15 October 2009

Judges Coming Together

International Exchanges and the U.S. Judiciary

State Judge Catherine O’Malley (left) hosts a Russian delegation at the Maryland governor’s residence in Annapolis in 2007.

By Mira Gur-Arie

Mira Gur-Arie is director of the International Judicial Relations Office of the Federal Judicial Center, the education and research agency for the U.S. federal courts.

She outlines programs available for judges from around the world to exchange information and support in their shared mission to uphold the rule of law.

The United States courts have experienced the impact of globalization in many ways. With increasing frequency, litigation involves evidence located abroad, foreign law, and international treaties, putting judges in contact with legal issues from around the world. This has, in turn, inspired in U.S. judges a growing interest in the legal world outside their jurisdiction, with many American judges hosting visits from foreign jurists and participating in conferences and technical assistance projects abroad.

These international exchanges are much valued and mutually rewarding, enabling judges to exchange insights about the challenges and rewards of a judge’s role in preserving the rule of law.

The U.S. judiciary has much to share, with its long history of independence, its developed jurisprudence, and its rich experience with administering a large and diverse court system. Each year the United States hosts well over 2,000 judges and lawyers from abroad. Just last year, the Supreme Court of the United States received more than 1,000 visitors representing more than 90 countries.

Among these visitors were justices from the supreme courts of Peru, Russia, and South Korea. These judges do not visit only Washington, D.C. Indeed, federal courts all over the United States host visiting delegations. More than 150 jurists visited the Southern District of New York in 2008, including judges from China, Iran, and Ireland. The federal court in Tampa, Florida, hosted 46 foreign judicial visitors last year, among them judges from Canada, Jordan, Panama, and Suriname. Recent visitors to courts in Chicago, Los Angeles, and New Orleans have included delegations from Liberia, Brazil, and Albania.

Despite the diversity of the countries represented, the questions that emerge during these exchanges resonate with a single theme: How can judges and judicial systems work more effectively? Visiting judges want to know about judicial administration, strategies U.S. judges have employed to manage their caseloads efficiently, developing training for judges and court personnel, and the U.S. experience with implementing and enforcing a judicial code of conduct.

During visits, foreign judges observe a broad range of proceedings: case conferences, criminal case arraignments and bail hearings, trials, oral arguments, and bankruptcy proceedings. Perhaps most importantly, visiting judges have the opportunity to speak one-on-one with U.S. judges.

This judge-to-judge sharing of experience provides visitor and host alike useful insights about judging.

Common Bonds

Certainly, both visitor and host are impressed with their shared sense of role and mission, despite differences in their countries’ legal traditions, mechanisms of adjudication, and resources. Throughout the world, it is the judge’s responsibility to maintain the dignity of court proceedings and ensure that the rights of litigants are respected. Judges often discover that the great burden of this responsibility, and the often solitary avocation of judging, is a cross-cultural phenomenon — a realization that enables an ease of communication with their colleagues from other countries.

This openness enables these conversations to lead to candid exchanges about the benefits and disadvantages of different judicial systems. Judges visiting the United States are keen to learn about the many unique features of the U.S. courts. Judges from countries without jury systems have the opportunity to observe jury selection and the trial process; they immediately note the difference between reality and Hollywood’s depictions, and they often admire the relationship of mutual respect that develops between the jurors and the judge. Similarly, U.S. judges, deeply acculturated to the common law tradition, are often surprised to learn about the duties and powers of an investigative judge in civil law countries.

They are also intrigued with the very different orientation of court proceedings that rely more on paper submissions by attorneys than the taking of oral testimony in court. Such conversation and debate among jurists may best be initiated by a discussion of vocabulary, as many of the terms of art that define legal systems (trial, appeal, plea bargain) may have different meanings.

Justice Ruth Bader Ginsberg, Justice Yuriy Ivanovich Sidorenko of Russia, his wife, Svetlana, and Chief Justice John Roberts.

Visitors to the U.S. courts from less-developed countries often comment on the deep-rooted tradition of judicial independence in the United States and the many practical and physical advantages this confers on a judge’s work. One significant advantage enjoyed by federal judges in the United States is their life tenure — a tenure protected from political caprice and unrest. The U.S. courts are also well resourced, with a number of new courthouses, extensive automation, and administrative agencies and staff that greatly facilitate a judge’s work.

