Judicial Roles Research Articles

‘Sustaining the Character of a Judge’: Conflict within the Legal Thought of British India

Judicial roles provided the raj with major dilemmas. One persistent dispute related to civil servants sitting as judges. Critics argued that civil servants had a superficial legal education and lacked appropriate practical experience of work in the courts. Defenders of their judicial role contended that the best training for judges lay in administrative work on the plains of the sub-continent. Governors-general, viceroys, and others in executive positions claimed that such work provided officials with an understanding of Indian society and that this social knowledge made them effective judges. Professional judges drawn from the ranks of barristers and sitting in the major cities of Calcutta, Bombay and Madras frequently contested this view and the result was sustained disagreement. At the heart of the debate lay competing visions of justice.

African Culture and Tradition at the Crossroad: The Institution of Chieftaincy and the Paradox of Modernity in Bekwarra

The institution of chieftaincy is one of the most enduring traditional institutions of Africa in spite of the many vicissitudes it displayed remarkable resilience from colonial through post-colonial times. Historically, chiefs constituted the axis for the exercise of executive, legislative, judicial, military, economic and religious roles. Although chieftaincy institution has experienced ebbs and flows depending on regime preferences and dynamic changes since independence, Chiefs and traditional institutions have manipulated their legitimacy to entrench itself. It is argued that despite assertions that chieftaincy has been overtaken by events, the reality is that the institution has become central to government and cannot be discarded. The challenges of recent times, has raised serious concerns about the importance of chieftaincy against the backdrop of the institution’s ambiguous role in modern times. This study traces the historical roles of chiefs, and the inscriptive, non-democratic and anti-modern character of the institution which some pessimist believe would not guarantee its survival in the face of “modernization.”

Judges as therapists and therapists as judges: the collision of judicial and therapeutic roles in drug treatment courts

This paper explores the implications of the expansion of judicial and therapeutic roles in a drug treatment court (DTC) in Canada. Issues that are raised are: how the courtroom is framed as a therapeutic space where public appearances by participants are part of the therapeutic process; how judges have taken on therapeutic practices, effectively compromising their traditional role as neutral arbiter; how certain women resisted therapeutic interventions by judges and felt they received harsher punishments than men; and how treatment counselors in DTCs are given powers of enforcement over their clients. The collision of judicial and therapeutic roles in the DTC results in negative consequences for individuals in the specialized courts. Specifically, DTC participants are expected to engage in a therapeutic relationship with their treatment counselors and the court; however, their right to confidentiality is withheld, and their treatment counselors act as agents for the court.

Balancing Act: The Adaptation of Traditional Judicial Roles in Reentry Court

While research has confirmed their role adaptation and importance in reducing recidivism in drug courts, little research has documented the role of the judge in reentry courts. Based on interviews with participants and the workgroup, court observations, and a document analysis, this study revealed that judges in a federal reentry court program balance informal, supportive relationships with participants with more traditional, authoritative, disciplinarian roles. The implications of this balancing act for participants' perceptions and other reentry court programs are also discussed.

The Court Versus Consent Decrees? Schools, Horne v. Flores and Judicial Strategies of Institutional Reform Litigation

Is the U.S. Supreme Court inviting litigants to take aim at unraveling injunctions in institutional reform litigation—especially consent decrees in the schools? In Horne v. Flores (2009), the court remanded a 17-year-old school reform case to a federal judge with orders to look beyond consent decrees on financing, reducing class sizes, and moving from bilingual education to structured English immersion—to look anew at whether the schools in Nogales, Arizona, provide equal opportunity. Those concerned with schools worry that the court has signaled the end of institutional reform litigation in the schools. However, we closely analyze these dense opinions and data tables to posit the court’s preference for a catalytic judicial strategy that may work best with institutional reform litigation. We place this analysis within a larger context of empirical studies of institutional reform litigation judicial strategies, including judicial roles of deferrer, director, broker, and catalyst. We also argue that these preferences demonstrate the court’s awareness of a sociolegal empirical literature on what works in institutional reform litigation—rather than the end of consent decrees in the schools.

