Quality Of Adjudication Research Articles

The Quality of Adjudication: Reviewing the Settlement of Criminal Cases by the Judges

In the development of the community, the law must be able to follow the development of the community as well. Judicial work, in contrast, is based on legislation and on the expertise of the personnel. The type of research is juridical-empirical research or a socio-legal research, which examines the legal provisions and what happens in communities. The research approach uses conceptual and cases approaches. The results show the principles of justice in the decision to resolve a criminal case by a judge in a court are sentenced through a court decision which must at least contain two aspects of justice, namely procedural justice and substantive justice. Procedural justice is justice related to the protection of the legal rights of the parties in each stage of the judicial process. Meanwhile, substantive justice is related to the content of judges' decisions in adjudicating a case, which is made based on objective, honest, impartial and rational-logical considerations. The settlement of justified criminal cases and the role of judges in achieving these values through judges' decisions in court is carried out by judges with the obligation to base their decisions on legal considerations that contain sociological, juridical, and philosophical values. Keywords: Adjudication; Criminal Law; Court; Judges DOI : 10.7176/JAAS/59-04 Publication date: December 31 st 2019

Proposed changes to Polish intellectual property laws

This article discusses proposed legislative changes which aim to introduce a special court into the Polish court system to handle intellectual property matters. The main reason for establishing such a court is, undoubtedly, the quite specific nature of proceedings regarding intangible property rights in a broad sense. The bill is part of a vast exercise to amend civil procedure law, but, to a large extent, has an impact on the substantive provisions of Industrial Property Law and the Act on Copyright and Related Rights. A number of the proposed solutions should, therefore, have a consistent influence on intellectual property laws and contribute to increasing the quality of adjudication. A substantial portion of the doctrinal considerations addressed in this article are, however, about selected issues related to new laws on remedies available in intellectual property law proceedings. In particular, they include provisions which enable the disclosure of information on intellectual property right violations. The issue of information disclosure requests has already provoked many reactions, mostly critical, with respect to the current legislation. Therefore, examining the proposed change is all the more justified as it may provide an answer to whether the uncertainties associated with applying this construct will continue to exist.

The Consequences of Appointment Policies for Court Legitimacy in Benin: A Network Analysis Approach

The paper seeks to explain how courts in new and vulnerable democracies acquire legitimacy and thus become credible actors able to facilitate or even foster the consolidation of democracy. It analyses the case of the Constitutional Court of Benin (CCB), demonstrating that governmental appointment policies have had an important impact on the court’s legitimacy. This West African country is considered to have been continuously democratic since 1991, and the court was established by consensus during the transition. The findings suggest that perceptions of fair representation on the bench matter more for credibility than professional qualifications and the quality of adjudication. And contrary to the widespread narrative that African politics is basically shaped by ethnicity, short-term political affiliations appear to matter more than communalistic representation. Network analysis using original social data on the major politicians and all 25 CCB judges since the court’s creation in 1993 provides the evidence for this argument. The paper ultimately argues that the appointment-policy-driven delegitimisation of an established and largely credible political arbiter can put democratic consolidation at risk. Ruling elites therefore play a major role in maintaining or eroding this consolidation.

How legal indicators influence a justice system and judicial behavior: the Brazilian National Council of Justice and ‘justice in numbers’

This article explores how the rise of legal indicators influences the administration of justice and judicial behavior. The incorporation of mathematical formulas, complex equations, and statistical data into the administration of justice has a strong influence on judges, particularly on internal competition for promotion and professional disciplinary control, as judicial activity is now monitored, measured, and regulated by numbers. As a case study, I examine how the ‘mathematical turn’ has transformed the internal administration of the Brazilian justice system, analyzing how sanctions and rewards are not based on substance or ideology, but rather on numbers of sentences, trial length and amount of procedures in a court's dockets. Assessment of the quality of adjudication is primarily based on quantitative evaluations based on statistical numerical data. Based on the Luhmannian concept of ‘legal irritants,’ on the Foucaldian notion of bio-power and on Llewellyn's, legal realist insight about judicial behavior, I analyze how judges have to manage their own statistical records. In this sense, the Brazilian National Council of Justice and its project ‘justice in numbers’ provide a rich case study of the internalization of legal indicators into the justice system. As the Brazilian judiciary is now governed by statistics, innovative indicators emerged, such as the comparative analysis of performance, ‘procedural traffic jams,’ and level of litigiosity in different tribunals. In this context, managerial efficiency has become very important and judges must digest their statistical data to get promoted and avoid disciplinary sanctions as evidenced by concrete examples.

