Civil Justice System Research Articles

Unfamiliarity and Procedural Justice: Litigants' Attitudes Toward Civil Justice in Southern China

While procedural justice has been regarded as a distinct and essential factor shaping litigants' views on civil justice, few studies have focused on China, a country with a unique legal tradition and frequent legal reforms. Drawing on surveys and interviews with litigants in a basic-level court in Southern China, this study examines attitudes toward the civil justice system. Echoing several existing studies from China, our mixed methods analysis confirms that their views are dominated by outcomes—litigants with favorable outcomes are more likely to be satisfied, while those with unfavorable outcomes are more likely to be dissatisfied. Their unfamiliarity with the operation of the system constitutes a major reason for the dominance of substantive outcomes in their evaluations of the system. Many cannot distinguish between process and outcomes, nor do they feel control over the process. Moreover, they are dissatisfied with the process because it fails to meet their often-erroneous expectations. Our results do not necessarily challenge the importance of procedural justice, but they do suggest that China may be different. Litigants' perceptions of justice and fairness are situated and shaped by specific contexts.

Mediation

This article examines the place of mediation both internally and externally to the civil justice system. The growth of alternative dispute resolution (ADR) and the culture of settlement within formal justice has somewhat absorbed mediation as a process by which to resolve disputes at the door of the court. Yet, it can be argued that its origins lie within the community setting where social norms have a distinct role to play and where collective as well as individual interests have a significant impact. This paper considers the application of mediation in a much wider sense than simply as a tool for settlement. It explores the concept of mediation as an educative process that supports the generation and advocation of social norms. Mediation can be understood as a form of self-regulation which relies on perceptions of fairness, justice and trust. In so doing, it can be argued that it provides a means of informal justice amounting to dispute prevention as far as its relationship to the justice system is concerned. Viewed in this way, mediation provides a genuine first choice as a means to address and resolve conflict rather than an alternative method by which to settle disputes.
 Keywords: mediation; dispute resolution; dispute prevention; community norms; formal justice; informal justice; process pluralism; alternative; first choice.

Alternative Dispute Resolution During the Covid-19 Crisis and Beyond

The civil justice system has reacted with unprecedented speed to the Covid-19 crisis to ensure that the courts continue to provide a vital public service in the administration of justice. The gover...

The Ragged Edge of Rugged Individualism: Wage Theft and the Personalization of Social Harm

Every year, millions of low-wage workers suffer wage theft when their employers refuse to pay them what they have earned. Wage theft is both prevalent and highly impactful. It costs individuals thousands each year in unpaid earnings, siphons tens of billions of dollars from low-income communities, depletes the government of necessary resources, distorts the competitive labor market, and causes significant personal harm to its victims. In recent years, states and cities have passed new laws to attack the problem. These legal changes are important. They are also, broadly speaking, failing the people they are supposed to protect. This Article fills a significant gap in the literature by detailing the full scope of damage caused by wage theft and by critically examining the dominant approach to combatting it. Drawing on existing research and nearly 60 in-depth interviews about wage theft in the District of Columbia, this Article paints a thorough picture of wage theft’s harms, explores why and how existing reforms are failing, and explains what must be done instead. Enforcement schemes reflect the current view that wage theft is a personal harm properly addressed on a case-by-case basis in the civil justice system. As a result, reforms—both as written and implemented—generally attempt to empower and incentivize individuals to action. These approaches are failing. They misunderstand what wage theft is, how it plays out, and how it must be addressed. Wage theft is not an individual problem, but a social harm, and it therefore requires a broad, public response. Because low-wage workers live economically precarious lives and are so dependent on their jobs to survive, they almost never take formal legal action over violations of their rights. Government bodies cannot continue to rely on workers themselves to enforce their rights, but must take on a new role as robust, active, and strategic enforcers. Unless and until they do, millions of people will continue to suffer violations of their basic workplace rights with no meaningful recourse.

Investigating Access to Justice, the Rural Lawyer Shortage, and Implications for Civil and Criminal Legal Systems

