Domestic judicial defiance and the authority of international legal regimes

Tensions and occasional overt defiance of international courts suggest that compliance with international regimes is not a self-evident choice for domestic judges. I develop a formal theory of domestic judicial defiance in which domestic and supranational judges vie for jurisprudential authority in a non-hierarchical setting. The model emphasises the role of domestic non-compliance costs and power asymmetries in determining the conduct of domestic and international judges. I argue that the EU represents a special case of a particularly effective international regime. Weak domestic courts have little to gain from an escalated conflict with the European court of Justice. But even domestic judicial superpowers like the German Federal Constitutional Court have strong incentives to seek mutual accommodation with European judges. The analysis also yields new insights into concepts, such as “judicial dialogue” and “constitutional pluralism” that have featured prominently in the legal literature, and suggests new hypotheses for empirical research.     

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.     

Informal Institutions and Judicial Independence in Paraguay, 1954–2011

This article explains how informal institutions have prevented the emergence of autonomous judges in Paraguay between 1954 and 2011. The central argument is that co‐optation, clientelism, and judicial corruption considered as informal institutions, rooted during the dictatorship, have impeded the appearance of an independent judicial branch in the democratic regime. To test this hypothesis, the article relies on historical narratives, surveys, and semistructured interviews. The conclusions suggest that in countries that have experienced the consolidation of informal institutions oriented toward maintaining the ties of subordination of judges to politicians, constitutional reforms and fragmentation of political power are necessary but not sufficient conditions for improving judicial independence.     

Judges as Readers,Authors and Dialecticians: Legal Interpretation in the EC<Emphasis Type="Italic">t</Emphasis>HR Cases on Mental Disability

The wording of major human rights texts—constitutions and international treaties—is very similar in those provisions, which guarantee everyone the right to family, privacy, protection against discrimination and arbitrary detention, and the right to access the court. However, judges of lower national courts, constitutional judges and judges of the European Court of Human Rights often read the same or seemingly the same texts differently. This difference in interpretation gives rise not only to disputes about the hierarchy of interpretative authorities, but to more general disputes about limits of judicial construction and validity of legal arguments. How it may happen, that the national courts, which apply constitutional provisions or provisions of national legislative acts, which are seemingly in compliance with the international human rights standards, come to different results with the international judges? Do they employ different interpretative techniques, share different values or develop different legal concepts? Do international judges ‘write’ rather than ‘read’ the text of the Convention? Who is, in Plato’s terms, a name-giver and who has a power to define the ‘correctness’ of names? The answers to these questions from the rhetorical and semiotic perspectives are exemplified by the texts of the judicial decisions on the rights of persons with mental disabilities.     

Judicial Responsiveness to Valence Issues: An Event History Analysis of the Initial Sex Offender Registration and Notification (SORN) Laws

Under what conditions does judicial responsiveness to the public's policy preferences compromise the court's role as a countermajoritarian institution? Scholars have yet to examine whether and how quickly state appellate court justices respond to valence issues. This study investigates the relationship between retention elections and judicial responsiveness to the initial sex offender registration and notification (SORN) laws popularized in the 1990s. Findings show that judges who participated in nonpartisan retention elections exhibited greater democratic accountability by engaging in judicial review of SORN laws earlier than judges in other retention election systems. Valence issues create political challenges for nonpartisan judges who, like their counterparts in other retention systems, are expected to balance majoritarian interests with minority rights.     

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.     

The Impact of Training and Language Competence on Judicial Application of EU Law in Hungary

The aim of this research is to identify the role that training in EU law and in a foreign language play in the use of EU law by Hungarian judges in domestic proceedings. Judges in the new Member States face the problems of no or inadequate official EU translations of relevant EU law or case‐law. The need to compare the meaning of other language versions therefore comes into play in order that the judges comply with the requirements of Union loyalty in the Treaty on European Union: Hungarian judges are shown to exhibit certain creative responses to these challenges. The approach to the research is based on an examination of the institutional framework for judicial training, a selection of pertinent case‐law of the Hungarian courts as well as interviews with a number of judges involved in the application of EU law in their courts.     

Judicial Activism in the Name of the Nation: Reneging on the Integration of Immigrants in Greece

Why do courts sometimes decide to liberalize migrants’ rights, while at others restricting such rights, even contrary to the policies of elected governments? This article addresses this question in the context of Greece. It explores the causes and consequences of judicial decision making in a major decision of the Council of State that suspended the most important government reform of 2010, promoting the integration of third‐country nationals. Drawing on judicial politics scholarship, it argues that the ideological and political preferences of key judges were an important influence on the first Council of State decision considered here. However, in the final decision, intra‐court dynamics and the judges’ consideration of external political constraints influenced the court's reasoning, leading to a more moderate outcome, with important consequences for the relaunching of policy reform.     

