Separate opinions in the European Court of Human Rights

Separate opinions, both concurring and dissenting, have beena feature of judgments of the European Court of Human Rightssince its earliest days, but detailed studies of their incidenceand impact have until recently been sparse. This article, basedon an AHRC-funded research study, offers a survey of the researchliterature and describes the outcome of its own considerationof such opinions. The use of separate opinions in the EuropeanCourt of Human Rights is significant, but the incidence of soledissents by national judges is very low. It would appear thatthe main determining factor in the writing of a separate opinionis judicial temperament. There is some evidence that the backgroundof judges prior to their election to the Court has some influenceon their approach to writing separate opinions. The Court, however,demonstrates high levels of collegiality and the use of separateopinions contributes to the transparency of its decision-making.     

Contradictions in Judicial Support for Capital Punishment in India and Bangladesh: Utilitarian Rationales

India and Bangladesh share a common history, and each has developed somewhat similarly since partition. However, while both countries now have relatively low murder rates, India has seen a decline in the rate of executions, while Bangladesh continues to impose death sentences and carry out executions at a higher rate. There have been challenges to the death penalty in India, restricting its use to exceptional cases. The same has not occurred in Bangladesh. Yet in both countries, systemic flaws in the criminal process are evident. This article draws on two original empirical research projects that explored judges’ opinions on the retention and administration of capital punishment in India and Bangladesh. The data expose justice systems marred by corruption, incompetence, abuses of due process, and arbitrary and inconsistent treatment of defendants from arrest through to conviction and sentencing. It shows that those with the power to sentence to death have little faith in the integrity of the criminal process. Yet, a startling paradox emerges from these studies; despite personal knowledge of its flaws, judges have trust in the death penalty to deter crime and to realise other sentencing aims and feel retention benefits society. This is explained by reference to utilitarian values. Not only did our judges express strongly utilitarian justifications for sentencing people to death, in terms of their erroneous belief in its deterrent effect, but some also articulated utilitarian justifications for misconduct in pre-trial processes, suggesting that it was necessary to break the rules to secure convictions when the system was dysfunctional and ineffective.

     

Asking the Gatekeepers: A National Survey of Judges on Judging Expert Evidence in a Post-Daubert World

Drawing on the responses provided by a survey of state court judges (N = 400), empirical evidence is presented with respect to judges' opinions about the Daubert criteria, their utility as decision-making guidelines, the level to which judges understand their scientific meaning, and how they might apply them when evaluating the admissibility of expert evidence. Proportionate stratified random sampling was used to obtain a representative sample of state court judges. Part I of the survey was a structured telephone interview (response rate of 71%) and in Part II, respondents had an option of completing the survey by telephone or receiving a questionnaire in the mail (response rate of 81%). Survey results demonstrate that judges overwhelmingly support the gatekeeping role as defined by Daubert, irrespective of the admissibility standard followed in their state. However, many of the judges surveyed lacked the scientific literacy seemingly necessitated by Daubert. Judges had the most difficulty operationalizing falsifiability and error rate, with only 5% of the respondents demonstrating a clear understanding of falsifiability and only 4% demonstrating a clear understanding of error rate. Although there was little consensus about the relative importance of the guidelines, judges attributed more weight to general acceptance as an admissibility criterion. Although most judges agreed that a distinction could be made between scientific and technical or otherwise specialized knowledge, the ability to apply the Daubert guidelines appeared to have little bearing on whether specific types of expert evidence were designated as science or nonscience. Moreover, judges' bench philosophy of science seemed to reflect the rhetoric, rather than the substance, of Daubert. Implications of these results for the evolving relationship between science and law and the ongoing debates about Frye, Daubert, Joiner, and Kumho are discussed.     

