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NCJ Number: 63149 Find in a Library
Title: LIMITS ON THE USE OF JUDGES
Journal: FEDERAL LAW REVIEW  Volume:9  Dated:(1978)  Pages:1-14
Author(s): F G BRENNAN
Corporate Author: Australian National University Press
Australia
Date Published: 1978
Page Count: 14
Sponsoring Agency: Australian National University Press
Canberra, ACT 2600, Australia
Format: Article
Language: English
Country: Australia
Annotation: THE TRADITIONAL FUNCTION OF THE JUDICIAL PROCESS IN ADJUDICATING THE EXISTENCE OF RIGHTS AND OBLIGATIONS BETWEEN DEFINED PERSONS OR CLASSES WILL CONTINUE.
Abstract: THE TRADITIONAL FUNCTIONS ARE BOTH THE NURSERY OF JUDICIAL SKILLS AND THE EXPLANATION OF PUBLIC CONFIDENCE. WHEN THE RESOLUTION OF DISPUTES REQUIRES THE EXERCISE OF JUDICIAL SKILLS, JUDGES MAY REASONABLY BE ASKED AND MAY AGREE, TO UNDERTAKE THE RESOLUTION OF DISPUTES IF THE RISK OF LOSS OF CONFIDENCE IN THE JUDICIARY IS SMALL AND THE NEED TO USE JUDICIAL SKILLS IS GREAT. THE RISK OF LOSS OF CONFIDENCE IN THE JUDICIARY IS PROPORTIONATE TO THE DISPARITY BETWEEN THE FUNCTIONS PROPOSED FOR PERFORMANCE BY THE JUDGE AND THE FUNCTIONS TRADITIONALLY PERFORMED BY THE COURTS. THE RISK IS GREATEST WHEN THE PROPOSED FUNCTION WOULD ORDINARILY INVOLVE ADVISING THE EXECUTIVE ON THE EXERCISE OF EXECUTIVE POWER, THE ADOPTION OF PROCEDURES INCONSISTENT WITH THE RULES OF NATURAL JUSTICE, AND THE ENUNCIATION AND APPLICATION OF NEW RULES WHICH SHOULD PROPERLY BE ENUNCIATED BY THE LEGISLATURE OR THE EXECUTIVE. WHERE THE FUNCTION PROPOSED IS SIGNIFICANTLY DIFFERENT FROM THE TRADITIONAL FUNCTION, THE RISK CAN BE JUSTIFIED BY THE URGENCY OF THE COMMUNITY'S NEED TO USE THE JUDGE'S SKILLS. OTHERWISE THE JUDICIARY MAY BECOME IRRELEVANT TO THE COMMUNITY WHICH IT SERVES. FOOTNOTES ARE GIVEN. (MJW)
Index Term(s): Australia; Community relations; Judicial conduct and ethics; Judicial rulemaking
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http://www.ncjrs.gov/App/publications/abstract.aspx?ID=63149

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