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QLLM385-Topic 2-ADJUDICATION AND ITS FUNCTIONS
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Legal systems Common law – judicial precedent and adversarial process Civil law – code based and inquisitorial Generic characteristics of adjudication: public, final, turn taking, zero sum, imposition of decision. ADR is an alternative to state-sponsored dispute resolution. The process is informal, and parties are not forced to accept the outcome. The differences Civil law – judge led investigation, court identifies best evidence, focus is on documentary evidence e.g. written depositions, the adjudicator is interventionist, based on a civil code. Common law – strict rules of evidence, traditional focus on orality, party ownership and choice of evidence, judge acts as umpire, case law and precedent, statutory interpretation by judges based on rules of interpretation through custom and case law. Function of trial Remedies – provides authoritative solutions and finality. Risk assessment – guides future behaviour/facilitates bargaining in the shadow of the law. Information – reveals facts and fact patterns. Publicity – legal system is available for all to view Accountability – allows us to hole the legal system, government and judges to account. Educational – instructs us on the workings of the state and the underlying principles of our society Principles – facilitates the development of the law Debate – articulates public values It’s also a tool for negotiating for a settlement. Bargaining in the shadow of the law Mnookin & Kornhauser (Bargaining in the shadow of the Law) – parties consider their bargaining chips which could be precedent, proof/evidence, costs and time and how likely it is that their arguments will succeed on the basis of existing law and judicial opinion. Parties need to assess their case and how likely it is to succeed but must also bear in mind that there’s no 100% certainty in litigation. Negotiation/mediation can occur at any time before/during the court process. Risk analysis in dispute resolution Risk analysis should be done on the likelihood of success, the type or lawyer and whether one is needed e.g. not a requirement in employment tribunals. Galanter – describes haves + have nots. Have-nots likely not to proceed to trial. Haves - have lawyers who advise clients well on their position of advantage. One shotter – no experience in litigation. Repeat players – significant experience/familiarity with the court process.
Cost-benefit analysis – also important to consider impact of costs for all parties involved and the consequence of winning/losing the case e.g. in England loser must pay legal costs of winner (costs following the event). Important because of how expensive litigation is. The vanishing trial Judicial statistics of King’s and Queen’s Bench Division between 1930 and 2010. Results -1990 – over 350,000 commenced -2000 – under 50,000 cases commenced What are some of the reasons for this? Choice of peace over justice, failing faith in public systems, increase in costs, sponsoring of settlement? Private and public function of the trial Private function – offers authoritative remedies, risk assessment helps guide future behaviour + facilitates bargaining under the shadow of the law, reveals which facts would be helpful in settlement. Public function – instrument of structural transformation through its publicity, accountability and education, helps develop the law, protects and promotes public social values, helps guide future behaviour. But: most cases don’t always involve a point of law, litigants aren’t always interested in precedent, lawyers are bound to agree and deliver settlement option to client. Government role in dispute resolution The government provides state’s legal system, protects access to justice and promotes ADR processes. Roberts – courts sponsoring settlement and are moving away from adjudicative function. Government has cut legal aid and the CPR encourages ADR. Continued public statements on disadvantages of trial by politicians. Quotes Simon Roberts & Michael Palmer, Dispute Processes: ADR and the Primary Forms of Dispute Resolution (2005) Historically, state provided dispute institutions for themselves but are now TP neutrals Shapiro – courts were a form of social control + support for regime Abel – Western courts in former colonies were used for control Fuller – lawyers (i) present evidence + arguments to help court reach decision, (ii) enable judge to be a neutral umpire Adjudication presents means through which societal norms are publicised and refurbished Robert H. Mnookin & Lewis Kornhauser, “Bargaining in the Shadow of the Law: The Case of Divorce” (1979) Private ordering is good for divorce in order to avoid pain, uncertainty of litigation, loss of time and centres preference of parties State should only be used to enforce the agreements made in private Elizabeth Thornberg, “Reaping what we sow: anti-litigation rhetoric, limited budgets, and declining support for civil courts” (2011)