Lowering the Bar: Privileged Court Filings as Substitutes for Press Releases in the Court of Public Opinion

In the civil lawsuit against Kobe Bryant for sexual assault, the judge admonished lawyers for engaging in “public relations litigation”—the use of pleadings to attract media attention and try cases in the court of public opinion. This article examines the legal ramifications of such practices and the doctrines of law that encourage some lawyers and litigants to use pleadings as a form of press release. These include the law of republication and the fair report and judicial privileges as well as the power of judges to gag trial participants. The article concludes that courts have adequate tools to control such practices, and lawyers and public relations professionals can responsibly use court documents to communicate with the public, so long as they do not abuse the judicial process.     

Advocates,experts, and suspects: three images of lawyers in Chinese media reports

Research on the public image of lawyers often focuses on lawyers’ role as advocates and neglects other representations. Based on the content analysis of 669 media reports of Chinese criminal cases between 1979 and 2009, this article provides a typology of lawyers’ media images: as advocates, as experts and as suspects. Even when lawyers are characterized as defenders of suspects, media depictions of their roles are vacuous and lawyers may be considered unnecessary and dispensable. Furthermore, the characterization of lawyers in the case stories has a binary quality that is contingent upon the media's substantive judgment of case outcomes. With findings from the Chinese case, the article calls for more attention to lawyers’ images in the media, both in China and in comparative research on the legal profession.     

Campaigning to eradicate court delay: power shifts and new governance in criminal justice in Argentina

Since the transition to democracy court delay has been a powerful signifier of the problem of the criminal justice in Argentina. This has been the case particularly in the Province of Buenos Aires where court delay was constantly projected by the Provincial Government’s narrative as evidence of injustice and/or inefficiency in the system. It has been the focus of sustained political attacks upon judges, defence lawyers and public prosecutors by members of the national and provincial parliaments of Argentina. These narratives of court delay have enabled a number of reforms of the criminal justice system which have reshaped organisational practices to the extent of constituting a new and different strategy of producing justice. This article identifies, describes and makes sense of those discourses and practices, and the strategies and tactics behind them by analysing the governmental narrative and the judicial and organisational reforms.     

The Social Organization of Legal Services to Indigent Defendants

This article draws together materials portraying appointed counsel services in a variety of jurisdictions to illustrate the role of court organization in shaping legal services to indigent defendants. Many criminal courts are bifurcated into preliminary hearing and trial courts. Legal representation of indigents is frequently organized to parallel these stages. As a result, indigent defendants receive defense services from a succession of different lawyers at different stages of their cases. This occurs in three ways. First, some defendants legally eligible for appointed counsel at the inception of their cases have counsel appointed for them only at the trial court after initially employing their own counsel at the preliminary hearing. The dual court system encourages such one-stage representation by private lawyers by facilitating their withdrawal between stages of a case. Second, indigents may also have different private lawyers appointed to represent them at different stages because judges, interested in efficiently running their court calls, desire that particular lawyers represent indigents in their courtrooms. Finally, defender offices often assign different lawyers to different stages as a result of both the demands by judges that defenders be assigned exclusively to their courtrooms and the costs of delivering continuous legal services in a tiered judicial system. For indigent defendants the sequential system of representation may adversely affect the quality of case preparation and undermine a sound attorney-client relationship.     

THE BEST SEAT IN THE HOUSE: THE COURT ASSIGNMENT AND JUDICIAL SATISFACTION

A survey of 355 judges examined the differences in judicial satisfaction between those assigned to problem-solving courts—such as drug treatment and unified family—and judges in other more traditional assignments such as family law and criminal courts. The unified family court systems, like drug treatment courts, have generally adopted the principles of therapeutic jurisprudence. Significant differences were found on each of the three survey scales: (1) helpfulness, (2) attitude toward litigants, and (3) positive effects of assignment. The judges who were in the problem-solving courts (drug treatment and unified family court) scored higher on all three scales than those who were not (traditional family and criminal court). The group of problem-solving court judges consistently scored higher than the other group of judges, with the drug treatment court judges scoring the highest. The group of traditional criminal court and family court judges scored less positively, with the criminal court judges having the lowest scores. The problem-solving court judges were more likely to report believing that the role of the court should include helping litigants address the problems that brought them there and were more likely to observe positive changes in the litigants. They were also more likely to believe that litigants are motivated to change and are able to do so. They felt more respected by the litigants and were more likely to think that the litigants were grateful for help they received. The problem-solving court judges were also more likely to report being happy in their assignments and to believe that these assignments have a positive emotional effect on them.     

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.     

论程序正义视域下的中国刑辩律师困境

律师职业自产生之初就与正当程序有着紧密联系,正是程序正义赋予了律师职业以内在的价值追求.但现今的中国刑事辩护律师却处境尴尬：他们参与刑事辩护率低迷;在刑事诉讼中的各项权利难以保障;有时深受社会公众与媒体舆论的怀疑、攻讦,甚至有可能面临牢狱之灾.一系列问题表明,刑事辩护作为司法程序中的重要环节,正日益失去其维护司法公正的的意义和作用.因此,要突破律师现今面临的种种困境,必须在现念上和制度上进一步落实程序正义.     

