PUBLIC PARTICIPATION IN TRIAL COURT ELECTIONS: Possibilities for Accentuating the Positive and Eliminating the Negative

A large part of the debate over state judicial selection has focused upon the lack of voter interest in and knowledge about judicial elections. This study investigates voter participation in the contested nonpartisan elections for California Superior Court judge from 1958–1978. Focusing upon the variations among and within the state's counties, the analysis attempts to assess the contributions of sociological, environmental, and institutional variables to the level of participation. An exploration of the policy implications of the findings suggests, among other things, that judicial elections in large metropolitan areas might well be abandoned and replaced with some system of gubernatorial appointment and reappointment of judges.     

VOTER PARTICIPATION IN MUNICIPAL COURT ELECTIONS IN LOS ANGELES COUNTY

Although significant research has been done on voter participation and the election of executives and legislators, very little literature exists on the election of state judges, and there is virtually no literature on the election of trial court judges. In view of the policy-making activities of judges, this absence of research hampers understanding of the overall public policy-making process. The few studies of the election of state supreme court justices indicate that, compared to other nonpartisan elections, participation in judicial elections is somewhat similar. This study of municipal court elections in Los Angeles county found that voter participation was higher than expected and suggests that changes in the process could have policy implications.     

Progressive Reform and the Decline of Democratic Accountability: The Popular Election of State Supreme Court Judges, 1850-1920

This essay probes the relationship among different kinds of political cultures, the conduct of judicial elections, and the extent of dissent on the state supreme courts of California, Ohio, Tennessee, and Texas from 1850 to 1920. The introduction at the turn of the twentieth century of Progressive election reforms—most notably the secret ballot, the direct party primary, and the nonpartisan ballot—reduced levels of turnout in judicial contests and increased roll-off from major statewide political to judicial elections. These reforms made judicial elections the tail on the electoral kite and denied the public its best means of regulating judicial policy making. Yet these changes in the electorate's behavior were seemingly unrelated to variations in the rate of dissent in these four state courts, whose judges apparently viewed popular partisan election as more a potential than a real threat to their independence.     

Recruitment patterns,gender, and professional subcultures of the judiciary in Russia

This article explores sources of recruitment of judges and the influence of the social characteristics of judges on professional culture. Using the original survey and interview data from the Russian Federation, the authors identify and explain the changes in recruitment patterns that followed the judicial reform in the early 2000s. The authors look for profession-related differences between judges who had prior experience of work in the prosecutor's office and judges who were recruited from the court's non-judicial technical staff or from police investigation. Other key issues addressed are the bureaucratization and feminization of the judiciary. Using the survey designed to reveal professional values, norms and attitudes of judges, the authors highlight different professional subcultures constituted by certain combinations of social characteristics of judges.     

Political Trust and Judicial Retention Elections

Retention elections are that part of the merit selection plan designed to hold judges accountable to the public. While more than one scholar has concluded that votes cast in a retention election are often not informed evaluations of the judge's qualifications and/or conduct on the bench, the few existing systematic empirical studies have failed to explain why people vote for or against retention. This study fills part of this void by testing the hypothesis that political trust is a major cue in judicial retention voting. In contrast to most previous work which was either limited to the appellate level or to elections in a single state, the data set consists of 1,864 retention elections held from 1964 through 1984 for major trial court judges. The national trends in political trust in the last two decades are found to be reflected in the trends in the mean vote for retention.     

Judges as satisficers: a law and economics perspective on judicial liability

If judges are guardians of the law, who is to protect the individual member of society from the occasional corrupt, malicious, or reckless judge? The aim of this paper is to provide an answer to the last part of this question, focusing more heavily on cases of negligently inflicted harm. Departing from Simon’s bounded rationality and influenced by other constructs in behavioral law and economics, we view judges as satisficers who make decisions within real-world constraints, such as imperfect information and uncertainty, cognitive limitations and erroneous information. Judges are limited by the commonly observed barriers to the decision making process. Because their goal is not to optimize but to render opinions that are merely satisfactory, they often act as poor agents of their principals’ interests. In this light, it becomes clearer why judges tend to engage in behavior that is “improper”, especially under the circumstances of the currently overloaded judicial caseloads. We first address the differences in judges’ roles in Anglo-American and Continental legal systems. We then present our simple model for judicial misbehavior based on an understanding of judges as “satisficers”. Next we discuss the particularities of judicial errors and introduce a realistic and viable construct of “inexcusable judicial error”. On this basis we evaluate the impact of various incentive schemes on judicial behavior, focusing on the civil liability of judges. We conclude that civil liability for grave judicial errors is the most adequate remedy.     