民事审判方式改革与法官司法理念的重塑

在器物、制度、观念这三个层次中 ,观念层次的变革是最困难的 ,因为它牵涉到一个文化的信仰系统、价值系统等最内层的质素 ,但它也是最必需的 ,因为唯有这一层次的现代化才能真正从根本上促进一项现代化事业的最终实现。以此为考虑问题的出发点 ,作者认为我国民事审判方式改革要取得成功的一个重要前提是司法主体观念的现代化。文章以理论探讨为依托 ,同时关照我国的审判实践 ,就如何实现法官理念的更新进行了详细的探讨。     

Judicial Independence, Judicial Promotion and the Enforcement of Legislative Wealth Transfers—An Empirical Study of the New Zealand High Court

This paper investigates the Landes-Posner thesis on judicial independence using data on public law decisions in which the government was the defendant decided in the New Zealand High Court over the period 1958–2001. We use survival analysis to examine whether successive New Zealand governments have promoted judges from the High Court to the Court of Appeal (which stands above the High Court) on the basis of political considerations, the quality of the judge's decision-making or both. Our findings suggest that the quality of decision-making has generally been important. Consistent with the weak form of the Landes-Posner hypothesis we find no evidence that governments have used their powers to punish judges who decided cases against them. On the contrary, we find some support for the strong form of the Landes-Posner thesis that governments positively use their powers to secure judicial independence.     

The National Judiciary—Sword of European Court of Justice Rulings: The Example of the Kohll/Decker Jurisprudence

The role of the national judiciary in enforcing EC law, and particularly European Court of Justice (ECJ) rulings, has been largely neglected by empirical legal and political science research. Existing research has categorised the role of the national judiciary as either shielding national legislation from the ECJ or as serving as a ‘sword’ to foster integration and to force change on reluctant governments. This article sides with the second assumption and attempts to empirically assess it using the example of the patient mobility jurisprudence by the ECJ, the so‐called Kohll/Decker jurisprudence. The three case studies on France, the UK and Germany show that national courts played an important role in overcoming the resistance against this jurisprudence: via a multiplication of national court cases that contradicted domestic legislation they forced the legislator to end judicial uncertainty.     

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。     

Judges and Politics: The Parliamentary Contributions of the Law Lords 1876–2009

There is a common perception that, prior to the exclusion of serving judges from the House of Lords in 2009, a ‘politics convention’ operated which required judges to avoid party‐political controversy and ensured that they contributed to debate only rarely. On this view, the presence of the Law Lords in parliament prior to 2009 presented a judicial independence and separation of powers problem in theory only. An examination of the contributions of serving Law Lords and other judicial peers to debates in the House of Lords from 1876–2009 (and retired judges from 1876–2015) reveals that the convention either did not exist or was frequently ignored. While most judges were infrequent participants in parliamentary debate, some were enthusiastic – a small number among the most active parliamentarians in the Lords. The most active judicial peers were conservative in their politics and the best predictor that a judge would be active in the House was an association with conservative politics or causes.     

On the Frontlines: Making Decisions in Chinese Civil Environmental Lawsuits

This article looks at forty-two decisions in civil pollution cases in China as a window onto judges' political logic and the accompanying implications for environmental enforcement. The starting point is a typology of judicial decision making in one-party states based on two dimensions of decisions: the degree of legal formality (e.g., how closely judges adhere to the letter of the law) and individual autonomy (e.g., judges' power to make decisions in individual cases). Mapping pollution decisions onto this typology highlights shifting judicial strategy. While Chinese judges typically comply with instructions when the political pressure is dialed up, a combination of shifting incentives, uncertainty about the law, and political ambiguity can also allow de facto discretion in low-profile, run-of-the-mill cases. Everyday cases tend to cluster under the rubric of "rough justice" in which judges weigh competing political priorities and aim for a livable compromise that dents but upholds the status quo. This sample of cases also shows judges occasionally innovating at the margins by offering new legal interpretations or validating new types of claims. Although Chinese courts remain weak tools for environmental protection, limited innovation suggests that they can help nudge along local incremental social change.     

