Law Commons^™

The Judge's Ethical Duty To Report Misconduct By Other Judges And Lawyers And Its Effect On Judicial Independence, Leslie W. Abramson

Leslie W. Abramson

This Article discusses the judge's ethical duty to report misconduct by other judges and lawyers and the effect of this duty on judicial independence. It examines the judicial duty to disclose, compares it to a lawyer's ethical duty to disclose, and surveys several issues of interpretationand application of the judicial ethical requirement including when the duty to report arises, what misconduct should or must be reported, and what actions or disciplinary measure are appropriate for the judge to pursue. In addition, it discusses exceptions to the duty to disclose andproposes modification of the existing ethical standard.

Justice Under Siege: The Rule Of Law And Judicial Subservience In Kenya, Makau Mutua

Makau Mutua

The piece examines the tortured history of the judiciary in Kenya and concludes that various governments have deliberately robbed judges of judicial independence. As such, the judiciary has become part and parcel of the culture of impunity and corruption. This was particularly under the one party state, although nothing really changed with the introduction of a more open political system. The article argues that judicial subservience is one of the major reasons that state despotism continues to go unchallenged. It concludes by underlining the critical role that the judiciary has to play in a democratic polity.

Against Circumspection: Judges, Religious Symbols, And Signs Of Moral Independence, Benjamin Berger

Benjamin L. Berger

This chapter questions the interpretation of religious ­ signs and symbols— and the interpretive possibilities that emerge when we demand more from one another in thinking about such symbols— by ­ examining the question of judges and religious dress in the particular context of the judge’s role as wielding the coercive force of the state through the exercise of criminal punishment. I advance the argument that recent debates have proceeded on a misleadingly simplistic approach to understanding the meaning of signs of religious belonging and identity in this setting and that, with this, we miss an opportunity for a deeper …

The Irrepressible Myth Of Klein, Howard M. Wasserman

Howard M Wasserman

The Reconstruction-era case of United States v. Klein remains the object of a “cult” among commentators and advocates, who see it as a powerful separation of powers precedent. In fact, Klein is a myth—actually two related myths. One is that it is opaque and meaninglessly indeterminate because, given its confusing and disjointed language, its precise doctrinal contours are indecipherable; the other is that Klein is vigorous precedent, likely to be used by a court to invalidate likely federal legislation. Close analysis of Klein, its progeny, and past scholarship uncovers three identifiable core limitations on congressional control over the workings of …

Praise Defenders, Not Just Prosecutors, Stephen E. Henderson

Stephen E Henderson

Chief Justice Harry L. Carrico And The Ideal Of Judicial Independence, Rodney A. Smolla

Rod Smolla

Not available.

U.S. Judicial Independence: Victim In The “War On Terror”, Wayne Mccormack

Wayne McCormack

One of the principal victims in the U.S. so-called "war on terror" has been the independence of the U.S. Judiciary. Time and again, challenges to assertedly illegal conduct on the part of government officials have been turned aside without addressing the merits, either because of overt deference to the Government or because of special doctrines such as state secrets and standing requirements. This paper catalogs the principal cases first by the nature of the government action challenged and then by the special doctrines invoked. The U.S. judiciary has virtually relinquished its valuable role of judicial review. In the face of …

The Contours Of Judicial Tenure In State Courts Of Last Resort: Accountability Vs. Independence, Todd A. Curry

Todd A. Curry

The study of state courts of last resort is a field which has, up until recently, been significantly underrepresented in political science (Baum 1987, Dubois 1980). The bulk of work in judicial politics over the last fifty years has focused on the federal system. Furthermore, the study of state courts allows for a true comparative analysis. The methods of selection used for the staffing of state courts of last resort are highly varied. There are five distinctly different methods which are used for judicial selection in the states, and many states have institutional nuances that provide further variation for study. …

Public Reporting Of Courts’ Performance – How Is This Best Achieved?, Matthew S.R. Palmer

