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Article

Russian Legal System and Use of Law  

Kathryn Hendley

The Russian legal system has a spotty reputation, both domestically and internationally. The distrust stems from well-publicized cases involving enemies of political or economic elites in which the outcome in favor of the elites is obviously predetermined. Coexisting with such cases are millions of mundane cases in which judges adhere scrupulously to the statutory law. This sort of legal dualism is not uncommon under authoritarianism. Russia’s constitution reflects this dualism. Its relevance to daily life and its capacity to constrain arbitrary state actions is questionable. Adopted in 1993, it proclaims Russia to be a state governed by the rule of law and includes a chapter with a comprehensive list of rights guaranteed to citizens which cannot be changed without convening a constitutional assembly. The constitutional court, which is a post-Soviet institutional innovation, is charged with ensuring compliance with the constitution. Amending the constitution requires consent from both the national legislature and two-thirds of the regional legislatures. The electoral dominance of the political party associated with Vladimir Putin has made this seemingly high threshold for amendments easily achievable. He has bent the constitution to his political will with multiple amendments, culminating in a set of over 100 amendments approved in 2020. The use of courts by Russian citizens and businesses has increased steadily during the post-Soviet period. As a rule, disputes are handled quickly and inexpensively. Even so, litigating is not the preferred option; Russians typically end up in court only when informal negotiations fail. As a rule, they go to court to solve practical problems rather than to advance issues of principle. The courts’ dockets are dominated by civil claims, such as family law disputes and various forms of debt collection. The straightforward nature of the procedural rules allows many litigants to represent themselves. In criminal cases, which are fewer, defendants are required to be represented by a licensed attorney (advokat). The state covers the cost of legal representation for the poor. Litigants who are dissatisfied with the outcomes of their cases can pursue appeals, culminating in the Russian Supreme Court. Citizens who believe that officials have violated their rights can pursue their claims in the stand-alone constitutional court, whose decisions serve as binding precedent. The post-Soviet era has witnessed wide ranging reforms to the legal system. Some were aimed at depoliticizing the courts. Judges are selected by a professional council dominated by judges that assesses candidates’ knowledge of law and appropriateness for the bench. They enjoy life tenure, subject to removal for cause—a process that is occasionally hijacked to remove judges who fail to toe the line in political cases. The reforms also sought to ease the heavy workload of judges by introducing a form of plea bargaining in criminal cases and opening the door to a type of summary judgment in civil cases in which defendants have conceded their culpability.

Article

Television Judge Shows: Nordic and U.S. Perspectives  

Helle Porsdam

Legal discourse is language that people use in a globalizing and multicultural society to negotiate acceptable behaviors and values. We see this played out in popular cultural forums such as judicial television dramas. In the American context, television judge shows are virtually synonymous with reality courtroom television. There have been a few judge shows, but these have been completely overshadowed by the success of reality courtroom television. The first reality courtroom show was The People’s Court, and its history and early success are discussed in the opening section of this article. The next section looks at the television judge show landscape after the first incarnation of The People’s Court up to the present day in the United States. The third section is dedicated to a discussion of television judge shows outside the United States, chiefly in Europe. The focus is on German and Dutch versions and on the ways in which they differ from the original U.S. versions. This section also briefly looks at the effects of modern digital technology on the judicial genre and asks whether enhanced viewer engagement and crowdsourced justice in the near future will force judges to bow to the popular will, on and off the small screen.

Article

Gender, Law, and Judging  

Susan Haire and Laura P. Moyer

Increased diversity among participants in the justice system, particularly judges, has fueled debates about the values and perspectives that women bring to the law. Difference theories advanced by social psychologists and feminist scholars argue for the premise that men and women in the legal system approach questions of justice differently. By contrast, empirical scholarship offers only limited support for the expectation that the sex of the judge is related to behavioral outcomes. Although most research has not uncovered differences in voting between men and women judges, one area in which consistent differences has been found is in sex discrimination cases. Recent studies suggest, however, that individual differences between men and women judges may emerge if the focus shifts to the litigation process. In one study of trial courts, cases assigned to women judges were more likely to be settled. In another study of appellate courts, women judges were more likely to pen majority opinions that adopted a compromise position. These findings suggest the promise of shifting the analytical focus away from behavioral outcomes to consider whether, and how, women and men in the legal system shape litigation processes. Doing so will require additional data and triangulated approaches that employ both quantitative and qualitative methods. Additional research is also needed to explore how shifts in the gender composition of the bench affect organizational norms and practices in the legal system at the federal, state, and local levels. Some work suggests that gender diversity affects deliberations on small appellate panels and consensual norms on larger courts. As the number of women and minorities appointed by recent Democratic and Republican presidents has increased, scholars are also now well positioned to conduct empirical research with larger numbers to investigate how women of color on the bench differ from white women and minority men.

