Toward Transnational Standards of Judicial Decisionmaking
5 Pages Posted: 29 Oct 2013 Last revised: 30 Oct 2013
Date Written: October 28, 2013
This paper was submitted to the International Association of Procedural Law Congress, September 2013.
The law of procedure provides a civilized method through which to resolve disputes over the substantive rights of contending parties. Ideally, procedure should be no more complicated than necessary to provide a just and speedy resolution of the dispute. But simplicity is not a simple matter in our rapidly evolving global economy. The law of procedure must provide rules and standards that are predictable in consequence but at the same time sufficiently general to permit their application to a range of possibilities, some of which, by the nature of things, are unpredictable. In short, procedure must be simultaneously predictable and, at least as to some of its elements, open to adjustment, innovation or nuance. One way to achieve the balance between predictability and innovation is through a careful “lawmaking” interaction between legislative and judicial bodies. The challenge of our project is to accommodate the commonly understood function of the judiciary as an interpreter and applier of the law — a principal allocation — with the realistic probability that the judiciary is, as part of the organic lawmaking whole, also a maker of the law. Having confronted that probability, we are working on developing a method to assess the legitimacy of any particular instance of this judicial lawmaking authority. The ultimate goal is to provide descriptive set of guidelines as transnational benchmarks for the practice of judicial decisionmaking. Such guidelines might provide an educational function that would promote across-the-border consistencies through a transnational conformity of judicial practices. They would also provide means through which to anticipate and navigate the potentially less predictable applications or innovations in procedural law, especially those of a constitutional dimension.
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