When “Best Practices” Win,Employees Lose: Symbolic Compliance and Judicial Inference in Federal Equal Employment Opportunity Cases

This article provides a new account of employers' advantages over employees in federal employment discrimination cases. We analyze the effects of judicial deference, in which judges use institutionalized employment structures to infer nondiscrimination without scrutinizing those structures in any meaningful way. Using logistic regression to analyze a representative sample of judicial opinions in federal EEO cases during the first thirty‐five years after the passage of the 1964 Civil Rights Act, we find that when judges uncritically use the presence of organizational structures to reason about whether discrimination occurred, employers are much more likely to prevail. This pattern is especially pronounced in opinions written by liberal judges. In light of these findings, we offer recommendations for judges, lawyers, and policy makers—including legal academics—who seek to improve the accuracy and efficacy of employment discrimination adjudications.     

Power,National Security and Transparency: Judicial Decision Making and Social Architecture in the Federal Courts

Even in a democratic society, the need for transparency must be balanced with an important countervailing interest: the occasional, legitimate need for government secrecy. This article, based on an examination of opinions in federal cases dealing with national security and transparency, explores how judges identified the main legal issues presented by a case and the legal factors or mode of legal interpretation used to reach or justify their conclusions. The article concludes that many of these opinions are as much about judges’ attempts to balance the judicial branch's power with the powers of the executive and legislative branches as they are about national security and transparency. Furthermore, the article contends these opinions have created an “architecture of power” that determines how national security information is controlled. The final section also suggests that judges should be mindful of the original architecture of power established by the Constitution and the First Amendment when writing their opinions.     

Ambiguity and Conflict in the Implementation of Evidence Law in Criminal Matters: a Study of the United Arab Emirates Jurisprudence

Due the lack of the law of evidence in criminal matters in the United Arab Emirates (UAE), it is important to address the issue of the rules of evidence in the UAE where Sharia criminal law is applied along with enacted law of Criminal Procedural Law. The courts’ decisions contradicted each other because of the differences of opinions among the law schools exist in Islamic law in one hand and between the Sharia criminal law and enacted law in the other hand. Further, the Criminal Procedural Law does not state the rules of evidence in clear manner to judges and individuals. The lack of stated rules and procedures and what evidence could be accepted and what cannot are not definite in the UAE legal system. The article will argue that because of the differences in the opinions related to the admission and acceptance of the evidences exist among the Islamic law schools and between the Sharia law and enacted law, the court decisions have contradicted each other and create ambiguities in the field of the evidence in criminal law. The Islamic jurists have different opinions about evidence in fornication crimes, Qasama evidence in qisas, and women and non-Muslim testimonies. Such differences affect the Union Supreme Court decisions. Therefore, the UAE legislator must enact the law of evidence in criminal matters in order to reduce the contradiction between judges’ opinions, clear ambiguities, and protect individual rights as it did with civil and commercial matter.     

Perceptions and use of videoconferencing in forensic mental health assessments: A survey of evaluators and legal personnel

ABSTRACT

The use of videoconferencing (VC) to conduct forensic mental health assessments (FMHA) is increasing. Yet, little is known about its acceptability among clinicians or legal professionals. In Study 1 (N?=?156), forensic evaluators were asked about their use of VC, reasons for its use, and opinions about the validity, usefulness, ethics, and legality of its use. An estimated one-third of evaluators have used VC in the past. Although evaluators overall expressed moderate concern over the ethics and legality of use, prior experience appeared to mitigate concerns. Younger practitioners were also more open to using VC. Reduced costs for courts was the most frequently endorsed benefit associated with VC, while restricted ability to administer psychological testing and potential technological problems were seen as the biggest disadvantages. In Study 2 (N?=?27), attorneys and judges were surveyed about frequency with which they encounter VC for FMHA and their perceptions about the validity of those assessments. Findings indicated legal personnel expressed rather negative views without having much first-hand experience of VC, including concerns about establishing rapport and technical difficulties. These studies have implications for whether VC will be adopted more frequently in FMHA.     

