Exporting Court Innovation from the United States to Continental Europe: Compatibility between the Drug Court Model and Inquisitorial Justice Systems

This paper explores the viability of the adoption of the American drug court model by European countries relying on inquisitorial justice systems, by focusing on the compatibility between key features of each. Discussion of the key features of the European inquisitorial systems focuses on their underlying ideologies and values. Discussion of the key features of the American drug courts is informed by data from a comprehensive nationwide survey of drug courts (the National Drug Court Survey).

The preference for rehabilitative goals, the very active judicial role of the judge, and the collaboration between defense and prosecution in inquisitorial systems are identified as elements highly conducive to the importation of drug courts. Treatment integration and the relative (in) flexibility to establish a legal framework for the operation of drug courts are identified as challenges to potential importation. Overall, there is a great deal of compatibility between key features of the drug courts in the US and key features of the inquisitorial systems of most European countries. This makes the adoption of drug courts in Europe a potentially viable response to illegal drug use and drug‐related crime.     

Constitutional courts as promoters of political centralization: lessons for the European Court of Justice

A cross-section analysis covering up to 42 countries and including the usual control variables shows that central government outlays as a share of general government outlays are significantly larger if the judges of the constitutional or supreme court are independent of the federal government and parliament and if the barriers to constitutional amendment are high. This evidence is consistent with the view that constitutional judges have a vested interest in centralization or that there is self-selection or both. These insights are used to draw lessons for the reform of the European Court of Justice. Self-selection should be reduced by requiring judicial experience—ideally with the highest national courts. The vested interest in centralization could be overcome by adding a subsidiarity court.     

What Determines Judicial Prestige? An Empirical Analysis for Judges of the Federal Court of Australia

This article examines judicial citations to analyze the determinantsof judicial prestige in the Federal Court of Australia. Firstwe construct two alternative measures of judicial prestige forall current and retired judges of the Federal Court. Second,we regress these measures of judicial prestige on a series ofexplanatory variables covering age on appointment, appointinggovernment, prior experience, which law school the judge attended,how many law review articles the judge has published, gender,and tenure. We compare our results with those of previous studiesthat examine the determinants of judicial influence and prestigein courts in the United States and the High Court of Australia.One of the main contributions of the article is to provide evidencefrom an intermediate appellate court that can be used to testthe general application of findings as to what determines judicialprestige in the United States to courts in other countries withdifferent institutional frameworks.     

UNIQUE CONTRIBUTIONS OF LIMITED JURISDICTION TRIAL COURT JUDGES

An examination is made of the extent to which limited jurisdiction trial court judges make unique contributions to court policies. The methodology and political implications of minor court research differs from those in higher courts. Analysis of variance found that minor court judges in multiple-judge courts differed in the level and uniformity of fines and costs assessed in misdemeanor cases. Binary tests for regression discontinuity found that judges in single-judge courts initiated policy changes upon entering office. Such knowledge of unique judicial contributions would enable citizens and court officials to make informed decisions in judge selections and court reforms.     

Judicial Behavior After a Change of Regime: The Effects of Judge and Defendant Characteristics

This article examines the determinants of judicial behavior in the context of transition. It tests two assumptions: first, that the judges with experience from the pretransition criminal justice system behave differently from the judges with no such experience; second, that minorities are discriminated against due to their dominant position in society before the transition and stereotypical attitudes after the transition. Using evidence from trial-level courts in Estonia, we find no statistically significant effects between case outcomes, the experience of the judge, and the ethnicity of the suspect.     

司法的限度：在司法能动与司法克制之间

我国法院从司法改革初期积极扩张司法权的一端,转变到面对社会矛盾复杂性而采取自我限缩策略的另一端,暴露出司法权运作边界模糊的问题。社会需求决定了司法的供给,但司法权的能力是有限的,其机能的发挥有赖于一定的条件,而且当事人人数的多少、案件的复杂程度等都会影响司法权的能力。司法权应当恪守自己的边界。对超越自身能力的事情保持克制,是司法权威的必要保证。     

The Court's Role in Promoting Comprehensive Justice for Pregnant Drug and Alcohol Users

Drug use during pregnancy is an important social and medical issue. Legislatures and courts have offered a variety of responses, ranging from imprisonment to comprehensive service programs that are rehabilitative in nature. This article discusses the prevalence and effects of prenatal drug use, followed by a presentation of the scope of legal responses and treatment options. Some courts do not provide outreach services for drug‐offending mothers, while others may offer a limited range of services. In contrast, a comprehensive justice approach would provide a wide range of health, employment, and social programs for the offender. This approach is based on philosophies of restorative justice, therapeutic jurisprudence, and procedural justice. Such a theory‐based comprehensive justice program ultimately benefits mothers, children, and the community. Considerations are offered for judges who seek to implement a comprehensive justice approach to address this important problem.     