Should They All Just Get Along? Judicial Ideology, Collegiality, and Appointments to the Supreme Court of Canada

Over the past 25 years, the justices of the Supreme Court of Canada have not exhibited the divergent policy views along party lines that have been characteristic of the justices of the United States Supreme Court. This apparent lack of partisan polarization in Canada may at first give rise to smugness about the appointments process in Canada; after all, our process appears to have successfully sidestepped the politicization associated with the US nomination and confirmation system. However, before any claim that the Canadian appointments process is in fact superior can be made or defended, it is necessary to understand what these findings imply about the judicial decision-making process and quality of adjudication by our Court relative to the US Supreme Court. In this paper we argue that whether the relative nonpartisan nature of the Supreme Court in Canada is advantageous depends on a number of assumptions surrounding the nature of the appointments process, the characteristics of justices who are appointed in each system, and the decision-making processes used by the justices on each Court. This paper discusses the relationship between two potential determinants of a justice's votes: her personal policy preferences and the extent and nature of cooperation between justices on the Court at a given time. To set the context Part II briefly outlines the main findings of some recent empirical research on the judicial voting behaviour on the Supreme Court of Canada and compares it to similar empirical studies of the US Supreme Court. Part III then sets out a framework for analyzing the difference in voting patterns based on the extent to which a judge votes in accordance with her policy preferences and the extent to which the justices of a multi-member court can be characterized as cooperative. Part IV uses this framework to assess the different patterns of voting on the Canadian and US Supreme Courts and discusses the important normative tradeoff between deliberation (positive cooperation) and logrolling (negative cooperation). Finally, Part V briefly discusses the connection of this normative tradeoff to the appointments process, and identifies some additional considerations to guide future theoretical and empirical research.

Why 'Bad' Patents Survive in the Market and How Should We Change? - The Private and Social Costs of Patents

In this paper, we formally demonstrate that incorrectly issued patents can survive in the market without judicial review, even when the invention is neither novel nor non-obvious. We support this contention by presenting a game theoretic model that studies the interaction between the patentee and an alleged infringer/challenger. Using this model, we demonstrate the impact of the transaction costs in the patent system at the administrative stage in the Patent Office and at the enforcement stage in the courts, and highlight the inability in our current system to mount effective challenges to improperly granted patents in the current system. We also evaluate how changes in patent litigation costs and the quality of adjudication in the courts affect the incentives to challenge patents thereby affecting the probability of securing a patent. We show that there is a need to advance new mechanisms to improve the administrative processes employed by the Patent Office. Specifically, we support including administrative challenges, such as patent oppositions, in order to improve Patent Office functioning by correcting and limiting the number of improperly granted patents. We describe and analyze the characteristics of such an opposition system, including the costs of such a process, the timing of the process with respect to patent issuance, and the scope of the estoppel granted to such a process for both subsequent oppositions and court challenges to the patent. We conclude that a low-cost, post-grant, opposition process based primarily on written submissions with a limited estoppel effect and administered by Administrative Opposition Judges (AOJs) will serve as an effective instrument for improving the quality of patents that are issued and enforced. In other words, including these incentives for producing better quality patents will decrease the number of incorrectly issued patents. These incentives will improve overall social welfare thereby reducing the incentives for strategic conduct and aggressive patenting in many technology areas. Finally, we present empirical results from an exciting patent reform experiment taking place in Japan in the past four years and compare these results to the insights obtained from our model. Since April 2000, Japan has embraced a dual patent invalidation system that permits patent challenges in both the Japanese Patent Office (JPO) and their District Courts. Our empirical data on dual invalidation processes in Japan from 2000-2003 demonstrate that there are sound economic and institutional reasons for maintaining the ability to raise patent validity challenges in both the Patent Office and the courts since both mechanisms are complementary and necessary.