The impact of international human rights norms—a “law undergoing evolution”

Abstract

In this paper, the author outlines the history of, and reasons for, the growing impact of international human rights jurisprudence upon the work of judges in New Zealand, Australia, England and elsewhere in the Commonwealth of Nations. Formerly, international and domestic law were virtually entirely separate. But now, there is increasing legal authority to support the use of international human rights jurisprudence in domestic judicial decision‐making. It can be done in the application of constitutional or statutory provisions reflecting universal principles stated in international treaties. But, according to the Bangalore Principles, it can also be done where there is a gap in the common law or where a local statute is ambiguous. The judge may then fill the gap or resolve the ambiguity by reference to international human rights jurisprudence which will ensure that domestic law conforms, as far as possible, to such principles.

In its decision in Tavita, the New Zealand Court of Appeal declared this to be “a law … undergoing evolution”. The author outlines some of the impediments and problems for the evolution. But he also collects the reasons why it is a natural and inevitable phase of the common law in the current age. He suggests that judges should be aware of the developments. In appropriate cases, they should inform their decisions with relevant international human rights jurisprudence. That will at least ensure that they develop domestic human rights law in a principled way, consistently with international law, and not in an idiosyncratic fashion “discovering” new fundamental rights which may otherwise be criticised as mere judicial invention.     

Being a woman judge in Turkish judicial culture

ABSTRACT

This study is a feminist exploration of how gender influences the professional and social lives of women judges in Turkey. I asked women judges from lower courts to talk about their professional journey to explore if and how gender emerges as a category that makes sense to them. Gender was sometimes more visible in the form of a “success” story of playing along men’s rules, or in memories of struggling to balance work and family; while other times it was more implicit in narratives on meeting expectations, failing expectations, ignoring expectations. All in all, these narratives attest to the gendered hierarchies and instances of institutional sexism in what is considered a masculine profession. They also reveal the prevalence of a particularly conservative and patriarchal culture upon the ways in which these inequalities and disadvantages are experienced by women judges in Turkey.     

Poetic Justice: An Interpretation of Lawyers’ Reactions to Verse Judgments

This article offers an interpretation of lawyers’ reactions to verse judgments, being judicial decisions rendered in rhymed poetry form. While, in recent history, there has been an unexplained break in the close historical connection between poetry and law, some judges nevertheless continue to render their judicial decisions in verse. This has met strong criticism from fellow judges, inevitably, but also from lawyers. However, there is no evidence in academic writing of anyone attempting to explain why lawyers are having these reactions. Endeavouring to fill that void, this research employs hermeneutics to offer an interpretation of lawyers’ reactions to verse judgments. The article analyses the varied opinions uncovered in five qualitative interviews with lawyers of different backgrounds, and contends that a movement of poetry back towards its utilitarian origins would see lawyers change their reaction to verse judgments, instead viewing them as an appropriate form of judicial expression.     

Individualization,criminalization, or problem resolution: A factorial survey of juvenile court judges' decisions to incarcerate youthful felony offenders

Existing research on the criteria used by juvenile court judges in choosing dispositions is limited in two respects. First, the predictor variables included in most investigations have been limited either in number or in the quality of their measurement. Second, research has not focused on sentencing decisions for serious offenders. Using a factorial survey of juvenile court judges, the present study seeks to determine what factors shape disposition decisions for juvenile felony offenders. The results suggest that judges focus primarily on offense characteristics, and are influenced only marginally by the offender's social characteristics. These findings are more consistent with the view that juvenile courts are becoming “criminalized” than with the view that individualized treatment is the goal. An alternative interpretation—that judges may be problem solvers, trying to dispose of cases efficiently—also is proposed.     

Women in the Nigerian judiciary: considerable headway or organised progress?

ABSTRACT

Women have made considerable progress in terms of their entrance into the legal profession, such that they are advancing towards parity with men on the High Court benches in Nigeria. This study is a product of qualitative empirical data gathered from interviews with judges and information gleaned from government records and personal files of judges in the Archives of the judiciaries in Mid-Western Nigeria. It identifies reasons for the increase in the number of women on the High Court Bench in the area. Women entering the legal professions in Nigeria from the 1930s opted for a career in government legal service and the Magistracy with less financial remuneration but regular work hours, than in private legal practice that provides higher remunerations and irregular work hours. Findings reveal that the number of women judges increased when it became fairly established to tunnel 90% of appointments to the High Court from these channels. The preliminary conclusion therefore, is that, although women lawyers have made considerable headway as High Court judges, the increase in their numbers on the High Court bench was not as a result of any organised policy to increase the number of women judges in Nigeria.     

