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[经济学人] [2011.10.01] Judicial system: The feeblest branch 司法体系羸弱的分支









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发表于 2011-10-8 15:10 | 显示全部楼层 |阅读模式
The judicial system

The feeblest branch

An underfunded court system weakens the economy as well as access to justice

IN THEORY America’s three branches of government are equal. In practice the judiciary is the weakest, as Alexander Hamilton cautioned in “The Federalist Papers”, because it controls neither sword nor purse. Of late, state legislatures and executives have been closing their purses as they struggle to balance tight budgets. At the same time, the federal bench  is being weakened by both stagnant salaries and frozen politics. This is now swelling dockets, delaying cases, and reducing access to the legal system.


Ask, for example, Katherine Feinstein, the presiding judge of the San Francisco Superior Court (and daughter of Dianne, California’s senior senator). She says that her court narrowly missed “falling off a cliff” last month by getting an emergency loan. But she expects worse later in this fiscal year because California’s current budget, which has already cut court funding by $350m, contains a trigger for even more reductions. Between 15 to 28 of California’s 58 county courts could go over that cliff in the coming year, she thinks.


How does a court go over the cliff? In unphotogenic slow motion, which makes the dire consequences harder to see. Since the budget cuts started in 2009, says Ms Feinstein, the court has been muddling through. Service has got slower, waiting times longer. An uncontested divorce now takes about half a year, she says. Without the loan, she would have had to lay off so many people that such a divorce would have taken three times as long. With the loan, it will take merely twice as long. That means lives (not just those of the spouses, but also those of children in custodial limbo) are put on hold.

法院是如何陷入危机的? 这是一个极难发现的温水煮青蛙的过程。“从2009年的预算削减开始,法院的工作就开始步履维艰”范斯坦表示。法院的工作效率开始降低,当事人等待的时间也相应变长。她说,一个毫无争议的离婚诉讼现在需要大约半年时间才能审结。如果没有贷款的支持,她将不得不解雇更多的工作人员,这将导致类似离婚诉讼的审理时间达到这一时间的三倍。而在拥有贷款的情况下,则需要大约两倍的时间。这意味着他们的生活(不仅仅是这些离婚的夫妇,还有监护权尚未确定的孩子)被延误。

A typical lawsuit now goes to trial within a couple of years, says Ms Feinstein, but that could soon stretch to five years. The backlog of traffic infractions is already so daunting that it compromises enforcement (and the deterrence of bad driving). And so on. The Californian constitution guarantees criminal defendants a right to speedy trial, but it does not technically require courts to administer civil law at all, Ms Feinstein says. So, in theory, civil adjudication could stop altogether, as it already has on one judicial circuit in Georgia. That, she says would bring about the “unravelling of society”.


Courts are in similar straits all over the country. A report by the American Bar Association found that in the last three years, most states have cut court funding by around 10-15%. In the past two years, 26 have stopped filling judicial vacancies, 34 have stopped replacing clerks, 31 have frozen or cut the salaries of judges or staff, 16 have furloughed clerical staff, and nine have furloughed judges. Courts in 14 states have reduced their opening hours, and are closed on some work days. Even the buildings are not immune; around the country 3,200 courthouses are “physically eroded” and “functionally deficient”, says the National Centre for State Courts.


This affects courts’ functioning in many ways. One municipal court in Ohio stopped accepting new cases because it could not afford to buy paper. New York judges’ pay has been frozen for a dozen years, even as their caseload has increased by 30%. The state’s 1,300 judges have sued the legislative and executive branches. Trial court judges make $136,700, less than the $160,000 (before bonuses) a stammering associate in a top-shelf New York City law firm expects in his first year on the job. Some clerks who have received automatic annual pay rises make more  than the judges they serve. The rate of attrition among New York judges has spiked.


This means that the courts are limiting access just when Americans need more adjudication. The recession left a vast legacy of foreclosures, personal and business bankruptcies, debt-collection and credit-card disputes. In Florida in 2009, according to the Washington Economics Group, the backlog in civil courts is costing the state some $9.8 billion in GDP a year, a staggering achievement for a court system that costs just $1.2 billion in its entirety. To make up the funding shortfall, courts are imposing higher filing fees on litigants. This threatens the idea of the equal right to justice, says Rebecca Love Kourlis of the Institute for the Advancement of the American Legal System.

这意味着当美国人需要更多裁决时,法院的受案工作受到了限制。经济衰退留下的大量实现抵押的资产,个人及企业破产,债务履行及信用卡纠纷。依照华盛顿经济委员会的统计,2009年在佛罗里达民事法庭积压的案件一年花费了他们大约98亿美元的GDP,对此整体花费只有12亿美元的法院系统将是一个惊人的成就。为弥补资金差额,法院提高了当事人的诉讼申请费用。美国司法促进学会的Rebecca Love Kourlis认为,这将会威胁到司法的平等权利观念。

Even criminal cases are not immune. Some crimes, like domestic violence, have increased with the rotten economy. In Georgia, where court funds have fallen by 25% in the last two years, criminal cases now routinely take more than a year to come to trial. This means that jails are full of the innocent alongside the guilty. Their incarceration adds costs far greater than the alleged savings in the court system. Above all, it causes gross injustice.


At the federal level, things are better—but only a bit. Politics, more than funding, has kept judgeships empty. Filibustering of judicial nominations increased under George Bush, and even more sharply under Barack Obama, causing federal cases to pile up. But here too, pay is an issue. Even as the caseload has grown, federal judges’ salaries have risen by only 39% since 1991 while the cost of living has gone up 50%. Many good judges have simply returned to private practice.

在联邦一级,情况相对较好,但也不多。政治活动比资金更容易架空法官的地位。在乔治•布什政府时期就在增长的司法提名阻力,在奥巴马时期变得更加严峻的起来,这直接导致了联邦法案的堆积。同样,薪酬也存在问题。 即使案件不断积压,从1991年开始,在生活花费增长了51%的情况下,联邦法官的薪水也只增长了39%。许多优秀的法官不得不重新选择私人执业。

To many judges, as the American Bar Association puts it, “the underfunding of our judicial system threatens the fundamental nature of our tripartite system of government.” In San Francisco, Ms Feinstein thinks that the judicial branch must start explaining itself more forcefully to legislators. And if that doesn’t work, she thinks it may be time to ask voters directly for money. As one revered judge, Learned Hand, said in 1951, “If we are to keep our democracy, there must be one commandment: thou shalt not ration justice.”

Time can both ruin everything and build everything-It depends on you

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发表于 2011-10-8 20:41 | 显示全部楼层
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