Judicial Training Research Articles

Environmental Rights: Recognition, Implementation and Outcomes

This article examines the emergence of a human right to a healthy environment emerged; how it is recognized in international, regional, national and subnational legal instruments; the extent to which it has been implemented in law; whether it improves environmental and human health outcomes; and the potential for international recognition. It posits that the case for legal recognition of a RHE is complicated and complex. There are normative, legal, ethical, and moral justifications that both the planet and people living on it are better off in a world that recognizes a RHE. Environmental rights are real. The article reports that there are 136 countries subject to a legal RHE, including: • 84 expressly (see Appendix, The Case for Environmental Human Rights). See also, Environmental Rights Map (same); • 6 reliably impliedly (Bangladesh, Guatemala, India, Pakistan, Panama, and Sri Lanka); • 23 legislatively--not already counted (Armenia, Bhutan, Bosnia-Herzegovina, Cyprus, Djibouti, Eretria, Gambia, Guatemala, Guinea-Bissau, Haiti, Kazakhstan, Lebanon, Liberia, Lithuania, Madagascar, Monaco, Nigeria, Palau, Panama, Saudi Arabia, Tajikistan, Tanzania, and Uruguay); • 23 per ratification of the African Charter--not already counted (see Appendix); Does legal recognition of a RHE improve environmental outcomes? The article reports that with some exceptions there is (still) very modest pursuit of RHE-based legal claims by litigants. Very few cases reach the merits. Few apex courts (those that issue controlling or precedential decisions) engage express RHE-based claims. Those asked to consider whether there is an unenumerated RHE usually find there isn’t. There are complex reasons for the dearth of cases. Many constitutionally entrenched provisions aren’t self-executing (enforceable without legislative action) because they don’t appear in the “fundamental rights” or “bill of rights” portion of the constitution. Even if they do, a gauntlet of procedural obstacles await, including “standing” (who can sue), “jurisdiction” (which court can hear the matter), and separation of powers (whether the matter should be presented to another – perhaps elected – branch of government). There is much more jurisprudence regarding the extent to which other socioeconomic and cultural (“SEC”) rights impliedly incorporate a RHE, including rights life, health, water, family and dignity. Exemplars include the countries noted above, as well as some regional tribunals, including the European and Inter-American Courts of Human Rights. Yet implementation lags even where enforcement succeeds. While embedding a RHE in a constitution may correlate (or be “positively associated”) with better environmental performance (and the results here are mixed), evidence – especially that which has been replicated – that doing so necessarily causes environmental improvement is in short supply. Presently, there is more evidence of effectiveness in vindicating SEC rights in the service of environmental improvement, including concerning climate change. A fair assessment is that while the case for RHE is solid, it has shortcomings that warrant further evidence-based analytical interrogation and judicial training. In the end, the outcome and objective converge: the world is better off for recognizing everyone’s right to a healthy environment. International recognition can help to redress shortcomings, realize potential, and catalyze the cause. [End]

For an Effective Training of Magistrates

This article assumes that proper training of magistrates is essential for society to have a democratic, independent judiciary and to provide a fair process, as judges ultimately pronounce on life, freedoms, rights, duties and assets of citizens. From this perspective, the present study aims to identify the pedagogical principles and guidelines to be observed for effective training of magistrates. In order to obtain a satisfactory answer to the presented problem the inductive method was used, concluding that the training of magistrates must be of a practical and multidisciplinary form, aiming at transmitting professional values and techniques that complement the legal formation and must seek the development of capacities and competences capable of providing efficiency and legitimacy in the judicial proceedings. Judicial training, therefore, is paramount in order for magistrates to be able to perform their tasks properly and to understand the human and social realities with which the justice system interacts.

