By Lynn LoPucki

LoPucki's provocative critique of Chapter 11 is required reading for everyone who cares about bankruptcy reform. This empirical account of large Chapter 11 cases will trigger intense debate both inside the academy and on the floor of Congress. Confronting LoPucki's controversial thesis-that competition between bankruptcy judges is corrupting them-is the most pressing challenge now facing any defender of the status quo."" -Douglas Baird, University of Chicago Law School ""This book is smart, shocking and funny. This story has everything-professional greed, wrecked companies, and embarrassed judges. Insiders are already buzzing."" -Elizabeth Warren, Leo Gottlieb Professor of Law, Harvard Law School ""LoPucki provides a scathing attack on reorganization practice. Courting Failure recounts how lawyers, managers and judges have transformed Chapter 11. It uses empirical data to explore how the interests of the various participants have combined to create a system markedly different from the one envisioned by Congress. LoPucki not only questions the wisdom of these changes but also the free market ideology that supports much of the general regulation of the corporate sector."" -Robert Rasmussen, University of Chicago Law School A sobering chronicle of our broken bankruptcy-court system, Courting Failure exposes yet another American institution corrupted by greed, avarice, and the thirst for power. Lynn LoPucki's eye-opening account of the widespread and systematic decay of America's bankruptcy courts is a blockbuster story that has yet to be reported in the media. LoPucki reveals the profound corruption in the U.S. bankruptcy system and how this breakdown has directly led to the major corporate failures of the last decade, including Enron, MCI, WorldCom, and Global Crossing. LoPucki, one of the nation's leading experts on bankruptcy law, offers a clear and compelling picture of the destructive power of ""forum shopping,"" in which corporations choose courts that offer the most favorable outcome for bankruptcy litigation. The courts, lured by big money and prestige, streamline their requirements and lower their standards to compete for these lucrative cases. The result has been a series of increasingly shoddy reorganizations of major American corporations, proposed by greedy corporate executives and authorized by case-hungry judges.

Ann Arbor: University of Michigan Press, 2006. 335p.

By Ilya Klauzner; Steve Yeong

Background

There are two bail authorities in New South Wales (NSW): the police and the courts. These authorities are tasked with determining whether an accused person should be held on remand prior to the finalisation of legal proceedings. Remand is associated with adverse social, economic, legal and emotional outcomes for the individual and represents a significant financial burden to the state. It is, therefore, crucial for policymakers to understand what factors drive the bail decision-making process. This bulletin seeks to understand the application of the current NSW bail laws (Bail Act 2013 (NSW)). Specifically, it examines the relative importance of defendant (e.g., age, gender and Aboriginality) and case characteristics (e.g., prior offending, the number and nature of the offences to which the defendant is accused) in bail decisions. Consistency of bail decisions across police areas and courts is also considered.

Key findings

Bail determinations in NSW between January 2015 and November 2019 are examined. The findings can be summarised as follows: Legal factors, including the number of concurrent offences, prior offences and prior prison sentences, strongly increase the likelihood of bail refusal by the police and court. Defendants accused of a Show Cause offence, which carries a presumption against bail, are far more likely to be refused bail than other defendants.Some extra-legal factors are also associated with a significant increase in the probability of being bail refused. Adult Aboriginal defendants are more likely to be bail refused by the police than non-Aboriginal defendants, while male defendants and those aged between 35 and 44 years are more likely to be bail refused by both the police and the courts.There is substantial variation in bail decisions across police jurisdictions and magistrates for matters with equivalent case characteristics. Moving between different police jurisdictions or magistrates may have a greater impact on the probability of bail refusal than many legal factors, including prior court appearances and bail breaches.The police and courts are largely influenced by the same factors in their bail decisions. However, there is evidence to suggest that police are imposing a higher risk threshold than the courts. Further, the police are more likely to refuse bail for domestic violence and/or alcohol related offences than the courts.Generally, factors influencing bail refusal are similar for adults and juveniles. However, breaches of bail have a larger influence on the probability of juveniles being refused bail compared with adults. Extra-legal factors (e.g., gender) also seem to be less important in bail decisions involving juveniles.

