NCJ Number
63149
Journal
FEDERAL LAW REVIEW Volume: 9 Dated: (1978) Pages: 1-14
Date Published
1978
Length
14 pages
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)