Critiquing Matter of A-B-: An Uncertain Future in Asylum Proceedings for Women Fleeing Intimate Partner Violence

The #MeToo movement has brought renewed attention to the impact of gender inequality on our society’s ability to provide protection to women from physical and sexual violence, including intimate partner violence. Despite advances in legal protections and increased resources to prevent, prosecute, and bring an end to intimate partner violence, in the absence of true efforts to combat gender inequality as a whole, intimate partner violence will continue to pervade our society. The discussion of gender inequality’s impact on the treatment of intimate partner violence must expand beyond the violence that occurs in the United States to gender inequality’s impact on the protection afforded to women who have suffered this violence in other countries and seek protection from the United States. This is because U.S. asylum law trails decades behind even our flawed federal and state protections for victims of intimate partner violence. The male-centric lens through which the refugee definition was drafted and is interpreted continues to inhibit any progress in recognizing women’s asylum claims involving intimate partner violence. This Article finds that Matter of A-B- returns to the perception that intimate partner violence is a personal matter outside the scope of asylum protections. The decision demonstrates continued ignorance regarding the underlying reasons for intimate partner violence against women—gender and subordination. The failure to recognize that intimate partner violence occurs because of a woman’s gender is one of the primary obstacles to improvements in the treatment of asylum claims involving intimate partner violence. This Article contrasts the lack of progress in U.S. asylum law to provide protection to women who suffer intimate partner violence outside the United States with the advancements made in federal and state efforts to combat intimate partner violence occurring inside the United States. As a remedy, this Article recommends new legislation and regulations recognizing and guiding adjudication of these asylum claims, combined with judicial training and the development of a tracking mechanism for determinations in these types of cases. The current commitment to eradicating gender inequality within the United States is the perfect moment for reforming how we treat gender inequality when it occurs outside the United States.

Stalking By Way of the Courts: Tennessee's Abusive Civil Action Law and Why All States Should Adopt a Similar Approach to Abusive Litigation in the Family Law Context

Domestic violence is a major issue in the United States. In abusive relationships, an abuser seeks to control the victim through various forms of abuse, such as physical, psychological, sexual, and/or financial abuse. Even after a domestic violence survivor is able to escape an abusive relationship, the court system has unfortunately become yet another tool that an abuser utilizes to maintain control of and access to the survivor long after their relationship has ended. Through abusive litigation, an abuser instigates court proceedings with the real purpose of harassing, intimidating, and maintaining control over the survivor. These often meritless proceedings force survivors to continually face their abusers in court, spend thousands of dollars in court fees, and ultimately lead to further financial and emotional burdens on survivors. Although courts have existing means of addressing abusive litigation, such as state Rule 11 sanctions and the court’s inherent authority, these remedies do not specifically address issues unique to abusive litigation where there has been a history of domestic violence, such as the abuser’s primary motivation to maintain control over the victim, or actively prevent an abuser from filing further actions for this abusive purpose. In 2018, Tennessee became the first state to address this issue through enacting a law specifically addressing abusive litigation in the family law context that allows courts to impose prefiling restrictions on abusers who are found to be misusing the court system to harass their victims. This Article analyzes the issue of abusive litigation in the family law context by addressing prior remedies to abusive litigation and why these remedies are not enough to curb abusive litigation in the family law context. It also dissects Tennessee’s law on abusive civil actions, specifically focusing on the sanctions imposed under this law. The most noteworthy sanction is the prefiling restrictions, which prevents an abuser found by the court to be an abusive civil action plaintiff using court proceedings to harass or maliciously injure the victim from filing further actions for four to six years absent the court’s permission. Further, this article argues that Tennessee’s law is a step in the right direction to curb abusive litigation because it is narrowly focused to protect a uniquely vulnerable group, imposes real consequences on abusive litigants, has the same judge oversee any lawsuit the abuser attempts to file during the prefiling restrictions period, and specifies the survivor is not required to respond to an abuser’s attempted motion during the prefiling restrictions period until the sanctioning judge reviews it for merit. Finally, this Article proposes that each state should adopt a law similar to Tennessee’s law on abusive civil actions that specifically addresses abusive litigation in the family law context in order to curb this type of abusive litigation. In order to close a potential loophole in this law for future implementation that could allow an abuser to use it against a survivor, this law may need to include a provision stipulating that this law does not apply to good faith inquiries about a child’s welfare. Once a state passes a specific law addressing abusive litigation in the family law context, it needs to implement abusive litigation into judicial training on domestic violence, especially since this law allows a court on its own authority to declare an abuser to be an abusive civil action plaintiff.

