Adjudication and Due Process: The Role of the Trial
(WEEK 4)
STRUCTURE OF LECTURE
Context,
Characteristics of court-based adjudication.
Functions of trial,
Bargaining in shadow of the Law
Vanishing trial in the UK,
…Vanishing PRECEDENT?
CONTEXT OF THE TRIAL AS AN INSTITUTION AND ASJUDICATION AS A
SOCIAL PRACTICE
CONTEXT: typologies of dispute resolution
Adjudication
o Arbitration
Mediation (parties take dispute to mediate; lot of back and forth
with parties)
Negotiation (formal agreement to a solution; put into a legal binding
form)
Private ordering (most common; a way of avoiding disputes for both
parties.
CONTEXT: where does adjudication take place?
Court based trial
Tribunal (most common; employment trials for example. Appellate
tribunals etc; specialist tribunals. A specialist sits at the chair in the
tribunal with 2 ley people at both sides, one of union side and one of
employer side [to ensure balance])
Arbitration (commercial cases usually involve arbitration since
parties can agree with a specialist that can resolve their dispute)
COMMON LAW CIVIL LAW
Orientation towards JUDICIAL Orientation towards code
PRECEDENT. based principles
Orentation towards Orientation towards
ADVERSARIAL PROCESS. inquisitorial process
Nb: change over time; judges had NB overlap with common law
more active role in 18C CJS system [lecture after reading
week].
Strict inquisitorial process.
, 1836: before this, you could
not take a felony case to
court.
THE CHARACTERISTICS OF COURT BASED ADJUDICATION
Public,
Adjudicator backed by the power of the state,
Imposition of decision,
Turn taking,
Zero sum (Zero sum decisions; someone wins and someone loses)
Cost… (E X P E N S I V E way to sort out a dispute, so civil cases
tend not to end up in court, and other disadvantages including cost)
Most adjudicators in the UK aren’t legally qualified.
Hierarchical structure of decision making.
Litigation prior going to court is cheaper.
Imagine you win your case and notice the legal cost is more than
the money you won (recouped with damages)
Defamation case: judge decides you should win but may say you are
foolish since the defamatory statement was not that serious so may
award you less money.
Are all cases always in public? Cases involving minors/children are
not in public. Criminal trials (part of proceedings) are on camera;
evidence should not be lawfully admitted. Official secret cases CAN
LEGALLY BE HELD IN PRIVATE.
ADVERSARIAL ADJUDICATION
Opposition,
Party ownership and choice of evidence (Rock case),
Complex rules of evidence, (in preparing your case for court to
make an argument at court, various kinds of evidence CANNOT BE
BORUGHT INTO THE COURT ROOM meaning your case is severely
weakened. This is because some kinds of evidence can be
tampered, or highly prejudicial, e.g. past-behaviour; this is only
relevant for the judges; heresay should not be used).
Minimalist judge acts as umpire (not an active role)
Orality.
Lazy judges? Fit with emerging conception of judges role in
managing cases.
INQUISITORIAL ADJUDICATION
Common in the UK (tribunals)
Adjudication preceded by court led investigation
(WEEK 4)
STRUCTURE OF LECTURE
Context,
Characteristics of court-based adjudication.
Functions of trial,
Bargaining in shadow of the Law
Vanishing trial in the UK,
…Vanishing PRECEDENT?
CONTEXT OF THE TRIAL AS AN INSTITUTION AND ASJUDICATION AS A
SOCIAL PRACTICE
CONTEXT: typologies of dispute resolution
Adjudication
o Arbitration
Mediation (parties take dispute to mediate; lot of back and forth
with parties)
Negotiation (formal agreement to a solution; put into a legal binding
form)
Private ordering (most common; a way of avoiding disputes for both
parties.
CONTEXT: where does adjudication take place?
Court based trial
Tribunal (most common; employment trials for example. Appellate
tribunals etc; specialist tribunals. A specialist sits at the chair in the
tribunal with 2 ley people at both sides, one of union side and one of
employer side [to ensure balance])
Arbitration (commercial cases usually involve arbitration since
parties can agree with a specialist that can resolve their dispute)
COMMON LAW CIVIL LAW
Orientation towards JUDICIAL Orientation towards code
PRECEDENT. based principles
Orentation towards Orientation towards
ADVERSARIAL PROCESS. inquisitorial process
Nb: change over time; judges had NB overlap with common law
more active role in 18C CJS system [lecture after reading
week].
Strict inquisitorial process.
, 1836: before this, you could
not take a felony case to
court.
THE CHARACTERISTICS OF COURT BASED ADJUDICATION
Public,
Adjudicator backed by the power of the state,
Imposition of decision,
Turn taking,
Zero sum (Zero sum decisions; someone wins and someone loses)
Cost… (E X P E N S I V E way to sort out a dispute, so civil cases
tend not to end up in court, and other disadvantages including cost)
Most adjudicators in the UK aren’t legally qualified.
Hierarchical structure of decision making.
Litigation prior going to court is cheaper.
Imagine you win your case and notice the legal cost is more than
the money you won (recouped with damages)
Defamation case: judge decides you should win but may say you are
foolish since the defamatory statement was not that serious so may
award you less money.
Are all cases always in public? Cases involving minors/children are
not in public. Criminal trials (part of proceedings) are on camera;
evidence should not be lawfully admitted. Official secret cases CAN
LEGALLY BE HELD IN PRIVATE.
ADVERSARIAL ADJUDICATION
Opposition,
Party ownership and choice of evidence (Rock case),
Complex rules of evidence, (in preparing your case for court to
make an argument at court, various kinds of evidence CANNOT BE
BORUGHT INTO THE COURT ROOM meaning your case is severely
weakened. This is because some kinds of evidence can be
tampered, or highly prejudicial, e.g. past-behaviour; this is only
relevant for the judges; heresay should not be used).
Minimalist judge acts as umpire (not an active role)
Orality.
Lazy judges? Fit with emerging conception of judges role in
managing cases.
INQUISITORIAL ADJUDICATION
Common in the UK (tribunals)
Adjudication preceded by court led investigation