The Hon Justice Matthew Palmer

In this address Matthew Palmer suggests: 1 The disclosure of information, probably more information than the judiciary feels comfortable disclosing, in a simple, straightforward, unvarnished way, is essential to the medium term constitutional legitimacy of the judiciary. 2 Judges, public servants and politicians speak different languages. Recognising the differences is the first step to a better understanding of, and communication with, each other and, perhaps to mitigating the potential for constitutional conflicts to get out of hand. 3 It’s not constitutionally appropriate for the executive or legislative branches of government to decide, over the wishes of the judiciary, on the …

Some Reflections On Historical Elements In Contemporary Written Constitutions: Selected Examples And A Recent Case In Hungary, Stephan Foldes

Stephan Foldes

Examples of historical law being included in today’s constitutional law are provided by constitutional enactments of the United States, Canada, Sweden, Norway, Belgium, Finland, Luxembourg, Germany, Ireland, France, Turkey, Slovakia, the Czech Republic, and Hungary. Issues of interpretation and application are again raised by a recent case decided in the Constitutional Court of Hungary.

Lack Of Judicial Independence And Its Impact On Transnational And International Litigation, Omar E. Garcia-Bolivar

Omar E Garcia-Bolivar

This article is about the impact of lack of judicial independence in different areas of transnational and international litigation, such as enforcement of foreign judgement and investment disputes.

The Dimensions Of Judicial Impartiality, Charles G. Geyh

Charles G. Geyh

Abstract: Scholars have traditionally analyzed judicial impartiality piecemeal, in disconnected debates on discrete topics. As a consequence, current understandings of judicial impartiality are balkanized and muddled. This article seeks to reconceptualize judicial impartiality comprehensively, across contexts. In an era when “we are all legal realists now,” perfect impartiality—the complete absence of bias or prejudice—is at most an ideal, with “impartial enough” becoming, of necessity, the realistic goal. Understanding when imperfectly impartial is nonetheless impartial enough is aided by conceptualizing judicial impartiality in three distinct dimensions: A procedural dimension in which impartiality affords parties a fair hearing; a political dimension in …

The Role Of Philippine Courts In Establishing The Environmental Rule Of Law, Elizabeth Barrett Ristroph

Elizabeth Barrett Ristroph

In 2010, the Supreme Court led the Philippines to become the first nation with rules of procedure specific to environmental cases. This article examines environmental cases before and after the implementation of the rules, proposing a definition for the “environmental rule of law” and analyzing how the Court has contributed to it. While the Philippines has made great strides in adopting environmental laws and providing access to courts, more work is needed to ensure consistent decisions and to build capacity in both lower courts and government agencies. As shown in the case of Metropolitan Manila Development Authority v. Concerned Residents …

University Of Baltimore Symposium Report: Debut Of “The Matthew Fogg Symposia On The Vitality Of Stare Decisis In America”, Zena D. Crenshaw-Logal

Zena Denise Crenshaw-Logal

On the first of each two day symposium of the Fogg symposia, lawyers representing NGOs in the civil rights, judicial reform, and whistleblower advocacy fields are to share relevant work of featured legal scholars in lay terms; relate the underlying principles to real life cases; and propose appropriate reform efforts. Four (4) of the scholars spend the next day relating their featured articles to views on the vitality of stare decisis. Specifically, the combined panels of public interest attorneys and law professors consider whether compliance with the doctrine is reasonably assured in America given the: 1. considerable discretion vested in …

Stern V. Marshall, And The Power Of Bankruptcy Courts To Issue Final Orders On All Compulsory Counterclaims, Ronald D. Rotunda

Ronald D. Rotunda

Article III of the Constitution grants federal district judges, appellate court judges, and Supreme Court Justices important constitutional protections (lifetime tenure and no salary diminution) to guarantee their independence. However, the Supreme Court has allowed Congress to create, under Article I, a different class of judges (called "Article I judges"). These judges (such as tax court and bankruptcy court judges) do not have Article III protection and thus do not share Article III independence. Although we might think of Article I judges as administrative law hearing officers, they do exercise some judge-like powers. The extent of those powers raises fundamental …

