THE POLITICS OF COURT REFORM:d IN A NUTSHELL

State court reform is proceeding at an ever-quickening pace. A major theme is centralized state judicial leadership and management in court organization and funding, and improved methods for the selection and discipline of judges. Trends in court reform, groups supporting and opposing change and a brief evaluation of some court reform efforts are examined. Court reform is viewed as a political process.     

Intervention methods in land disputes

Archival data, survey and interviews were used to investigate mediation activities among judges in the Norwegian Land Consolidation Court. The court handles land issue disputes among farmers in rural Norway. Despite having both planning skill and court power the judges spend a considerable amount of time mediating the disputes. In fairly integrative planning disputes they increase their mediation efforts with conflict level, case size and complexity. Mediation helped to reduce objections to the plan implemented. In more distributive boundary disputes they mediated less, and to a lesser degree varied efforts with case characteristics. However, settlements were achieved in the less conflictive, smaller and less complex cases. Considerable variations in mediation styles were found among the judges. Those with settlement oriented behaviour achieved more settlements than those that focused on facilitating communication. Implications are discussed.     

Some Introductory Notes

The authority of a court to declare laws and official acts unconstitutional is a practice which sheds a strong light on the interplay of law and politics. It is a judicial act which gives to judges so obvious a share in policymaking that where it prevails there is little room left for the pretense that judges only apply the law (Ehrmann, 1976, p 138)     

JUDICIAL SELECTION: THE SOCIAL SCIENTISTS' VIEW*

This paper is an assessment of the contributions which social scientists have made to the debate on the most appropriate mode for selecting state judges. Specific analyses of the assumptions behind differing normative positions qoverning judicial selection (e.g., accountability versus independence) are discussed. Considerable empirical research has been completed on elective and Missouri Plan systemic. It is suggested however, that more definitive conclusions might be possible through cross-system analysis. The methodological barriers to effective comparisons among the systems are high, but that area of inquiry appears to offer the potential for social scientists to make a significant policy contribution.     

Judges and judging: truth and justice in northern Iberia on the eve of the millennium

This is a study of the functions of judges in courts in northern Iberia in the later ninth and tenth centuries; of their identities as individuals; and of the language of justice in the records of court proceedings. Judges ordered what was to happen next in the conduct of a case, made primary investigations, reviewed evidence and made decisions. At least 180 named individuals were involved in judging in this period, usually in panels, although more, unnamed, judges also participated in the process. The records are characterised by a rhetoric of truth and justice designed to effect closure.     

清代道员职衔考述

道员,源自明代藩臬佐贰,各道设置之初,其独立性远不及后世,均各带参政、参议、副使、佥事等两司职衔守巡各地。入清后,仍沿其旧制,诸道职衔、品级各不相同。随着道制的完善,道员的地位、作用日趋固定,遂有乾隆十八年停直省守巡各道兼两司职衔之举,同时定其品秩为正四品。自此之后,道员不再是藩臬佐贰的统称,而成一独立职官名称。道员职衔经历了一个从各道坐定职衔,到以一定原则兼衔任缺,再到逐渐弱化兼衔意义,并最终去兼衔定品级的过程。     

Inter-Court Dynamics and the Development of Legal Policy: Citation Patterns in the Decisions of the U.S. Courts of Appeals

Lower federal appellate judges, like other government officials, identify problems, formulate and implement solutions, and subsequently evaluate them for their efficacy. Immediately following the passage of the Americans with Disabilities Act, courts were confronted with cases that raised new policy issues in claims of employment discrimination. With no guidance from the Supreme Court for five years, circuit courts articulated solutions to these issues with written published opinions. By examining citations to precedents in those opinions, we evaluate the degree to which the court's reasoning draws on policies from other circuits. Although stare decisis does not compel appeals court judges to consider decisions from other circuits, 76 percent of the opinions include a reference to an out-of-circuit precedent. Outside citations were not uniform across circuits and cases with increased references to outside courts in circuits were characterized by conflict. Our examination of citation patterns suggests that the development of precedent proceeds on two tracks. On one level, circuit judges' opinions build on precedent from within their court. More broadly, citations reflect on an inter-court dialog to identify conflict and consensus in federal legal policy.     

Regulating interpersonal debt in the bishop's court of Carpentras: litigation,litigators and the court, 1486 and 1487

Using notarial records, this article explains who sued whom at the bishop's court at Carpentras, why they did so and how the court managed people and their debt disputes. In 1486 and 1487, creditors pursued 240 suits over unpaid loans (about three-quarters of the court's business). Litigants spanned the social spectrum and included both Christians and Jews, suggesting that the court was well embedded in the local economy. This diversity, as well as the predominance of ‘horizontal lending’, matches regional trends. Drawing upon anecdotal evidence and quantitative work, the court's procedures, functions and appeal are explained. Since most loans were made orally, proving their existence was difficult. Cases rarely reached rulings and creditors could not expect from ecclesiastical judges the coercive innovations adopted by secular courts. Yet, this church court was a popular forum to authenticate debts, pressure debtors into confession and encourage peaceful, private concords.     

