GLOBAL JUDICIAL TRANSPARENCY NORMS: A PEEK BEHIND THE ROBES IN A WHOLE NEW WORLD - A LOOK AT GLOBAL 'DEMOCRATIZING' TRENDS IN JUDICIAL OPINION-ISSUING PRACTICES.

Author:Entrikin, J. Lyn
 
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The emergence of global judicial relations is rooted in the pluralism of multiple legal systems, but driven by the expression of a deeper common identity. Dialogue is prized over uniformity; debate and reasoned divergence over adherence. So it must be, because global legal authority, except in [limited] areas... does not exist. A global community of courts... is a more realistic and desirable goal. Anne-Marie Slaughter, A Global Community of Courts, 44 HARV. INT'L L.J. 191, 219 (2003). I. INTRODUCTION 59 II. THE AMERICAN EXPERIENCE 62 ORIGINS OF PUBLISHED COURT OPINIONS (INCLUDING DISSENTS) 62 III. GLOBAL JUDICIAL TRANSPARENCY NORMS 77 A. Global "Collegial" Courts 82 1. National Courts 82 a. National Supreme Courts: General ("Diffuse") Jurisdiction 82 b. National Constitutional Courts 83 c. National Supreme Courts (Courts of Cassation) 84 d. National Courts with Specialized Appellate Jurisdiction 84 2. Supranational and International Tribunals 85 a. Court of Justice of European Union (CJEU) 85 b. European Court of Human Rights (ECtHR) 86 c. International Court of Justice (ICJ) 86 d. International Criminal Court (ICC) 87 e. International Tribunal for the Law of the Sea (ITLOS) 88 f. Inter-American Court of Human Rights 89 g. African Court on Human and People's Rights 90 h. International Criminal Tribunal for the former Yugoslavia (ICTY) 91 i. International Criminal Tribunal for Rwanda (ICTR) 91 B. Global Variations in Opinion-Issuing Practices, Voting Records, and Anonymity 92 1. National Constitutional Courts 93 2. National Cassation Courts 116 3. National Supreme Courts - Diffuse Jurisdiction 120 4. Supranational and International Tribunals 128 5. Consultative Council of European Judges (CCJE) 137 C. European Parliament Study of Dissenting Practices: EU Member States' Constitutional and Supreme Courts 138 IV. POLICY-BASED VALUE JUSTIFICATIONS FOR TRANSPARENCY NORMS 139 A. The "Judicial Trilemma": Judicial Independence, Accountability, and Transparency 140 B. Refining and Generalizing the Judicial Trilemma Model to National and Subnational Courts 144 C. Magna Carta of Judges 146 D. Legal Constraints on How Courts Communicate Decisions 147 E. Judicial Transparency as a Continuum 149 F. Judicial Accountability as a Continuum 152 V. "DEMOCRATIZING" JUDICIAL INSTITUTIONS AT THE RISK OF "INDIVIDUALIZING" THE RULE OF LAW 153 VI. CONCLUSION 155 I. INTRODUCTION

When a multi-member collegial court renders a decision, does it speak as a single institutional entity, or as a group of individual judicial officers? (1) How and why do global courts vary in the institutional style of issuing opinions? Why do some courts write lengthy opinions giving detailed rationales, while others write short, cursory opinions with little explanation? (2) What are the policy reasons for global variations in judicial opinion-issuing practices and other measures of transparency? What norms and values do global courts appear to share, and what are the points of difference? How are these global practices evolving, and why? Finally, what do judicial opinion-issuing practices and transparency norms reflect about each court's institutional role in its own legal culture and its global influence on other tribunals? (3) These are the questions this article aims to address.

The article's focus is on global variations in the transparency of judicial deliberation processes and outcomes, including voting patterns (4) and opinions (sometimes known as "judgments" in European parlance) that reflect the results of judicial decision-making. First, the article offers some historical background on United States courts, generally understood globally as among the most transparent of judicial systems. (5) Second, the article explores the wide range of global norms that govern how courts communicate decision-making outcomes, including voting records, consensus or majority opinions, and separate opinions. (6) Third, the article considers some of the value-based policy justifications for the many differences in global courts' opinion-issuing norms and practices. The discussion underscores the need for further theoretical and conceptual research that distinguishes between norms, values, and contextual factors to better understand how these interdependent variables influence dissenting practices and other transparency outcomes. (7) Finally, the article concludes with some observations about the trend favoring transparency in the judicial decision-making process, in particular transparency's "democratizing" influence on the global community of courts.

