Judicial Independence and Accountability in Latin America
“But who will guard the guardians?”
On Saturday, December 9th, 2017, the Robbins Collection hosted a symposium at Berkeley Law entitled, “Judicial Independence and Accountability in Latin America.” The one-day event held in the Robbins Reading Room addressed the possibility that judicial accountability—when properly conceived—can enhance independence by bolstering judicial legitimacy in Western democracies. Moderated by Berkeley’s Lloyd M. Robbins Professor of Law Laurent Mayali and Robbins Postdoctoral Fellow Pablo Echeverri, the symposium was attended by an esteemed group of legal scholars that included Berkeley Law professors, a Justice of Colombia’s Council of State, a Former Justice of Colombia’s Supreme Court, a Regional Adviser for UNESCO, and professors from the U.S. and South American academic institutions.
Symposium organizer Pablo Echeverri considered the event’s topic as a response to a question posed in Juvenal’s sixth satire: “But who will guard the guardians?” For Mr. Echeverri, the symposium was an opportunity to address Juvenal’s question in a contemporary context and discuss the challenges of achieving an equilibrium between judicial independence and accountability. Mr. Echeverri said: “The current wave of populist politics worldwide poses threats to the rule of law that must be answered, in part, by a strong and independent judiciary. It is important not to confuse the need to ensure that the judiciary be subject to appropriate checks and balances with the populist rally cry that courts must be accountable to majoritarian politics.”
In an effort to cultivate comparative dialogues from a range of national and regional perspectives, Professor Mayali and Mr. Echeverri moderated discussions among all participants in two major sessions. In his opening address to the group, Professor Mayali touched upon the symposium’s lineage to Lloyd M. Robbins’ past as a Latin American legal scholar and translator of seminal Spanish civil law texts, such as the Leyes de Toro. The first session, “Institutional Design: Transnational Initiatives and Domestic Realities,” began with an introduction of UNESCO’s current initiatives from the agency’s Regional Adviser of Communication and Information, Guilherme Canela de Souza Godoi. Adviser Canela elaborated on UNESCO’s participation in the Ibero-American Summit, an annual congregation of twenty-three Ibero-American Supreme Courts for the purpose of implementing international standards on access to information and judicial transparency. Following Adviser Canela’s introduction, guests spoke comparatively on the design and structure of domestic institutions in countries such as Argentina, Chile, Colombia, and the United States, that have contributed to, and combatted against, the fraught state of judicial independence and accountability.
“Transparency entails a risk”
The morning’s discussion on institutional design and judicial initiatives was expanded upon in the second session, “Judicial Culture and Public Expectation.” Conversations in the afternoon session considered impartiality in judicial transparency. Additionally, participants discussed how accountability functions as a meeting point of institutional structure and judicial culture. A major point brought to discussion was “whether transparency entails a risk,” and the possibility of attack on judiciaries as a result of transparency.
“Judges have shown courage and actively respond to social concerns at critical times, even while experiencing difficulties in finding the borders of their powers and a balanced relation with politics.”
Colombia’s former Justice of the Civil Chamber of the Supreme Court Dr. Javier Tamayo critiqued the idea of impartiality with regard to the media’s influence on judicial transparency. Dr. Tamayo found a problematic interplay between the judiciary and the media that occurs after a summary of decisions and arguments are publicized while the official ratio decidendi of Colombia’s Constitutional Court is being written. Dr. Tamayo expressed concern, particularly for controversial cases, over the influence of public debate and public pressure exerted on the judiciary before a ratio decidendi is published. “For instance, with the Arbitration Statute [Law 1563 of 2012], the Court declared that it was constitutional, but we waited six months to know why. In that period, different academic forums discussed the potential reasons. The Court will write its decisions based on these discussions. The concern is that these decisions might create precedent. Is the media reporting creating a precedent? Or is the ratio decidendi, released six months after the explanation of arguments, the one that creates the precedent?”
Dr. Tamayo’s questions were met with challenge from participants who advocated for the media’s access to information, “The pressure of the media and civil society is justified because they want to and should know.” Berkeley Law doctoral candidate Alvaro Pereira found a silver lining in the continued challenges presented to Latin American judiciaries, saying, “Judges have shown courage and actively respond to social concerns at critical times, even while experiencing difficulties in finding the borders of their powers and a balanced relation with politics.”
