Comparative Courts: Exam 1 Study Guide

Shapiro: "Socio-logic of courts" What is the courts principal problem in maintaining legitimacy?

- Avoiding the perception of two against one

Judicial Councils

- Body that oversees judicial performance - Mostly staffed by sitting judges elected by other judges - Powers; recruitment, promotion, discipline - Claim to protect judicial independence

What are the founding principles of the EU? What can/did the EU do?

- Human Rights, Rule of law - Launched article 7 proceedings - Members of the EU agree to the "supremacy of EU law". In other words, when national law and EU law contradict, EU law prevails

Judicial independence:

- Independence from other political institutions

Dunoff & Pollack "The judicial trilemma": Theory and Argument

- Institutional designers of courts can only prioritize two of the three judicial independence, judicial accountability, and judicial transparency

Structural breaches of judicial independence: Hierarchical supervision by higher courts

- Judges are evaluated by superior courts that make decisions about promoting, salaries, transfers, and discipline are sensitive to those court's critiques - Ramseyer article on Japan

Veiled/Anticipated threats to de facto independence

- Judges believe they are threatened (e.g. Burundi) - Judges know the wishes of the regime and act accordingly (Pinochet's Chile, deflected politically sensitive cases to military courts) - Judges are provided incentives (e.g. Menem offers ambassadorships and prestigious posts to judges)

Guardian Judge

- Judges can decide against the legislator, but limited in their ability to alter policy - High independence & Low authority

What must be true for courts to matter in this way?

- Judges must be interested in protecting citizens from the state, securing rights for minorities, regulating the government - Governments must be willing to obey courts decisions

Legal Profession: Some issues

- Lawyers highly concentrated in western countries - Highly concentrated in urban areas - Typically very expensive - Greatest obstacle; the absence of lawyers or inability top pay for services

Shapiro: "Socio-logic of courts" Why do courts appear in almost every society

- Logic of triad: If two people cannot solve problem, they mutually agree on third to help them resolve it

Why do Courts Matter?

- Make sure rules are followed - Protect citizens from the state - Secure rights of minorities

Why would judges Not rule against a government?

- Maybe believe in limited role for courts - Maybe appointed by the party in power - Anticipate retaliation

Why would judges rule against a government?

- Maybe some intrinsic value for the rule of law - Maybe appointed by an opposition party - perhaps they're secure from retaliation (de cure judicial independence)

Shapiro: "Socio-logic of courts": What is the "most powerful" solution to the instability of the triad

- Mediation: third person facilitates mutual agree agreement between two parties

Executive Appointment:

- Most judges technically appointed by executive branch of gov, or crown in constitutional monarchies - practice in most common law countries

Examples of Career Service

- Netherlands: judges undergo psychological exam and assessment, letters of rec, and pass interviews - China: legal education, passage of examination, annual performance interviews

What was Mitch McConels response to this decision (king v. Burwell? Does he question the legitimacy of the court?

- No, he gives legislative reasons for repeal, the constitutionality doesn't matter, the bill is just bad and we can repeal it

Explanation for judicial empowerment?

- Occurred with the courts right to judicial review/ ability to invalidate executive or legislative actions against the constitution - Occurred with explicit listing of citizen rights - judges themselves more willing to regulate executives and make substantive policy choices

What does Article 44 of the Indian Constitution say?

- One of the directive principles;

Modern Japan

- One party dominance by liberal Democratic Party - Provide de jure protections: "all judges shall be independent", cabinet cannot fire judges, diet can impeach judges but must only bc grossly violations

Institutional veto players: Democracies

- Political compromise - future election outcomes: decisions over judicial independence made over whether elections will continue/ or they will be won indefinitely

Structural breaches of judicial independence: Removal of cases from ordinary courts

- Political officials steer sensitive cases from regular courts to special courts - Authority of judges are constrained, but independence preserved ex. Franco in spain

Legal Mobilization:

- Process requiring sustained litigating and resource typically beyond the reach of a single litigant

Judicial transparency: High

- Publishing of votes, majority opinions, dissenting opinions, and/or concurrences with judge's names attached to them

De Jure judicial independence: componenets

- Recruitment: how does a judge get too it on a court - Tenure: how long can a judge serve on a court - Promotion: how can a judge move up the judicial hierarchy - Removal: How can an individual judge be removed from a court

Poland: Case Study What steps did the Law and Justice (PiS) take to limit the effectiveness of high courts in Poland?

