Open justice at apex courts. A new perspective for comparative research on courts.

Recommended citation: Meyer, Philipp. Open justice at apex courts. A new perspective for comparative research on courts. Working paper.

Description
This piece will be a chapter contribution to the peer reviewed edited volume Handbook on Law and Political Systems which is edited by Robert M. Howard (Georgia State University), Kirk A. Randazzo (University of South Carolina), and Rebecca A. Reid (University of Texas at El Paso) and which will be published by Elgar Press, expectedly in 2021.

Chapter description

Open data and open government have become popular terms among politicians, practitioners, policy-makers, and scientists alike. The terms describe initiatives to increase transparency and openness in informational as well as in interactive aspects and are “expected to bring a broad variety of benefits such as efficiency, a reduction in corruption and increased government legitimacy” (Meijer et al., 2012, p. 10). Moreover, it is assumed that openness and transparency enable citizens to hold public institutions accountable for their actions and to facilitate public participation in the governance of public institutions. As a result, public trust, legitimacy, accountability, and good governance are expected to increase (Alemanno & Stefan, 2014). As such, based on the Commission Decision of 12 December 2011 (2011/833/EU) and as a part of its open data strategy, the European Union has launched its EU Open Data Portal.

Openness is also of particular relevance to apex courts, especially as politicians are increasingly challenging judicial legitimacy by undermining the authority of judicial decision-making and the independence of courts (Hess & Harvey, 2019b). However, the judiciary is the least visible political power. Judges usually are not elected by popular vote and, compared to the other governmental branches, it is the branch that intervenes least often in public debates. Hence, apex courts are in a delicate position. On the one hand, they need to be neutral and secure the privacy and interest of the dispute parties. On the other hand, courts need to become more open to the public and need to have more transparent decision-making practices to safeguard the public’s trust and support and their institutional legitimacy and independence in times of political attacks (Voßkuhle, 2018).

Hence, it is not enough that justice is done, but it must be seen to be done (R v Sussex Justices, Ex parte McCarthy [1924] 1 KB 256; [1923] All ER 233). This notion dates back to Jeremy Bentham and his idea of publicity as “the very soul of justice” (1843, p. 316). Bentham’s words “have become synonymous with open justice, fundamental to courts and the judiciary laying open their doors, enabling the rule of law to be not only transparent and accessible, but open to external scrutiny” (Johnston, 2018, p. 525). Open justice “describes a variety of practices that share a common focus on information about courts and a common goal of enabling informed scrutiny of government institutions” (Cunliffe, 2012, p. 410). In this chapter, I will systematically map the existing research on open justice, which encompasses a wide range of perspectives from legal studies (e.g. Alemanno & Stefan, 2014; Cunliffe, 2012; Hess & Harvey, 2019a; Rodrick, 2014), communication perspectives (e.g. Chamberlain et al., 2019; Johnston, 2018; Moran, 2014), and political science (e.g. Davis & Taras, 2017; Elena & van Schalkwyk, 2017; Meyer, 2019, 2020). However, there is no systematic knowledge on which and how apex courts have adopted the open justice principle. Likewise, expectations on a positive relationship between openness and transparency within judiciaries and the public support for courts have also not been tested empirically. In this chapter, I will discuss these aspects to first, show the comparative merit of the open justice principle for the research on judicial politics and second, to present an agenda for future research.

Examples of apex courts that implemented open justice measures are the German Federal Constitutional Court, the Italian Constitutional Court, the Mexican Supreme Court (e.g. by broadcasting the deliberations), the Brazilian Supreme Court, and the Canadian Supreme Court (see Davis & Taras, 2017; Hess & Harvey, 2019b; Meyer, 2019). Judges and scholars alike assume that open justice 1) facilitates the public knowledge on courts and therefore 2) increases institutional legitimacy, judicial reputation, and accountability to the public (Alemanno & Stefan, 2014; Bobek, 2016; Garoupa & Ginsburg, 2015; Hess & Harvey, 2019b). Hence, whether or not an apex court implements open justice is crucial to understanding how courts can shape their legitimacy and independence.

In particular, this chapter aims to establish the open justice principle as a new research avenue for comparative research on courts within four steps. First, it systematically discusses the existing approaches to define open justice. Second, based on these definitions, it presents the first approach to measure open justice systematically. Third, by analyzing the institutional regulations of apex courts around the world, it shows the comparative merit of this measurement. Finally, it discusses future research avenues and thereby positions the open justice principle within the existing research paradigms.

References

Alemanno, A., & Stefan, O. (2014). Openness at the Court of Justice of the European Union: Toppling a taboo. Common Market Law Review, 51, 97–139.

Bentham, J. (1843). Draught for the organization of judicial establishments, compared with that of the national assembly, with a commentary on the same. In J. Bowring (Ed.), The works of Jeremy Bentham: Published under the superintendence of his executor, John Bowring (4th ed., pp. 305–406). William Tait.

Bobek, M. (2016). Opinion of Advocate General Bobek delivered on 21 December 2016. European Commission v Patrick Breyer, Case C-213/15 P, ECLI identifier: ECLI:EU:C:2016:9. https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX%3A62015CC0213

Chamberlain, P., Keppel-Palmer, M., Reardon, S., & Smith, T. (2019). It is criminal: The state of magistrates’ court reporting in England and Wales. Journalism, 0(0), 1–17. https://doi.org/10.1177/1464884919868049

Cunliffe, E. (2012). Open Justice: Concepts and Judicial Approaches. Federal Law Review, 40, 385–411.

Davis, R., & Taras, D. (2017). Justices and Journalists: The Global Perspective. CUP.

Elena, S., & van Schalkwyk, F. (2017). Open Data for Open Justice in Seven Latin American Countries. In C. E. Jiménez-Gomez & M. Gascó-Hernández (Eds.), Achieving Open Justice through Citizen Participation and Transparency (pp. 210–231). IGI Global.

Garoupa, N., & Ginsburg, T. (2015). Judicial Reputation: A comparative theory. UCP.

Hess, B., & Harvey, A. K. (Eds.). (2019a). Open Justice: The Role of Courts in a Democratic Society. Nomos.

Hess, B., & Harvey, A. K. (2019b). Open Justice in Modern Societies: What Role for Courts? In B. Hess & A. K. Harvey (Eds.), Open Justice: The Role of Courts in a Democratic Society (pp. 9–45). Nomos.

Johnston, J. (2018). Three phases of courts’ publicity: reconfiguring Bentham’s open justice in the twenty-first century. International Journal of Law in Context, 14(4), 525–538.

Meijer, A. J., Curtin, D., & Hillebrandt, M. (2012). Open government: connecting vision and voice. International Review of Administrative Sciences, 78(1), 10–29.

Meyer, P. (2019). Judicial Public Relations: Determinants of Press Release Publication by Constitutional Courts. Politics, 0(0), 1–17. https://doi.org/10.1177/0263395719885753

Meyer, P. (2020). Promoted media coverage of court decisions: Media gatekeeping of court press releases and the role of news values. Journalism Studies, 0(0), 1–20. https://doi.org/10.1080/1461670X.2020.1819861

Moran, L. J. (2014). Managing the News Image of the Judiciary: the Role of Judicial Press Officers. Oñati Socio-Legal Series, 4(4), 799–818.

Rodrick, S. (2014). Achieving the Aims of Open Justice - The Relationship between the Courts, the Media and the Public. Deakin Law Review, 19, 123–162.

Voßkuhle, A. (2018). Rechtsstaat unter Druck. DIE ZEIT, Nr. 40, 27.09.2018, 6.

Status
Working paper.