems: the burgeoning cost of legal services, inequality of resources between litigants, crippling pre-trial delays, lengthy trials, discovery abuses, and morally dubious tactical devices all feature regularly in such accounts. Many individuals and organisations grapple daily with the question of how to tackle these problems. Theories abound as to the best prescriptions for effective reform. This chapter discusses some proposals for change. The reforms discussed are proposed by, or under the consideration of the Queensland Litigation Reform Commission. The chapter is divided into two parts. First, it canvasses the Commission's and the proposed procedural reforms, together with the practical benefits which are expected to flow from them. Secondly, it explains the ethical basis for the suggested reforms.

This chapter starts with a description of the Dutch system of civil procedure. It then discusses Dutch courts and caseload issues, specific social institutions and the related proceedings, litigation avoidance in Dutch society and culture, patterns of litigation in a litigation-avoiding society, procedural issues, the legal profession, and alternative modes of dispute resolution. Overall, the Netherlands experiences less litigation, and fewer problems with court congestion, than its neighbours, not because there is no demand for litigation, but because the supply side of the legal profession and social institutions have responded to the existing incentives to create alternatives to the court process that work better and faster at less cost to the litigant.