Nature versus Nurture: A Comparison of Russian Law Graduates Destined for State Service and for Private Practice

This article explores the mind‐set of Russian law students on the cusp of graduation. Drawing on a 2016 survey, the analysis finds that, despite having taken different paths to their degrees, the respondents share a confidence in the Russian courts that distinguishes them from Russians without legal education. Within the sample, a natural division is evident between those who plan to go into state service and those who plan to go into private practice. Aspiring state lawyers are more likely to support the policies of the Putin regime, even when they preference politics over the letter of the law. This strongly suggests that the tendency of judges and state lawyers within the criminal justice system to work as a team to ensure convictions is not solely the result of workplace incentives, as had previously been assumed, but is an element of a worldview that these lawyers share that predates their legal education. Aspiring private lawyers, by contrast, are consistently more skeptical of the state. To the extent that they are later coopted by the state, as studies of criminal defense lawyers suggest, such behavior would likely be the result of a desire to endear themselves to investigators and prosecutors in order to ensure further appointments to represent indigent clients.     

Judicial misconduct

Although judges are subject to the same human frailty as all other members of society, they must expect their conduct to be the subject of constant public scrutiny. This article examines instances of judicial misconduct in the USA. It considers various aspects of misconduct including humour, courtroom management, denigration of lawyers, racist speech, sexual harassment, acceptance of gifts, alcohol misuse, and financial conduct. These illustrations of misconduct by judicial colleagues are intended to serve as cautionary tales from which judges in other jurisdictions can learn lessons as they to seek to act in a manner that promotes public confidence.     

透过民国时期的法官与律师看司法腐败的生成——以江西地区为例

民国时期江西地区是一个富有多样性的司法实践场域,而司法制度变革成效有赖于法律职业群体的努力推进,其中以法官和律师的作用最为关键。由于狭隘的地域人际圈子,造成具有共同专业背景的法官与律师之间固结勾兑的利益联盟。而日益困窘的生活状况又加剧了司法人员权力寻租的恶习,加上司法人员岗位轮换频繁的体制影响,使得家祠化的司法机关成为任用私人和贪赃枉法的渊薮。备受社会舆论和当事人抨击的法官和律师,同时也频频受到体制内的检控惩戒,寄望于如此消极低效的法律职业群体来推进司法制度变革前行,无异于痴人说梦。腐败不堪的江西地方司法预示着基层民众对法律信仰的彻底丧失,而这些旧法统的操持者注定要为旧法统和旧政权殉葬。     

Dialogue and the Inquisitorial Tradition: French Defence Lawyers in the Pre-Trial Criminal Process

Recent years have seen an intermittent debate amongst journalists, policy-makers and academics in adversarial jurisdictions about the nature and quality of the inquisitorial tradition in criminal process. Much of the political impact of the debate in Britain has stemmed from the view asserted periodically by certain high profile figures that some form of judicial supervision of police investigation – as practised for example in France – might be introduced in England and Wales.¹ Such views tend to find expression when events call into question not just particular rules but also the underlying structures and assumptions of our adversarial tradition of criminal process. Thus in 1991 the public revelation of serious miscarriages of justice led to the appointment of a Royal Commission on Criminal Justice in which the adversarial character of the pre-trial process seemed to be a key point of interrogation.² The police view, demonstrated in a number of key cases, was that once they were clear that a suspect was guilty they had no responsibility to pursue exculpatory lines of investigation. This, combined with the failure of defence lawyers to play the extensive, autonomous investigative role the adversarial system demanded of them, encouraged some to ask whether there might not be advantages in somehow ensuring that the resources and rights of the state were devoted to pursuing exonerating as well as incriminating evidence. Given the limited empirical evidence then available on the workings of judicial supervision in practice⁴ and the sometimes vehement dispute in France itself about the future of its pre-trial process and especially the juge d'instruction(examining magistrate), the proposals were perhaps not surprisingly rejected.⁵ But since the mid 1990s, British funders have begun to finance a number of empirical studies of French criminal justice.⁶ This paper reports the principal findings of a empirical study primarily funded by Britain's Economic and Social Research Council into the role of defence lawyers in France.⁷ Our focus and primary theme is the developing nature of their dialogue and exchanges with key state actors such as judges, prosecutors and the police on the one hand and with clients on the other. But in so doing we aim to cast light on the broader functioning of the pre-trial process in France.     

重庆“打黑”行动中媒体与司法的关系

在重庆“打黑”行动中,公安、司法司法机关在处理媒体与司法关系的过程中,有很多值得推广的经验,也有一些存在的问题。“打黑”行动中重庆市公安、检察机关新闻发布的经验有：重庆公安、司法机关适度公开信息体现执法文明,及时回应媒体质疑符合公诉机关的职责。“打黑”行动中重庆市法院及法官新闻发布的经验是：推行“分区就座”和“声音直播”实现审判公开;宣判时召开新闻发布会进行审后答疑。公安、司法机关在处理媒体与司法关系的过程中应当改进的方面是：限制个人隐私和证据内容的公开;对民众特别关注的案件应当庭审直播。     

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.     

