Judicial empowerment expanded: Political determinants of national courts' cooperation with the CJEU

Scholars in EU studies have developed diverse justifications for explaining why national judges cooperate with the Court of Justice of the European Union. In this regard, judicial empowerment theories have stressed the strategic importance of cooperation for empowering national courts vis‐à‐vis high courts and political actors. Nevertheless, these explanations have been restricted to the use of preliminary references by lower courts. This contribution expands the explanatory power of these approaches by exploring other potential scenarios and instruments that national judges can use to challenge the position of their governments and judicial superiors, for example, by emphasising the importance of CJEU precedent for their strategic behaviour. By offering new data collected from case‐law and surveys, this article offers a more systematic assessment of the relevance of cooperation for national judges to reinforce their authority against other institutions. The findings call for a revision of the traditional understanding of judicial empowerment theories.     

Sentencing Transparency in the Information Age

How unrestricted or restricted should judges be when deciding a sentence? To what extent should sentences be predetermined, or to what extent should judges be left with the right to decide a sentence in each individual case? Some legal systems, most notably in the United States, have chosen sentencing guidelines to control judicial discretion. However, another approach has been to use computer technology in the form of so‐called sentencing information systems (SIS). This article examines these developments and what possible influence they have had and could have in the Scandinavian, particularly in the Norwegian, context. Penal institutions today are adjusting to the demands of the information society. Does and could the fact that we are living in an increasingly technologically mediated world influence judicial decision‐making? The article argues that the use of technology is not simply a question of technological change, but is first and foremost a social and political phenomenon, related to the relations of trust in a society.     

司法权威·法官规训·制度网络——对法官角色的一种法社会学分析

现代法治社会中,法官充当着社会治理的重要角色,而实现良善的治理效果却是以"治理"法官为基础的.在现代社会对法官的治理主要是通过知识规训、体制规训、道德规训等多个层面来进行的,而我国传统家国式的治理模式,行政与司法合为一体,法官不仅没有获致应有的权威性,而且治理法官的机制也存在着诸多弊端.因此,当前我国应该通过多重规训机制的综合来逐渐调和司法职业化与生活化、法官精英化与法院官僚化之间的现实冲突.     

Judicial authority through the experiences of crisis

This article is concerned with law’s experiences and making sense of crisis. When we talk about law’s response to crisis, we refer to law not as an abstract set of rules but as an embodied and animated assemblage of relations and practices. This way, law needs to make sense of any crisis to respond to it. The article draws on cultural legal studies to explore the constitution of judicial authority in the context of a democracy in flux. The article relies on fieldwork data collected in the interviews conducted by the author with Lithuanian judges in 2019. Highest in more than two decades, public trust in the judiciary in 2018 indicated a remarkable achievement for Lithuania, a country whose judicial system had been in a state of flux since the end of the Soviet era. However, after an unprecedented and highly mediated judicial corruption scandal in 2019, the rates of public trust plummeted, uncovering complex dynamics between the image of courts, mass media, and the public. Against this backdrop, the article explores how judges make sense of crisis that develops on the intersections of provocative reality judging and formal judicial institutions. It shows how judicial authority is constituted in the conditions of crisis on the tension between law and culture. Emerging from a crisis of authority is the changing face of judging. A post-colonial vantage point and theatrical jurisprudence are used to respond to a development of a desire of power under a mask of rationality, objectivity, and universality. The article concludes by contemplating how this authority shapes our lifeworlds.

     

Judicial Independence: Evidence from a Natural Experiment

In this article, we directly test the presence of judicial independence by examining judicial recess appointees who have later been confirmed by the Senate to full‐time Article III judicial positions. Specifically, we compare the votes of recess‐appointed courts of appeals judges during their temporary appointment tenure with a similar period following Senate confirmation. We find substantial differences in pre‐ and postconfirmation voting, suggesting that the structural protections of the Constitution provide judges a certain amount of independence.     

Campaigning for the Bench: The Corrosive Effects of Campaign Speech?

A new era has emerged in the ways in which candidates for state judicial office campaign. In the past, judicial elections were largely devoid of policy content, with candidates typically touting their judicial experience and other preparation for serving as a judge. Today, in many if not most states, such campaigns are relics of the past. Modern judicial campaigns have adopted many of the practices of candidates for other types of political office, including soliciting campaign contributions, using attack ads, and even making promises about how they will decide issues if elected to the bench. Not surprisingly, this new style of judicial campaigning has caused considerable consternation among observers of the courts, with many fearing that such activity will undermine the very legitimacy of legal institutions. Such fears, however, are grounded in practically no rigorous empirical evidence on the effects of campaign activity on public evaluations of judicial institutions. The purpose of this article is to investigate the effects of campaign activity on the perceived legitimacy of courts. Using survey data drawn from Kentucky, I use both post hoc and experimental methods to assess whether public perceptions of courts are influenced by various sorts of campaign activity. In general, my findings are that different types of campaign activity have quite different consequences. For instance, policy pronouncements by candidates do not undermine judicial legitimacy, whereas policy promises do. Throughout the analysis, I compare perceptions of courts and legislatures, and often find that courts are far less unique than many ordinarily assume. I conclude this article with a discussion of the implications of the findings for the contemporary debate over the use of elections to select judges to the high courts of many of the American states.     