“A variety of perspectives and ideological positions”
“As a young academic, the experience was unique. Not only for having the time to learn from experienced judges and legal scholars, but also for being able to propose alternative reactions to current phenomena and potential avenues for change.”
The symposium was brimming with a mix of English and Spanish conversations among participants representing an array of countries and institutions. Berkeley Law was well represented by Professor Mayali, Mr. Echeverri, Professor Amanda Tyler, Professor Eric Rakowski, and Robbins Visiting Professor Amnon Reichman. The event was not limited to professors—two Berkeley Law students participated in the one-day event. Doctoral candidate Alvaro Pereira and master of law candidate Javier Velasco Villegas both took part in the day’s discussions. The pair considered the experience an invaluable opportunity to engage with—and learn from— the group of esteemed academics and judicial representatives. Mr. Pereira said: “As a young academic, the experience was unique. Not only for having the time to learn from experienced judges and legal scholars, but also for being able to propose alternative reactions to current phenomena and potential avenues for change.”
Academic attendees included Professor Angel Oquendo from the University of Connecticut School of Law; Professor Agustin Barroilhet from the Department of Economic Law at the University of Chile; Professor Cristian Villalonga from Pontificia Universidad Catolica de Chile Faculty of Law; Professor Julio Gaitan from Colombia’s Universidad del Rosario Faculty of Jurisprudence; and Professor Maximo Langer from the UCLA School of Law. Adviser Guilherme Canela represented the agency of UNESCO, while Justice Edgar Gonzalez Lopez and Former Justice Javier Tamayo Jaramillo represented the judicial branch. Justice Gonzalez is the current president of the Consultative and Civil Service Chamber for the Council of State of Colombia; Dr. Tamayo is a Former Justice of the Civil Chamber of the Supreme Court of Colombia.
When asked about the representation of the judicial branch, academic institutions, and an agency like UNESCO, Mr. Echeverri found it “beneficial to have a variety of perspectives and ideological positions that enriched the conversation. The academics provided a strong framework for the discussion upon which country and international experts could contribute with practical examples and specific policy proposals.” Symposium participants will each write a response paper to the symposium in the coming weeks. The Robbins Collections hopes to publish these response essays as a compendium for public and scholarly use in the summer of 2018.
Colloquium with Amnon Reichman, Robbins Collection Visiting Professor in Comparative Law
Berkeley Law and the Robbins Collection are proud to welcome Amnon Reichman, Associate Professor of Law at Israel’s University of Haifa, to Boalt Hall as the Robbins Collection Visiting Professor in Comparative Law. Professor Reichman, who taught at Berkeley Law over ten years ago, returns for a year-long appointment. In the fall 2017 semester, Professor Reichman will be teaching the “Comparative Law” course at Boalt, a course typically taught by Professor Laurent Mayali. On Thursday, November 30th, Professor Reichman led the Rosalinde and Arthur Gilbert Foundation Israel Studies Colloquium, in affiliation with the Berkeley Institute for Jewish Law and Israel Studies. Professor Reichman delivered a thorough and informative presentation on “Legal-Net: The Use and Misuse of Technology in the Regulation of Judges in Israel” to an engaged group of Berkeley Law students, professors, and community members.
Legal-Net is Israel’s online judiciary management system that was established in 2010 and is utilized by all courts, except the Supreme Court, in Israel. Legal-Net’s judiciary processing function is similar to business process management software, in that a “production line” database is created to manages cases, court decisions, administrative contact, and legal research, among other functionalities. Professor Reichman, speaking on his paper of the same title, explored the implications of this vast concentration of judiciary data and its effects on the regulation of judges, the future of algorithmic judging, and the unification of legal administration through information and technology in Israel.
Current Legal Issues in Taiwan and the United States: Civil Law and Common Law Perspectives
On October 20th several Berkeley Law professors participated in, Current Legal Issues in Taiwan and the United States, a join conference held at National Taiwan University’s College of Law in Taipei. The conference brought together legal scholars from NTU, National Central University, and Berkeley Law, as well as a high court judge of Taiwan’s Intellectual Property Court and a Justice of the Constitutional Court of Taiwan, to account for current legal issues within the realms of: (1) Regulation and governance in a commercial world; (2) Judicial reform and criminal court; (3) Separation of powers and justice.