The Case for Measuring Legal Actor Contributions in Court Proceedings

The importance of legal actor contributions has been highlighted in recent international guidelines proposed for the evaluation of court programs and is evident when reviewing the literature on good research design. However, attempts to measure legal actor contributions from an objective and therapeutic perspective as part of the ongoing therapeutic jurisprudence movement are scarce in the literature. To date, no court evaluation programs have included an objective measurement of legal actor contributions as a feature of their research design. However, several programs have attempted to measure this variable via self-report or the perceptions of other legal actors. This article highlights the necessity and usefulness for both the mainstreaming therapeutic jurisprudence movement and problem-solving courts to find a way to measure legal actor contributions effectively and objectively when evaluating court processes, impacts and outcomes. The proposed measurement tool could also function as a respectful mechanism to give feedback for magistrates wishing to embed therapeutic jurisprudence practices into their work in mainstream courts and could potentially be used in judicial training.

Obuka sudija i pravo EU - pogled na uporednopravnu i praksu Srbije

EU law is a pivotal issue in modern-day judicial education in Europe. It is particularly important to ensure that, prior to EU accession, the judges of the acceding country are adequately trained on the fundamentals of EU law and its relation with national law and the role of the national judge in the European judicial space. Once a country becomes an EU member state, it is necessary to continue with adequate training and support to proper implementation of EU acquis by national judges. There is no right or wrong way to incorporate EU law in judicial training, although some best practice examples have been identified in the practices of EU member states, both of those that have joined the EU relatively recently and of the “older” EU member states. The authors will investigate the practices related to judicial training on EU law in Serbia in the light of good comparative practices of judicial training institutions in Europe and formulate recommendations for Serbia in the context of EU accession.

A demonstration of the Borg centiMax® Scale (CR100) for performance evaluation in diving

In many sports, for example in diving, figure skating, or ski jumping, judges subjectively score the performance on a category scale. The level-anchored ratio Borg centiMax® Scale (CR100), a general intensity scale from 0 to 100 commonly used for self-appraisal of exertion, is an interesting and valuable alternative. The aim was to explore the possibility of using the Borg centiMax® Scale (CR100), for performance evaluation in diving. In Study 1, 16 participants used the centiMax scale and the traditional diving scale (FINA) during a judicial training course on pre-recorded material; and in Study 2, six professional judges used the two scales during qualifying, semi-finals, and finals in the Swedish Championships in Örebro, 2012. Strong and significant correlations were obtained between judged performances with the two scales (r ≥ .8), as well as with contest results (r ≥ .6). The continuous and finely graded centiMax scale has promising possibilities of improving measurement with both level determinations (how good) and ratio relationships (how much better). With a Borg CR scale, more interesting comparisons can be made, for example, direct comparisons between performance measures and perceptual variables (e.g., perceived exertion and motivation). This is of importance in training and coaching of athletes.

Modelos de suporte utilizados no âmbito da formação a distância de magistrados no contexto internacional

Being aware of the importance of e-learning within the current training structures of different professional contexts, this study aims to contribute to the modernization of the training practices implemented in the continuous training of magistrates, through an analysis of the pedagogical models of distance learning adopted by the countries belonging to the European Judicial Training Network (REFJ). This research, developed in 2014, adopted the following purposes: i) to identify practices of distance learning and/or in blended-learning; ii) to carry out a survey of the main existing guidelines at the level of planning, design and evaluation of distance learning and/or blended-learning training actions; and iii) to analyze the pedagogical models adopted at this level. This article focuses on the analysis of the results inherent to the international context, specifically the support models used in distance learning so as to develop a 'state of the art', in an effort to implement a pedagogical model of distance learning. The collected documents of 12 european countries constituted a corpus of conceptual data that allowed us to verify that there is an established effort for the implementation of distance learning devices in the training activity provided to the magistrates in service.