判例法的“溯及力困境”及其制度性克服

＂奥斯丁困境＂的起因是法官在司法过程中适用社会规范引起的合法性问题。＂奥斯丁困境＂的提问方式及其问题可以转化为：通过什么样的判例法上的制度性操作能够缓解＂溯及力困境＂并达成司法判决的公正性。德沃金和哈特关于＂社会规则理论＂的争论使我们认识到社会命题在决定判例法规则方面的重要性,而普通法已经发展起来的司法基本原则、标准、推理模式和制度性原则则为＂溯及力困境＂及判决的公正性问题的解决提供了较为全面的制度实践上的保障。     

Argumentative Representation and Democracy: A Critique of Alexy's Defense of Judicial Review of Legislation

Robert Alexy has argued that the democratic objection to judicial review of legislation can be successfully addressed by assuming that judges exercise a special form of argumentative representation. In this article we argue that Alexy does not explain (as he should) under what circumstances judicial review tends to produce better decisions than parliamentary procedure, nor does he explain how judicial review can have a greater intrinsic value than parliamentary procedure. Subsequently, we argue that the intrinsic value of argumentative representation depends on the promotion of citizen deliberation, whereas its instrumental value depends on judges being committed to the rights of discrete and insular minorities in the face of hostile majorities.     

Are Judges Street‐Level Bureaucrats? Evidence from French and Canadian Family Courts

Although judges were included in the street‐level‐bureaucracy (SLB) group by Lipsky (1980), sociolegal scholars have barely used this theoretical framework to study them. This article aims to specify their position with respect to SLB in order to bridge the gap between public administration and sociolegal research. Specifically, using a cross‐national ethnography of judicial institutions, it compares family trial judges' practice on the ground in France and Canada. General conditions separate them from the core SLB group: encounters with clients are less direct; discretion is more legitimate. However, French judges are far closer to the SLB group than their Canadian counterparts regarding public encounters and case processing. As such, the accuracy of the SLB framework depends on professional and cultural patterns that combine differently in these two national contexts.     

中国古代司法的观念和制度略论

本文从观念与制度两方面对中国古代司法进行了探讨。中国古代司法的观念包括严格执法、经义决狱、屈法伸情、良吏司法等方面;中国古代的司法制度涉及审判机构、审判官吏、审判管辖、证据制度、普通审判程序、复审与死刑复核制度、判决的执行等。中国古代司法的观念和制度具有伦理指导、皇帝专权、实体优先、多元依据、"无讼"以求的特点,表现出在法与情、常与权、名与实等方面统一、协调的努力。中国古代社会的司法、审判的观念和制度的许多内容值得我们借鉴和吸纳。     

The role of the judiciary in combating corruption: aiding and inhibiting factors in Nigeria

Based on empirical facts and research in socio-economic fields, it is consensually agreed among scholars that corruption is one of the greatest hindrances to the development of any country. As part of the efforts to combat the menace of corruption, laws and institutions have been put in place. Consequently, judges, by virtue of their position in society, have an important role to play to ensure the effectiveness of those laws and institutions. However, the Nigerian judiciary has failed to live up to its responsibility in its role of combating corruption in the country and is even itself accused of corruption. This article discusses the factors that are necessary to assist in building an effective, vibrant and corruption-free judiciary. Salient factors that hinder the judiciary in the performance of its role to combat corruption are highlighted. The article finally suggests the need to reform Nigeria’s judicial sector and to set in motion all the machinery necessary for the purpose of creating a formidable judiciary in the country.     

Pensions, Politics, and Judicial Tenure: An Empirical Study of Federal Judges, 1869-2002

When Article III judges conclude active service, they effectivelyabdicate their seat and enable the president and Senate to selecta successor. Some judicial scholars have concluded that politicalfactors—both within and across institutions—largelyinfluence this decision. Analyzing judicial turnover, year byyear, this article finds that judges have increasingly synchronizedtheir departure from active service with qualifying for theirjudicial pension. By comparison, political and institutionalfactors appear to have little influence on turnover rates. Thesefindings contradict much of the existing scholarship on judicialturnover and also offer more viable alternatives for judicialreform.     

SURVIVING BENCH STRESS

The article presents a discussion of judicial stress, along with proposed solutions. The authors gathered information on the topic of judicial stress from judges via a survey and attendance at two Association of Family and Conciliation Courts (AFCC) conventions. Some of the daily stressors endorsed by judges included endless caseloads, severe time limitations, social isolation, lack of privacy, and the weight of deciding the fates of others. It is important for our judges to be provided with ways of relieving and preventing burnout and stress. Proposed bench stress solutions include incorporating the Psychologist Advocate Program into the judicial system and creating specific guidelines for judges to take sabbaticals, which will serve to enhance our judicial system and the entire community.     

