On Judicial Transparency, Control, and Accountability

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1 University Press Scholarship Online You are looking at 1-10 of 11 items for: keywords : judicial accountability On Judicial Transparency, Control, and Accountability Mitchel de S.-O.-l E. Lasser in Judicial Deliberations: A Comparative Analysis of Transparency and Legitimacy Published in print: 2009 Published Online: January 2010 ISBN: eisbn: acprof:oso/ This chapter discusses some of the difficult, but fascinating, rule of law/ democratic theory issues raised by the judicial approaches employed by the Cour de cassation of France, the Supreme Court of the United States, and the European Court of Justice. It examines what it means for legal and judicial systems to function in such bifurcated or integrated ways. More specifically, it explores the implications for such interrelated issues as judicial transparency, accountability and control, and democratic debate and deliberation. As an introduction to the complex topic of how the French, American, and EU judicial systems each deal with the formation and transfer of interpretive knowledge and authority, this chapter considers how each of the three judicial systems handles the deeply pragmatic issue of how to make publicly accessible certain forms of knowledge about what Americans call the state of the law (that is, knowledge about the content, development, and motivation of existing legal and judicial norms). Accountability in the Contemporary Constitution Nicholas Bamforth and Peter Leyland (eds) Published in print: 2013 Published Online: January 2014 ISBN: eisbn: Item type: book acprof:oso/ Accountability is regarded as a central feature of modern constitutionalism. At a general level, this prominence is perhaps unsurprising, given the long history of the idea. However, in many constitutional democracies, including the UK and the USA, it has acquired a particular resonance in contemporary circumstances with Page 1 of 7

2 the declining power of social deference, the expanding reach of populist accountability mechanisms, and the increasing willingness of citizens to find mechanisms for challenging official decision-making. These chapters seek to explore how ideas of and mechanisms associated with accountability play a part in the contemporary constitution. While the majority of chapters concentrate on the United Kingdom, others provide comparative discussion with particular reference to the United States and aspects of European Union law. The main focus of the volume is the contemporary UK constitution. Chapters are included which analyse the historical context (including the role of Dicey), common law constitutionalism, the constitutional role of Parliament, the constitutional role of the courts, judicial accountability, human rights protection under the constitution and the contribution of non-judicial accountability mechanisms. Further chapters explore the public service principle, the impact of new public management on public service delivery, and the relationship between accountability and regulation. Finally accountability is discussed in the light of constitutional reform including the challenges posed by the multi-layered government at the supra national level of EU membership and sub-national national levels of devolution and local government. Judicial Accountability in Comparative Perspective Mark Tushnet in Accountability in the Contemporary Constitution Published in print: 2013 Published Online: January 2014 ISBN: eisbn: acprof:oso/ This chapter examines the complex relationship between judicial accountability and judicial independence. If judges are unaccountable to the public, they can become the people's rulers. Yet, if they are too accountable to the public they can exercise arbitrary power. The chapter describes mechanisms of achieving accountability through various methods of judicial appointment and removal. But, it argues, more important than those methods is the idea of ensuring judicial accountability by insisting that judges be accountable to the law. That notion, too, is complex. It includes some idea of responsibility to past law-makers, coupled with some idea of accountability to contemporary professionals who define for judges what it means to make decisions according to law. Page 2 of 7

3 Courting Peril: The Political Transformation of the American Judiciary Item type: book acprof:oso/ The rule of law paradigm has long operated on the premise that independent judges disregard extralegal influences and impartially uphold the law. A political transformation several generations in the making, however, has imperiled this premise. Social science learning, the lessons of which have been widely internalized by court critics and the general public, has shown that judicial decision-making is subject to ideological and other extralegal influences. In recent decades, challenges to the assumptions underlying the rule of law paradigm have proliferated across a growing array of venues, as critics agitate for greater political control of judges and courts. With the future of the rule of law paradigm in jeopardy, this book proposes a new way of looking at how judicial decision-making should be conceptualized and regulated. This new, legal culture paradigm defends the need for an independent judiciary that is acculturated to take law seriously, but which is subject to political and other extralegal influences. The book argues that these extralegal influences cannot be eliminated but can be managed, by balancing the needs for judicial independence and accountability across competing perspectives, to the end of enabling judges to follow the law (less rigidly conceived), respect established legal process, and administer justice. Judicial Deliberations: A Comparative Analysis of Transparency and Legitimacy Mitchel de S.-O.-l'E. Lasser Published in print: 2009 Published Online: January 2010 ISBN: eisbn: Item type: book acprof:oso/ This book compares how and why the European Court of Justice, the French Cour de cassation, and the United States Supreme Court offer different approaches for generating judicial accountability and control, judicial debate and deliberation, and ultimately judicial legitimacy. Examining the judicial argumentation of the U.S. Supreme Court and the French Cour de cassation, the book first reorders the traditional comparative understanding of the difference between French civil law and American common law judicial decision-making. It then uses Page 3 of 7