How the Legal Complex is Integral to Theories of Judicial Power

This essay is a “provocation” invited by the editors (Diana Kapiszewski, Gordon Silverstein, and Robert A. Kagan) of a volume provisionally entitled, Consequential Courts: New Judicial Roles in Global Perspective. The book brings together original essays on constitutional courts in new or restored democracies and the expansion of judicial roles together with general theoretical essays by the editors and three invited “provocateurs.” References in the book to individual chapters are in the form of the (author’s name, country on which the chapter focuses). I am grateful to the editors for the opportunity to participate in conversations around the power of courts, to Malcolm Feeley for his insights and encouragement on this essay, and to Lucien Karpik and Malcolm Feeley for their continuing expansion and refinement of the ideas that have emerged from our common endeavor on the legal complex and political liberalism.

The Mixed Heritage of Federal Intellectual Property Law and Ramifications for Statutory Interpretation

This article explores the unique and complex mix of statutory provisions and common law jurisprudence that characterizes federal intellectual property law. Patent and copyright law trace their roots back to terse 1790 enactments on which the judiciary embroidered critical requirements and limitations. In line with common law traditions and less formal division between legislative and judicial roles in the early republic, courts established many critical doctrines and frameworks, including patentable subject matter limitations, patent’s inventiveness (non-obviousness) standard, patent and copyright infringement and indirect infringement doctrines, patent’s experimental use, and copyright’s fair use, among other important doctrines. The rapidity and unpredictability of technological change have continually buffeted courts with new challenges. Jurists have drawn upon their common law background, tort law and equitable principles, and pragmatism to evolve the patent and copyright systems. This response system in conjunction with Congress’s institutional impediments to responding quickly to technological change has enhanced the judiciary’s substantive imprint on federal intellectual property law. It has enhanced intellectual property law’s sensitivity to the inherent heterogeneity of creative activity and improved its responsiveness to technological change. Congress has perpetuated these evolutionary processes – both expressly and implicitly – throughout U.S. history. Hence, courts should be especially careful to trace the provenance of copyright and patent provisions and doctrines to determine the proper lens for interpreting and evolving these laws.

A Cayman Islands Perspective on Transborder Insolvencies and Bankruptcies: The Case for Judicial Co-Operation

The freedom of movement of capital in the modern global economy has been indispensable to the development of international corporate enterprise. This paper argues that the judicial and legal institutions of states are as essential to the stability of the global economy as the traditionally heralded international economic channels that have been so carefully crafted globally. In fact, in the sphere of trans-border insolvency and bankruptcy, judicial and legal institutions could be perceived as even more vital, as the vibrancy and the health of global enterprises can be radically challenged and even severely impeded should countries fail to institute universally accepted legislative and judicial codes of practices. The quest for this normative approach has found expression by the United Nations in its development of the UNCITRAL Model Law, a prototype which has since been adopted by twenty-two States. A number of other States, as well, have adopted measures which mirror the cooperation and co-ordination principles of the UNCITRAL Model Law These States all accept that legislative and judicial capacity and competence are essential ingredients in the salutary infusion of mutual confidence, and it is this very shared trust that is the ultimate catalyst for successful resolution of cross-border and other disputes. For Offshore Financial Centres (OFCs), reinforcement of confidence in their Courts in the international arena is perhaps even more highly critical to their sustained roles in today’s globalized economy. This paper outlines the legislative and judicial competencies and roles that have enabled the Cayman Islands, as an example of a key OFC, to emerge as a major player in international cross-border conflict resolution. This discourse also acknowledges the hurdles OFCs have had to overcome in both perceptions and reality in the global marketplace and the increased pressures faced by Courts today in meeting demands of public policy objectives. With specific regard to the Cayman Islands as an example of an effectively functioning OFC, the paper examines the Islands’ insolvency regime, reviews a number of cases demonstrating the efficacy of the approach of the Islands’ Courts, and highlights relevant Cayman Islands’ legislation and orders made pursuant to those laws. This analysis demonstrates how, by implementing through its Courts a public policy model on a par with international codes of conduct, the territory has vouchsafed its ability to render the kind of international judicial assistance that is critical to the fulfilment of the tenets of the UNCITRAL Model law and to the principles of universality of bankruptcy that the Law embraces. A further benefit is that Cayman’s Courts and court-appointed officials, in turn, may expect to receive full cooperation from other jurisdictions. Indeed, the emergence of the Cayman Islands as a leader among financial centres is due in no small part to its compliance with international regulatory requirements across the breadth of its financial industry. In addition to complying with FATF Directives on money laundering, the territory complies with OECD threshold requirements for tax information exchange and serves as a member of the Steering Committee of the OECD’s Global Forum on Transparency and Exchange of Information. Furthering its position of strength, the Islands’ legal and judicial system is based on English common law traditions, and its local legislative arsenal is being constantly modernized to meet contemporary Cayman Islands’ needs. This legislative progression, given the Islands’ continued status as a British Overseas Territory (UKOT) located in the North West Caribbean Sea, includes the extension, as required, of United Kingdom legislative provisions to the Islands.