The Gay Panic Defense: Legal Defense Strategy or Reinforcement of Homophobia in Court?

Gay panic refers to a heterosexual man violently responding to unwanted sexual advances from a gay man. In court, the defendant may argue he was provoked or temporarily insane. This study utilized 352 jury-eligible citizens to assess differences across mediums of gay panic. Participants were asked to read vignettes depicting a control, gay panic as provocation, or gay panic as insanity condition and provide verdicts and ratings of blame and responsibility. Participants also completed measures assessing political orientation and homonegativity. Data were analyzed via a MANCOVA, a chi-square goodness-of-fit test, and general linear modeling. Verdicts, victim blame, and ratings of responsibility differed across vignette conditions, with an observed leniency effect when gay panic was claimed in either context. Homonegativity also exacerbated patterns of prodefendant views, as participants higher in homonegativity assigned higher victim blame, lower defendant responsibility, and more lenient verdicts in the gay panic conditions. The effect of political orientation was nuanced, as only republicans in the provocation condition followed the anticipated pattern in rendering more lenient verdicts. Results provide additional support for the notion gay panic defenses may be, in part, fueled by political beliefs and prejudicial beliefs against persons of sexual minority status. Drawing from a justification-suppression model, it may be that in cases of gay panic, a context is created in which prejudiced ideologies can be openly expressed via leniency on the defendant. Implications may be relevant to future criminal law policies and practices, particularly advocacy and policy efforts, judicial training, and trial consultation to attorneys for juror selection and development of trial strategy.

Inscribing Islamic Shari‘a in Egyptian Divorce Law

As with other family law regimes, Muslim family law in Egypt plays an important role in shaping gender norms. In this article, I discuss adjudication by family courts during the period 2008-2013. I argue that the most important developments in this regard are: (1) standardisation of the way in which court rulings are written down, which contributed to a normalisation of the male-dominated nuclear family; and (2) the significant inclusion of Islamic sources in court rulings. A central question in this regard is how judges without a background in classical Islamic jurisprudence have applied the modern legal codes derived from shari‘a. I argue that a move towards greater standardisation of practice has taken place through a closer union between law and religious morality, with Quranic verses and the Sunna being used by judges in creative ways. Thus, shari‘a is continuously reinscribed in state law and its meaning construed in ways which differ from classical Islamic jurisprudence (fiqh). I also highlight the importance of key contextual factors, such as judicial training, time pressure, and the influence of computer technology, behind these developments.

Sobre la pobreza cultural de una práctica (judicial) sin teoría

The traditional model of initial training of judges in Spain and in other countries has been focused, and is still focused, on the mechanical digestion of a pile of stereotyped notions related to several legal subjects.This knowledge is presented with no references to specific legal disputes and does not meet at all, neither the profile of modern complex constitutional legal systems consisting of several levels, internally changing and conflicting; nor the practice of those systems. It does correspond, however, the historical model of the Napoleonic judge, who tends to act as a mechanical enforcer of the law and the longa manu of the real power rather than guardian of the citizens’ basic rights. The alternative to this kind of judicial training would be a system of training incorporating a high quality operative knowledge of the positive law actually in force, together with a theoretical-philosophical training in line with the suggestions made by Manuel Sacristán of «a level of exercise of thinking» based on the specific field and activity inherent to that group of legal practitioners.

