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NCJ Number: 66204 Find in a Library
Title: INSTITUTIONAL CHARACTER OF THE JUDGE
Journal: ISRAEL LAW REVIEW  Volume:7  Issue:3  Dated:(JULY 1972)  Pages:329-348
Author(s): B LASKIN
Corporate Author: Israel Law Review Assoc
C/O Faculty of Law
Hebrew University
Israel
Date Published: 1972
Page Count: 20
Sponsoring Agency: Israel Law Review Assoc
Jerusalem, Israel
Format: Article
Language: English
Country: Israel
Annotation: THE PRINCIPLE OF JUDICIAL INDEPENDENCE, BOTH IN ITS INTERNAL AND EXTERNAL APPLICATION, IS EXPLORED, AND JUDICIAL FUNCTIONS AND OPERATIONAL GUIDELINES ARE DISCUSSED.
Abstract: NEW MEMBERS OF THE COURT MUST REALIZE THE DUAL CHARACTER OF THEIR POSITIONS. SUCH POSITIONS INVOLVE BOTH INDIVIDUAL FREEDOM AND INDIVIDUAL LIMITATION IMPOSED BY THE JUDICIAL SYSTEM AS WELL AS OTHER INSTITUTIONS IN SOCIETY. THE MONITORING FUNCTION, BASED ON A HIERARCHICAL STRUCTURE AND EXPRESSED IN THE DOCTRINE OF STARE DECISIS, INSTITUTIONALIZES THE TRIAL JUDGE, WHO IS OTHERWISE THE MOST INDEPENDENT AND SELF-RELYING OF JUDGES. HOWEVER, TRIAL JUDGES ARE SIMULTANEOUSLY CONTROLLED BY THE LEGAL SYSTEMS WITHIN WHICH THEY OPERATE. THE WRITING OF OPINIONS IS AN ILLUSTRATION OF HOW THE INDIVIDUAL PREFERENCE OF THE JUDGE AFFECTS THE COURT AS A WHOLE AND THE INSTITUTIONAL SYSTEM. PROTECTED BY ABSOLUTE PRIVILEGE, TRIAL JUDGES MAY STATE WHATEVER THEY LIKE IN THEIR OPINIONS. IN THE APPELLATE COURTS, JUDGMENTS AND OPINIONS RAISE ADDITIONAL INSTITUTIONAL CONSIDERATIONS NOT PRESENT IN THE WORK OF A TRIAL JUDGE. IN BOTH TRIAL AND APPELLATE WORK, JUDICIAL LAWMAKING IS A QUIETER PROCESS THAN THAT THROUGH WHICH A LEGISLATIVE ASSEMBLY MAKES LAW. THE PROCESS IS COMPLICATED BY THE ENORMOUS OUTPUT OF OPINIONS WHICH ARE PUBLISHED IN VARIOUS SERIES OF LAW REPORTS, PARTICULARLY IN THE UNITED STATES, CANADA, AND THE UNITED KINGDOM. COUNSEL IN JUDICIAL PROCEEDINGS SHOULD BE DISCOURAGED FROM PRESENTING THE JUDGE WITH EVERY PUBLISHED OPINION WHICH COULD BE CONSIDERED. THIS WOULD ENABLE THE JUDGE TO FOCUS ON THOSE DECISIONS WHICH ARE RELEVANT TO THE CASE AT BAR. THE JUDICIAL OFFICE REMAINS UNIQUELY PERSONAL AMID ALL ITS INSTITUTIONAL RESTRAINTS, MAKING IT TRULY UNIQUE IN THE LAWMAKING PROCESS. FOOTNOTES ARE PROVIDED. (LWM)
Index Term(s): Appellate courts; Judges; Judicial conduct and ethics; Judicial decisions; Judicial immunity; Trial courts
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http://www.ncjrs.gov/App/publications/abstract.aspx?ID=66204

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