Trial by Power: Some Preliminary Observatrions on the Judicial Roles of Taoist Martial Deities

Trial by Power: Some Preliminary Observatrions on the Judicial Roles of Taoist Martial Deities

Judging Ovid

While senators and equestrians both played substantial roles in adjudicating legal cases in Rome, we can rarely assign specific involvement to individuals. But Ovid tells us of three separate judicial functions he fulfilled, and this article suggests that his participation should be viewed as representative of the judicial roles other equestrians of similar standing played in early imperial Rome.

Assessing Preference Change on the US Supreme Court

The foundation upon which accounts of policy-motivated behavior of Supreme Court justices are built consists of assumptions about the policy preferences of the justices. To date, most scholars have assumed that the policy positions of Supreme Court justices remain consistent throughout the course of their careers and most measures of judicial ideology—such as Segal and Cover scores—are time invariant. On its face, this assumption is reasonable; Supreme Court justices serve with life tenure and are typically appointed after serving in other political or judicial roles. However, it is also possible that the worldviews, and thus the policy positions, of justices evolve through the course of their careers. In this article we use a Bayesian dynamic ideal point model to investigate preference change on the US Supreme Court. The model allows for justices' ideal points to change over time in a smooth fashion. We focus our attention on the 16 justices who served for 10 or more terms and completed their service between the 1937 and 2003 terms. The results are striking—14 of these 16 justices exhibit significant preference change. This has profound implications for the use of time-invariant preference measures in applied work.

A guide to the historical records of the Asante people of Ghana at the Manhyia archives

The establishment of functional records management systems in Ghana to manage the records of some traditional authorities is a recent development. After independence some parastatals, financial institutions, corporations and private business firms began to recognize the importance of recorded information as a vital organizational resource. With this realization came the recognition that a system for managing this resource is essential. This awareness led to the establishment of what is usually referred to as special archives.In the case of the traditional authorities the archives were set up with the aim of preserving the cultural and historical heritage of their traditional areas. As noted by Adams (2005) in a study on the management of chieftaincy records in Ghana, the chiefs perform administrative, judicial and advisory roles to government on traditional issues.

Leaders, Followers, and Outsiders: Task and Social Leadership on the Canadian Supreme Court in the Early 'Nineties

The examination of judicial leadership roles in American courts has been a project of study for decades, yet it has received little attention in comparative settings. Using the theoretical constructs of task and social leadership, we explore the patterns of leadership and influence found on the Supreme Court of Canada during the tenure of Chief Justice Antonio Lamer (1991-97). The findings demonstrate considerable evidence of task leadership by the Chief Justice in a period of revolutionary constitutional policy making. Additionally, the results suggest that the Chief Justice exhibited strong instincts in marshalling a consistent winning coalition to secure majority decisions, and in crafting a cohesive court with a low rate of dissent. Still, dissent rates did climb somewhat under Lamer's tenure as chief, with the leading dissenters turning out to be the two women on the bench. One of those relative outsiders has recently ascended to the position as chief (Justice Beverly McLachlin). The study powerfully demonstrates the utility of applying leadership analysis to courts outside the United States.

Judicial Review and the War on Terrorism

This article examines the role of the federal courts in the war on terrorism, and contrasts the different judicial roles in reviewing decisions about the conduct of war abroad and within the United States. It explains that judicial refusal to adjudicate questions concerning the initiation and conduct of the war abroad is consistent with a narrow view of judicial review and the political question doctrine. Because the Constitution allocates different war powers to the President and Congress, allowing them to shape warmaking through the interaction of these powers, there is no single, constitutionally-required process for making war that requires judicial enforcement. This view has been borne out in practice, as most recently demonstrated in the wars in Afghanistan and Iraq. The paper also reviews the role played by federal courts with regard to the domestic effects of war, particularly when the war involves American citizens as enemies or when operations occur within the territory of the United States itself. It illustrates the wartime role of judicial review by examining cases arising from the current war against the al Qaeda terrorist organization. In the context of surveillance, the federal courts have granted warrants under the Foreign Intelligence Surveillance Act (FISA) using more flexible standards than exist for a normal search warrant, to permit surveillance of terrorist suspects. With American citizens detained as enemy combatants, the courts have entertained habeas corpus petitions, but have followed a deferential standard of scrutiny for the executive branch's war making decisions. These cases show that while the courts have exercised judicial review over the consequences of the decision to go to war, they have adopted a more flexible, deferential standard of review than would apply to normal, peacetime governmental actions, in order to accommodate the imperatives of conducting war. Thus, judicial review may apply to domestic wartime measures, but in a manner that provides options to the political branches for the conduct of the war, rather than simply serving as a negative check on government action.