Access to justice (A2J) is associated with a number of metrics aimed at assessing the extent to which people enjoy equal access to courts, including pre-trial means for resolving disputes. While the concept is typically associated with civil justice systems, many factors associated with that context overlap with criminal justice system concerns. Central among these and of growing significance in the rural context is a worsening attorney shortage. When lawyers are not readily available, A2J is undermined, and costs to litigants and courts rise. Many quantitative factors measured in relation to A2J are unidimensional and have limited ability to reveal the full complexity of impediments to accessing legal processes. Simple metrics include attorney counts and caseload data. In both the civil and criminal contexts, the more revealing studies deploy mixed methods; in studying indigent defense, interviews with key stakeholders have proved particularly effective. Surveys of litigants, attorneys, and judges have proved highly informative, too, especially in rural settings without infrastructure for tracking data. Ethnographic research remains rare in both criminal and civil contexts. Meanwhile, law scholars often frame their work more explicitly in terms of constitutional and other legal issues, e.g., attorney ethics, implicated by access. This chapter, written for an anthology on Research Methods for Rural Criminologists, begins with a broad introduction to A2J. Next, it turns a geographic lens on the A2J landscape, highlighting spatial and place-specific issues as a prelude to discussing rural deficits, including the lawyer shortage. The chapter concludes by discussing rural criminal justice, with a focus on indigent defense. Tribal courts are beyond the scope of this chapter.

Odgovornost i transparentnost u građanskom pravosuđu - opće odrednice i pogled iz hrvatske perspektive

The paper analyses the notions of judicial accountability and transparency from a Croatian perspective. The prolonged transition period and the EU accession process underlined the importance of an independent but effective judicial system. The need to secure mechanisms that would enhance societal and legal accountability of judges and other judicial professionals is strongly affected by the developments in 1990's and early 2000s when new judicial elites, still influenced by past practices but protected by an overemphasized and misunderstood notion of judicial independence, created a closed professional group, a 'state within a state'. Massive inefficiency and weak systems of liability call for a new approach. While describing some typical issues encountered in Croatia, this contribution strives to lay down some elements for rethinking of judicial accountability and transparency in civil justice systems of Central and South-Eastern Europe.

'You That Build the Death Planes': Bob Dylan, War and International Affairs

Several years ago, I wrote that Bob Dylan was “a scholar with a well-developed jurisprudence on a range of topics including civil, criminal, public, and private law” (Perlin, 2011, p.1396). In that article, I discussed and analyzed Dylan songs that dealt with, variously, civil rights, inequality in the criminal and civil justice systems, institutions, governmental/judicial corruption, equality and emancipation, and the role of lawyers in the legal process. (Id.). But I noted that I was omitting – for space considerations – any discussion of Dylan songs dealing with war and international affairs (Id., p. 1398, n. 15). In this paper, I will address some of those songs that confront these topics directly (from John Brown, Highway 61, Masters of War, With God on Our Side, and Let Me Die in My Footsteps, to Slow Train and Neighborhood Bully), as well as others that do so more metaphorically or symbolically (e.g., It’s Alright, Ma (I'm Only Bleeding); A Hard Rain's A-Gonna Fall; Gates of Eden; Pay in Blood). I will conclude that, beyond the anthemic anti-war core of songs such as Masters, Dylan’s work reflects a keen understanding of geopolitics – why there is war, how profiteering is inevitably part of any pro-war movement, how alliances forged in war time are fragile in the aftermath, and how wars are, inevitably, “mistakes of a past history” (Footsteps) – all a reflection of the Political World in which we live. I also look at these issues through the lens of therapeutic jurisprudence, a model of looking at the law and the legal system to determine that system’s impact on the individuals whose lives are regulated.

Technique for Proving & Marking documents as Exhibits during Trial both in administration of Criminal & Civil Justice System: A Critical Review

Technique for Proving & Marking documents as Exhibits during Trial both in administration of Criminal & Civil Justice System: A Critical Review

Agrochemical Exposure & Environmental Illness: Legal Repression of Latin American Banana Workers

ABSTRACT Prior research on legal repression shows how elites use criminal law to demobilize collective challenges, yet social control efforts based in civil law have received inadequate attention. In this study, we develop the concept of elite legal framing to examine how corporations deploy “soft” forms of repression within the civil justice system. Drawing on court, government, and media documents, we analyze a series of transnational civil litigation cases over pesticide exposure on Dole-contracted banana plantations in Nicaragua. Results highlight how the corporate defendants promoted a corruption narrative that diffused through the media and legal system to successfully discredit farmworker claims.