西方法官职业的历史构建

法官的产生是由统治者（国王）渡让权力的结果。法官自设立之时起，就与正义联系在一起。由于各民族的特点不同，法官产生的路径是不一样的：既有从全社会中民主选举产生的，也有仅从贵族中民主选举产生的。早期的法官其实并非“官”，其在社会上的地位甚至排不上官僚的序列；早期的法官也不是由专家来担任的。司法腐败似乎是随司法权的产生而产生的。由选举产生法官的目的是为了防止腐败；而以任命的方式、以个人品德来产生法官的目的也是为了防止法官腐败，结果都没能制止司法的腐败。法官职业与其它职业一样，是社会分工和制度文明进步的必然产物。不同的政体性质也决定了法官的形式。司法的最终目的是为了保障司法独立。     

Women judges who judge women offenders: a Chinese case study on gender and judging

ABSTRACT

Based on an empirical study, this article examines Chinese female judges’ life experiences and worldviews by asking: are women judges feminist or pro-feminism? Given the very nature of feminism, if a large number of women judges are feminist or pro-feminism, they are likely to bring attention to women’s issues in the judiciary and the judicial process. If so, women’s equal participation in courts would make a vital difference in law and judicial production. The article first provides the context of the research on which this article is based. Next, it briefly outlines several key methodological issues. Then, it presents findings on female judges’ perceptions of women’s gender roles, their views about female offending and their awareness of feminism. Finally, it highlights the evidence presented and offers implications of the research.     

Knowledgeable Judges Make a Difference: Judicial Beliefs Affect Juvenile Court Transfer Decisions

This study examined how judicial knowledge and attitudes about transfer affects transfer decisions by juvenile court judges. Participants included 232 juvenile court judges from around the country who completed a vignette survey that presented a prototypical case involving a serious juvenile offender. Participants were asked to decide whether the juvenile should be transferred and to rate his rehabilitative potential. Judges who believed in the deterrent effects of transfer were more likely to recommend that the juvenile be transferred and to rate him as having lower rehabilitative potential. More experienced judges saw greater rehabilitative potential in the juvenile and were less likely to transfer him to the criminal court. Overall, judges tended to think that transfer lacked general and specific deterrent effects, endorsed rehabilitative over punitive goals in sentencing, and felt positively about the juvenile justice system's effectiveness in handling serious offenders. Yet, a sizable minority of judges felt otherwise. The implications of the findings for judicial education and legal advocacy are discussed.     

Can a leopard change its spots? Strategic behavior versus professional role conception during Ukraine's 2014 court chair elections

Do judges respond to institutional and strategic incentives or do they strictly follow dominant professional role conceptions? This article weighs in by exploring whether an ideational shift toward judicial empowerment and independence can germinate from institutional reforms. Ukraine's 2014 Euromaidan revolution and the comprehensive judicial reform adopted in its wake provide a test of the competing theoretical accounts. A judicial lustration law sacked all incumbent court chairs, who had been appointed by the executive, and gave Ukrainian judges the right to elect new chairs via secret ballot. I analyze this radical step toward judicial self-government using an original data set with individual- and court-level data. The key finding is that less than a fifth of Ukrainian judges embraced their newly granted agency and elected a new chair for their court, whereas the overwhelming majority followed dominant professional norms of deference and reelected the sacked court chairs. This finding holds for all rungs of the judicial hierarchy and for all regions of Ukraine. Even protégés of ousted president Yanukovych won the secret ballot vote by their peers more often than they lost it. Beyond Ukraine, these results suggest that empowering individual judges in the highly hierarchical structure of a civil law judiciary is unlikely to lead to a judicial behavior shift, at least in the short run.     

Decision Making in Sexual Assault Cases:

Those who champion the recruitment of minorities and women to the bench argue that black and female judges could bring about important policy changes. This study compared decision making by black and white and by male and female judges in sexual assault cases disposed of in Detroit Recorder's Court from 1976 to 1985. We found no racial differences and very few gender differences. The only exception was that female judges imposed longer prison sentences than did male judges. Considered together, the findings are indicative of the powerful influence of socialization on the legal profession and on the judicial role.     