Judicial Independence At The Crossroads: Grappling With Ideology And History In The New Nepali Constitution, David Pimentel

David Pimentel

Nepal is struggling to produce a new constitution, the blueprint for a new post-monarchic state, and major conflicts over the structure of the new judiciary have arisen. The rhetoric of the debate is deceiving, however. All sides argue for the same things, including judicial independence and accountability, but profound ideological differences vest those words with very different meanings for each party. Resolving these issues will require a mutual appreciation of the ideological differences and of the historical roots of the judiciary’s problems. The path forward begins with recognition that the answer does not necessarily lie in “international best practices” or …

Electing Our Judges And Judicial Independence: The Supreme Court's "Triple Whammy", Martin Belsky

Martin H. Belsky

In this article, Martin Belsky makes the case for judicial selection based on merit, as opposed to popular elections. Belsky cites Caperton v. A.T. Massey Coal Company and the recent defeat of three Iowa supreme court justices because of their opinion in a controversial gay marriage case for the proposition that judicial elections can, and do, yield unjust results. Belsky asserts the need for judicial independence, but concludes that this goal is not achievable through elections because of the "triple whammy" of constitutional limitations: (1) the First Amendment protection of the right of judges and judicial candidates to give specific, …

Judicial Independence In Light Of The Basic Principles On The Independence Of The Judiciary: Who Has The Right Idea?, Ubaid Ul-Haq

Ubaid ul-Haq

Judicial independence is a crucial component inherent in the proper and effective administration of any government. Critical to this doctrine is the larger requirement of a separation of powers, which must be established before attempting to affect any concept of judicial independence. Judicial independence essentially represents a judiciary’s ability to render decisions free of improper influences, both internal and external. The United Nations has set forth a minimum standard of judicial independence with which States should seek to comply in order to protect civil liberties and in a greater sense, human rights. Evaluating the jurisdictions of Canada, Jamaica, and the …

Miscarriage Of Chief Justice: Judicial Power And The Legal Complex In Pakistan Under Musharraf, Shoaib Ghias

Shoaib A. Ghias

This article explores the struggle for judicial power in Pakistan under Pervez Musharraf focusing on two questions. First, how did pro-Musharraf regime judges expand judicial power, leading to a confrontation with the regime? Second, how did the bar and the bench mobilize in the struggle for judicial power? The author shows how, instead of blindly supporting economic liberalization in a period of economic growth, the Supreme Court expanded power by scrutinizing questionable urban development, privatization, and deregulation measures in a virtuous cycle of public interest litigation. The author also describes how a politics of reciprocity explains the social mobilization of …

Judicial Independence In East Asia: Implications For China, Tom Ginsburg

Tom Ginsburg

This chapter explores the experience of China’s East Asian neighbors with regard to judicial independence, with an eye toward drawing lessons for China’s own reforms. Japan, Korea and Taiwan collectively provide a useful vantage point to examine developments in China because their rapid growth from the 1950s through the 1990s represents that greatest sustained example of rapid growth in world history. The only comparable period of growth is that of contemporary China, now nearing the end of its third decade. The East Asian cases are also relevant to China because the countries in the region share certain cultural traditions, and …

Judicial Campaign Financing: An Ever Present Threat To Judicial Independence, Sarah J. Morath

Sarah J Morath

The different processes by which state judges are selected is an increasingly popular topic for discussion amongst legal scholars and practitioners. While many law review articles and discussions advocate for one method of judicial selection over the other, this article addresses one specific and significant concern with the elective method: campaign financing.2 As this article explains, campaign financing can impair judicial independence and inhibit fair and impartial decisions. Fortunately, the appointive system is insulated from the pressures and problems associated with campaign financing, a benefit which is all the more evident today when everyone, including judges, face difficult economic times. …

Decisional Independence In Opinion Writing: What A Judge May Not Do, Beth Shankle-Anderson

Beth Shankle-Anderson

This comment explores the concept of judicial independence. It is largely based on the recent Florida Supreme Court decision regarding Judge Michael E. Allen of the First District Court of Appeal. In its opinion, the Court shows restraint in curbing decisional independence by judges while expressing the need to curtail specific, but very limited, opinion writing by the judiciary.

