Judicial Reforms Needed
<http://constitutionalism.blogspot.com/2010/06/judicial-reforms-needed.html>
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
<http://constitution.org/reform/us/con_amend.htm>.
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