The judge's view of competency evaluations. II

Twenty trial court judges were surveyed to determine what information they considered pertinent in psychiatric examinations for competence. These judges showed a clear understanding of what they were asking for in ordering the examinations but also showed a significant tendency to use the competency exam to advise them about other issues in addition (e.g., dangerousness or the need for treatment). As a group the judges appeared to be eager for psychiatric input. Typical judges could be described as pragmatic in their views of psychiatry in the courtroom, having a relatively low level of expectation but a high degree of satisfaction with the psychiatric opinions they receive.     

What judges know about eyewitness testimony: A comparison of Norwegian and US judges

Abstract

We surveyed 157 Norwegian judges about their knowledge and beliefs about eyewitness testimony, and compared their answers to a prior survey of 160 US judges. Although the Norwegian judges were somewhat more knowledgeable than the US judges, both groups had limited knowledge of eyewitness testimony. The Norwegian judges, like the US judges, frequently differed from eyewitness experts in their responses to such important issues as whether eyewitness confidence is related to identification accuracy at trial and what is the best method for conducting identification procedures. As was true for the US judges, more knowledgeable Norwegian judges had many of the beliefs that may be necessary for reducing and mitigating the effects of eyewitness error. The results suggest that increasing judges’ knowledge of eyewitness testimony may be an important component of the solution to eyewitness error.     

Gag orders: Shields or swords in the constitutional conflict between fair trial and free press?

In 1976, in Nebraska Press Association v. Stuart, the Supreme Court characterized gag orders as the “most serious and least tolerable infringement on First Amendment rights.”; Yet courts impose gag orders that restrict media coverage of courts and trial participants. Many groups believe the use of gag orders is increasing. However, no previous study has attempted to quantify the frequency of gag orders or to explore judicial attitudes about the issuance of such orders. This analysis of the case law and exploratory survey of judges in Florida suggests that courts issue gag orders to protect fair trials, participant safety and privacy, and the sanctity of the courtroom.

This article also suggests that conflict over gag orders arises because judges disagree about the core meanings of the First and Sixth Amendments. This research indicates that judges' individual interpretations of the Constitution color their determinations of whether indirect gags on trial participants, rather than on the media, are impermissible assaults on the First Amendment or are permissible shields of fair trials. Judges tend to be either First Amendment apostles or Sixth Amendment followers, and Sixth Amendment judges are more likely to impose and uphold gag orders. The authors suggest that this schism is unlikely to be resolved without guidance from the Supreme Court.     

Pragmatic Discourse and Gender Inequality in China

Using courtroom dialogs from actual court trials in China as data, this article analyzes an emerging “pragmatic discourse,” deployed by judges to assist, but at the same time to constrain divorcing women. Through questions, statements, rebuttals, and other interactional devices, Chinese judges define the premises that underpin the law's understanding of gender equality and women's welfare. By looking at how discourses are deployed by judges and litigants, we link micro linguistic practices to more general social forces and processes. Despite their honest effort to protect women's rights, Chinese judges often inadvertently reinforce and reproduce the patriarchal norm. The data demonstrate how the hegemonic patriarchal order reasserts itself in an institutional forum that is meant to promote gender equality. The interaction of the discourses also highlights the tensions in Chinese society and displays the effect of changing social environment on the legal operation.     