For purposes of this article, the term "global" court includes both national and "supranational" tribunals: national supreme ("apex" (8)) courts with "diffuse" appellate jurisdiction; (9) national constitutional courts with specialized jurisdiction; national courts of cassation, with more traditional appellate jurisdiction but excluding constitutional issues; supranational tribunals with jurisdiction over national courts of signatories to the relevant convention or treaty; and international tribunals, which apply international law. All are multi-member tribunals (sometimes known as "collegial" courts (10)) with clearly defined institutional jurisdiction. In every instance, judgments are issued on behalf of the court, and those decisions represent the outcome of internal group deliberations.

The details about each court's internal deliberation process are generally unknowable unless a court publishes its internal operating procedures, or a member of a particular tribunal publishes anecdotes from personal experience. (11) As a general rule, each tribunal's deliberations occur in secret, a norm that is shared across jurisdictions despite the many other variations in transparency addressed in this article. (12)

  1. THE AMERICAN EXPERIENCE: ORIGINS OF PUBLISHED COURT OPINIONS (INCLUDING DISSENTS)

    The author's interest in comparing the various ways global tribunals communicate decisions began while studying the historical variations in United States appellate court practices, both state and federal. (13) In the early years of the republic, Supreme Court opinions resolving substantive legal disputes were issued orally and seriatim from the bench, consistent with the practice of English common law courts of the time. (14) Each justice, one by one, announced an individual opinion on the matter, and when published, all were reported together along with the name of each author, followed by a brief order reflecting the Court's collective judgment. (15) The Court did not issue what we now know as majority and minority opinions until the first decade of the nineteenth century, and even then published separate opinions were highly unusual. (16)

    The earliest decisions of the Court were not published in "official" reports. (17) In fact, they were not necessarily even written opinions. (18) As mentioned earlier, the justices announced their opinions orally from the bench. Supreme Court opinions appeared in "reports," as we know them today, only because private reporters attended Court on their own initiative and took notes based on each justice's oral delivery of the opinions. Formally speaking, the Court "handed down" its decisions in the late eighteenth century consistent with the official records maintained by the Court's clerk. (19) Not until 1817 was the Court authorized for the first time to appoint its own official "reporter," (20) whose duty it was to report the Court's decisions in written form within six months after they were delivered. (21) Until then, reporters were private members of the bar who literally took independent notes of the justices' orally announced decisions and published them for profit. (22) Occasionally individual justices provided private reporters access to the justices' own notes of decision, which were incorporated into the unofficial reports of the Court's decisions at the sole discretion of the reporters themselves. (23)

    Most American scholars simply assume that opinions issued by the United States Supreme Court have always been published. But in the early years, private reporters had total discretion whether to publish orally-delivered Supreme Court decisions. (24) A reporter's discretion included deciding which opinions to eliminate entirely from publication. (25) "Reporting" opinions was a proprietary enterprise, and for the Court's first quarter-century, the copyright was presumed to belong to the private reporter, whose sole remuneration amounted to royalties from sales of published reports carrying the reporter's name. (26)

    Even after 1817, when Congress first authorized the Court to appoint an official reporter, the Justices themselves generally did not issue written decisions. After announcing decisions orally, justices would provide the reporter with the notes they had used to announce their decisions from the bench; it was up to the reporter to craft a written decision consistent with the Court's oral pronouncements. (27)

    State appellate courts in the United States preceded the Supreme Court in requiring justices to produce written opinions, and states also issued the earliest volumes of published reports. Considerable scholarly debate has focused on whether Connecticut (28) or Pennsylvania (29) was the first state to publish reports of judicial opinions. (30) Most scholars give the nod to Connecticut, which issued its first volume of published reports in 1789, a few years after the state legislature had enacted a statute requiring the Supreme Court of Errors to issue written opinions, each signed by at least one of its justices. (31)

    Unofficial reports of the United States Supreme Court were first published in 1790 by Alexander James Dallas, whose first volume ironically included only decisions issued by Pennsylvania courts dating back as early as 1754. (32) His second, third, and fourth volumes included Pennsylvania cases and a few Federal Circuit opinions, as well as Supreme...

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