4 this analysis to offer the first detailed comparative examination of the interpretive practice of the European Court of Justice (ECJ). The book shows that the judicial system of France rests on a particularly unified institutional and ideological framework founded on explicitly republican notions of meritocracy and managerial expertise. Law-making per se may be limited to the legislature, but significant judicial normative administration is entrusted to state selected, trained, and sanctioned elites who are policed internally through hierarchical institutional structures. The American judicial system, by contrast, employs a more participatory and democratic approach that reflects a more populist vision and generates its legitimacy primarily by argumentative means. American judges engage in extensive debates that subject them to public scrutiny and control. The ECJ hovers delicately between the institutional/ argumentative and republican/democratic extremes. On the one hand, the ECJ reproduces the hierarchical French discursive structure on which it was originally patterned. On the other, it transposes this structure into a transnational context of fractured political and legal assumptions. Introduction in Courting Peril: The Political Transformation of the American Judiciary acprof:oso/ The introduction begins with the rule of law paradigm, which has long operated on the premise that independent judges disregard extralegal influences and uphold the law. In recent decades, however, challenges to that premise have proliferated, as critics agitate for greater political control of judges and courts. With the rule of law paradigm beginning to crumble, this book proposes a new way of looking at how judicial decision-making should be conceptualized and regulated. This new, legal culture paradigm defends the need for an independent judiciary that is acculturated to take law seriously, but which is subject to extralegal influences. These extralegal influences cannot be eliminated but can be managed, by balancing the needs for judicial independence and accountability across competing perspectives, to the end of enabling judges to follow the law, respect established legal process, and administer justice. Page 4 of 7

5 The Legal Culture Paradigm in Courting Peril: The Political Transformation of the American Judiciary acprof:oso/ Chapter 5 revisits the ailing rule of law paradigm and proposes, in its stead, a new legal culture paradigm, which rests on a different set of assumptions that comport more closely with the traditional understandings of the judicial role summarized in Chapter 4. This new paradigm posits that judges are immersed in a legal culture that values law, process, and justice values that independence promotes by insulating judges from external pressures that could undermine their commitment to the norms of the legal culture. Yet, because judges are also subject to internal influences in tension with the values of the legal culture, independence must be tempered by a measure of accountability, the appropriate limits of which vary by dimension: an adjudicative dimension that seeks fair hearings for litigants; a political dimension that seeks public confidence in the courts; and an ethical dimension that seeks good judges who respect their roles. The Counter-Arguments William M. Richman and William L. Reynolds in Injustice On Appeal: The United States Courts of Appeals in Crisis Published in print: 2012 Published Online: May 2013 ISBN: eisbn: acprof:oso/ This chapter advances some counter-arguments against the limited publication regime. There are four such arguments. First, limited publication reduces judicial accountability; second, it lessens judicial responsibility; third, limited publication fundamentally changes the manner in which our decisional law operates; and finally, the burden of limited publication falls most heavily on the poor and disfavored in our society. Page 5 of 7

6 Judicial Performance, Membership, and Design at the Court of Justice Damian Chalmers in Selecting Europe's Judges: A Critical Review of the Appointment Procedures to the European Courts Published in print: 2015 Published Online: April 2015 ISBN: eisbn: acprof:oso/ This chapter argues, through an analysis of the history of the professional backgrounds of the Court of Justice, that the absence of a clear vision for the function and direction of the Court of Justice at the stage of selecting and appointing its judges results in the Court of Justice setting its own tasks for itself. These tasks invariably reflect the prevailing professional disposition of the Court at the time. To substantiate this argument, the chapter divides the history of the Court of Justice into four periods: the transitional period up until 1970; the subsequent period up until the ratification of the Maastricht Treaty; the period beyond that until the ratification of the Lisbon Treaty; and the period since the Lisbon Treaty. In each of the periods examined in turn, a correlation between the professional backgrounds of the judges at the Court at that time and the type of decisions the Court produces is outlined. Conclusion in Courting Peril: The Political Transformation of the American Judiciary acprof:oso/ Chapter 8 summarizes six major points: (1) the rule of law paradigm has structured our conception of the American judiciary for centuries; (2) The landscape of the American courts is changing in ways that are causing the rule of law paradigm to crumble; (3) A legal culture paradigm better explains the need for judicial independence and accountability among judges whose decisions are subject to legal and extralegal influences; (4) The legal culture paradigm explains the changing landscape of the American courts in terms of a shift toward intensified regulation of judges in the political dimension of oversight. (5). Fifth, this shift is problematic because there is value to maintaining three distinct dimensions of oversight in constructive tension; (6) Balance between the dimensions Page 6 of 7

7 of oversight can be restored through education, reclamation, and moderation. The chapter then anticipates and addresses core concerns that readers may have about the foregoing six points. Page 7 of 7