Contemporary discussions on judicial independence and judicial accountability focus on liability of judges for decision-making, and disciplinary mechanisms ensuring the integrity of the judicial process. However, they overlook the fact that specific judges perform administrative duties distinct from their judicial functions, which were transferred from the executive to the judiciary in an effort to promote judicial independence. This study examines the responsibility of judges as administrators and their liability as agents of the corps of judges as well as the general public, and identifies extant administrative mechanisms holding judges accountable for their non-judicial functions. It proposes to define institutional judicial accountability as the responsibility of judges to exercise the judiciary’s powers of administration properly, and identifies best practices towards institutional judicial accountability, and explores the feasibility of a universal standard for enforcement.
The emergence of networks made up by both public and private entities governing sensitive decisions about the allocation of public services requires a deep rethinking of the traditional notions of public accountability. This study’s assumption is that in the era of algorithmic administrative decision-making governments’ accountability is intrinsically connected to the transparency of companies’ processing activities. The first section highlights the legal impediments to the achievement of accountability of government’s algorithmic-driven decision-making. The second section focuses on the new transparency tools entailed in the General Data Protection Regulation. The paper proposes an integrated approach between traditional administrative law tools and business-centred provisions entailed in the GDPR. Such an approach is essential for an effective protection of citizens’ fundamental rights that a short-sighted conception of public accountability would undermine.
Unreasonableness is one of the three primary grounds of challenge in judicial review. In New Zealand, unreasonableness is now acquiring new purpose as a conclusory rather than primary ground of review. The finding that a decision is unreasonable is legal language to say that it is materially flawed and reviewable. It is by nature an umbrella concept that has the potential to colonise many aspects of judicial review. Any decision based on material error or defect can be categorised as unreasonable. My paper questions whether this was a considered development of the law or the legacy of loose judicial terminology. Either way, I conclude that the conclusory ground is now part of the law of judicial review in New Zealand. This development is symptomatic of the way judicial review has evolved in the courts throughout the post-war era. Even as a primary ground of review, unreasonableness was parasitic on the courts finding some other independently-reviewable error in the decision-making.
A Constitutional Court, in federal or quasi-federal countries, defines the degree of centralization or political decentralization. Therefore, this research seeks to identify whether the opening of the Court's decision-making process for the participation of state or subnational entities (such as State Government and Legislative Assembly) can attenuate centralization (these state level actors are heard by the Court or have access to it?). Constitutional Courts can determine the degree of homogeneity of the legal arrangements from a more or less centralized view of the Federal Constitution. Arguments such as the principle of symmetry and that of implicit powers deepen centralization and weaken democracy. Stronger participation of subnational level entities in the formation of decision-making could encourage the Court to grant more political autonomy to the member states in the formulation of their state constitutions.
The simultaneous existence of judicial and non-judicial, internal and external, as well as preventative and reactive mechanisms is a common reality in today’s police oversight. Conducting a sociolegal analysis of judicial reviews of the Ontario police complaints system, I explain why the staggering degree of public dissatisfaction and perception of police impunity persist despite constant efforts to improve accountability. I challenge Kagan and Bourdieu's perspectives by demonstrating how jurisdictional boundary drawing occurs among actors as an attempt to reach equilibrium, rather than to compete with one another. In doing so, these institutions that were meant to provide checks and balances end up coordinating amongst themselves – with the help of the judiciary – to reorganize and hierarchize themselves in the field of police oversight. The fragmentation ultimately becomes more about the division of labour among the oversight agencies and actors than the extension of accountability.