“<Emphasis Type="Italic">Peer effects</Emphasis>” or “<Emphasis Type="Italic">quasi</Emphasis>-<Emphasis Type="Italic">peer effects</Emphasis>” in Spanish labour court rulings

The current work seeks to ascertain whether rulings on dismissal cases issued by incumbent judges in Spanish labour courts are influenced by whether they are acting alone in their own court or sharing duties with other judges such as replacement judges, support judges or incumbent judges from other courts. We consider that a court is treated when more than one judge rules in it. Then, an analysis is conducted so as to determine the effect of such a treatment on the percentage of cases ruled in favour of the dismissed worker. The data used in the research are taken from the information recorded at court level provided by the statistics kept by the General Council of the Spanish Judiciary. A total of 2888 observations were available, corresponding to the period spanning 2004 to 2012. As regards the findings, it may be concluded that there is a significant positive impact on the number of dismissal cases ruled in favour of workers when incumbent judges are not acting alone in their court, particularly when the incumbent judge solves cases together with another professional judge.     

Lay Participation in Danish Crime Trials: On the Interaction between Lay and Professional Judges during Deliberation

While there is abundant research on common law jury systems, we know less about lay participation in civil law crime trials, often called ‘mixed courts’ or alternately ‘mixed tribunals'. Here, a professional judge and a number of lay judges deliberate together on the issues of guilt and sentencing. This joint deliberation has naturally led both public opinion and research to focus on power relations such as lay judges’ dependence on the professional judges. Based on an ethnographic study of deliberation processes, the present article offers a different perspective on lay judges’ contribution and argues that their decision making rests on a hybrid construction of knowledge in the continuous interaction between the professional judge and lay participants during deliberation. The analysis of this decision‐making process contributes to our understanding of how ordinary people selected for this civic duty create knowledge about justice.     

法官释明权之理论阐释与立法完善

在百余年的发展历程中,法官释明权的功能已从救济弱势当事人演进到促进法官与当事人之间的沟通、避免突袭裁判的不意打击;到现代更发展为以达成共识为目的,促进当事人之间以及当事人与法院之间的共同讨论交流。法官释明权对促进实质正义与程序正义的实现有不可或缺的作用。完善我国有关的法官释明规范,是民事诉讼法修改的一项重要内容。     

An Important form of Improvement of the Professional Skills of Justice Personnel

In accordance with the joint decree of the CPSU Central Committee and the USSR Council of Ministers of July 30, 1970, "On Measures to Improve the Work of Judicial and Procuracy Organs," and Decree No. 640 of November 12, 1970, of the RSFSR Council of Ministers, permanent republic-wide courses for improving the qualifications of justice personnel in the RSFSR have been organized in that federation. Here members of supreme courts of autonomous republics, members of territorial, regional, city, and national area courts, presiding judges of district (or city) people's courts, people's judges, consultants of departments of justice and of courts, notaries, and defense attorneys will undergo retraining. Branches of the republic-wide courses for bailiffs, office heads, secretaries of courts and hearings, clerks, and inspectors are being established in affiliation with the ministries of justice of autonomous republics and the justice departments of the executive committees of territorial and regional Soviets of working people's deputies.     

Use and Misuse of Language in Judicial Decision-Making: Russian Experience

In my paper I will analyze decisions of the Russian Constitutional Court and courts of general jurisdiction, in which they interpret ordinary and seemingly unambiguous words and phrases. In a number of cases this interpretation is made in a manner, which is suspect from a linguistic point of view. The analysis shows that there is no consistency in the application by Russian courts of the “plain language” rule and that literal interpretation may be used selectively as a means of legitimizing the decisions made on non-linguistic grounds. Though literal interpretation can be often incompatible with the concept of justice and therefore judges should also take into account other criteria, there are examples of court decisions, in which literal interpretation would have been more appropriate from the perspective of justice, separation of powers and human rights. The article shows how use and misuse of language by judges is employed as a tool in judicial decision-making.     

我国法官的重组与分流研究

法官职业化和精英化是法治对现代司法体制的必然要求。我国现有法官人数过多,素质不高,不能满足这一条件。因此,应在重新界定我国四级法院性质和功能的基础上,按照现代审级制度的要求确定各级法院的法官员额和任职资格,并对现任法官进行重组与分流,以优化法院人员结构,构建法官少、辅助人员多的新型法院。     

Breaking the Principle of Secrecy: An Examination of Judicial Dissent in the European Constitutional Courts

As “oracles of the law,” judges are trained to provide certainty and guidance within an often‐uncertain legal landscape. Nowhere is this statement truer than in the civil law tradition, where the idea of legal certainty has been prized as a “supreme value.” Despite this tradition, dissenting opinions are now quite common within most European constitutional courts. Using new data from five countries and interviews with constitutional court judges and clerks, I investigate factors that contribute to dissent on constitutional courts. Results indicate that legal and policy characteristics matter, but so do judicial backgrounds and the issues reviewed.     