美国司法政治变迁的内在逻辑——从“罗伊案”说开去

美国的司法政治是司法与政治交互作用的产物。随着司法权的扩张,联邦最高法院突破"政治问题不审查"之传统,主动或被动地介入政治争议;随着政党对峙的尖锐,政治力量乐于将棘手的政治争议交由司法裁断;藉此,司法政治演变为常态政治,司法判例成为经久不衰的政治争点。自上个世纪70年代以来,围绕罗伊案半个多世纪的争议,不仅客观地暴露了美国司法政治发展的内在逻辑,而且也充分地展示出司法政治在美国的作用方式和涵摄空间。     

The establishment of the Judicial Appointments Commission in Malaysia to improve the constitutional method of appointing the judges of the superior courts: a critical study

The Judicial Appointments Commission was established in Malaysia in 2009 to ensure unbiased selection of judicial candidates for the consideration of the Prime Minister, who has the final say regarding the appointment of judges to the superior courts. But the provisions concerning Prime Minister’s power to appoint the majority of the members of the Commission and his unfettered power of removing four of the five appointed members without assigning any reason, have calculatedly been devised for ensuring the selection of judicial candidates having right political patronage in accordance with the covert wishes of the Prime Minister. Furthermore, the Prime Minister’s power of rejecting the Commission’s recommendations of multiple candidates renders the undertaking of a lengthy process of selection unproductive and useless. Thus the Judicial Appointments Commission has become a superfluous body with an ineffective modus operandi to attain the stipulated objectives of improving and complementing the constitutional method of appointing judges to the superior courts. Since the Federal Constitution of Malaysia has not empowered the Parliament to enact a law providing for the establishment of a Judicial Appointments Commission, it also appears that the Judicial Appointments Commission Act 2009 is an invalid piece of legislation.     

论法官现代化:专业化、职业化和同质化——兼谈中国法官队伍的现代化问题

法官队伍的现代化是实现法治的基本条件之一。现代法治国家的法官队伍以专业化、职业化和同质化为基本特征。我国法官队伍因受观念和体制的制约而与法治发展的要求相去甚远。未来我们应积极汲取国外有益经验 ,从贯彻司法独立入手 ,改革现有的法官培养管理体制 ,以便加速法官队伍的现代化 ,推动中国的法治进程     

Family Law and Social Change: Judicial Views of Joint Custody, 1998–2011

Rapid changes in family life over the last forty years have led to substantial alterations in family law policy; specifically, most states now endorse joint custody arrangements for divorcing families. However, we know little about how lower court judges have embraced or resisted this change. We conducted in‐depth interviews with judges in twenty‐five Indiana jurisdictions in 1998 and 2011. Our findings suggest that judges' views of joint custody dramatically changed. Judges in Wave II indicated a strong preference for joint custody—a theme that was relatively absent in Wave I. The observed change in judicial preferences did not seem to be related to judicial replacement, gender, age, or political party affiliation. Although our conclusions are exploratory, we speculate that shifts in judicial views may be related to changing public mores of parenthood and, relatedly, Indiana's adoption of Parenting Time Guidelines in 2001.     

Disproportionate Representation: Communities of Color in the Domestic Violence,Juvenile Justice,and Child Welfare Systems

A number of State and Federal surveys show that communities of color are involved with the domestic violence, child welfare, and juvenile justice systems at rates that are disproportionately higher than their population size. As courts are responsible for decisions that could propel families into these systems, it has become increasingly critical that judges become aware of these trends. This article will provide an overview of the current statistics on the disproportionate representation of communities of color in the domestic violence, child welfare, and juvenile justice systems. It will discuss the factors that are contributing to these trends and present preliminary recommendations for judicial leadership and decision making.     

Enhancing judicial skills in domestic violence cases: the development,implementation, and preliminary evaluation of a model US programme

ABSTRACT

The overwhelming number and complexity of domestic violence cases in criminal and family courts has resulted in the development of education programmes to assist judges. There is limited research on judicial education in this area. This paper reviews one such initiative entitled ‘Enhancing Judicial Skills in Domestic Violence Cases’ (EJS) that has been developed and implemented over the last 20 years by the National Judicial Institute on Domestic Violence, a partnership of the US Department of Justice Office on Violence Against Women, National Council of Juvenile and Family Court Judges and Futures Without Violence. We present findings of a preliminary evaluation of the programme based on the self-reports of 480 judges who had taken the four-day workshop between 2006 and 2010. Overall, judges reported the programme to be engaging and effective. At a six-month follow‐up, most of the judges identified specific benefits and behavior changes in the areas of access to justice, judicial leadership, victim safety, and abuser accountability as a result of participating in the programme. Critical issues in judicial education are highlighted based on the authors’ experiences in the development and implementation of this programme.