The Judicial Function: Fundamental Principles Of Contemporary Judging

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Judicial systems are under increasing pressure: from rising litigation costs and decreased accessibility, from escalating accountability and performance evaluation expectations, from shifting burdens of case management and alternative dispute resolution roles, and from emerging technologies. For courts to survive and flourish in a rapidly changing society, it is vital to have a clear understanding of their contemporary role – and a willingness to defend it. This book presents a clear vision of what it is that courts do, how they do it, and how we can make sure that they perform that role well. It argues that courts remain a critical, relevant and supremely well-adjusted institution in the 21st century. The approach of this book is to weave together a range of discourses on surrounding judicial issues into a systemic and coherent whole. It begins by articulating the dual roles at the core of the judicial function: third-party merit-based dispute resolution and social (normative) governance. By expanding upon these discrete yet inter-related aspects, it develops a language and conceptual framework to understand the judicial role more fully. The subsequent chapters demonstrate the explanatory power of this function, examining the judicial decision-making method, reframing principles of judicial independence and impartiality, and re-conceiving systems of accountability and responsibility. The book argues that this function-driven conception provides a useful re-imagining of some familiar issues as part of a coherent framework of foundational, yet interwoven, principles. This approach not only adds clarity to the analysis of those concepts and the concrete mechanisms by which they are manifest, but helps make the case of why courts remain such vital social institutions. Ultimately, the book is an entreaty not to take courts for granted, nor to readily abandon the benefits they bring to society. Instead, by understanding the importance and legitimacy of the judicial role, and its multifaceted social benefits, this books challenge us to refresh our courts in a manner that best advances this underlying function.

Author(s): Joe McIntyre
Publisher: Springer
Year: 2019

Language: English
Pages: 304
Tags: Theories Of Law, Philosophy Of Law, Legal History, Judicial Function, Judging

Front Matter ....Pages i-xix
Front Matter ....Pages 1-1
The Development of Principles of Contemporary Judging (Joe McIntyre)....Pages 3-19
Front Matter ....Pages 21-21
Introduction to the Judicial Function (Joe McIntyre)....Pages 23-31
The Judicial Form of Dispute Resolution (Joe McIntyre)....Pages 33-48
The Judicial Form of Social Governance (Joe McIntyre)....Pages 49-68
Articulating the Judicial Function (Joe McIntyre)....Pages 69-75
Front Matter ....Pages 77-77
The Judicial Form of Decision-Making (Joe McIntyre)....Pages 79-97
Law, Merit and the Development of a Governing Dispute-Norm (Joe McIntyre)....Pages 99-125
The Role and Assessment of the Factual Circumstances (Joe McIntyre)....Pages 127-140
Evaluation and the Application of Law to Fact (Joe McIntyre)....Pages 141-155
Front Matter ....Pages 157-157
Principles of Judicial Impartiality: Threats to the Independence and Impartiality of Judges (Joe McIntyre)....Pages 159-180
Dispute-Specific Threats to Impartiality (Joe McIntyre)....Pages 181-196
Structural Threats to Impartiality (Joe McIntyre)....Pages 197-223
Front Matter ....Pages 225-225
Principles of Judicial Integrity and Accountability (Joe McIntyre)....Pages 227-248
Mechanisms of Accountability (Joe McIntyre)....Pages 249-291
Front Matter ....Pages 293-293
The Idea of a Court (Joe McIntyre)....Pages 295-302