The Perils Of Foreign Contracating In China, Debra J. Reed

Debra J Reed

QUESTION PRESENTED

Whether a business contract executed between a foreign party and a Chinese party is enforceable in the courts of the People’s Republic of China?

BRIEF ANSWER

Probably not. Foreign party reliance on Chinese courts to enforce their contracts is premature because China is not yet a rule of law country. Chinese courts do not exercise judicial independence. Political domination by the Chinese Communist Party, CCP, over the courts, and Chinese local protectionism both influence the outcome of cases. Moreover, the Chinese legal system is wrought with corruption. Because inexperienced judges adopt new laws at varying speeds and apply …

Education For Judicial Aspirants, Keith Fisher

Keith R. Fisher

Introductory judicial education (IJE) is an avenue for improving both appointive and elective systems of judicial selection. The impetus for considering this topic can be traced back to a lingering unease with judicial selection and the ongoing (though now somewhat stagnant) debate over merit selection. Moreover, changes in the nature of law practice and the judicial role over the past several decades have rendered the gap between the two activities increasingly large. IJE is an effort to maximize the chances that judicial selection, by any process, will result in a judiciary composed of competent individuals who are not only philosophically …

Comparing Judicial Compensation: Apples, Oranges, And Cherry-Picking, Matthew W. Wolfe, Reed Watson

Matthew W. Wolfe

United States Supreme Court Chief Justice John Roberts describes the American judiciary as the envy of other constitutional democracies. But in one respect, the judiciary apparently trails others: judicial pay. Citing higher salaries of judges in other countries, Chief Justice Roberts and Associate Justices Stephen Breyer and Samuel Alito have all argued that inadequate judicial pay leads to a decline in judicial performance and quality. Judicial pay advocates apparently make these comparisons to emphasize that low judicial salaries “threaten” judicial quality and independence or, alternatively, that high judicial salaries “ensure” quality and independence. But the argument is incomplete, relying upon …

Judicial Independence: A Call For Reform, Terence Lau

Terence Lau

According to retired Justice Sandra Day O’Connor, judicial independence is threatened now more so than any other time throughout history. Attacks on the judiciary have crossed the line from legitimate criticism to partisan harangues that threaten the ability of judges to rule fairly and without bias. This Article begins with a historical look at judicial independence as it has shaped the Supreme Court, including the impeachment of Samuel Chase, Ex ParteMcCardle and the court-packing plan and concludes with a call for reform to the judicial appointment process to permit greater transparency in judicial selection.

Lawyers Hold The Key: Attacks On Judicial Independence Are Based On Ignorance And Are Best Parried By Lawyers Themselves, John L. Gedid

John L. Gedid

No abstract provided.

Judicial Independence And The Rule Of Law: Lessons From Post-Menem Argentina, Christopher J. Walker

Christopher J. Walker

Argentina, like much of Latin America, has historically been plagued by what some call delegative democracy or a democracy without any developed rule of law. However, the Kirchner Administration has brought a glimmer of hope to the twentieth-first-century Argentine democracy. President Néstor Kirchner was elected in 2003, after what was probably the most serious institutional, financial, and economic crisis in Argentina in recent times. When elected, Kirchner promised to address the perceived lack of independence of the Supreme Court and to restore the rule of law. This paper explains why Kirchner's efforts, without more, will not be enough to (re-)build …

Toward Democratic Consolidation? The Argentine Supreme Court, Judicial Independence, And The Rule Of Law, Christopher J. Walker

Christopher J. Walker

Too little attention has been paid to the role of judiciary in strengthening democracy and the rule of law in Latin America, with even less attention on the Argentine judicial system. In this paper, the role of the courts in consolidation will be examined through the Argentine case study. Part I outlines the current state of the literature on democratization and the rule of law with respect to Latin America, while Part II reviews what has been written about the Latin American judiciary and its influence on the rule of law. Part III evaluates the development of the judiciary and …