Theorizing the Submerged State: The Politics of Private Schools in the United States

In this paper, I apply Mettler's concept of the “submerged state” to aid for children at private schools in the United States, including education vouchers, in‐kind aid, and property tax exemptions. All aid policies are “submerged” in that they help private organizations take on state functions but some are more submerged than others. Theoretically, this paper distinguishes between subcategories of submergence. Using policy data from 50 states and an original database of court challenges between 1912 and 2015, I employ probit regression with sample selection to evaluate the effect of submergence on successful court challenge. I find that more submerged policies are less likely to be successfully challenged than less submerged policies. Submerged policy design enables supporters to avoid legal as well as political challenge.     

ALTERNATIVE MODELS FOR ORGANIZATION OF STATE COURT SYSTEMS*

The dominant theme in court reorganization has been to state judiciaries by consolidating trial courts and centralizing their administration in a state level office. This article suggests that the debate over the relative merits of a centralized vs. a decentralized (or fragmented) court system ignores the rich variety of organizational structures used in other fields. The potential judicial implications of three models-franchise, corporate, and federal-are examined in detail. Their underlying assumptions are compared with those of the centralization approach. The argument is made that none of the models is appropriate for all circumstances. Each approach to court organization emphasizes a particular set of objectives at the expense of another set. An effort is made to identify what each approach has to offer.     

‘Get me out of here’: Bail hearings of people indefinitely detained for immigration purposes (Respond to this article at http://www.therai.org.uk/at/debate)

This article is based on observation of 66 applications for bail brought by men detained indefinitely for immigration purposes. It argues that although the research is incomplete – the full stories of the applicants could not be known, neither the Home Office Presenting Officers nor the Immigration Judges could be ‘shadowed’ or even interviewed, court records are not public – there is value in doing ‘observation’ without ‘participation’ of institutions which act in the name of the public. This research shows that the outcomes of bail applications are not, as the public might imagine, always fair and unequivocal. All too often, they look like ‘the luck of the draw’, bringing the institution and its presiding officers into disrepute. The article illustrates this point using ‘dialogues’ from two bail hearings where the same applicant appeared before two different judges, with very different outcomes.     

The Many Tongues of the King: Indigenous Language Interpreters and the Making of the Spanish Empire

General language interpreters of Lima's High Court of Appeal (Audiencia) played a significant part in gaining access to the Spanish system of justice for the indigenous populations of Peru. These interpreters worked as translators in lawsuits, notarial transactions, and other legal and administrative procedures conducted or supervised by the viceroy, the justices of the Audiencia, the public defender of the Indians, and other officials stationed at the viceregal court. But they also served as legal agents and solicitors for native leaders and communities litigating in Lima or aspiring to take their cases to the Supreme Council of the Indies in Spain. Through formal and informal dealings, these interpreters brokered between the king and his native subjects, thus connecting indigenous groups with the Habsburg royal court. The careers of these official translators illustrate the crucial roles played by indigenous subjects in the formation of what can be termed the ‘Spanish legal Atlantic,’ an organic network of litigants, judges, lawyers, attorneys, and documents bridging courtrooms on both shores of the ocean.     

Tools for identifying partisan gerrymandering with an application to congressional districting in Pennsylvania

In League of Women Voters v. Commonwealth of Pennsylvania (2018) the Pennsylvania Supreme Court struck down as a “severe and durable” partisan gerrymander the congressional map drawn by Republicans in 2011 and used in elections from 2012-2016. It did so entirely on state law grounds after a three-judge federal court had rejected issuing a preliminary injunction against the plan. After Pennsylvania failed to enact a lawful remedy plan of its own (due to total disagreement as to how to proceed between the newly elected Democratic governor and the still Republican-controlled legislature), the Court then ordered into place for the 2018 election a map of its own drawn for it by a court-appointed consultant. In a split court, the Court map was endorsed only by judges with Democratic affiliations. Here we compare the 2011 and 2018 congressional maps in terms of a variety of proposed metrics for detecting partisan gerrymandering. We also examine the remedy map proposed by a group of Republican legislators and that proposed by the Democratic governor. We conclude that the 2011 map was a blatant and undisguised pro-Republican gerrymander. Moreover, the remedy map proposed by Republican legislators was a covert pro-Republican gerrymander (what we refer to as a “stealth gerrymander”). The Democratic governor's proposed plan cannot be classified as a pro-Democratic gerrymander and indeed has, if anything, a slight pro-Republican tilt. The 2018 court-drawn remedial map, by all measures, was not a gerrymander.     