Evaluating expertise in forensic anthropology

The medicolegal system relies on the ability of experts and non-experts alike to make judgments about expertise and use those judgments to reach consequential decisions. Given the lack of standard criteria, mandatory certification, or licensure for establishing expertise required to practice forensic anthropology and testify as an expert witness, we sought to understand how individuals assess and identify expertise in forensic anthropology by using a social science tool called the Imitation Game. This tool assesses immersion in a specific area of study via discourse, with the premise that some individuals lacking expertise themselves imitate or attempt to pass as experts. For this project we recruited volunteers with varying expertise in forensic anthropology to participate in interviews which asked questions about the practice and structure of the discipline. Those interviews were transcribed, anonymized, and evaluated by other recruited individuals with varying expertise in forensic anthropology. Results found that judges who were experts in forensic anthropology performed better than non-expert judges in determining who was not an expert in forensic anthropology based on their anonymized responses; however, nearly half of the non-experts were still able to pass as experts in forensic anthropology. The difficulties in assessing expertise based on discourse interactions demonstrates the value and need for well-defined credentials and mandatory certification to practice forensic anthropology. This study demonstrates that accurately identifying expertise in forensic anthropology may be challenging for both experts and non-experts, especially when relying solely on interactional expertise rather than formal assessments of competency which directly elucidate contributory expertise.     

Corpus Linguistics as a Method of Legal Interpretation: Some Progress,Some Questions

Corpus linguistics is becoming a respected method of statutory and constitutional interpretation in the United States over the past decade, yet it has also generated a backlash from a group of scholars that engage in empirical work. This essay attempts to demonstrate both the contributions and the risks of using linguistic corpora as a primary tool in legal interpretation. Its legitimacy stems from the fact that courts routinely state that statutory terms, when not defined as a matter of law, are to be given their ordinary meaning. Judges have responded to this challenge, with the assistance of the linguistics community, by using corpora to determine which meanings are ordinary. However, legal analysts have not determined exactly what makes one meaning ordinary and another not ordinary. This gap has led to a level of disagreement in the field. Moreover, while linguists who engage in corpus linguistic analysis typically emphasize the importance of context, the legal application is peculiarly context-free, in keeping with legal philosophies that eschew reliance on reference to a law’s purpose and the intent of the legislature that enacted it. This move adds a political dimension to corpus analysis as a means of legal interpretation. Yet, the article concludes that by relying on a blend of general and specialized corpora, the legal system can substantially reduce the problem of contextualization, as some linguists and practitioners have already recognized.

     

Opinion Construction in the Roberts Court

The Supreme Court's main output is the decision on the merits. Little is known, however, about how such decisions are constructed. This article is one of the first to look at the way Supreme Court opinions are constructed by examining the impact of the core linguistic resources at the Court's disposal. It does so in a novel manner by measuring the Court's reliance on wording from parties’ merits filings, amicus briefs, and lower‐court opinions between the 2005 and 2014 terms. To accomplish this goal, the article compares language in over 13,000 documents in the Court's docket during this period with their respective majority opinions. The article then looks at the relative impact of parties’ briefs and filings, amicus curiae briefs, and lower‐court opinions on the Court's majority opinion language. This article provides both macro– and microlevel analyses by locating the relative effects of these linguistic resources on the Court's overall opinion language as well as by breaking these findings down by individual justice. In the aggregate, this article finds that, of the three resources analyzed, the Court tends to use language from parties’ merits briefs most frequently, then wording from lower‐court opinions, and the least from amicus briefs, but that differences in case level factors shift the relative utility of each of these three resources.     

Targeting Underage Drinking and Driving in Juvenile and Domestic Relations Courts: The Reinforcing Alcohol Prevention (RAP) Program

Alcohol use is a concern among our nation's least experienced drivers, and underage drinking contributes to the overall burden of traffic injury and mortality. The goal of the Reinforcing Alcohol Prevention (RAP) Program was to develop a court‐based program targeting underage drinking and driving among teens. An advisory board created the program which included changes to the drivers' licensing ceremonies and traffic dockets conducted in Juvenile and Domestic Relations Courts. Additions included 5‐minute videos of individuals in alcohol‐related crashes and a crash‐photo display. Exit evaluations garnering impressions/opinions of the program indicated 84% of teenagers felt every teen should view the presentation and 96% would be less likely to drive after drinking. The RAP Program has been well‐received by judges and participants and could be easily implemented by other jurisdictions.