Berkeley Law Professor and Robbins Collection Director Laurent Mayali joined Wang-Ruu Tseng, Dean of NTU’s College of Law, in delivering the event’s opening remarks. The workshop’s opening session, “Regulation and governance in a commercial world,” included two presentations followed by discussion. NTU Assistant Professor Yueh-Ping Yang opened the session with a presentation that explored the key to Taiwan’s financial institution governance reform from a nominating committee perspective. The second presenter of the opening session was UC Berkeley’s Dr. George Horvath, a lecturer and postdoctoral fellow who focuses on health law. “The Challenge of Medical Product Identity,” the topic of Dr. Horvath’s presentation, considered the various difficulties of regulating drugs, medical devices, and biological products—three medical product categories authorized by the FDA and each subject to different regulatory congressional statutes.
The workshop’s second session, “Judicial reform and criminal court,” saw no presentations from Berkeley Law participants. However, Professor Mayali served as the lead discussant for the session’s two presentations. The session included two presentations from Taiwanese representatives, the first introduced the proposed lay participation in Taiwan and the second looked at Taiwanese criminal court reform. The closing session, “Separation of powers and justice,” included Berkeley Law Professors John Yoo, Amanda Tyler, Eric Rakowski, and Andrew Bradt. Professor Yoo leadoff the session with a presentation on “Presidential Powers and Reversal,” followed by Professor Tyler’s, “Abraham Lincoln, the Civil War, and Habeas Corpus.” Professor Tyler looked critically at President Lincoln’s decision to suspend the writ of habeas corpus detain Confederate soldiers outside of the criminal process during the Civil War, a topic that is not far removed from the subject of her newest book, Habeas Corpus in Wartime. Closing the final session was Professor Rakowski’s, “Custom as Public Policy: Tying the Hands of the Dead.” The presenters were joined in discussion by the Honorable Justice Sheng-Lin Jan, In-Chin Chen of National Central University, and Andrew Bradt, Assistant Professor at Berkeley Law.
The jointly hosted event is the second time that NTU and Berkeley Law have joined forces to host a conference that brings light to current legal issues in both countries. In October of 2016, the Robbins Collection hosted a one-day workshop at Boalt Hall that included participants from National Taiwan University, including overlapping guests like NTU College of Law Dean Wang-Ruu Tseng and High Court Judge Dr. Sungmei Hsuing. The recurrence of this conference, and events similar to it, cultivates transnational connections between the Robbins Collection and preeminent legal institutions in the civil law tradition, ultimately strengthening the academic relations between Berkeley Law and legal communities around the globe.
New Profile Series for Robbins Fellows
The Robbins Collection has been welcoming local, national, and international researchers and academics into the doors of its Reading Room for decades. Fellowships through the Robbins Collection allow scholars to study collection holdings, as well as utilize Berkeley Law and campus resources, to further their scholarly endeavors in legal research. Now you can learn about our current Fellows with our website’s new “Robbins Fellow Spotlight” page.
In June, the Robbins Collection welcomed Agnès Desmazières, a French researcher whose work focuses on the Catholic Church as it pertains to history, theology and canon law. Read our profile piece on Agnès and check back for more profiles on current Robbins Fellows.
Published: Robbins Fellow, Pablo Echeverri
Pablo Echeverri, a Robbins Post-Doctoral Fellow since 2015, was recently published in the Chicago-Kent Journal of International and Comparative Law. His paper, “The 2015 Power-Balancing Reform in Colombia: a missed opportunity to disrupt the ecosystem of structural clientelism in the halls of justice,” examines the reform’s failure to achieve a meaningful restructuring of Colombia’s judiciary. An abbreviated abstract for Mr. Echeverri’s paper can be read below:
“In roughly 15 years, Colombia rose from the ashes of a quasi-failed state to become a magnet for foreign investment and tourism. Despite enormous progress in security and economic development, the country’s judicial institutions are perceived as inefficient and untrustworthy. This is often attributed to the resilient aura of clientelism that surrounds them. Without dismissing the cultural roots of clientelism, this article addresses its structural causes. The chief cause is the “revolving door,” a favor-trading market in which judicial officers use their constitutional powers to nominate and appoint other judicial officers for personal advancement, often referred to as the “I elect you, you elect me” mechanism. The 2015 constitutional reform was a missed opportunity to redesign the roles of judicial officers and remove the web of perverse incentives that gives birth to the revolving door. This goal could be at least partially achieved by imposing a set of restrictions on the types of positions that outgoing judicial officers may accept, which would limit political maneuvering without discouraging upward mobility within the halls of justice.”