Some visiting judges spend time with representatives of the institutions that support the work of the U.S. judiciary. The Judicial Conference of the United States is the policy-making body for the federal courts. Its Committee on International Judicial Relations coordinates many of the judiciary’s exchanges with other countries, identifying judges with particular areas of expertise to participate in judicial development projects and facilitating visits by foreign delegations to U.S. courts across the country.

These efforts are supported by staff from the Administrative Office of the U.S. Courts, the agency responsible for the judiciary’s administrative, legal, and management affairs. Each year the Administrative Office hosts foreign judges and court administrators in its Washington, D.C., offices to discuss topics ranging from court automation and the budget process to media relations and court security.

The Federal Judicial Center is the research and education agency for the U.S. federal courts. The Center’s implementing legislation was amended in 1991 to include a mandate to “provide information to help improve the administration of justice in foreign countries and to acquire information about the judicial systems of other nations that will improve the administration of justice in the courts of the United States.”

This statutory directive underscores the recognition that the U.S. judiciary’s engagement with its foreign counterparts is a two-way street, offering an opportunity not only to share lessons learned in the United States but also to develop an understanding of how other nations structure their court systems. The center’s Visiting Foreign Judicial Fellows program provides an opportunity for foreign judges to pursue more focused research projects and spend time visiting courts and meeting with U.S. judges. Recent fellows have included a judge from Afghanistan, who developed a criminal trial bench book modeled on the center’s Benchbook for U.S. District Court Judges; a judge from Brazil, who analyzed case management techniques in intellectual property cases; and a Chinese judge, who studied the role of court administrators in the U.S. judiciary.

Professional Exchanges

A number of organizations and institutions in the United States facilitate transnational judicial exchanges. The Open World Program, funded by the U.S. Congress, was created with the broad mission of furthering “cooperation between the United States and the countries of Eurasia and the Baltic States” by facilitating professional exchanges focusing on democratic and accountable government. Since its inception in 1999, Open World’s rule of law program has brought to the United States more than 12,000 judges and court professionals from Russia, Ukraine, Lithuania, and Uzbekistan for week-long visits to U.S. courts across the country.

Perhaps most active in supporting the U.S. judiciary’s work with other nations is the U.S. State Department. In 2009 judges from the United States traveled to countries including Malaysia, Romania, Bulgaria, Montenegro, and Brazil. The U.S. Department of Justice also works closely with U.S. judges as part of its international technical assistance efforts, sending U.S. judges to Georgia, Nepal, and the United Arab Emirates, among other countries, and bringing delegations from abroad to the United States.

Similarly, the U.S. Agency for International Development integrates judicial development projects and exchanges as part of its Democracy and Governance projects. The reach and breadth of these efforts illustrate not only the deep commitment of the United States to facilitating international judicial exchanges, but the strong interest of judges in working with their colleagues around the world.

Although offering a more formal setting, international conferences provide a valuable venue for judges from the United States to learn from and share with their foreign colleagues. These conferences are sponsored by international and nongovernmental organizations as well as private institutions and universities.

The International Association of Judges is an association of national judicial organizations from countries throughout the world. Its annual meetings focus on the status of the judiciary, law and procedure, and other issues of interest to judges.

In 2006 the American Society of International Law and Harvard Law School hosted a transnational judicial conference for judges of supreme courts from around the world. This program focused on the role of international judicial networks in supporting efforts to promote judicial ethics, judicial education, and the enforcement of judgments.

The International Organization for Judicial Training holds more narrowly focused biannual conferences for judges engaged in judicial education efforts.

The Brandeis Institute for International Judges also serves a more discrete aspect of international judicial cooperation, providing a forum for judges serving on international courts and tribunals to share experiences and discuss best practices.

These judicial exchanges are valued for many reasons. Global interdependence can be felt in virtually every facet of modern life, and the work of the judiciary is no exception. This phenomenon is evidenced by the growing numbers of cross-border disputes, as well as by greatly increased access to information, images, and legal decisions from judiciaries around the world.

The opportunity to meet with and learn from judges who have experienced different educational systems, appointment processes, and practical challenges is invaluable. Judges are given the opportunity to see the mechanics of justice through fresh eyes and revisit their own professional procedures and practices with a new perspective. Differences in language and tradition are no bar to appreciating each other’s common sense of purpose — the commitment to justice and upholding the public’s trust.