Conclusion

Legal factors, in particular offence type and prior offending, have the largest impact on both the police and court decision to refuse bail. The influence of certain extra-legal factors, including Aboriginality, in bail determinations and the substantial variation across police jurisdictions and magistrates warrants further research.

(Crime and Justice Bulletin No. 236). Sydney: NSW Bureau of Crime Statistics and Research. 2021. 32p

By Ionnuala Ratcliffe and Penelope Gibbs

How are young adults treated in the magistrates’ courts? How, if at all, is their maturity considered and taken into account by the court? This report seeks to answer these questions, based on testimony from 82 courtwatchers, volunteer members of the public who observed London magistrates’ courts for six months in the second half of 2023. Sentencing Council guidelines recognise the potential impact of young adults’ developing maturity on their responsibility for an offence, their ability to cope with a prison or community sentence, and their capacity to participate effectively in court proceedings. Courtwatchers observed almost 200 hearings involving a young adult defendant. They reported that maturity was mentioned in less than a third of hearings observed. When maturity was raised, it usually wasn’t covered in depth, rather “mentioned as an aside, no specific arguments made.” Some maturity arguments applied specifically to the offence or defendant: on the young adult’s susceptibility to peer pressure, their difficulties assessing risk, the potential impact of a court sanction on their education or employment, and their potential for rehabilitation. But these were few and far between. When mentioned, arguments about maturity did sometimes prompt the court to reduce the severity of the sentence given, or at least to postpone sentencing until they had more information about the defendant. But most of the time, comments about maturity were dismissed by court decision makers or deprioritised compared to other factors. Courtwatchers observed young adults being treated much the same as older defendants, with little direct engagement with young adult defendants, frequent use of the secure dock and challenges arranging interpreters. This report sets out recommendations for how the courts can deal with young adult defendants more effectively by considering maturity more thoroughly. 

London: Transform Justice, 2024. 31p.

By Fionnuala Ratcliffe and Penelope Gibbs

This report summarises findings from CourtWatch London, a mass court observation project where citizen volunteers observed magistrates’ court hearings and reported what they saw. From July to December 2023, a diverse group of 82 volunteer members of the public (courtwatchers) visited their local London magistrates’ courts armed with a booklet of observation forms and a small amount of training. Between them they observed over 1,100 hearings, reporting on the treatment of defendants, the decision-making of magistrates and district judges, and their experiences of attending magistrates’ court as a public observer. This report focuses on courtwatchers’ observations of the court process and the court’s decision-making. We have written separate reports on their experiences of being a public observer trying to access and understand the courts, and their reflections on how young adult defendants are treated. Our first report - “Why are you here?” Open justice in London magistrates’ courts - highlights how court watchers found it hard to comprehend the court system. Their observations suggested defendants were struggling too. People cannot have a fair trial without a clear understanding of what they are accused of, what is happening in court, and the implications of the court process. Our court watchers observed magistrates’ courts often falling short. Defendants were usually physically isolated from the rest of the courtroom in the secure dock, where it was all too easy to ignore them for the majority of the hearing. A significant minority of defendants appeared without a lawyer. Courtwatchers felt that unrepresented defendants were severely disadvantaged by their lack of legal advice, even though court staff and judges made efforts to explain things. Defendants who needed interpreters were some of the worst served by the court. And court watchers were alarmed to see hearings going ahead despite some defendants being unwell. Despite these concerns, courtwatchers felt judgments made were overall fair, reasoned and practical. They appreciated magistrates and judges who took the time to get to the bottom of things and to find the most productive solution for the individual in front of them. Court watchers were most frustrated by what seemed to them ineffective or counterproductive sanctions. This included fines and other court costs which had to be paid by people of severely limited means, or punitive sentences given to people with serious drug addiction or mental health problems which did nothing to address those issues. Our court watchers also felt some time was wasted on cases that should not have been in court at all. Court watchers usually agreed with the court’s decision to remand people, although their reports highlighted some examples where bail might have been more appropriate. A few court watchers picked up on inconsistencies in how defendants were dealt with which they saw as evidence of racial bias.  Court watchers were shocked by what they perceived to be the inefficiency of courts. They expected hearings to start on time and to run continuously throughout the day. They were concerned that the valuable time of the many professionals in the room was being wasted. It was hard for courtwatchers to work out why so little was happening since court staff and judges seldom explained the delays. As court watchers gained experience, they gradually discerned the reasons - prosecution and defense advocates who didn’t have the right information in advance, nor the time to prepare for hearings, defendants not turning up for their hearing (often through no fault of their own) and technology which didn’t work well. The fundamental flaw in our court system highlighted by court watchers - that many defendants don’t know what’s happening in the court and so can’t meaningfully participate in the process - needs urgent action. We need simpler court proceedings so the process is intelligible to a layperson, and legal aid is available for a wider range of circumstances. At the very least, we recommend introducing a support service for defendants, available in every magistrates’ court. The use of court fines should be reduced, particularly for people whose poverty was a contributing factor to their offence. Fines should be replaced with sentences which instead address the drivers of crime. To improve court efficiency, research should be commissioned to understand the main causes of court delays and how they might be addressed. Meanwhile, the number of cases listed could be reduced by discontinuing some very old ones and encouraging the police to offer more out of court resolutions for lower-level crimes. This project shows the power and potential of court watching in England and Wales. The commitment from our volunteers to observe and report on over 1,100 hearings shows that ordinary people are willing to give their time and energy to hold our courts accountable. Their reflections, which focused on access, fairness and effectiveness, bring a unique perspective to the scrutiny of our courts. The act of courtwatching itself changed how many of our volunteers viewed the justice system and those who get into trouble with the law. And it’s possible that courtwatcher presence played a small role in encouraging the courts they observed to be fairer and more compassionate towards those who are swept up in our justice system