- Refused to swear in judges appointed by opposition - Replaced them loyalist

Veto player: Partisan

- Relevant political parties that result from electoral system - less ideological gap in partisan veto players, more stable with less policy change - important for multiparty & 2 party systems

Delegate judge

- Room for discretion, but ,meager independence and subordinate to political organs of government - Low independence & High Authority

Characteristic of Customary Law

- Rules communities developed for themselves in absence of the state (Shapiro triad) - Recognized in some countries to settle disputes, often family law related - Often passed through generations with disputes settled through mediation

Moustafa & Ginsburg; why do governments delegate authority to court

- Social control: criminal processes - "legal" legitimacy; Law over violence allows illegitimate government to appear more moderate - Control of the bureaucracy: citizens can litigate bureaucratic abuse - Trade & Investment credibility: companies more likely to invest because courts provide protection of property rights - Implementation of controversial policies: governments cloak controversial action under "rule of law"

Characteristics Islamic Law

- Sourced from Quran, Sunna, Hadiths - Explicitly religious (civil/ common law) - Used primarily to settle family law disputes - Wide variation among counties with sizable Muslim populations

Executor Judge

- Strictly applies the law as written with little or no room for exception/discretion - Low Indepence & Low authority

2 Modes of legal education

- Study of law as an undergraduate degree program, often followed by a partial apprenticeship - Postgraduate legal studies (e.g., United States)

Judicial accountability:

- Term lengths: how long can judges serve on a court - Institutional veto players in appointment (other member states can veto appointment?)

Mark Ramseyer: "The puzzling (in)dependence of courts; a comparative approach": Theory

- politicians in competitive elections will keep independent courts to check to the opposition party when they lose - politicians that do not expect to lose office gain from manipulating the judiciary but risk sacrificing power when they lose

Dunoff & Pollack "The judicial trilemma": High independence & High accountability court

- protects the identifiability of judges by only publishing per curiam opinions (high independence, low transparency), and has short renewable terms (high accountability)

Romania:

- reached all EU benchmarks for de Jure judicial independence BUT global integrity study finds politicians manipulated courts to achieve goals.

So do LDP do?

- they appointed LDP partisans to the Supreme Court - They appointed these partisans late in life to ensure they didn't change views over time - Appointed a loyal carrer judge to the Supreme Court

Judicial accountability: Low

- think U.S federal judges with lifetime terms, and difficult to impeach

Judicial accountability: High

- think judges with short renewable terms and mist be approved by institutional veto players

Judicial elections

- very common among U.S - adopted in Bolivia in 2009: candidates must be evaluate by merit and pre- approved by a supermajority

Legal Pluralism

Convergence and mixing of legal traditions

Why do courts matter?

The fate of liberal democracy might depend on it

What is uniform civil court?

One nation, one legislation

Judicial transparency: Low

Only decisions is published, but unknown which judges voted in favor of it , known as "per curiam" - meaning: "by the court"

Judicial empowerment: Legalization

Rules create legally binding commitments; legal and technical precision binds those rules; and the parties (courts) implement, interpret, and apply these rules

Judicial accountability

Structural checks on judicial authority found in the reappointment and reelection processes.

Origin: Civil Law

From Roman times but codified by Napoleon (aka. napoleonic code)

Origin: Customary Law

Has existed as long as people have lived in communities together and needed to resolve disputes

President Nkurunziza's argument?

