The Rio de Janiero State Court in Brazil will begin prosecuting corruption cases through special “faceless” courts designed to hide the identity of the presiding judges. It is the seventh Brazilian state to implement such a system. The change is coming after more than twenty judges received police protection from death threats by gangs and organized crime.
Under the new system, three judges will rotate every sixty days and all decisions will be signed by the principal judge. Variations of the system were used to protect judges in Colombia in the 1990s.
This is obviously an extreme development, and the safety of the judiciary must be taken seriously. But it comes at a serious cost — the accused will not be able to know the identity of, the very person who will be condemning them to prison (or worse). It’s a dark moment for everyone when due process must be diluted for the sake of judicial safety.
There has been quite a bit of shock this week over new French legislation that bans anyone from publicly revealing the pattern of judges’ behavior in court decisions. Article 33 of the Justice Reform Act would impose a prison sentence of up to five years for anyone who uses the identity of judges or magistrates “with the purpose or effect of evaluating, analyzing, comparing or predicting their actual or alleged professional practices.”
The law seems targeted to a growing number of legal analytics firms in France and elsewhere, which use technology to look for patterns in judicial decisions in order to predict future outcomes. But the law is written broadly, and could also apply to lawyers, legal academics, good government groups, and others who study the courts and judicial decisionmaking.
The new law is wildly disproportionate and draconian — five years in prison for simply analyzing publicly available documents? But the motivation behind it is more understandable than you might think. More after the jump.
Continue reading “Why did France just outlaw legal analytics?”
Changing the culture of a court–to promote efficiency, fairness, or dignified treatment of the parties–has been a program of serious study in the United States for at least half a century. But changing court culture is not merely a matter of changing judicial attitudes. All of the key players must share the new vision, including court staff, attorneys, and court users.
The trial courts in Vadodara, India are finding that out the hard way. Having declared that they will work through the summer to whittle down a docket of over 37,000 civil cases, the Vadodara courts were greeted with protests from some attorneys who had already made vacation plans. Those attorneys filed an “appeal” with the Gujarat High Court, seeking clarification that they in fact do not need to attend scheduled summer hearings. Among the reasons for seeking clarification: one hearing conflicted with an attorney’s personal naturopathy treatment.
India’s docket crisis is legendary and troubling. But judges cannot resolve these issues without the cooperation of the court system’s other key members.
That’s the bottom line of this fascinating study by Daniel Chen and Arnaud Philippe. The authors looked at more than four million sentencing decisions in France, and another 600,000 in the U.S. federal courts. They found that French sentences are 3% shorter, and U.S. federal sentences are 33% shorter in the day component, when the defendant is celebrating a birthday. (Month components were unaffected.) The authors also found that in the U.S. courts, significant birthday leniency exists only where the defendant and the judge share the same race.
I am always cautious about making too much of one study, but there certainly seems to be some basis for the authors’ conclusion that “social norms transmitted through rituals can perversely lead to unfair or incorrect decisions in important situations even when professional norms have been designed to mute them.”
Ontario’s highest court is allowing livestreaming this week of an important case between the provincial government and Canada’s federal government over the latter’s imposition of a carbon tax. CBC cameras are being allowed to capture the arguments and share the broadcast with other media. These are the first televised arguments at the Ontario Court of Appeals since 2007. The first day of oral arguments can be found here.
Earlier this year, the Saskatchewan Court of Appeal also allowed livestreaming in a case involving a provincial challenge to the carbon tax, underscoring the special nature of this litigation. The real lesson: don’t get too comfortable with cameras in Canadian provincial courtrooms; the practice is still remarkably rare.
The relentless threats to the Polish judiciary from the state’s ruling “Law and Justice” party have taken yet another distressing turn. Just Security reports on the state’s new Disciplinary Office for Common Court Judges, designed to control and punish individual judges who stand up for the rule of law. As the article notes:
Together with the politicization of the Disciplinary Chamber, the message is clear for all members of the judiciary: follow the party line or face the consequences. Indeed, there are early indicators that most of the disciplinary actions taken against judges so far have targeted judges who have been outspoken on issues of judicial independence and the rule of law.
The Alien Terrorist Removal Court (ATRC) is a special federal court, created by Congress in 1996 to review applications by the government for the removal of non-citizens who are suspected of being terrorists. It is populated by five federal district judges, who hold their position on that court in addition to their regular appointments.
Never heard of it? That’s not surprising, since the court has never met in its 23 years of existence. And that’s because the government itself has never once applied to the court to remove a resident alien suspected of terrorism. The judges on the court don’t even know where they would meet if an application was filed, since no specific courthouse has been designated for their deliberations.
Why has the court never been called into order? For one thing, its powers and jurisdiction are arguably unconstitutional:
“I honestly don’t know why it has not decided any cases, but there has been speculation that concerns about its constitutionality may have played a part,” said Robert F. Turner, a professor at the University of Virginia who is familiar with the court.
Turner, a national security expert, said when the government is dealing with permanent resident aliens, legitimate constitutional issues have been raised. He said he believes constitutional complaints concern secret evidence, like sensitive intelligence sources and methods that identified the individual as a terrorist, versus the Sixth Amendment’s right to see evidence and confront witnesses.
The Bristol Herald Courier has a terrific piece explaining the origins, administration, and constitutional challenges facing of one of the least-known courts in the country. Well worth the read!