IN-SERVICE TRAINING OF JUDGES IN EUROPE

It is essential that judges receive detailed, in-depth, diversified training so that they are able to perform their duties satisfactorily. Facing a quickly-evolving world, where technologies, social context and law change on monthly basis, judges and prosecutors need to constantly improve their professional knowledge, skills and behaviour. Knowledge of substantive law is no longer sufficient – holders of judicial offices need to know more about the social context of law and judicial processes, skills related to the activity in the court. In order for judicial training to truly contribute to the improved functioning of the judiciary and secure for every person the right to a fair trial, the training must respond both to the needs of the judiciary and also to the needs of the society. This article will present the current and emerging trends in assessing the training needs within European judicial systems and developing continuous judicial training curricula. The article underlines the need to shift the process of assessing the need for training of holders of judicial offices from a justice-centered exercise to a consultative and inclusive process that engages a wider stakeholder community. The authors also argue that the emerging trend of developing judicial competence models can be instrumental in securing both that the training needs are met and that access to justice is provided to all.

Council of Europe’s standards of the judicial and prosecutorial training and nomination process

The article shows the importance of the judicial training as it is perceived by the Council of Europe’s bodies, i.e. as a prerequisite of a judicial independence. This issue has been raised in several documents issued e.g. by the Consultative Council of the European Judges (CCJE) and the European Commission of Democracy through Law (Venice Commission). It has also been stressed in the Recommendations of the Committee of Ministers and mentioned by the United Nations. The quality of the prosecutorial trainings is of no less importance.

Will enhanced judicial training in environmental law influence the number of infringement cases against Member States?

Will enhanced judicial training in environmental law influence the number of infringement cases against Member States?

Defending the Principle of Legality in Afghanistan: Toward a Unified Interpretation of Article 130 to the Afghan Constitution

The 2004 Constitution of Afghanistan is one of the main sources of criminal law, not because it defines crimes and punishments, but because it establishes the fundamental, individual rights and liberties that impact criminal law and procedure. Among these is the principle of legality, as expressed in Article 27. This is the doctrine that no person shall be held criminally liable for any conduct unless a statute criminalizing that conduct precedes it. This doctrine is based on the idea that it would be unjust to announce that an act is illegal, or increase punishment for a crime, after that act has been committed. In the context of Afghanistan, however, this doctrine is complicated by Article 130 to the Afghan Constitution, in which courts are directed to use Hanafi Fiqh (jurisprudence) to fill in the gaps when no provision in the Constitution or other Afghan statutes offers a path to justice. This article explains that based on Article 130, many criminal courts have used Hanafi jurisprudence to justify convicting individuals for crimes or subjecting individuals to punishments that exist under certain interpretations of Hanafi jurisprudence, but the crimes and punishments are not codified in the Afghan Criminal Code. This article argues that these interpretations of Article 130 not only violate the principle of legality set forth in Article 27 of the Afghan Constitution, but also contradict international law. In addition, this article asserts that differences in judicial training are at the root of why some jurists interpret Article 130 to allow for this level discretion and some do not. Finally, the article suggests that this problem might be helped by (1) using a similar approach as was used in Iran and Egypt, amending the Penal Code to include all legally recognized Tazir crimes; and (2) developing a system of secondary sources, like annotated codes, legal encyclopedias, and treatises, to help to shape future practice and bring more stability and consistency to judicial interpretation and rule of law.

The training of national judges on EU competition law

This article presents the main findings of a study recently published by the European Commission on the training needs of national judges in the field of EU competition law. The study, prepared by ERA, the European Judicial Training Network and Ecorys, proposes distinct training profiles, depending on whether judges deal with the public or private enforcement of competition law (or with State aid), the extent to which they are specialised in the field, and other factors that mean that the needs and numbers of judges dealing with EU competition law vary considerably from one Member State to another.

STUDIES OF LAW AT THE FAR EASTERN STATE UNIVERSITY (1920-1922)

Arrival of bolsheviks in October, 1917 to authority has entailed cardinal variations not only in social and economic, political, but also in spiritual progress of the country. Construction of a classless society was impossible in conditions of general illiteracy of the population. One of the first actions of new authority were decrees about higher education. Access to reception of higher education citizens of the Soviet Russia received all, and the status of the faculty has been essentially reconsidered. The principle of scientific character of teaching has been opposed to political reliability and a social origin. The new Soviet management tried to realize utopian idea of a socialist society, all jurisprudence has undergone to reforming, the juridical education has been placed in the service ideologies. Faculties of law were replaced with new faculties of social studies. The article deals with the training of lawyers in the Far Eastern State University. The remoteness of the territory and the frequent changes of political power in the region has identified specifics of judicial training. Intransigencies supporters and opponents of the Soviet regime does not rarely manifested within the teaching community. Shown leadership Institute the loyalty, long time allow employees the University survive, in 1922 became the reason for the closure of the school.

