Joel Jacobsen

How's this for a headline?  "Supreme Court details five ways to a harmonious society".  Harmony isn't something one ordinarily associates with our Supreme Court.  It was actually the Supreme People's Court of China that "issued a wide-ranging circular ...outlin[ing] five areas were the country's courts have to solve social issues in order to achieve a harmonious society." 

One of the characteristics of our Supreme Court is that it takes no responsibility at all for the social consequences of its decisions.  (See post 232.)  Whether the Chinese court does more than pay lip service to the Confucian - or is it Communist? - ideal of its circular, I can't say.  But it's hard to find fault with its expression of that ideal, even if it leaves you to wonder how it translate into real-life action (and also to wonder about the translation into English of the fourth principle):

 All courts need to better resolve cases involving family members and neighbors to promote harmony within communities. They need to properly protect the rights of peasants to guarantee the social order of the vast rural areas. The courts need to protect the legitimate rights of laborers to enhance the development of the work force. Courts need to also strictly supervise government departments and state institutions to protect their rights. All courts need to properly handle environmental cases to prevent pollution and build a harmonious relationship between humans and nature, read the circular.

Of particular interest is the circular's admonition to judges.  China's judges aren't merely the ones given the task of reforming everybody else: "[T]he circular also said judges who abuse their power and take bribes must be dismissed."  And who can argue with that?

It's the next part of the circular that might cause an audience of American judges to start shifting in its seats: "It also urged the courts to be more transparent to people's congresses, procuratorates and the common people."  You can almost hear the paper rustling and the coughs breaking out across the hotel meeting room, can't you?

"Transparency" is a word that has recently come up in regard to the judicial systems of the EU's newest members.  Ireland's RTE summed up the flamboyant shortcomings of the Bulgarian judicial system this way:

Bulgaria's primary law, adopted in 1991 after the fall of communism, gave the judiciary total independence, breeding corruption and impunity.

Spectacular trials including an embezzlement case that bankrupted 14 banks in 1996 and 1997 led nowhere with defence lawyers and corrupt judges always finding loopholes to delay a court ruling.

Police have also recorded over 160 suspected contract killings since 2000 but there has not been a single conviction, although the names of notorious gang bosses have circulated in the Bulgarian press.

As a result, parliament passed amendments last March designed to limit the independence of the judiciary, giving parliament the power to sack the chief prosecutor and members of the supreme courts.

But the EU Commission later criticised the changes, claiming they violated the independence of the judiciary, and pressed for 'ambiguities' to be removed.

Bulgaria's constitutional court repealed the disputed legal amendment last September, making it necessary for parliament to find another mechanism to monitor the judiciary.

I wouldn't blame those Bulgarian parliamentarians for feeling they can't win for losing.  Total independence has been proven to be disastrous in practice, while Daddy in Brussels says less-than-total independence is even worse, in theory.  (And remember we're talking about a legal system - theory is what counts.)   So what's a striving wannabe-normal European nation to do?  Why, get transparent, of course:

The Bulgarian parliament has approved constitutional changes demanded by the European Union to improve the efficiency and transparency of its much-criticised judiciary.

Transparency is something American courts fight against, tooth and nail.  Hammer and tongs.  The ludicrous blow-up on the Michigan Supreme Court is all about an emotionally-adolescent Chief Justice (he circulated a draft opinion suggesting one of the women on the court start a hunger strike, which has "the potential for everyone to be a winner."  You can just hear the guys in home room cracking up, can't you?) trying to keep the people of his state from knowing how he and his pals spend their time in Lansing.  (See post 234.)

Meanwhile, in Connecticut, a judge was located who was prepared to go public with the laughable notion that it violated the doctrine of separation of powers for the state legislature to investigate the chief justice's attempt to manipulate the legislative process.  (See post 198.)

Meanwhile, no one has yet come up with any explanation as to how the Supreme Court's ban on TV in federal courtrooms, conspicuously including its own, can possibly be squared with the first amendment - you know, the one the federal courts are always so eager to enforce against the other branches.

(The justices have come up with an explanation as to how their denial of freedom of the press can be squared with the sixth amendment guarantee of a public trial, but that explanation is mere magic-wand jurisprudence, a because-I-said-so declaration that the sixth amendment's reference to a "public trial" doesn't, as the legally-unsophisticated might naively assume, necessarily mean "public trial.")

Perhaps there's a kind of reversion to the mean going on.  Relatively successful legal systems, such as ours, seek to reduce transparency in order to increase the personal power of the judges.  Relatively unsuccessful legal systems, such as Bulgaria's, seek to promote transparency in order to decrease the personal power of judges.  The goal of both is mediocrity.  The interesting question is: will either achieve it?