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Representation in Legal Proceedings

Final Report Summary - RIPL (Representation in Legal Proceedings)

This project assesses the value of the common law right to self-representation and the circumstances in which it is justified to restrict it by requiring legal representation as a condition for conducting litigation. The main finding has been that the common law right to self-representation has no significant theoretical value and, accordingly, that it is justifiable to require legal representation in cases where litigants in person are unlikely to be able to litigate their cases effectively and without imposing disproportionate costs on the administration of justice.

This finding has been reached through extensive research and analysis on three main fronts: a comparison of the civil and criminal contexts; an assessment of the value of self-representation in terms of outcome, including a cost-benefit analysis; an examination of the possible intrinsic justifications of self-representation, with particular emphasis on personal autonomy, litigants’ subjective satisfaction and their acceptability of adverse outcomes, and the entitlement of citizens in a democracy to participate in a process that is decisive to their interest.

This theoretical analysis has informed a detailed doctrinal analysis of the case law of several jurisdictions: England and the United States, the European Court of Human Rights, the European Commission on Human Rights, the International Criminal Tribunal for the former Yugoslavia, and the United Nations Human Rights Committee. The civil law practice of mandatory representation has also been reviewed, with particular emphasis on the German justice system.

In terms of importance, this analysis and the findings reached through it present a major departure from a longstanding common law tradition of considering the freedom to choose whether to procure legal representation or proceed in person as a fundamental freedom that ought to be respect in almost all circumstances. This novel project therefore contributes to the state of the art, which generally takes for granted the unfettered freedom to proceed in person. This finding is particularly important in the light of the fact that in many civil law jurisdictions legal representation is generally mandatory.

In terms of impact, the main finding of this project appears in a monograph entitled “Injustice in Person: The Right to Self-Representation”, published in 2015 by Oxford University Press, which is one of the most respectable publishing houses. The book develops a new theoretical framework for evaluating access to justice and offers a cross-jurisdictional assessment of the right of self-representation and the ways in which it could be restricted.

“Injustice in Person: The Right to Self-Representation” has been described as ‘path-breaking’ and ‘compelling’ (Deborah Rhode, Stanford); as a ‘stimulating book’ and ‘a refreshing and controversial challenge to current orthodoxy’ (Sir Rupert Jackson, Lord Justice of Appeal); as clearing ‘a thicket of doctrine to offer a new and an insightful analysis’ (Judith Resnik, Yale); and as ‘fascinating ... and completely novel’ and advancing ‘a delightfully unexpected series of arguments’ (Samuel Issacharoff, NYU). The book has also been endorsed by Adrian Zuckerman of the University of Oxford, and by the Honorable Justice Sir Grant Hammond (who was in charge of the recent commission on civil justice reform in New Zealand). See the book’s website, on which these endorsements appear:

As evidence to its academic value and impact, and its substantial contribution to the advancement of knowledge, the book has also stirred a productive debate among academics and judges through a series of book reviews published over the past year in first rate law journals; these include: Oxford Journal of Legal Studies, Cambridge Law Journal, Law Quarterly Review, Civil Justice Quarterly, Social and Legal Studies, and Zeitschrift für Zivilprozess International (in German); additional reviews are forthcoming in Modern Law Rreview and Archbold Review. The book has also been cited with approval by the Supreme Court of Israel (Weiner v Israel 2015).

On 15 March 2017, the University of Haifa Faculty of Law held a book event on “Injustice in Person: The Right to Self-Representation”, featuring Justice Melcer of the Israeli Supreme Court, Professor Adrian Zuckerman of the University of Oxford, Professor Kant Mann, the founder and first chairman of the Israeli Public Defence. Moreover, on 9 June 2017, the Hebrew University of Jerusalem in conjunction with the Jerusalem Review of Legal Studies (Oxford University Press) will conduct a symposium featuring Professors David Luban from Georgetown Law School and Jona Goldschmidt from Loyola Law School.

Further dissemination activities: during the grant’s period the researcher organised two international conferences on mass dispute resolutions, which were held at the host institute, the University of Haifa, on 24-25 November 2015 and 16-17 November 2017. These conferences hosted a number of distinguished scholars from such prestigious institutions as Columbia Law School (US), New York University Law School (US), European Institute (Florence), and City University of Hong Kong. The researcher successfully recruited funds from leading law firms from Israel and the United States.

All these demonstrate the researcher’s deep integration into the local and international academic communities. The CIG has had a substantial role in enabling the researcher to carry out this project and to integrate in the host institution, namely the University of Haifa. The researcher has successfully obtained tenure which, which secures his long-term integration in the University of Haifa and, more generally, in Israeli Academia. At Haifa University he chairs the Student Affairs Board at the Law Faculty, and sits on additional boards including the important boards of Prizes and Scholarships, and of Study Termination. Moreover, the research is presently involved in a number of academic-related public activities, such as membership of the National Board of the Bar Exam (appointment made by the Ministry of Justice) and the University’s Steering Committee for Encouraging the Assimilation of Arabs in Academia.