Article

Trial Courts in the United States  

Christina L. Boyd and Adam G. Rutkowski

Trial court judges are often referred to as the workhorses of the judicial system. This is unsurprising given that millions of civil and criminal cases are filed and resolved in U.S. state and federal trial courts each year. Very few of these cases ever reach appellate courts, meaning that trial courts are often the first and only court with which people directly interact. At the same time, trial courts can make local and national policy, both in individual cases and in the aggregate. This important role of trial courts and their actors has not gone unnoticed by scholars across social science disciplines. One can consider trial courts in a broad sense by tracking the historical developments that led to the trial courts in the United States. As caseloads have increased, trial courts—particularly those with specialized jurisdictions—have been created out of necessity. State trial courts feature variation in their judicial selection methods, including elections and appointments. At the federal level, increased polarization has led to contentious partisan confirmation battles for federal trial court judges. Trials are a rare occurrence, with plea agreements and settlements being the most frequent methods of resolving cases. To understand trial court actor behavior, it is important to remember that state and federal trial courts sit at the bottom of their judicial hierarchies. The preferences of their hierarchical superiors, along with the presence of high trial court caseloads and the rarity of trials, rein in judges’ discretion and the potential effects of their personal characteristics and attitudes. Because of these judge constraints, actors such as prosecutors, defense attorneys, and juries play a significant role in trial court outcomes. As the literature reveals, the “repeat players” in trial courts hold significant advantages over less experienced litigants and attorneys that affect their likelihood of gaining favorable outcomes, among other things. Race and gender of these actors can have significant effects on behavior in certain types of cases. There are many hurdles that remain for scholars seeking to study trial courts. For example, state trial courts, in particular, continue to be difficult to study empirically. This is due largely to a lack of data availability. Relatedly, scholars must continue to strive to find ways to study trial court outcomes and events that do not lead to published opinions—for example settlements, plea bargains, prosecutorial declinations, and many decided motions. Each of these involves important decisions and outcomes that affect parties and may be affected by judges and lawyers.

Article

The American Judicial Process and Why It Matters  

Lisa M. Holmes

The American judicial system is not a static, simple, or mechanical entity. Rather, it is a complex organization that is developed and staffed in response to changing caseload and societal pressures through a process that is inherently political. The key personnel who help the judiciary function bring varied backgrounds and perspectives with them that influence the work they do. As is the case with any political system, understanding American politics and policy making requires an understanding of the judiciary’s role in the American political system. In addition, on a daily basis, courts function to resolve disputes. While most cases have little direct impact on American policy or society broadly speaking, the resolution of these cases is important to those who turn to the courts of law to resolve their disputes.

Article

courts, Roman  

Leanne Bablitz

Because the modern legal system used in most western countries derives from ancient Rome, it is easy to assume that Roman courts (and the activities that took place before them) were the same as their modern descendants. However, differences exist—great enough in number and importance that all scholars of the ancient world must take care when drawing conclusions without solid evidence to support them. The history of Roman courts, in both the republican and imperial periods, shows the profound differences between Roman and modern courts in both their cultural and physical aspects.

Today, when we think of a court, we typically imagine a structure built in a style to impress passers-by, containing one or more rooms in which various officials move through a prescribed set of procedures, to either resolve a dispute between individuals or determine a penalty against an offender. Because the modern legal system used in most western countries derives from ancient Rome, it is not entirely wrong to assume that the ancient Roman courts were much the same as their modern descendants. However, differences exist—great enough in number and importance that all students of the ancient world must take care when drawing conclusions without solid evidence to support them.