He was selected for his first term by parliament, not by universal direct elections, ergo not violation of the constitution

King v. Burwell: Legal questions

- Does the reference to an "an exchange established by the State" excluded exchanges established by the national government when a state failed to create one - The ambiguous passage refers to any exchange or an exchange rather than one created by the one created by the states

Political Insurance/ Insurance theory:

- Ensuring the rules will be applied when one is not in power

How can legal mobilization achieve policy change?

- Epp (1998); constitutional/treaty guarantees, judicial indolence/receptiveness - Urribarri (2011): judicial ideology, not mobilization determine success of rights litigation - Rosenberg(1991); Courts can almost never be producers of significant social reforms

Why do the modes of legal education matter?

- Few barriers if law is an undergrad degree, leads to more lawyers - more lawyers affect the protection of rights (e.g. free legal education in Egypt) - Can be manipulated by the state (e.g Bashir in Sudan overproduced lawyers in Sharia law, prevent them from impeding regime's goal)

NLF referee lockout 2012 & Courts

- For dispute resolution to function (parties in a case) need to have faith in the referees (judges)

Mark Ramseyer: "The puzzling (in)dependence of courts; a comparative approach": Research question

- "Why do rational politician in some democracies offer independent courts, while politicians in other democracies do not?"

What is the Kenya Justice Defenders Program

- A program that has trained inmates to become paralegals, and in some cases obtain a legal degree

Hoe do judges get on Japanese courts?

- Apply for a job at the end of legal training - receive a ten-year appointment - cabinet decided whether to renew - during ten-year term, Supreme Court secretariat rotates judges through positions

Veto Player: Institutional

- House, senate, president, and SC of the U.S - More institutional veto players, the more stable a regime will be (i.e less policy change)

Burundi v. U.S reactions

- Burundi decision acted on decades of ethnic tension v. U.S history of stable democracy - Burundi judges have 6-year nonrenewable term v. U.S justice appointed for life - Burundi judges faced violence v. U.S weren't under physical danger - U.S has legislative options to overturn ACA

In what ways does China claim it is protecting intellectual property rights? Why would they publish this public facing video

- China is trying to convince people to bring their business to Chin - Highlighted their IP Court

What kind of legal system does Burundi have?

- Civil law - Customary Law in "family law" (e.g., inheritance, marital property)

Burundi Background

- Civil war 1993 between Tutsi minority and Hutu majority - Arusha Accords signed in 2000 created a power sharing formula - 2005; Nkurunziza wins 151 out of 160 votes in parliament to become president

3 characteristic of Civil law

- Codes of law - Resident judges controlling dispute settlement procedures but lacking authority to deviate from written codes - Ascendent class of academic lawyers who deciphered and interpreted law

Shapiro: "pure mediator v. courts": What is the second technique the "pure mediator has"?

- Consent: the mediator has been chosen by both parties

De Jure v. De Facto

- De Jure: legal/constitutional guarantees for judges (e.g. safeguards in place for promoting, rewarding, and sanctioning judges) - De facto: actual judicial independence - are judges free to make decisions independent of outside influence

Judicial Empowerment: Judicialization

- Decision authority moved from the traditional political agents to the courts. - Judicial modes of characterizing issues spread to other bodies

After the LDP controlled the Supreme Court and Secretariat...

- The LDP rewarded judges that made decisions they lived, punished judges they disliked - judges decided controversial cases according to LDP preferences were moved to important positions in Tokyo - judges who decided against LDP were moved to rural branch offices

Authority:

- The limits of judicial discretion or freedom to make creative decision or ones not based strictly on pre-existing law

Why would a government NOT obey a court?

- They disagree with the courts decision - They won't get punished for disobeying the courts decision

Why would a government obey a court?

- They have interest in maintaining the rule of law because they may not be in power in the future (e.g insurance theory) - The public might punish the government for not doing so through voting, protest, civil disobedience

Legal education in the United Kingdom

- Three-year bachelor of law degree (LLB) - Post-graduate diploma in law also an option - Followed by one year course determined by type of lawyer, solicitor, or barrister

Shapiro: "Socio-logic of courts" What is the basic contradiction of this structure?