London: Transform Justice, 2024.   55p.

By: Oded Oren (Scrutinize) and Rachael Fauss (

Transparency is a cornerstone of a robust democratic governance system. It helps build public trust, fosters accountability, and promotes informed citizen participation. When it comes to the transparency of the state judiciary and court administration, there are notable shortcomings due to gaps in current law and practice. Since judicial data is a public good, there is a compelling public interest in making more judicial data publicly available. This report delves specifically into the limited publication of written decisions by criminal court judges.

Key Findings:

1. Only an estimated 6% of the total written criminal court decisions are published every year.

2. In New York, criminal court judges effectively decide whether or not to publish their decisions in criminal cases. Of the judges who published at least one decision a year, the average number of published decisions was two to three decisions a year.

3. The number of judges presiding over criminal cases each year is not made available by the court system, meaning that it is not possible to determine how many judges publish zero decisions each year.

4. Of the 600 New York criminal court judges who published at least one decision between 2010 and 2022, 20 judges (3%) were responsible for 28% of all published decisions, while 356 judges (59%) published three or fewer decisions.

Public Access to Criminal Court Decisions Boosts Transparency and Judicial Accountability:

• Judicial Assessment: Access to decisions is vital for evaluating a judge’s performance and qualifications during reappointment, reelection, or promotion.

• Legislative Oversight: Publicly available decisions provide a window for the Legislature to monitor the implementation of criminal law reforms.

• Legal Insight: Decisions offer valuable insights for appellate courts and attorneys into legal interpretations and trends, but only if they are available for review.

Recommendations:

1. New York should pass a law to increase transparency by requiring written decisions by criminal court judges to be publicly available online.

2. Judges would be able to submit transcripts of oral rulings instead of written decisions.

3. The new law would mandate the publication of decisions when they resolve a legal issue raised in a written motion or decide a pre-trial hearing.

4. The new law would also require the Office of Court Administration to make all written criminal court decisions authored in the past 15 years publicly available.

5. The Office of Court Administration should immediately begin implementing these policies administratively.

Scrutinize and Reinvent Albany, 2023. 28p.