‘As luck would have it…’: Fairness in the Distribution of Cases and Judicial Independence

Abstract

This chapter presents several approaches to the internal distribution of cases, which are utilised in different exemplary legal systems. The aim is to highlight the correlation that exists between the various assignment methods and the principle of fairness. Questions of jurisdiction are not addressed, but rather, the analysis strives to offer supporting arguments in favour of the adoption of unbiased, independent automatic systems of case assignment. The focus is on the advantages provided by randomness in case distributions and the elimination of discretion to guarantee the right to a legal judge and an independent judiciary and hence ultimately provide a fair trial for all who enter the system. Automatisation has significant importance not only in terms of ensuring impartiality and preventing corruption but also in the fair and equal distribution of caseloads. The major systems of case assignment analysed in this chapter are the Italian, German and Austrian, as well as several approaches adopted at different levels of the US court system – e.g. federal and state-level jurisdictions. The examples introduced can provide a general idea about the types of exemplifying approaches presently available, which beyond the enforcement of professional standards are capable of fulfilling the principle of predetermination and which can serve as models for legal systems that do not utilise automatic assignment. The authors highlight the similarities and areas in which convergence is evident in among each approach. Furthermore, some recent reforms are described, which denote attempts towards reform under different legal systems, the ultimate goal of which can be said to be a modern guarantee of impartial judicial decisions.