Accountability e Transparência da Justiça Civil - Ed. 2019

Accountability And Transparency In U.S. Courts - Parte II. Perspectivas Nacionais

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Scott Dodson


Every judicial system in the world must balance the values of accountability and independence 1 . Both are important. Accountability helps keep the judiciary in check, while independence allows the judiciary to act as a check and to avoid undue influence. Yet these values are often in tension. The more connected courts are to other arms of government and to the political process, the more accountable but the less independent they tend to be.

Likewise, every judicial system must balance transparency and privacy. These too are important values that are in tension with each other. Transparency—including public access of court records and participation in court proceedings—confers legitimacy to courts and facilitates accountability. Yet transparency comes at a cost to litigant privacy.

How different sovereigns strike those balances depends in many ways upon the particular role of their courts in both politics and society. In the US, accountability, independence, transparency, and privacy are informed by American judicial structures, their processes, and their unique connection to politics. This Report describes and assesses those features of the American civil justice system in the hope that the American approach for its judiciary may be an informative point of comparison or contrast for other countries.

1. Judicial Structures and Power

Since its founding, the US has grown up somewhat isolated—both geographically and philosophically—from the dominant governmental regimes of Europe and Asia. It is no wonder, then, that American courts and procedures are routinely described as exceptionalist by comparative proceduralists. 2 That exceptionalism applies with some force to American judicial structures and norms, as this Part sets out. 3 As the rest of the paper aims to show, these peculiar structures and norms inform the way the American system has struck balances regarding accountability and transparency.

1.1. Intersovereign and Intrasovereign Divisions

The US is a federal system, meaning that it has a national judicial system plus separate and independent judicial systems for each state. 4 In addition, certain nonstate federal territories, such as the District of Columbia, 5 and Indian tribes have their own court systems. 6 In general, each judicial system is supreme with regard to, and is governed solely by, the laws of its respective sovereign, except when in conflict with federal law. 7

In addition to the sovereignty-based divisions of judicial systems, courts are striated by hierarchy and subject matter. Both state and federal court systems typically exhibit a three-level structure, with trial courts of first instance, an intermediate appellate...

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Ilustração de computador e livro
29 de Novembro de 2021
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