2010/06/24

Judicial Reforms Needed

In response to requests to summarize the most important judicial reforms needed, here is a list of some of the most important, with links to further discussion.

  1. Select judges into a pool of judges by sortition, or at random, not by election or appointment, but with some filtering for knowledge and skills.
  2. Assign judges to courts for short terms by sortition. Even members of the Supreme Court would be drawn at random from the general pool of judges.
  3. Have multiple judges assigned to each court, and assign them to cases by sortition.
  4. Expand supreme and other appellate courts to 28 members, and hear cases initially by randomly selected panels of three, appealable to randomly selected panels of nine, and appealable from there to randomly selected panels of 27 (with one spare).
  5. Require that decisions of multi-judge panels be unanimous to sustain a claimed power of government against a claim by a citizen that the government lacks such power.
  6. Mandate reversal of any judgment that does not presume nonauthority for any official act and require strict proof of such authority.
  7. Mandate reversal of any judgment for the prosecution in a trial with mixed issues of law and fact, including all criminal trials, in which parties have been impeded from arguing all issues of law before the jury, except those issues that may not be argued without disclosing evidence properly excluded.
  8. Forbid motions in limine to the prosecution in criminal trials.
  9. Mandate reversal of the conviction in any criminal trial in which the jury has not been instructed to determine whether the charge is authorized by applicable statutes and constitutions, or they have not been provided with copies of such statutes and constitutions, and of legal pleadings on the arguments in the case.
  10. Mandate the suspension, without pay, on the first offense, for one month, of any judge who, having jurisdiction, fails to schedule a hearing on a prerogative writ of quo warranto, habeas corpus, procedendo, mandamus, prohibito, scire facias, or certiorari, within 3 days of it being filed and served on respondant, or to hold a hearing thereon within 20 days, in which the burden of proof shall be on the respondant, failing which judgment shall be rendered in favor of the demandant. The suspension shall be doubled for each subsequent failure.
  11. Mandate the convening of a grand jury of 23 by random selection from each jurisdiction having a population of no more than 3000 persons (village).
  12. Mandate that no more than half the time of the grand jury be spent hearing bills of indictment, and that they shall have at least 4 hours to consider each bill, unless they shall choose otherwise.
  13. Authorize grand juries to issue subpoenas directly rather than only through their courts.
  14. Authorize and direct grand juries to decide the jurisdiction, or lack thereof, or the immunity of any official, for any complaint brought before them.
  15. Authorize grand juries to order the removal of any impediments to access to them by members of the public.
  16. Authorize grand juries to issue to any complainant or his designee, not just to public prosecutors, an indictment authorizing criminal prosecution.
  17. Authorize grand juries to investigate any public or private enterprise whose activities may adversely impact the public, and to report their findings.
  18. Mandate that trial and grand juries be convened under the supervision of prior grand juries to insure there is no stacking.
  19. Mandate the reversal of any court decision which treats a recent precedent as binding, and for constitutional issues does not return to the original text and historical evidence of its meaning.
  20. Mandate reversal of any denial of standing of a party to privately prosecute a public right for injunctive or declaratory relief, or on a writ of quo warranto.
  21. Mandate reversal of any disablement or deprivation of life, limb, liberty for more than 24 hours, property, or parental rights without a trial by a jury of 12, including for contempt of court.
  22. Mandate reversal of any restriction on the practice of law without a jury trial.
  23. Mandate reversal of any court decision in which the public was not allowed to record the proceedings, other than to conceal the identities of the jury.
  24. Mandate reversal of any court decision in which the judges do not justify and publish their decision, clearly separating it from summary, findings, and dicta.

This list is subject to revision, so check back from time to time for the latest.

Many of these reforms would now require a constitutional amendment to overcome long chains of precedent. Such amendments are to be found here.

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