Constituting a Civil Legal System Called 'Just': Law, Money, Power, and Publicity

From the vantage point of a world reorganized by the COVID-19 pandemic and riven with political and social conflicts, the book, New Pathways to Civil Justice in Europe (forthcoming 2020), is a powerful testament to how embedded dispute resolution systems are as normal facets of ordinary good governance. The shared commitments are to measured, consistent, and accessible means of obtaining relief for allegedly unlawful behavior. What is debated are not the goals of supporting dispute resolution services but the modalities for doing so. The questions are how and who responds to calls for legal help.The publication of this book represents the success of political and social movements that have shaped the expectations, practices, culture, and laws of dispute resolution systems in the last centuries and, more recently, have brought to the fore concerns about a “justice gap,” as demand exceeds the supply of responders.But demand for what? The core questions include what kinds of harms merit legal recognition as well as whether, were all claimants able to obtain a response, the resulting procedures would be part of a civil legal system worth calling “just.” How does one measure whether the quantum of legal protection and the invocation of those rights and entitlements are optimal or reflect under-protection, over-protection, under-claiming or over-claiming? What factors are the bases for assessing the various processes espoused or criticized? What are the baselines for assessments of outcomes? What are the vantage points from which to understand the civil legal system and to make judgments about whether a system is just or unjust?In this brief commentary, I step back to ask prior questions about the normative aspirations, the doctrinal mandates, and the pragmatics of contemporary civil justice systems. I explore some of the law and the political economy of the choices pursued under the rubric of “paths to a civil justice system,” as I underscore three interrelated facets to be taken into account when assessing the justice of a legal system.The first is about the substantive entitlements a civil justice system protects. The discussion of consumers, household members, and employees reflects the range of rights that political movements have recently brought into being. But the status quo should be taken neither for granted nor be seen as intrinsically optimal. Courts have been one venue for debate about who merits recognition as entitled to law’s protection and the forms of remedies available. Hence, new modes and technologies need to address how they will contribute to norm development. If they do not, they are at risk of being vehicles for stagnation or retrenchment.My second concern focuses on the extent of government support for courts, for other forms of dispute resolution, and for those who seek to participate. Subsidies of various kinds are necessary to ensure that all members of the body politic are empowered to use the mechanisms created. Litigant asymmetries raise significant problems of fairness for dispute resolution. The diversity of kinds of legal rights raises a host of complex questions about line-drawing to decide what kinds of claimants to encourage and what forms of economic transfers – from the government to individuals or among disputants – to provide or require.Third is the issue of the public face (or not) of dispute resolution systems. The obligation of courts to function in public is longstanding, but the shift to other forms of government-sponsored or government-obliged processes does not always entail access for third parties, who are neither disputants nor decision-makers. The activities as well as the results of new modes need to be available to the public (more accurately, as detailed below, the many public(s)) so that questions of the underlying legal rights, the range of remedies, and the procedures can be the subject of informed discussions about the justice of the practices.Knowledge is required about whether pathways (using various technologies) enable people to get into courts or their alternatives. Obtaining that information requires both learning about the range of users and being able to observe the processes real-time. Only then can one know whether justice is a goal that is embedded in routes and a result of the civil remedial structures provided.

Courts in Lockdown: Lessons from International Arbitration

As the pandemic has closed courthouses around the world, civil justice systems have had to find alternatives to in-person hearings to avoid indeterminate delays in resolving disputes. International arbitration practitioners, driven by the commercial interests of the parties, have pioneered the techniques and technologies for virtual hearings, identifying the challenges and developing the best practices needed to support the core procedural values of civil dispute resolution. This article looks at these advances from the perspective of the participants – counsel, judges, arbitrators, witnesses, parties and the public – and considers the options that are emerging and that hold the promise to provide lasting benefits for civil justice systems.

Private Investigation into Economic Crime: Regulation of a Multidisciplinary Field

Regulation of the private investigator profession is complex, especially in the context of financial crime in which practitioners undertake commercially sensitive inquiries, provide dispute resolution and forensically analyze collected evidence for a wide range of industries affected by fraud. Private investigators come from a range of backgrounds, including law enforcement, government regulation and other professions, which has implications for the criminal and civil justice system. This paper examines the complexity and challenges of the private investigator industry arising from the overlap of occupations and how this influences the professionalization of the industry in the context of financial crime in Australia.

The Place of Alternative Dispute Resolution (ADR) in Recovering Assets of 'White Collar Crimes' in Kenya

In a civil or criminal justice system, litigation has always been the first option whenever disputes arise. A good number of people have grown up believing or have at least been made to believe that litigation is the best and most trustworthy method of solving disputes. Even as they have progressed and developed critical thinking skills which allow them to gauge the efficacy or otherwise of litigation as the premier dispute resolution mechanism, they keep favoring it because of the unknown benefits of alternative dispute resolution mechanisms. Safe to take the risks with what is known rather than what is relatively unknown. Economic and financial crimes is one such field that has barely employed the use of alternative Dispute Resolution. Economic crimes refer to crimes of a financial nature and in our context, those that in one way or another affect the larger public as one. They involve the unlawful taking of public resources. Criminologists prefer to use the term white collar crimes because of the status and type of individuals who ordinarily commit them. Alternative dispute resolution in the country has over the last years gained notoriety and deservedly because of its potential to not only maintain relationships between disputing sides but the fact that it saves court resources which would otherwise have been spent pursuing the matters in court. The same has slowly found itself in the discourse around economic crimes and has even received the endorsement of the authorities mandated with the investigation and prosecution of such economic crimes. This paper seeks to assess the benefits of the use of alternative dispute resolution in dealing with economic crimes and as such, provide a reference point for those who remain skeptical about the wisdom of using non-litigation measures to deal with people who have been accused of fleecing the public.