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。     

A COMMENT. The road to court improvement in child protection cases

Judges are the key to court reform in child protection proceedings but legislative mandates cannot guarantee the requisite level of judicial commitment. Lack of full implementation of the Adoption Assistance and Child Welfare Act of 1980 demonstrates that rather than rely on statutory language, court reformers ought to increase judicial understanding of the provisions of federal law through initiatives such as cross-training. From December 1996 to June 1998, Kentucky's Court Improvement Project delivered 11 regional cross-training sessions to more than 550 judges, attorneys, social service personnel and other child advocates. Based on a statewide survey, cross-training increased significantly awareness of federal child protection objectives among the state's judges. Awareness of a policy among those expected to implement it is the first step toward implementation.     

The Influence of the EU and the ECHR on ‘Parliamentary Sovereignty Regimes’: Assessing the Impact of European Integration on the British and Swedish Judiciaries

The paper analyses the consequences of European integration processes upon the judicial systems of the so‐called ‘parliamentary sovereignty regimes’, focusing on the British and Swedish judiciaries. The aim is to understand if the influences coming from European integration, favouring the expansion of domestic judicial power, have prevailed, or the traditional distrust of such countries in judicial power has prevented the empowerment of the domestic courts. The influences on the judicial systems are evaluated distinguishing judicial capacity, judicial attitudes and judicial independence. The paper argues that the political relevance of judges has strongly increased. However, while European integration has deeply transformed the formal means at disposal of judges, because of political and judicial culture the changes in actual judges' behaviour have been much more limited. Moreover, the paper highlights some unexpected ways in which European integration can affect the domestic political systems (eg favouring certain legislative reforms or legal principles).     

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.     

Reporting sensational trials: Free press,a responsible press,and cameras in the courts

It is common today to criticize the media for the way in which they report sensational trials. Lawyers often join in this criticism, claiming that the portrayals harm their public image. This article examines such complaints and demonstrates that including cameras in the courts need not lengthen a criminal trial, nor substantially affect the judicial process. Using the O.J. Simpson criminal case as a backdrop, the article shows how delays in that case were caused not by cameras, but by the judge's inconsistent rulings that signaled to the defense lawyers that they were under a different and more lenient standard than the prosecutors. Surveys of American judges show that those who have experienced cameras in their own courtroom have come to the conclusion that such media coverage does not impede justice, aids the public in understanding the judicial process and has little effect on American's perceptions of lawyers. Those judges who have the urge to play to the cameras should ban them, but if they do not, the blame lies with them and not the media, which simply report what is happening.     

India's Grand Advocates: a legal elite flourishing in the era of globalization

This article examines a flourishing group of elite litigators, that we call ‘Grand Advocates’, who practice before the Indian Supreme Court and some of India's High Courts. In a court system marked by overwhelmed judges with little assistance, multiplicity and blurriness of precedent, and by the centrality of oral presentation, the skills and reputational capital of these lawyers enables them to play a central, lucrative, and unique role. Indeed, it is often the Grand Advocates, as much as the judges, who lead and propel forward the Indian judicial system.     

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.     

Judicial Procedural Involvement (JPI): A Metric for Judges’ Role in Civil Litigation,Settlement, and Access to Justice

We examine judges’ role in civil litigation by studying empirically the relationship between judicial procedural involvement (JPI) and lawsuits’ mode of disposition (MoD). Furthermore, we propose JPI as a metric for the allocation of judicial attention to litigants. Applying the framework to Israeli trial court data, we find that 60 per cent of cases included JPI (through hearings and rulings on motions) whereas 40 per cent involved only the court's institutional function. By juxtaposing JPI and MoD data, we shed light on the scope of judicial involvement in settlements, the ratio between judges’ normative public-life function and their problem-solving function, and other pertinent questions. Since nowadays lawsuits are rarely adjudicated, trial rates are low, and litigants in person (pro se litigants) are common, we argue that access to justice should also be construed in terms of access to judicial attention throughout the proceeding, which is readily measurable through JPI.     

The Mask of Neutrality: Judicial Partisan Calculation and Legislative Redistricting

Do judges ruling on redistricting litigation increase electoral competition in congressional races while simultaneously drawing districts favoring their party's congressional candidates? I offer a novel theory of judicial partisan calculation, arguing that judges draw more competitive districts than legislatures or commissions, but that judge‐drawn districts favor the electoral interests of their copartisans. These claims are reconcilable because judges target districts held by contrapartisan legislators to maximize their copartisans’ fortunes. I find that Democratic judges draw competitive districts by adding Democratic voters to Republican‐held House constituencies. Court‐administered redistricting increases competitiveness, ostensibly due to judicial neutrality. This mask of neutrality, however, conceals sophisticated partisan calculation.