The Adversarial Court System - Is it fair?
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The adversarial system of litigation assumes that parties are able to present their disputes before an impartial tribunal, by use of professional legal advocates. This work critiques some of the fundamental assumptions of the adversarial system and examines two case studies in which it has failed to deliver justice for litigants.Cite
The present research investigates the formative processes of international criminal law through the iterative citation of judicial decisions in adjudicatory practices. Given the centrality of the judge in the adjudication of international criminal law, this study is underpinned by a legal realist approach to international law informed by the work of Alf Ross (Scandinavian Legal Realism) and Gregory Shaffer (New Legal Realism), according to which the meaning of legal rules and principles is not autonomous from how they are empirically practiced and interpreted by courts. Judicial decisions thus embed authoritative statements of the meaning and content of international law.Assuming a retrospective look, this book analyzes how courts (international and domestic alike) have used judicial decisions in constructing the meaning and content of posited rules of international criminal law, and how they succeeded in stabilizing certain interpretive outcomes, or offered a reason to depart therefrom, in a dynamic process of international law formation.Although governed by the rules of the 1969 Vienna Convention on the Law of Treaties, the interpretation of treaties and international legal texts more broadly is not a mechanical act leading to uniform interpretive outcomes across different jurisdictions. Rather, interpretation is a form of argumentation in law, whereby the court argues for a particular understanding of a legal text to justify legal decisions. The choice of such an understanding over other plausible possibilities hinges on an exercise of discretion by the court, and is arguably influenced by, although not limited to, the normative ideology and axiological preferences of the judge. The analysis of judicial decisions undertaken in this research shows that the citation of judicial decisions stems from rules of argumentation laid down by courts themselves. As such, the formation of the meaning and content of the law is oriented and constrained by courts’ rules of argumentation which, for instance, require to follow prior established jurisprudence unless ‘compelling reasons’ exist to depart from it, or to justify departure from a previously established line of cases. In this argumentative framework, prior judicial decisions provide a justification to reaffirm like legal findings.This inquiry proceeds by way of three main steps: i) it describes the citation of judicial decisions in the adjudication of international criminal law in international and domestic courts; ii) it analyzes the relevance ascribed by courts to prior judicial decisions in their legal argumentation; and iii) it conceptualizes the iterative citation of judicial decisions as an avenue for the formation of international criminal law. In order to achieve these objectives, judicial decisions of international and domestic courts in three thematic areas are examined, namely the notion of ‘protected group’ in genocide cases, the notion of ‘armed conflict’ in war crimes cases as well as violations committed in armed conflict, and the notion of ‘unlawful combatant’. The analysis of this material allows to appreciate that the use of judicial decisions in courts’ adjudication transcends the doctrine of sources of international law and the idiosyncrasies of domestic legal traditions (common law/civil law), as the creative force of judicial decisions is primarily exhibited in courts’ argumentation. In this framework, the acceptance by later courts of prior judicial decisions (i.e. authoritative statements of the meaning and content of the law), signaled via citation practices, validates those judicial decisions as legally correct statements of the law. This explains why some judicial decisions became reference points in the adjudication of international criminal law while others have not. (Less)
Adjudication
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This article proposes a model of constitutional adjudication that offers a deeper, richer, and more accurate vision than the simple “courts strike down unconstitutional laws” narrative that pervades legal, popular, and political discourse around constitutional litigation. The model rests on five principles: 1) An actionable constitutional violation arises from the actual or threatened enforcement of an invalid law, not the existence of the law itself; 2) the remedy when a law is constitutionally invalid is for the court to halt enforcement; 3) remedies must be particularized to the parties to a case and courts should not issue “universal” or “nationwide” injunctions; 4) a judgment controls the parties to the case, while the opinion of a court creates precedent to resolve future cases; and 5) rather than judicial supremacy, federal courts operate on a model of “judicial departmentalism,” in which executive and legislative officials must abide by judgments in particular cases, but exercise independent interpretive authority as to constitutional meaning, even where those interpretations conflict with judicial understanding. The synthesis of these five principles produces a constitutional system defined by the following features: 1) the judgment in one case declaring a law invalid prohibits enforcement of the law as to the parties to the case; 2) the challenged law remains on the books; 3) the challenged law may be enforced as to non-parties to the original case, but systemic and institutional incentives weigh against such enforcement efforts and push towards compliance with judicial understandings.