Article

Justice and Society in Colonial Brazil during the 17th and 18th Centuries  

Isabele de Matos Pereira de Mello

In early modern societies, the duty of enforcing justice was one of the principal tasks of the monarch. Judicial power could be exercised both directly by the monarch—the supreme magistrate—or by those he delegated it to—judges or his courts. In the vast territory of Portuguese America, different institutions were created to ensure access to justice, to help govern the people, to assist in long-distance administration, and to maintain control over the crown’s dominions. Ouvidorias-gerais, judges, and courts were established with their own institutional officials, intermixing lower- and higher-level jurisdictions and exercising justice over distinct territorial spaces. To understand the functioning of judicial institutions in colonial society, it is important to analyze the universe of magistrates, their careers, judicial practices, and complex relations in the social environment. Magistrates, as an important professional group recruited by the Portuguese monarchy, had multiple overseas possibilities. They could serve at the same time as representatives of royal power and allies of local groups. These men faced a colonial reality that allowed them a wide sphere of action, the exercise of a differentiated authority, and a privileged position as intermediaries between local elites and the king. Even though all magistrates were subject to the same rules of selection, recruitment, appointment, and promotion, the exercise of justice in the slaveholding society of Portuguese America demanded a great capacity for adaptation and negotiation, for the application of law in the mosaic of local judicial situations. Magistrates circulated in different spaces, creating and working in different judicial institutions in the difficult balance between theory and practice, between written law and customary law.

Article

Representations of Law, Rights, and Criminal Justice  

Stefan Machura

Criminal justice and its institutions are key objects of popular culture and attract extensive media attention. The portrayal of the justice system, its rules, professions, and institutions has been invigorated with the invention of new media technology. The authorities’ reaction to wrong doing has proven not less exciting to the audience than the criminal acts themselves. French sociologist Emile Durkheim emphasized that every member of society has an interest in social cohesion and wishes to see perpetrators appropriately punished. The media plays to this basic inclination. From the reactions of the justice system to crime people take clues not only for its effectiveness but the public also wants to see its basic values represented in the work of officials and their decisions. Therefore, aspects of procedural and distributive justice are picked up by popular imagination and exploited to the full by media producers. Beyond recognition that media depictions of criminal justice will follow media conventions and will therefore be distorted in systematic ways, it has to be acknowledged that those representations and the expectations they formed have become a major force in society. Political repercussions and influences on how crime is dealt with are a consequence.

Article

legal procedure, Athens  

Edward Harris

The Athenians strongly believed in the rule of law and attempted to implement this ideal in their legal procedures. Every year there were six thousand judges, who swore an oath to vote according to the laws and decrees of the Athenian people and to vote only about the charges in the indictment. There was a distinction between private cases (dikai), which could be brought only by the person who was wronged, and public cases (graphai), which could be brought by any citizen and in some cases by metics and foreigners. All cases were tried in one day. There were certain special public procedures for specific types of cases.

The Athenians of the Classical period strongly believed in the rule of law. In his Funeral Oration delivered in 322bce, Hyperides (Epitaphios 25) declares:

For men to be happy they must be ruled by the voice of law, not the threats of a man; free men must not be frightened by accusation, only by proof of guilt; and the safety of our citizens must not depend on men who flatter their master and slander our citizens but on our confidence in the law (trans. Cooper).

Article

Theorizing the U.S. Supreme Court  

Charles M. Cameron and Lewis A. Kornhauser

We summarize the formal theoretical literature on Supreme Court decision-making. We focus on two core questions: What does the Supreme Court of the United States do, and how can one model those actions; and, what do the justices of the Supreme Court want, and how can one model those preferences? Given the current state of play in judicial studies, these questions then direct this survey mostly to so-called separation of powers (SOP) models, and to studies of a multi-member (“collegial”) court employing the Supreme Court’s very distinctive and highly unusual voting rule. The survey makes four main points. First, it sets out a new taxonomy that unifies much of the literature by linking judicial actions, modeling conventions, and the treatment of the status quo. In addition, the taxonomy identifies some models that employ inconsistent assumptions about Supreme Court actions and consequences. Second, the discussion of judicial preferences clarifies the links between judicial actions and judicial preferences. It highlights the relationships between preferences over dispositions, preferences over rules, and preferences over social outcomes. And, it explicates the difference between consequential and expressive preferences. Third, the survey delineates the separate strands of SOP models. It suggests new possibilities for this seemingly well-explored line of inquiry. Fourth, the discussion of voting emphasizes the peculiar characteristics of the Supreme Court’s voting rule. The survey maps the movement from early models that ignored the special features of this rule, to more recent ones that embrace its features and explore the resulting (and unusual) incentive effects.