The Costs of Civil Justice and Who Pays?

This article examines current debates about delivering access to justice in a shrinking state, specifically the Supreme Court’s claim in Coventry v Lawrence that it is impossible to deliver access to justice for all litigants without widely available legal aid, and broader claims that the state is failing in its duty to provide access to justice for all. It argues that the level of public subsidy and the balance between public and private funding for civil justice systems is a question of distributive justice. A critical review of private funding models demonstrates that some have denied access to justice, however requiring litigants to pay for their own access to justice, or to even subsidize access for other litigants, is defensible in principle and practice. Private funding models based on cross subsidization between users could substantially reduce the access to justice ‘gap’ experienced by many, provided they meet certain criteria.

The Supreme Court's Lamps Plus Arbitration Decision: A Fading Light for Class Actions

Since the 1980s, the United States Supreme Court has dramatically expanded the legal framework for arbitration, and through this expansion, the Court has minimized the role of the judiciary and reshaped the civil justice system. More specifically, the Court has enabled stronger parties with bargaining power, typically corporate parties, to opt-out of the traditional court system and create their own private system of justice, which is largely unsupervised and covers virtually every type of claim in America. Consequently, the civil justice system has become increasingly privatized and millions of ordinary consumers and employees have lost access to the courts, including the ability to proceed collectively as a class. During its October 2018 Term, the Supreme Court decided Lamps Plus, Inc. v. Varela, a splintered decision involving the controversial issue of class procedures in the context of an employment dispute. As a result of Lamps Plus, a company can unilaterally limit its own class action liability through an arbitration clause. This Article has three main goals. First, the Article heavily criticizes numerous flaws with the majority’s decision. Second, the Article explores the limited opportunities that remain for class proceedings when a consumer or employee is bound by an arbitration clause. Finally, the Article examines an unanswered, critical question left open in Lamps Plus: whether an arbitrator or court should determine if an arbitration clause permits class proceedings. This Article proposes a novel solution, whereby both a court and arbitrator jointly collaborate to determine different aspects of the class arbitration problem.

Justice in the East of Ukraine During the Ongoing Armed Conflict

This article reviews the consequences of the invasion by military elements of the Russian Federation and its adjuncts, including pro-Russian separatist armed groups, 1 into Ukraine’s eastern regions or oblasts following Russia’s annexation of the Crimea. The review focuses on the adverse impact and ongoing trespass on Ukraine’s (i) criminal and, to a lesser extent, civil and administrative justice systems; (ii) police, prosecutorial and court institutions; (iii) access to justice by the Ukrainian citizens residing in the conflict zones of the Donetsk and Luhansk oblasts, and (iv) the long-term implications of restoring Ukraine’s justice framework to the conflict areas once the invading forces are routed. The authors summarize the efforts of the invasive forces to undermine the rule of law by establishing their own presumptive rogue constructs for processing matters ordinarily adjudicated by sovereign courts. These rogue constructs staffed by persons of unquestioning political loyalty to the Russian Federation and operating pursuant to substantive law and procedure based on Russian legal models. Keywords: justice in Ukraine’s eastern oblasts

Early Neutral Evaluation (ENE) and Its Importance for the Civil Justice System in Tanzania

Increasingly, courts are setting new behavioral standards for litigants, potential litigants and their representatives. The Tanzania Arbitration Act 2020, has amended provisions of the Civil Procedure Code, R.E 2002 Cap 33 (CPC) by adding a new section 10A to require litigants in civil actions to take “bona fide steps to resolve disputes” and consider the use of, an Alternative Dispute Resolution (ADR) process “at an appropriate stage in the litigation”. The pertinent options are negotiation, conciliation, mediation or arbitration or similar alternative procedure, before proceeding for trial . In addition, the legislation has coincided with significant shifts in terms of judicial understanding to act in a “reasonable manner” that have been imposed upon those engaged in litigation.

