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Disciplining Judges
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Disciplining Judges

Contemporary Challenges and Controversies

9781789902365 Edward Elgar Publishing
Edited by Richard Devlin, FRSC, Professor and Acting Dean and Sheila Wildeman, Associate Professor, Schulich School of Law, Dalhousie University, Nova Scotia, Canada
Publication Date: 2021 ISBN: 978 1 78990 236 5 Extent: 384 pp
Globally, countries are faced with a complex act of statecraft: how to design and deploy a defensible complaints and discipline regime for judges. In this collection, contributors provide critical analyses of judicial complaints and discipline systems in thirteen diverse jurisdictions, revealing that an effective and legitimate regime requires the nuanced calibration of numerous public values including independence, accountability, impartiality, fairness, reasoned justification, transparency, representation, and efficiency.

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Critical Acclaim
Contributors
Contents
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Globally, countries are faced with a complex act of statecraft: how to design and deploy a defensible complaints and discipline regime for judges. In this collection, contributors provide critical analyses of judicial complaints and discipline systems in thirteen diverse jurisdictions, revealing that an effective and legitimate regime requires the nuanced calibration of numerous public values including independence, accountability, impartiality, fairness, reasoned justification, transparency, representation, and efficiency.

The jurisdictions examined are Australia, Canada, China, Croatia, England and Wales, India, Italy, Japan, the Netherlands, Nigeria, Poland, South Africa, and the United States. The core findings are four-fold. First, the norms and practices of each discipline regime differ in ways that reflect distinct social, political, and cultural contexts. Second, some jurisdictions are doing better than others in responding to challenges of designing a nuanced and normatively defensible regime. Third, no jurisdiction has yet managed to construct a regime that can be said to adequately promote public confidence. Finally, important lessons can be learned through analysis of, and critically constructive engagement with, other jurisdictions.

The first comprehensive comparative collection on judicial discipline systems, Disciplining Judges, will inspire new conversations among academics, students, judges, governmental officials and political scientists.
Critical Acclaim
‘In this wonderful collection of essays and reports on a wide range of judicial discipline systems, we can find evidence that more successful systems share much in common: a proper balance between independence and accountability, and an underlying determination to enforce discipline in fair and impartial ways. In less successful systems, the lack of success seems to come from various flaws such as a too-narrow window of those empowered to bring complaints against judges, a lack of detail in the language of disciplinary and ethical codes, and too great a reliance on the idea that good judges have the goodness inside and need little or no external description via code of what makes a judge good.
It seems not to matter for success that the right principles are spoken of in codes, as this may be the single most consistent feature of judicial discipline systems, regardless of their level of success. This collection is a must-read for anyone seriously interested in the good functioning of judicial systems across the globe.’
– James E. Moliterno, Washington and Lee University School of Law, US

'Disciplining Judges represents a new and important contribution to the fields of public law and judicial studies. It positions judicial discipline as an essential component of constitutionalism and the rule of law. This marvellous collection of diverse essays probes the shifting power dynamics through which the judicial, executive and legislative branches interact.’
– Dean Adam Dodek, University of Ottawa, Canada

‘The constitutional governance question of how jurisdictions ought to deal with allegations of judicial misbehaviour is one that goes to the heart of foundational public law questions about the judicial role, judicial integrity and judicial independence. Devlin and Wildeman have performed an important public law service in bringing together this collection of critical scholarship, which will be the definitive comparative handbook on the issue going forward.’
– Gabrielle Appleby, University of New South Wales, Australia
Contributors
Contributors: O.D. Akinkugbe, D. Aksamovic, D. Bam, D. Cavallini, H. Corder, S.M.R. Cravens, R. Devlin, S. Finder, G. Gee, S. Le Mire, S. Mišević,T.G. Puthucherril, J.E. Soeharno, C. Solik, S. Wildeman, L. Wortham, F. Zoll
Contents
Contents:

1 Introduction: Disciplining judges – exercising statecraft 1
Richard Devlin and Sheila Wildeman
2 Regulation of judicial misconduct in Australia: why, how
and where next? 23
Suzanne Le Mire
3 The Canadian Judicial Council’s (elusive) quest for legitimacy 49
Richard Devlin and Sheila Wildeman
4 The long march to professionalizing judicial discipline in China 78
Susan Finder
5 Fighting with the ghosts of the past: the discipline process
for judges in Croatian law 107
Dubravka Aksamovic and Sanja Mišević
6 Judicial conduct, complaints and discipline in England and
Wales: assessing the new approach 130
Graham Gee
7 ‘Belling the cat’: judicial discipline in India 155
Tony George Puthucherril
8 Why is the complaints procedure still lacking in Italy? The
difficult pathway towards a more transparent, inclusive and
effective disciplinary system 179
Daniela Cavallini
9 Shifting the balance: public perspective and the Japanese
judicial discipline process 204
Sarah M R Cravens
10 Disciplinary control of judges in the Netherlands:
a vulnerable system 225
Jonathan E Soeharno
11 The politics of regulating and disciplining judges in Nigeria 254
Olabisi D Akinkugbe
12 Weaponizing judicial discipline: Poland 278
Fryderyk Zoll and Leah Wortham
13 Judge and be judged: judicial discipline in South Africa 308
Hugh Corder and Calli Solik
14 Legal process theory and judicial discipline in the United States 334
Dmitry Bam

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