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Independence and Impartiality in The Judicial Trilemma

  • Helen Keller (a1) and Severin Meier (a2)
Abstract

Jeffrey L. Dunoff and Mark A. Pollack's article is an important and very welcome contribution to the discussion about judicial values. The authors argue that with respect to judicial independence, transparency, and accountability “judicial systems face inherent trade-offs, such that any given court can maximize two, but not all three, of these features.” In our eyes, the article's most important contribution is its holistic view: it shows why these three judicial values can only be understood in their interconnectedness. It is, for instance, not meaningful to make a statement about the correlation between transparency and independence without also taking accountability into the equation. This is because the effect of transparency on independence can only be understood if information about judicial accountability is at one's disposal. In the past, these judicial values have often been analyzed in an isolated manner, thereby leading to wrong conclusions. The Judicial Trilemma will hopefully help in shifting the discourse from isolated to holistic views on independence, transparency, and accountability. Moreover, Dunoff and Pollack lay the groundwork for a meaningful normative discussion of these three judicial values. Any debate about how to structure (international) courts should henceforth take Dunoff and Pollack's holistic view as a basis for discussion.

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Copyright
This is an Open Access article, distributed under the terms of the Creative Commons Attribution licence (http://creativecommons.org/licenses/by/4.0/), which permits unrestricted re-use, distribution, and reproduction in any medium, provided the original work is properly cited.
References
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1 Jeffrey L. Dunoff & Mark A. Pollack, The Judicial Trilemma, 111 AJIL 225 (2017).

2 See, e.g., Statute of the International Court of Justice art. 20, Apr. 18, 1946; Statute of the Court of Justice of the European Union art. 2, 2010 O.J. (C 83) 210; Rome Statute of the International Criminal Court art. 36(3)(a), July 17, 1998, UN Doc. A/CONF.183/9.

3 Dunoff & Pollack, supra note 1, at 226.

4 Id. at 274.

5 John Ferejohn, Independent Judges, Dependent Judiciary: Explaining Judicial Independence, 72 S. Cal. L. Rev. 353, 353 (1999) (emphasis added).

6 Friedrich Nietzsche, The Will to Power para. 481 (1901).

7 Dunoff & Pollack, supra note 1, at 226 (emphasis added).

9 Id.

11 Dunoff & Pollack, supra note 1, at 272.

12 Id. at 273–75.

13 Id. at 275.

14 Id. at 273.

15 Id.

19 Eur. Ct. H.R., supra note 17, para. 36.

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