THE PRO SE LITIGANT'S STRUGGLE FOR ACCESS TO JUSTICE

Just as the growth of pro se litigation is a challenge for the courts, so, too, is the bench and bar's resistance to pro se assistance programs and policies a challenge to court reformers seeking to improve access to justice. Even where progressive courts have been able to implement court-annexed pro se assistance programs, judicial and bar resistance to pro se assistance in the courtroom remains. This paper explores the reasons for such resistance, and argues that pro se litigants have a right to receive—and judges have an obligation to provide—reasonable judicial assistance, particularly in cases involving a represented and an unrepresented party. A set of recommendations is offered which will result in pro se litigants being given more basic legal information than previously provided, better preparation of pro se cases, and a more active judge to ensure that all parties have equal access to justice.     

Alive and well: the good faith principle in Turkish contract law

Good faith is a principle prominent in civil law countries but less so in common law countries, and which allows courts to deviate from black letter law. It provides them with flexibility to change the outcome of a deductive legal decision if they regard it as absurd. The principle of good faith thus empowers the judiciary to deviate. It can be used for an indefinite number of cases and might lead to almost all conceivable legal consequences. For instance, the judge can invalidate the contract, change the price, suspend or change a clause in the contract, or grant injunctive relief, compensation of damages, the disgorgement of profits or a removal claim. We argue that if the principle of good faith is used to develop contract law into an instrument for redistributing wealth in favor of poor parties, this can destroy the concept of contract as a social mechanism for generating mutual gains for parties, which might lead to unwanted economic consequences in terms of efficiency losses. We argue that the principle of good faith must be carefully and reluctantly used to reconstruct the fully specified contract and that well-informed judges, who understand the factual environment of a contract well should ask how fair bur self-interested parties would have allocated the risk in a pre-contractual situation. If the courts restrict the application of the good faith principle to these functions, this provides elasticity that otherwise would not exist if courts would strictly use the rules laid down in black letter law. Moreover, it saves transactions costs and is therefore in line with economic reasoning. We look at the most important Turkish cases and find that the Turkish Supreme Court following Continental European doctrines of good faith actually uses this principle to curb opportunistic behavior of parties and not to achieve redistribution from the rich to the poor by way of interfering into contract law.     

Reclaiming Futures: A Model for Judicial Leadership in Community Responses to Juvenile Substance Abuse

Juvenile courts across the country have become the leading service delivery system for youths with substance abuse problems, not by choice, but by necessity. At 10 communities around the nation, judges and project staff are in their fifth year of pioneering changes to the way the juvenile justice system helps teens in trouble with drugs, alcohol, and crime. These judges are part of Reclaiming Futures, an initiative of the Robert Wood Johnson Foundation, and they are working with local leaders to re‐invent the way law enforcement, courts, probation, detention facilities, treatment providers, families, schools, and the community work together to help troubled youths succeed. Together, they have written a guide for judges, court administrators, government entities, community leaders, and interested citizens to share the knowledge and experience they have gained from the nationwide Reclaiming Futures initiative. Their goal is to encourage and motivate others to launch similar projects in their communities, and to provide a blueprint for judges and others striving to undertake this level of collaboration.     

刑事审前法官权力构成比较研究

刑事审前法官是世界上主要法治国家均重点建制的法官序列，它对刑事诉讼的公正与效率、保障被追诉人的权利、制约侦查与公诉权力、过滤不当追诉特别是维护司法中立具有重要意义。我国《刑事诉讼法》的再修改近在眼前，趋同全球范围内民主、文明的刑事诉讼趋势，建立我国的刑事审前法官制度十分必要。刑事审前法官的权力构成是刑事审前法官制度的核心，对其进行比较研究，可为我国建构科学、合理的刑事审前法官制度提供借鉴。     

Effects of Court Officials on Sentence Severity: Do Judges Make a Difference?

The present article examines the effects on sentencing of a number of variables measuring court actors and their traits. Sentencing patterns were shown to vary substantially from judge to judge but the differences were found to be related more to the types of cases judges received than to sentencing styles of individual judges. Independent of traditional sociodemographic traits of offenders and legal variables, individual judges do not appear to sentence differently. Moreover, when we estimated equations which included judicial background characteristics, there were no discernible independent effects. These findings differ from both informed intuition and inferences one might draw from previous research. Consideration of subcultures of justice and cases on which court officials disagree about sentences may help explain differences between present and past research.     

Fairness, Justice, and Legitimacy: Experiences of People's Judges in South Russia

Which criteria do Russians use to evaluate the fairness of their judges, and how does perceived fairness of actual trials influence general beliefs about Russian courts? Lay assessors at courts in South Russia were asked about their experience serving on mixed courts. The justice of the verdicts rendered and the fairness of judges partly explain the respondents’ view of national courts. According to the results, the respondents are also using similar criteria for fairness as Americans or Germans. The social and psychological group effects in a Russian court of lay assessors exhibit a striking similarity to other Western tribunals.