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AN APPROACH AND GENERAL OERVIEW TO FRAMING THE STRUCTURE OF THE COURT SYSTEM AND CASE MANAGEMENT

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Par   •  8 Janvier 2018  •  Discours  •  6 290 Mots (26 Pages)  •  912 Vues

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I. INTRODUCTION AND GENERAL REMARKS II. EFFICIENCY, EFFECTIVENESS REGULATION AND JUDICIAL INDEPENDENCE III. COURTS AND CASE MANAGEMENT: A GENERAL OVERVIEW IV. PROCEDURAL, CULTURAL AND STRUCTURAL ARRENGEMENTS. V. HORIZONTAL ARRANGEMENTS. VI. VERTICAL ARRANGEMENTS A. The right to appeal in comparative perspective B. Superior Courts case management and cases selection. C. The supreme courts dylemas VII. CONCLUSIONS.

I. INTRODUCTION AND GENERAL REMARKS

With unprecedented enthusiasm the justice system is currently embracing case management, but the courtship has a long history. To reduce delay and cost depends on the development of case management skills by the judiciary and magistrates and has direct impact on justice initiatives. An important component is to regard that Judicial training to implement these reforms has traditionally been jurisdiction-specific and knowledge-based rather than skills-based. So the court and case management deends also and I would say of skills supported by knowledge. Also it is to remark that the wide variations in judicial practice arising from local legal cultural framework.

1. The reference to efficiency in judicial system is really necessary, because efficiency could be seen as a facet of the wider claim to the effectiveness of judicial protection of rights . It is not reduce the discussion to a ideological market ideology where the the judicial protection of rights depend only of a profit-maximising and cost-minimising approach. If one maintained that judicial protection of rights and efficiency are incompatible, one would be bound to believe that individuals do not care about judicial protection of rights (except when they are parties to civil proceedings) .

Efficiency is different from effectiveness, as the the first is connected with the purposes and arrangements of the whole civil justice System, while the procedural economy is rather linked to the purpose(s) of single proceedings (most cost-efficient way) . The efficiency of civil procedure should be a link between the regulation and management of single civil proceedings and the systemic management of the mass of civil proceedings. A connected micro and macro view of a management for a better administration of justice . The literature on the rule of law and economic growth has been one of the more dynamic areas of theoretical and empirical work in political science, economics and law, joining an interest in institutions and fundamental economic processes . The access to the courts and the effective protection of rights should be provided in a fair process by the law in an efficient way. How? Taking into account the allocation to each case of an appropriate share of the court's resources regarding the need to allot resources to other cases .

The real problem and challenge is finding a way to determine how much individuals value judicial protection of rights in comparison with other goods and services they want to obtain and, accordingly, how many resources they wish to devote to the judicial System in comparison with other sectors of public administration. In this field is the political process and arena the competent to decide . The management of justice thus leads to a tension between a market logic and a logic of human rights. In other words, it is necessary to manage the flow without reaching the guarantees of a fair trial . The principle of case management is that the court, rather than the litigants, controls the pace of litigation. It is a modern approach to dispute resolution which seeks to move away from the bitter adversarial clashes of the past and encourage a greater start with judicial degree of cooperation and partnership between all concerned .

2. Judicial attention has come to be a scarce resource: (i) the rate of cases per judgeship has grown precipitously in lower, appeal and supreme courts; (ii) there are reasons to discus various proposals that scholars and judges have offered in response to the rising caseload, including ways to reduce the number of filings, increase the number of judges, and improve efficiency in the courts with an appropiate case and court managment principles; (iii) there are frameworks to be taking into account to guarante access to the courts and the effective protection of rights; (iv) the demand for judicial attention will continue to exceed the supply of judicial time, thereby rendering judicial attention a scarce resource . The adaptation of proceedings and a court structures is priority for the public policies suited to local and temporal needs .

Judicial "managerial" theories must assure that proportionality will be considered on a case by case basis, according to constitutional standards, in the sense of weighing the harm to the parties against the benefit to administration of justice. The subject is part of the connexion between Constitutional and Procedural Law . The constitutional theory recognizes positive and negative constitutional rights and stipulates a really wider judicial review on the law’s constitutionality around the main issue: describe the scope and limitations of constitutional rights . Constitutional limitations certainly apply also in the sub-constitutional law sphere (statutes or common law) . The enforcement proceedings impose limitations on fundamental rights and could challenged if the limitations are centered on proportionality . We could test the constitutionality of the entire case and courts managerial theory in the framework of the rule of law from the perspective of limitation of fundamental rights. Connected with this constitutional remarks the introduction of vigorous case management has prompted resistance, particularly among American academics. Professor Resnik questioned its effectiveness 35 years ago. Others worry that the latitude managerial judges have gives them too much unconstrained power . As Prof. Wolff remarks the explosion of interest in the role of judges over the last thirty years has produced valuable insights into the institutional responsibilities and limitations of the judiciary .

According to Prof. Marcus a significant part of that culture shift in the USA related to enhanced judicial management by judges. Perhaps most important, the rule amendments emphasized proportionality in discovery. "Actually, this concept had been in the rules since 1983, but in the 2015 amendments it was made more prominent and drew much attention. The idea is that the parties should scale their litigation efforts and expenditures to what is at stake. One hope was that the lawyers themselves would implement proportionality. But realism requires us to recognize that judges will have to play a role in achieving proportionality" . Most recently, the 2015 amendments to the Rule

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