Race, Legal Representation, and Lawyer Ethics

Today, despite the progress of post-war civil rights movements and recent criminal justice reform campaigns, the legacy of racial bias endures inside American courtrooms across the nation. This legacy is seen in antebellum portraits of minorities (particularly Blacks) on courthouse wall murals and lineups of shackled juvenile prisoners, and heard in the racially charged trial remarks of prosecutors, the noxious opinions of criminal defense expert witnesses, and the prejudicial statements of deliberating jurors. Unexpectedly, that legacy of bias also persists inside civil rights law firms, legal aid bureaus, and prosecutor and defender offices. Given the pervasiveness of race in American law, we know surprisingly little about the variegated form, substantive meaning, and individual and collective impact of racial bias in legal representation, especially in the public law fields of civil rights, criminal justice, and poverty law. For many years, I have worked and written in these same fields, incorporating research on the lawyering process, ethics regulation, and legal education into classroom teaching and community-based, antipoverty advocacy. The bulk of that prior writing critically maps the late twentieth century landscape of race and representation in American civil and criminal justice systems, searching out pathways of implicit and explicit bias. The purpose of this chapter is to revisit and extend this body of writing to contemporary civil rights, criminal justice, and poverty law practice, particularly the dilemmas that practitioners face in prosecuting, defending, and advancing the rights of indigent minorities. The goal in doing so is to better understand why and how prosecutors and defenders as well as civil rights and legal aid lawyers knowingly appeal to racial bias in their advocacy or engage in advocacy that ethics regulatory regimes like American Bar Association (ABA) rules and standards deem prejudicial to the administration of justice, for example, conduct that disparages, humiliates, or discriminates against litigants, victims, jurors, witnesses, or other lawyers. More broadly, the goal of this chapter is to understand how a diverse group of public interest lawyers — antipoverty and civil rights advocates, prosecutors, and defenders — see, hear, and talk about race, notably the race and racial identity of indigent minority communities embodied in the day-to-day, sociolegal experiences of clients, accused offenders, and victims. What visual images and stock stories of race, for instance, do public interest lawyers employ in performing the functions of an advocate for the impoverished? What are the past and present sources of those images and stories? How do such images and stories construct the culture, social history, and identity of minorities? When do those images and stories engender racial bias and prejudice toward individuals, groups, and communities? Where do those images and stories predominate — courthouses, jury rooms, law offices? And who do they impact and harm — lone clients and offenders, neighborhood groups, whole communities? Last, why do ethics regimes like ABA rules and state bar codes permit lawyers to use such images and stories in their advocacy in spite of the palpable harm to individual, group, and community racial identity? To pursue these interwoven lines of inquiry, the chapter proceeds in three parts. Part I examines the representation of race and poverty under a standard conception of the public interest lawyering process dominated by race talk and racial pragmatism. Part II considers the work of civil rights and poverty lawyers against this standard conception. Part III assesses the work of prosecutors and defenders against the same conception.

Reform of Civil Statutes of Limitation for Child Sexual Abuse Claims: Seismic Change and Ongoing Challenges

Historically, civil statutes of limitation applied standard approaches to claims for injuries suffered through child sexual abuse. Due to the features of these cases, many survivors were unable to commence an action for compensation within time, and could not access the civil justice system. However, since 2015, influenced by the recommendations of state and national inquiries, every Australian state and territory has removed limitation periods for child sexual abuse claims prospectively and retrospectively, enabling commencement of a claim at any time, while retaining protections for defendants’ rights to a fair trial. The reforms are a landmark socio-legal development in the common law world. However, the legal principles are complex, and inconsistencies remain in the approaches adopted by the eight states and territories. This article analyses the nature of these reforms, considers their justifiability as public policy, identifies remaining legislative inconsistencies and challenges, and makes recommendations for reform and application.

Barriers to Participation for Litigants in Person in Remote Court Hearings

In response to the significant changes in the operation of the civil justice system necessitated by COVID-19, particularly the swift expansion of the use of remote hearings, the Civil Justice Council issued a rapid consultation on The impact of COVID-19 measures on the civil justice system. Included within the call for responses was a particular plea for evidence relating to how Litigants in Person (LIPs) were experiencing remote hearings. Research at Ulster University (pre-Covid-19) has been examining how LIPs participate in court processes, particularly in the court hearings, to help identify the points at which the LIP’s right to effective participation under Article 6 ECHR could be at risk. This blog post – the content of which has been submitted to the Council’s consultation – reviews our findings, based on face to face hearings, to help determine what ‘effective participation’ should involve, whether via remote or face to face hearings. The content is posted here to help identify the issues to be considered in evaluating how successful remote hearings might be in protecting the LIP’s right to effective participation.