Book Review: The House of Lords: Its Parliamentary and Judicial Roles, edited by Brice Dickson and Paul Carmichael. (Mart Publishing, Oxford, 1999)

Book Review: <i>The House of Lords: Its Parliamentary and Judicial Roles</i>, edited by Brice Dickson and Paul Carmichael. (Mart Publishing, Oxford, 1999)

The House of Lords: its parliamentary and judicial roles

This new book examines the House of Lords in both its Parliamentary and its judicial capacity. A total of 14 contributors discuss such important topics as the membership of the House,how the House compares with other second chambers in bicameral legislatures elsewhere, the role of the Lord Chancellor, the rules concerning discussion of sub judice matters and the stance taken by the Law Lords towards European Community law. At a time when the future of the House is once again under active consideration, the book serves to remind readers of the significance of the institution to the British constitution. It will be of interest to students of government and law as well as to practitioners in the field, including Parliamentarians and judges. The issues dealt with in this book go to the heart of how democracy manifests itself in the United Kingdom today. Contributors: Michael Rush, Nicholas Baldwin, Rodney Brazier,

Human Rights in Hong Kong

In this address to the UNDR commemorative seminar in April 1998 Lord Cooke speaks of human rights, his current judicial roles and the prospects for a common law of the world. Lord Cooke discusses the importance of human rights law in both substance and implementation. The author reports on the process of implementing constitutional law and human rights in New Zealand, Samoa, the Republic of Fiji, the United Kingdom, and Hong Kong.

Introduction: The Impact of Political Change upon Law, Courts, and Judicial Elites

The impact of significant political change and conflict upon law, and legal and judicial elites is central theme of this issue of International Political Science Review. For decades, little attention was paid to attributes and political and social roles of lawyers and judges froma comparative cross-national perspective. Eighteenth, nineteenthand early twentieth-century assessments of determinants of characteristics of legal systems generally emphasized factors other than legal and judicial elite characteristics and roles. Thus Montesquieu identified climate and geographical location [1748] (1977) as did Randall (1918). Sir Henry Maine emphasized early legal codification [1861] (1931). James Bryce focused upon racial characteristics (1902 and 1918), while Achille Loria underscored economic factors as decisive (1918). In contrast, after assessing sixteen legal systems (ancient as well as contemporary) which he deemed most significant, John Henry Wigmore found ample empirical evidence to eliminate race as a determinant. Instead, he suggested that the rise and perpetuation of a legal system is dependent on development and survival of a highly trained professional class (1928: 1127). Early in nineteenth century, Alexis de Tocqueville had introduced several basic assumptions about collective attitudes and societal roles of lawyers and judges. In his partially completed work on The Ancient Regime, he pointed out that German lawyers had recommended that Roman law should replace or modify German law in order to serve interests of monarchy. He further noted that because it degraded political society,

Statutory Interpretation and the Balance of Power in the Administrative State

For those who study the interaction of courts and agencies, one of the most persistently intriguing puzzles has been to define the appropriate judicial and administrative roles in the interpretation of regulatory statutes.2 Assume, for example, that Congress enacts legislation which establishes a system of rights and responsibilities for employees and creates an agency to administer that system. Should the court or the agency decide whether the critical statutory term employees encompasses persons who would be considered independent contractors under the common law, or workers who are foremen and so, at least arguably, part of management?3 To determine what the law in the context of an actual controversy that turns on a question of statutory meaning is the quintessential judicial function.4 At the same time,

The Judicial Activity of the Lord Chancellor 1946-1987: A Pellet

The office of Lord Chancellor is unique within the United Kingdom. The Lord Chancellor is, at the same time, Speaker in the House of Lords, a senior government minister holding Cabinet rank having joint responsibility (together with the Home Secretary) for the legal system, and a judge.' No other office within the United Kingdom has quite this scope;2 the Lord Chancellor appears to embody legislative, executive, and judicial roles.