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The Politics of Judicial Procedures: The Role of Public Oral Hearings in the German Constitutional Court
Modern liberal democracies typically depend on courts with the power of constitutional review to ensure that elected officials do not breach their constitutional obligations. The efficacy of this review, however, can depend on the public observing such breaches. One resource available to many of the world's constitutional courts to influence the public's ability to do so is public oral hearings. Drawing on the comparative judicial literature on separation of powers, public awareness, and noncompliance, I develop a formal model of public oral hearings. The model provides empirical implications for when a court will hold public oral hearings and how hearings correspond to a court's willingness to rule against elected officials. An empirical analysis of hearings at the German Constitutional Court supports the model's prediction that courts use hearings as a resource to address potential noncompliance.
Journal Article
Citizens, Courts, and Confirmations
In recent years the American public has witnessed several hard-fought battles over nominees to the U.S. Supreme Court. In these heated confirmation fights, candidates' legal and political philosophies have been subject to intense scrutiny and debate.Citizens, Courts, and Confirmationsexamines one such fight--over the nomination of Samuel Alito--to discover how and why people formed opinions about the nominee, and to determine how the confirmation process shaped perceptions of the Supreme Court's legitimacy.
Drawing on a nationally representative survey, James Gibson and Gregory Caldeira use the Alito confirmation fight as a window into public attitudes about the nation's highest court. They find that Americans know far more about the Supreme Court than many realize, that the Court enjoys a great deal of legitimacy among the American people, that attitudes toward the Court as an institution generally do not suffer from partisan or ideological polarization, and that public knowledge enhances the legitimacy accorded the Court. Yet the authors demonstrate that partisan and ideological infighting that treats the Court as just another political institution undermines the considerable public support the institution currently enjoys, and that politicized confirmation battles pose a grave threat to the basic legitimacy of the Supreme Court.
eBook
Actual Issues of Remote Court Hearings in Administrative Procedure
The aim of the e‐Justice strategy is to improve the implementation of the right to justice, cooperation between judicial authorities and the effectiveness of justice itself. Much attention has been paid to the computerization of court proceedings. Remote court hearings were recognized and described in the legal acts of the European Union and Lithuania already at the beginning of the second decade of the 21
century. However, this approach has not been widely used due to technical problems and insufficient regulation. The Covid‐19 pandemic affected all life and the economy. In order to preserve the human right to justice, not to interrupt the work of courts, remote court hearings were held. It has been found that in administrative justice, especially when organizing the work of quasi‐judicial structures, such hearings can be applied almost without problems. Therefore, the organization of remote meetings in administrative courts and quasi‐judicial organizations was continued during the non‐ quarantine year, depending on the wishes of the participants in the proceedings. However, the widespread use of teleconferencing and videoconferencing in the work of courts has identified the need to improve Lithuania’s legal framework. The article analyses the peculiarities of remote administrative procedure and legal regulation.
Journal Article
PENAL ORDERS AND THE ROLE OF PROSECUTORS IN SWITZERLAND
Minor infractions represent the majority of criminal cases. Simplified or summary procedures have addressed their increasing number in order to unburden the courts. Because of reduced requirements for the case to be adjudicated, this procedural economy comes usually to the cost of the defendant. Penal orders represent the most successful form of fast track procedure in which the public prosecutor plays a predominant role. After a police report and sometimes a short investigation, penal orders are issued and notified to the defendant. If they are not objected, their judgment equals the decision of a court. In other words, penal orders rely on the tacit agreement of the defendant. This contribution presents the risks of penal orders to produce wrongful convictions and proposes a set of recommendations that could improve the current situation. A combination of legal sources and empirical studies shed light on the delicate balance between the efficiency of justice and the defendant’s rights.
Journal Article
DOJ aims to deport Abrego García before his trial
Judge Paula Xinis ordered the Trump administration on July 7 to reveal which country they will deport Kilmar Abrego García to after he is released from jail.
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Adversarial and Inquisitorial Procedures with Information Acquisition
This article examines the properties of the two most commonly used legal institutions: the inquisitorial system and the adversarial system. In the former system, the judge makes a decision based on her own acquired information, whereas in the latter system, the advocates are required to present their acquired information to the uninformed judge. Within the binary decision framework, I study the circumstances in which one system is superior to the other in terms of accuracy. The following two effects are notable in the adversarial system: The advocates exert more effort regarding information acquisition than the judge, and the adversarial judge gleans additional information from non-disclosure events. However, one inherent weakness of the adversarial system is its communication problem. In cases in which such a problem is more pronounced, the inquisitorial system should prevail despite its lack of incentives for information collection.
Journal Article
Court applications for withdrawal of artificial nutrition and hydration from patients in a permanent vegetative state: family experiences
Withdrawal of artificially delivered nutrition and hydration (ANH) from patients in a permanent vegetative state (PVS) requires judicial approval in England and Wales, even when families and healthcare professionals agree that withdrawal is in the patient's best interests. Part of the rationale underpinning the original recommendation for such court approval was the reassurance of patients’ families, but there has been no research as to whether or not family members are reassured by the requirement for court proceedings or how they experience the process. The research reported here draws on in-depth narrative interviews with 10 family members (from five different families) of PVS patients who have been the subject of court proceedings for ANH-withdrawal. We analyse the empirical evidence to understand how family members perceive and experience the process of applying to the courts for ANH-withdrawal and consider the ethical and practice implications of our findings. Our analysis of family experience supports arguments grounded in economic and legal analysis that court approval should no longer be required. We conclude with some suggestions for how we might develop other more efficient, just and humane mechanisms for reviewing best interests decisions about ANH-withdrawal from these patients.
Journal Article
Using machine learning to predict decisions of the European Court of Human Rights
When courts started publishing judgements, big data analysis (i.e. large-scale statistical analysis of case law and machine learning) within the legal domain became possible. By taking data from the European Court of Human Rights as an example, we investigate how natural language processing tools can be used to analyse texts of the court proceedings in order to automatically predict (future) judicial decisions. With an average accuracy of 75% in predicting the violation of 9 articles of the European Convention on Human Rights our (relatively simple) approach highlights the potential of machine learning approaches in the legal domain. We show, however, that predicting decisions for future cases based on the cases from the past negatively impacts performance (average accuracy range from 58 to 68%). Furthermore, we demonstrate that we can achieve a relatively high classification performance (average accuracy of 65%) when predicting outcomes based only on the surnames of the judges that try the case.
Journal Article
Balancing Vigilance, Maintaining Impartiality
Here, individual judges can benefit from broader guidance from their court's policies and priorities. While the judicial system is often narrowly focused on the specific issue presented to the court in an individual matter, a broader sense of justice can be accomplished through the various additional efforts by courts in this area. Whether through the creation of specialized courts or the educational efforts in community forums to gain awareness of the issues, judges can play a critical role in enhancing justice for victims of human trafficking.
Journal Article