LIETUVOS TEISĖJŲ PROFESIONALUMO DIMENSIJOS: KVALIFIKACIJA, KOMPETENCIJA IR ASMENINĖS SAVYBĖS

The article argues that judicial profession is multi-dimensional, and is constituted of at leats three components, i.e., formal qualification, constant training, and personal qualities that arise from one’s inner determination to see the profession as a calling. Three parts of this article have been dedicated to grounding that claim. The first part analyses the judicial qualification and judicial training peculiarities. The second part analyses judicial training in terms of its content and form and highlights its strengths and areas for improvement. Finally, the third part distinguishes the personal qualities that allow the judge to make impartial decisions, based on Max Weber’s ideal types of political leadership.The research showed that professional requirements for the judges are clearly defined in legal acts that provide a strong link between the judge’s professional requirements and continuous development of competence. The current Lithuanian judicial training system is made of two parts (i.e., the basic and additional training) that allow a consistent and systematic segmentation of the key and professional competences crucial for the judge’s activities. This allows the judge to both develop the competences essential in his or her activities and discretely develop his or her competence in the fields he or she finds it necessary. In terms of their form, judicial training programmes are defined under clear methodological guidelines, although some other important guidelines, such as objectives, goals and expectations, should be included. In terms of their content, the programmes are thorough, targeted to specific groups, and featuring continuous competence development. However, due to constant social, cultural and legal regulatory framework changes, they should be regularly updated. The judges’ impartiality in making lawful rulings arises not only from such sociology-wise universal ideas as good faith, devotion to one’s duty and independent decision making, the personal qualities common to the members of various occupational categories. A very important condition to judicial professionalism is one’s determination to see one’s activities as a call for dispensing justice. This leads to passion (devotion) for the cause of justice, and responsible administration of justice and as well as maintaining a proper distance between one’s personal opinions and beliefs and the participants of proceedings.

When Judges Have a Hunch

This article aims to inform judges, legal scholars and philosophers of law on new developments in psychology and neuroscience that prove judicial “hunches” or intuitions are all-pervading in judicial decision-making. Unlike the “legal reasoning” paradigm taught in law schools and in judicial training, which overemphasises the rational, conscious, syllogistic nature of reasoning, new theories show that intuitions naturally take place in all minds that have amassed enough professional expertise. More particularly, this essay argues that intuitions appear in judges’ minds in all types of cases, easy or hard, at all levels of the judiciary; and that this is neither something to ignore not something to denigrate. Neurological and psychological research shows intuitions are not necessarily irrational and unwanted, but most likely the most effective way in which the judge’s brain adapts to the immense pressures of the job - be it increasing workloads, limited time to spend on a case, or the limited information available. This article aims to change the paradigm in judicial decision-making by making judicial intuitions reasonable, accepted, and even desirable.

Learning to Sentence: An Empirical Study of Judicial Attitudes towards Judicial Training

This paper aims to present an innovative type of empirical research in judicial studies. It focuses on assessing the attitudes and perceptions judges have towards the way they learn how to sentence throughout the course of their judicial careers. The first main assumption is that judges learn all throughout their lives, both through the formal training offered and other informal sources of learning (such as the practice of sentencing, or peer advice). The second main assumption is that the judges’ learning needs and perceptions towards training change as they gain more experience and they are exposed to various learning contexts. So far the study was conducted in one European jurisdiction, totalling 510 judicial respondents ranging from 0 to 40 years judicial experience. This paper presents the preliminary findings with regards to their views on the judicial training they receive.