The Constitutional Limits of Judicial Activism: Judicial Conduct of International Relations and Child Abduction

Judges are increasingly visible in their participation in activities off the bench. This may create difficulties in drawing the line between their duties in court and their other activities. However, if judges are not acutely aware of the importance of this line their extra-curial activities may interfere with their judicial duties. This article considers the failure to observe the importance of this differentiation in the context of international child abduction. It is argued that some judges, on and off the bench, have wrongly taken over the role of the executive in international relations and that such activity jeopardises the independence of the judiciary. This raises broader issues, in particular it suggests that some judges are being seduced into exceeding their proper judicial role, by working with government in policy-making and by their increasing contacts with judges from other countries.     

Judging from a Guilty Conscience: The Chilean Judiciary's Human Rights Turn

Since the detention of General Pinochet in London in 1998 on charges of crimes against humanity, Chile's judges have sentenced more former officials of the military regime for human rights violations than judges of any other country in Latin America. This article argues that the prosecutorial turn reflects the judiciary's attempt to atone for its complicity with the dictatorship. The London arrest created pressure for prosecution of Pinochet-era human rights violations; but it is the contest over the judiciary's legacy, as an important piece of postauthoritarian memory struggles, that explains why Chile's notoriously illiberal judiciary ceded to that pressure. By reconceptualizing judicial culture as contested, heterogeneous, and dynamic, this article opens the door to richer understandings of judicial politics, transitional justice, and the reception of international human rights.     

Judicial Work and Judges’ Motivation: The Perceptions of Brazilian State Judges

The professional ethos of judges has undergone many changes in Brazil in recent years, generating conflicts about the role of these professionals in society. This article examines how Brazilian judges deal with those conflicts. The objective is to identify how judges perceive their social role and, based on that, what motivates them in their work. A series of twenty‐five in‐depth interviews was carried out with Brazilian state judges working in all regions of the country in different judicial specialties. The findings indicate that the judges interviewed can be classified into four different profiles according to the predominant social role: (1) social activist; (2) service provider; (3) judicial restraint; and (4) defender of the status quo. Each profile corresponds to a specific individual and social motivation.     

British Torture,Then and Now: The Role of the Judges

This article is concerned with the return of torture and other related abusive conduct to the British counter‐insurgency arsenal following the initiation of military engagements in Afghanistan and Iraq in the early 2000s. It focuses primarily on how judges have engaged with the challenges that this torture and abusive conduct have posed, both in their capacity as judges proper and also as appointees to a range of inquiries that have been initiated in the wake of these actions. The article contrasts the post‐2001 work of judges with that during an earlier episode when such state abuse was also evident, Northern Ireland in the 1970s. Arguing that the judiciary has been drawn into the fray much more heavily than in the 1970s and across a great range of platforms, the article analyses this judicial involvement and posits explanations for it against the backdrop of a changing UK politico‐legal culture.     

Law-making functions of the Chinese courts: Judicial activism in a country of rapid social changes

The judicial production of law and the legislative production of law make a striking distinction between the two legal traditions. Despite of these differences, judges in both legal traditions in adjudicating cases have a common task, which is the application of legal rules to the facts of cases pending for judgments. The tension between the certainty and the “discretion” is universal for any legal system and, to a certain extent, it poses a hard dilemma for the rhetoric of rule of law. In the transitional countries such as China where rapid social changes and transformations take place, the judiciary and judges can not escape from taking more active roles in interpreting or even law making process. It arouses much controversy, particularly in continental legal traditions, for the judiciary is deemed to perform a mechanical role in adjudicating cases. This article intends to analyze the needs for judicial law-making function in China and its reasons. It reveals that judicial interpretation constitutes an important source of law despite its ambiguous legislative position. The article argues that judicial activism is inevitable against the transitional nature of current Chinese society.     

What's Law Got to Do with It? Judicial Behavioralists Test the “Legal Model” of Judicial Decision Making

[Behavioral research has] the potential to engender serious confusion over judicial decision making. Even worse, [it] may mislead the unsuspecting … into thinking that judges are lawless in their decision making, influenced more by personal ideology than legal principles…. I have no doubt that careful statistical analysis, cautiously interpreted, may conceivably shed some light on judicial decision making. But serious scholars seeking to analyze the work of the courts cannot simply ignore the internal experiences of judges as irrelevant or disingenuously expressed. (Edwards 1998, 1337-38)
[E]ven if Chief Judge Edwards is accurately reporting his perceptions, one must worry about whether those perceptions are in fact an accurate portrayal of the work of his court…. [W]hen leaders tell the public that their institutions function well and that the views of potential critics should be disregarded, skepticism and empirical testing are appropriate. (Revesz 1999, 845)