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.     

Experiments in the Courtroom: Social Dynamics and Spectacles of Proof in Early Modern English Witch Trials

This article presents the composite social context surrounding the “experiments” that were used to prove witchcraft accusations in early modern England. It demonstrates that legal proof was not imposed by elite legislators and judges, or fashioned in accordance with the voice of scientific experts, but was shaped through complex social dynamics in which the middling sort and petty gentry fulfilled a crucial role. Through this process, popular beliefs percolated into judicial proceedings. Members of influential provincial families were the social agents who reconstructed old supernatural methods of proof into innovative rational experiments, often replicating public displays of proof that helped bolster the criminal charges and provided a competing arena of evidence. The article claims that the judges' cooperation with these “experiments” might have been an endeavor by the official legal system to circumvent the threat posed by a popular grassroots alternative to the exclusive jurisdiction of the court system.     

Police evaluative perceptions of themselves,the general public and selected occupational groups

In recent years the police have faced sharply increasing pressures, criticisms, and role confusions due to such factors as rising crime rates, widely publicized incidents of police corruption and brutality, judicial changes in legally acceptable due process procedures, and new functions and tasks being assigned to police. This study investigates aspects related to the effects of increased strains and role confusions on police. Specifically, the study examines, with a semantic differential scale administered to 492 state and city police, how police perceive themselves and their roles, and their perceptual evaluations of the general public and various groups they interact with. The findings indicate that the respondents evaluate themselves and their profession highly implying they have a positive self-concept and are favorably disposed to their career. The four most negatively evaluated groups were lawyers, college students, politicians, and prison inmates. The low evaluation of lawyers may be due to the respondents' view that attorney frustrate and complicate the criminal justice system.     

Up,Close and Personal: The Discursive Transformation of Judicial Politics in Post-Dutroux Belgium

Ending the influence which politicalparties exercised over judicial appointmentswas a prominent aim of the project of reformingthe Belgian criminal justice system in the1990s. However, focusing on various highprofile scandals affecting public confidence inthe judiciary, this paper questions whether thepolitical nature of the judiciary is capable ofbeing eradicated. Drawing on the work ofChantal Mouffe, this analysis starts with aconsideration of the discursive element inpolitical identity, which is furthercorroborated by the semiotics of Saussure andGreimas. Applying this perspective to theBelgian situation in the 1990s, it is arguedthat a redefinition of politics in terms of an``us/them' divide between citizens andinstitutions took place. In this process,judges were targeted as part of theestablishment and cast as the constitutiveoutside buttressing the collectiveidentification between the media, victims ofcrime and the general public. In explaining theinstitutional gap, individual traits of judgesconstituted a significant focus, as can beshown through the extraordinary visibility ofone judge who courted media attention when hewas tried for sadomasochistic activities in1997.     

Media coverage and public opinion of the O. J. Simpson trial: Implications for the criminal justice system

This article considers some of the beneficial and detrimental influences of media coverage of celebrity criminal trials based on a survey administered during the criminal trial of O.J. Simpson. Analysis indicates those who exhibited a stronger psychological involvement with Simpson developed through repeated media exposure were more likely to believe his innocence. African American respondents also were more likely to believe in Simpson's innocence than were others. Gender had no effect on beliefs of Simpson's guilt or innocence. Those with a strong belief in the fairness of the United States justice system more strongly supported unrestricted media coverage of the trial. Anglo Americans more than African Americans believed Simpson's lawyers used the media effectively for their advantage. Learning about the justice system by following the case resulted in increased interpersonal discussions about the legal system.     

High‐End Demand: The Legal Profession as a Source of Judicial Selection Reform in Urban China

Most studies of comparative judicial politics suggest that judicial autonomy emerges from democratic competition, but despite its authoritarian political system, China has introduced reforms that increase merit‐based competition, transparency, and modest professional autonomy in local courts. Variations in judicial selection procedures across urban China reflect differences in local markets for professional legal services: when mid‐ranking judges can easily find lucrative local employment as lawyers, court leaders strategically reform appointment and promotion mechanisms to retain these young, but experienced, judges. These findings are based on nearly fifteen months of in‐country fieldwork, conducted between 2012 and 2014, including forty‐nine interviews with judges across three different cities: Shanghai, Shenzhen, and Chengdu. Employing the subnational comparative method, this article not only builds theory regarding the legal profession's role in authoritarian states, but also offers new empirical detail regarding the selection, performance evaluation, and behavior of judges in urban China.     

组织视角下的民事诉讼发回重审制度

民诉法学界和实务界有关二审程序中的发回重审存在较大争议,该制度成为本次民诉法修改的重要议题之一。为了形成共识,对这一问题从法解释论的角度进行阐释解说尤为必要。为了限制发回重审裁量权的滥用,我国司法实践中采用程序细化与加强对审判的组织管理并行的策略。不过这种"程序"与"组织"的交织并不能真正抑制裁量权滥用,反而因剥夺当事人的程序参与权而损害审判的公信力。为调整二者的相互关系,应在审判管理的组织背景下保障审判程序的自主性,恢复当事人在程序运作中的结构性位置。