- Two against one: Third person resolves the conflict in favor of one person, the loser thinks it is biased

Consequences of the Burundi Court decision

- Violence erupts - Vice President of constitutional court flees the court - failed coup attempt

Overt threats to de facto independence

- intimating judges into decisions (e.g. M19 guerrillas in Columbia) - Transforming courts into instruments of executive power (e.g. PiS reforms in Poland) - Removal of jurisdiction (e.g. Indira Gandhi not allowed to hear cases regarding fundamental rights) - Extrajudicial executions (instead of bringing cases to courts)

Characteristics of common law

- a judge is the central figure - reliance on prescribed procedure - shared case law (i.e., precedent) - a jury to make factual determination (not as frequent in common law systems as they used to be)

Institutional design:

- captures how all political actors are situated within a political scheme and how their relationships interconnect. - reflects de jure, defines interinsitutional accountability - almost always the product of politics

Four Type of selection mechanisms:

- carrer service - appointment by executive - judicial appointment commission - election

Factors affecting political calculations over institutional design

- chances of gaining/maintaining political power - Relatedly, their staying power - mistreat of those in power and those presumed to have authority to control them - political culture, law & culture are interwined

Institutional Veto players: authoritarian government

- courts offer credible commitments, monitor low-level bureaucrats, lend aura of legitimacy but not veto players - china increased independence of courts for economic reasons, does not permit courts to be veto player - PiS in Poland, erogan eliminate institutional veto players

Why Japan-like behavior is not in the U.S?

- democrats and republican shift power very frequently in congress and presidency - they appoint partisans to the court and maintain judicial indolence

Judicial appointment commissions

- employ process of advertising, Tess, interviews, screening mechanisms - most popular selection system of the 21st century

Interest Group litigation: Repeat players

- government/ gov. agency that regularly participates in judicial proceedings - has an advantage over "one shooter" because of experience, expertise, and long-term strategy

Dunoff & Pollack "The judicial trilemma":High independence & high transparency

- judges opinions, votes, dissents can be identified (high transparency) but judges had lifetime or fixed non-renewable terms (high independence, low accountability )

2015 Burundi Constitutional Court decision? Constitutional Question

Article 96 of Burundi constitution. the president is elected by universal direct suffrage for a mandate of five years renewable once - President Nkurunziza wanted a 3rd term

Legal Tradition:

A set of deeply rooted historically conditioned attitudes about the nature of law, about the role of law in society and the police

Burundi 2015 court decision?

Agreed with President Nkurunziza , the only and last rental of the current presidential term, in direct universal franchise for five years, is not contrary to the constitution.

Dunoff & Pollack "The judicial trilemma": Research question

How do countries balance judicial independence, judicial accountability, judicial transparency when designing international's tribunals?

Carrer Service:

Enter the judiciary after formal education, then examination or apprenticeship - Serve for life - promoted as a result of hierarchically supervised evaluation - common in civil law counties, but also China and Japan

Shapiro: "pure mediator v. courts": Why are courts different from pure mediators

Disputing parties cannot choose the judge Since there is not consent, litigants must be persuaded that law is neutral

Origin: Islamic Law

Emerges after the death of the prophet Muhammad in the 7th century

Political Judge

Judges with high autonomy and discretion, they embody judicial empowerment - High independence & High authority

Measuring Judicial Independence:

Latent variable: judicial independence is not directly observable (e.g. how do you measure quality of life?)

Judicial empowerment: Juridification

Legal language and processes replace ordinary politics

Interest group litigation: One Shotters

Litigants involved in a single case

Indonesia:

Marriage law: contradicts some strict interpretation of Shar'ia law in Indonesia; Men can unilaterally divorce, asks men to show "sufficient grounds for divorce"

judicial transparency

Mechanisms that permit the identification of judicial positions

Legal Systems:

Nation specific refers to institutions, rules, and procedures

Origin: Common Law

Norman conquest of England in 1066 ("common to all the kings courts across England)