The Preemptive Power of State Supreme Courts: Adoption of Abortion and Death Penalty Legislation

We offer a theory about public policy adoption that depicts a game between state supreme courts and state policymakers. We hypothesize that court ideological hostility or friendliness operates to discourage or encourage policy enactment, with the likelihood of subsequent court intervention magnifying the relationship. To test the argument we examine the influence of court ideology on the enactment of state abortion and death penalty laws since the 1970s. Empirical analyses provide strong support for our theory, indicating that court ideological hostility or friendliness significantly influenced state abortion and death penalty policy enactments. In addition, the likelihood of court intervention conditioned this relationship, with the most pronounced effect occurring where subsequent court review was mandatory. The findings reveal courts exert important preemptive influence on law without hearing a case. This facet of judicial influence expands the traditional view of actors involved in the policymaking process.     

The Life of the Law in the Islamic Republic of Iran

Beyond the esoteric deliberations of Islamic jurists and their exegesis of criminal and private law doctrines, Iranian law lives a life of its own. It is a life of routine practices of judges, court clerks, lawyers and clients, each of whom is striving to turn the law to their own advantage. It is also a life of contested legality, a relentless struggle over the right to determine the law in a juridical field which is infused with strife and hostility. These conflicts are reproduced daily as two competing conceptions of law, and their corresponding perceptions of legality clash in pursuit of justice. The Iranian judiciary’s concept of law, its reconstruction of Islamic jurisprudence and methods of dispensing justice, which on the surface are reminiscent of Max Weber’s “qādi-justice,” collide with the legal profession’s formal rational understanding thereof. However, Iranian judges are not Weberian qādis, and the legal profession is not a homogenous group of attorneys driven by a collective commitment to the rule of law. To understand their conflict, we need to explore the mundane workings of the legal system in the context of the transformation of Iranian society and the unresolved disputes over the direction of its modernity.     

Interviewing Australia's Senior Judiciary

Interview research is ubiquitous in social science, but few political scientists interview senior judges about courts and judicial decision making. Misconceptions abound about the feasibility and pitfalls of interviewing judges. Drawing on interviews with more than 80 senior Australian judges, I assess the study of judicial elites through interview research.     

The Prestige of Australian State Supreme Courts Over the 20th Century

This article measures the prestige of the Australian State supreme courts and examines competing explanations for differentials in their prestige over the course of the 20th century. The study finds that the prestige of the State supreme courts are positively correlated with the reputation of their Bench, proxied by the number of High Court judges from that State; socioeconomic diversity in that State, proxied by the State's population; and legal capital, proxied by the number of pages of the official law reports of the State supreme court.     

Aspects of continuity and change in the Italian placitum, 962-72: The nature and significance of courtroom procedures

During the first seventy-five years of the tenth century in Italy three distinct procedures existed for the purpose of resolving jurisdictional disputes over property. Together they comprise the activity of a special court known only by the general term placitum. The property court, the placitum under discussion here, employed three procedures: (1) a litigation, (2) confirmation to avert possible conflict between two parties over opposing claims, and (3) a request for the confirmation of a commercial transaction.My study considers two problems: what purpose did the courts serve and to whom were they useful; second, what was the nature and intent of the procedures that these courts employed? The answers require an investigation of the personnel who administered the courts and the persons who sought court judgments, since the status and interests of both groups had considerable impact on the legal and institutional developments of this tribunal. The participants were mostly members of the ecclesiastical hierarchy and some of the higher lay magnates; by and large they were members of the ruling hierarchy.The property hearing had a long chain of development that reached into the late eight century: over the years it developed distinct procedures and instruments to record the results. These procedures reflect the interface of German and Roman law. We see in the history of this court the development of thoughts about evidence, the validity of written instruments as witnesses, and the role of judges as investigators.     

明代勋卫与散骑舍人的制度特性

明代的勋卫与散骑舍人是宫廷侍卫中的特殊成员。明初,勋卫、散骑舍人均从勋贵、都督、指挥等中高级将领的子弟中选任,并铨注于锦衣卫衙门,职在带刀随从帝王朝会。明中期之后,散骑舍人渐不授,而勋卫演变为勋爵应袭子孙例授之职,与勋爵承袭制度密切相关。至嘉靖、隆庆之际,朝廷尝试扩展部分勋卫的职权,但总体成效不显。勋卫、散骑舍人制度是明代多种国家制度的结合点,体现了明代军政体制中的贵族特征。     

“停部选”与清末州县官选任制度改革

晚清以来,随着督抚权力的扩大,原有的部选与外补并存的州县官选官结构受到冲击。新政开始后,清廷不得不停止部选,将州县官的选任权交给督抚。但由于停部选涉及吏部与督抚的权力,带来二者的利益冲突,从而使这一改革表现出新制与旧制纠葛的面貌,没有从根本上解决仕途壅滞的问题。"停部选"实际只是一个从"部选与外补并存"向"全归外补"过渡的过程,并没有完成。