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This chapter first addresses the capacity issue, exploring the difficulty of a U.S. court launching an inquiry into the nature of a foreign judiciary in the context of an adversarial proceeding. It then examines the under-inclusiveness issue, namely the possibility that courts in good systems do bad things. The chapter reviews how U.S. courts have handled challenges to the quality of foreign legal systems under the systemic standard. Even when doctrine and statutes have directed these courts to look at the quality of the system, they have concentrated on how the court in the prior proceeding behaved. These receiving courts have separated local conceptions of judicial propriety from the standards to which they hold foreign litigation. Finally, the chapter draws on judicial practice in an analogous but distinct area, namely forum non conveniens dismissals, to illuminate what U.S. courts should focus on when they review a prior foreign court proceeding. Keywords: foreign judgments; foreign legal systems; judicial capacity; systemic standard; U.S. court
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Should lawyers detach their professional activities from their personal factual, legal, and moral views and promote even clients’ causes that they would oppose as citizens and reject as judges or jurors, or should lawyers constrain the professional services that they provide to suit their personal views? Should lawyers serve particular clients as partisans, or should they serve justice writ large? To employ the terms that have brought us together, should lawyers assist clients in acting like Holmesian bad men, promoting their private interests as aggressively as the law allows, or should they encourage clients to honor the law’s internal purposes, and indeed impose these purposes on clients, so that they help clients to secure not as much as they can get, but only what the law recommends? The lore of the bar—think of Lord Brougham’s remark that a lawyer should serve his client “by all expedient means” and “reckless of the consequences,” and even though he should “involve his country in confusion for his client’s protection”1—tends towards the first alternative in each pair. Moreover, the positive law governing lawyers also elaborates a partisan conception of lawyers’ professional role. Broad and organic principles of lawyer loyalty2 and client control3 require lawyers zealously to pursue ends that their clients have wide discretion in setting. In addition, a broad and organic principle of professional detachment,4 although usually understood as an effort to shield lawyers from legal or even moral
Legal Ethics
Honor
Professional Conduct
Adjudication
Legal Education
Writ
Professional Responsibility
Impartiality
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It is almost an article of faith on the part of common lawyers that because their civil procedure is ‘adversarial’ it is therefore superior to the ‘inquisitorial’ procedure which they believe to be used elsewhere. The word ‘inquisitorial’ conjures up visions of the Inquisition, and they do not care for the methods that common lawyers have been led to believe are used by inquisitors.
Vision
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This article addresses the question of when national courts must raise Community law issues on their own motion under the principle of effectiveness. It discusses what are the different interests that must be balanced under the “procedural rule of reason” when deciding whether an issue must be raised by the Court ex officio or not. It examines the Court of Justice’s case law delivered in the past as well as the recent Van der Weerd case with an aim to discern some guidelines or trends as to how such different interests should be balanced, an analysis which shows that there is still a great deal of legal uncertainty as to when national courts must raise Community law issues on their own motion and it appears futile to seek tendencies and trends in the Court’s case law on effectiveness. The article argues that the Court’s ruling in Van der Weerd, showing deference to the national procedural autonomy, fits well into the general approach of the recent years where the Court seeks to avoid too drastic incursions into the national procedural landscape and merely ensures a minimum common level of judicial protection.
Obligation
Preliminary ruling
Ex parte
Standard of review
Procedural law
High Court
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This essay, written for the Tulane Law Review Symposium on the Problem of Multidistrict Litigation, argues that the focus of proceduralists on centralization as a solution to the problems posed by modern litigation is misplaced. It is time to refocus on the social value of the multiple centers of authority that jurisdictional redundancy permits. This essay presents the case for multi-centered litigation with particular focus on the potential uses of the Multidistrict Litigation Act to realize pluralist values. The descriptive claim put forward by the essay is that jurisdictional redundancy is imbedded in our federalist system and our preference for adversarial adjudication. The normative claim is that judges and scholars should take more seriously the social benefits of pluralism offered by jurisdictional redundancy. In furtherance of this goal, I suggest three factors that judges and policy-makers consider in determining the level of centralization appropriate in a given case: (i) the extent and nature of underlying substantive disagreement; (ii) the costs of inconsistency; and (iii) the role of political power in the litigation. The question judges, legislators and scholars should ask is not only how much pluralism our system of adjudication can tolerate, but also how much uniformity we should expect in a pluralist society.
Adjudication
Federalist
Pluralism
Value (mathematics)
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An adversarial nature of any judicial proceedings, which is characteristic of justice and corresponds to its nature, is revealed in criminal proceedings not only in criminal cases, but also in so called cases of judicial review exercised during pre-trial proceedings. In the present paper the features of adversarial construction of judicial review proceedings in the Russian criminal process are investigated in the context of the purpose and subject of judicial review at pre-trial stages. The author has analyzed the specifics of the conflict relationship, the essence of the legal dispute and the subject composition of the procedural parties in cases of judicial review, as well as the peculiarities of initiating the judicial review proceedings and distribution of the burden of proof between the parties; reveals the transformation of the procedural roles of the main participants of the adversarial proceedings when the disputed issue is transfered from the main proceedings in the criminal case for consideration in the procedure of judicial review within the framework of separate proceedings. The paper also elucidates such features characteristic for certain forms of judicial review as involvement of third parties having their own interest in the judicial review case and restriction of participation in the court session of the interested party. The paper focuses on the problem of ambiguous (from the standpoint of the principle of adversariality) procedural status of the prosecutor in judicial and review proceedings in which independent parties are the investigator and (or) the head of the investigative body. Alternative options for elimination of the problem discussed above are proposed. It is concluded that in the course of normative regulation of judicial review procedures and law enforcement, it is necessary to take into account the specifics of cases of judicial review and the originality of manifestation of adversarial foundation in such cases.
Criminal procedure
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Adjudication
Representation
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Judicial opinion
Decision-making
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