Mr. Echeverri will be expanding on ideas and research pertaining to judicial independence and accountability in Latin America for a conference held at the Robbins Collection in December. Mr. Echeverri’s full, published paper can be read in the journal’s second issue of the seventh volume and on Chicago-Kent’s website:
Robbins Collection Workshop: Customary Law Today
The Robbins Collection and the Institut des Usages (IDU) organized a workshop held in Montpellier, France on May 18 and 19. The co-sponsored workshop was moderated by Lloyd M. Robbins Professor of Law Laurent Mayali and University of Montpellier Professor Pierre Mousseron.
The workshop focused on topics such as private law, constitutional law, philosophy of law, international law, business law, and criminal law. In addition to scholars from the universities of Perpignan, Montpellier, and Sherbrooke, Berkeley Law was well represented by faculty members: Eric Rakowski, Amanda Tyler, and John Yoo. Robbins Post-Doctoral Fellow, Pablo Echeverri, was selected to present a paper on business law. Professors Rakowski, Tyler, and Yoo each presented papers on topics pertaining to private law, constitutional law, and international law.
Photos from the workshop credited to Simon Rossard.
New Robbins Collection Staff Member
The Robbins Collection is pleased to announce that Sohayla Farman will be joining us as our Publications & Communications Specialist.
Sohayla, who has a B.A. in English, is a recent graduate of UC Berkeley. Prior to joining Robbins, Sohayla worked as an Editorial Assistant for UC Press, and she worked for UC Berkeley’s alumni magazine, California.
At Robbins, Sohayla will work on a number of projects, including our next Daube volume, newsletters, exhibits, print publications, and the Robbins website.
Taming New Mexico
On May 18th, PBS New Mexico will premiere a film documenting the origins of New Mexico’s present-day federal court system, starting with the history of Spanish-Mexican rule of law.
The film will include some images from Robbins Collection holdings, including Recopilación de leyes de los reynos de las Indias (1681).
For more information about Spanish Law in America, please see our digital exhibit on California’s Legal Heritage:
Workshop on “Customary Law Today”
The Robbins Collection and the Institut des Usages (IDU) have organized a workshop for May 18 and 19 to be held in Montpellier, France, moderated by Professors Laurent Mayali and Pierre Mousseron.
Topics to be discussed include private law, civil procedure, philosophy of law, constitutional law, business law, and international law.
Participants will include faculty members from Berkeley School of Law, the University of Montpellier School of Law, and other academic institutions.
Visiting Researcher Workshops
The Robbins Collection hosts monthly workshops for Berkeley Law Visiting Researchers throughout the academic year. These workshops allow participants to present their scholarly research and receive extensive feedback on their work in a small-group setting.
If you are interested in presenting your work or attending a workshop, please contact Andrea Quinn at firstname.lastname@example.org
Texts and Contexts in Legal History: Essays in Honor of Charles Donahue
The Robbins Collection is pleased to announce that our latest publication, Texts and Contexts in Legal History, will be available beginning January 2017.
Renowned legal historian, Charles Donahue, serves as the inspiration for this volume of essays covering a range of topics of interest to legal historians, legal scholars, and others.
Inspired by Donahue’s insights into the value of understanding both text and context, this volume brings together 26 contributions from leading historians in Europe and North America.
Jordan Shedlock, recent graduate of the I-School’s Master of Information Management and Systems (MIMS) program, has been working on using digital technologies to “improve access to and create excitement around” medieval manuscripts held by the Robbins Collection.
Shedlock’s goal is to create a web interface that will serve as an online destination for the Robbins Collection and allow users to explore its manuscripts. Stay tuned for updates on the project’s launch.
New Research Resources
The Robbins Collection will introduce, and continue to add to, a new set of resources for researchers and scholars on our website. These “Resources for Research” will include entries from legal dictionaries and indices, digitized images of Robbins documents and manuscripts, and introductory materials on different legal history topics.
To see the resources that are currently available, click here:
Resources for Research
Festschrift for Professor R. H. Helmholz
The Robbins Collection is pleased to announce the publication of Studies in Canon Law and Common Law in Honor of R. H. Helmholz, edited by Troy L. Harris.