Dr Assy has graduated from Oxford. He specialises in civil procedure and evidence, with particular emphasis on the theoretical aspects of access to justice and the phenomenon of self-representation. His book Injustice in Person (Oxford University Press 2015) challenges the longstanding common law tradition of treating self-representation as a fundamental right, and so develops a theoretical justification for compulsory legal representation. Phone: +972 (0) 4 8288867 Address: Law Faculty
University of Haifa
Haifa, Israel
Litigation in person is a widespread phenomenon in common law jurisdictions. A right to litigate ... more Litigation in person is a widespread phenomenon in common law jurisdictions. A right to litigate in person is treated as a fundamental right, regardless of whether the litigant has the financial means to hire a lawyer or the capacity to conduct litigation effectively. Due to the high numbers of litigants in person and the various burdens placed on judicial resources by their lack of legal knowledge, they pose a serious challenge to the effective and efficient administration of justice.
This book assesses the theoretical value of a right to self-representation, and challenges the position that courts should not impose legal representation on a litigant nor require him to obtain such representation as a condition for litigation. It argues that a litigant who lacks the professional knowledge and skills to present his case effectively cannot legitimately insist upon representing himself if in doing so he is likely to inflict disproportionate costs on his opponent and on the administration of justice.
This book advances the case for mandatory representation in civil proceedings on three main fronts: a comparison with the criminal context, an assessment of the value of self-representation in terms of outcome, and an examination of its possible intrinsic justifications.
In this paper I respond to comments by Professors Ori Aronson, Tali Fisher, Jona Goldschmidt and ... more In this paper I respond to comments by Professors Ori Aronson, Tali Fisher, Jona Goldschmidt and David Luban, made in a symposium hosted by the Hebrew University, on my book Injustice in Person: The Right to Self-Representation (Oxford University Press 2015).
It is a satisfying moment in a scholar’s life when his work is noticed, let alone discussed by first-rate scholars whose distinguished work has been highly influential on his own. I am deeply grateful to Ori Aronson, Talia Fisher, Jona Goldschmidt, and David Luban for participating in the symposium on my book Injustice in Person: The Right to Self-representation (Oxford University Press 2015), hosted by the Jerusalem Review of Legal Studies at the Hebrew University. I also thank Ori Herstein and Alon Harel, who organized the event and are editing this volume. I very much enjoyed the insightful engagement with the book, both during the symposium and in the written commentaries. The thoroughness, carefulness, originality, depth, and above all generosity of each of them humble and inspire me. They helped me better understand my own position on the scope and justifiability of a right to self-representation. I am delighted to now have the opportunity to respond, and to clarify and refine some of my thoughts in the light of these comments, and so contribute to the debate that has emerged since the publication of the book.
This paper argues that the proposed Online Court is likely to suffer from various limitations if... more This paper argues that the proposed Online Court is likely to suffer from various limitations if assessed within the current paradigm—that courts should never willfully compromise the quality of their judgments. The proposed Stage 3 could be understood as an invitation for a paradigm shift. At least in times of crisis, a degree of compromise over the court’s ability to arrive at correct judgments, in exchange for faster and less costly proceedings, is a legitimate trade-off—not the retreat into ‘second-class justice’ that critics of Briggs’s Interim Report alleged. Thus, if the application of Stage 3, with its radical departure from convention, would be limited to simple and straightforward cases, the Briggs reform would be just another instalment in judicial adaptation, which would ease some pain without bringing about a root treatment that is long overdue.
This article reviews the general legal framework governing risk assessment of prisoners in the Is... more This article reviews the general legal framework governing risk assessment of prisoners in the Israeli parole process. It highlights the excessive power the Israeli courts have accorded to the professional body responsible for providing risk assessments, which severely limits the parole board’s discretion to order conditional release when prisoners persist in denying their crimes. Such prisoners, especially sex offenders, tend to be precluded from participation in treatment courses, thus substantially reducing their prospects of obtaining parole.
In common law jurisdictions litigants are free to represent themselves in person. A right to self... more In common law jurisdictions litigants are free to represent themselves in person. A right to self-representation in civil proceedings has been taken for granted as an obvious expression of the right of access to court. Consequently, no attempt has been made to investigate the theoretical justification of self-representation, and mandatory legal representation has never been contemplated. This article identifies three possible reasons for the conflation of the right to litigate in person with the right of access to court: (1) the long history of self-representation, (2) the conceptual perception of procedural rights as necessarily personal, and (3) the empirical belief that litigants in person are typically poor. The article challenges the capacity of these reasons to justify vesting litigants with an unfettered power to decide whether to represent themselves in person or to instruct counsel. It argues that as a matter of principle the right of access to court does not entail a right to self-representation in all circumstances. When a litigant in person lacks the skills and expertise to conduct his or her case competently and imposes a disproportionate strain on court resources, the court should be entitled to require the litigant to obtain legal representation as a prerequisite for proceeding with the case.
Can we dispense with lawyers as intermediaries between the law and its subjects? Can laypeople ha... more Can we dispense with lawyers as intermediaries between the law and its subjects? Can laypeople have direct access to the law? The Plain English Movement (PEM) has long promoted the use of plain language in legal writing as the way to demystify the law, and many governments and private corporations have expended significant resources on drafting legislation and legal documents in plain language. This article argues that the PEM has exaggerated the capacity of plain language to render the law intelligible to the non-lawyer, obscuring the deeper question of legal complexity by focusing solely on language and style. Using the law effectively requires expertise that goes far beyond understanding the meaning of the words used to communicate it: certain complex aspects of the law cannot be eliminated by mere simplification of language, and this article demonstrates that other specialized skills are required over and above the ability to penetrate technical language. The paradigmatic illustration of the need for such skills is litigation.
This article reviews the major developments of the general power of English courts to reconsider ... more This article reviews the major developments of the general power of English courts to reconsider their orders under r.3.1(7) of the Civil Procedure Rules 1998 (CPR). It shows that the Court of Appeal has been inconsistent in its approach to that rule, and that any attempt to provide general criteria for exercising that power fails to take into account the diversity of circumstances or the types of orders that may invoke the rule. The author proposes departing from the absolute prohibition on invoking CPR r.3.1(7) to review orders on the merits and, instead, affording trial judges the discretion to reconsider on the merits procedural orders that were made to facilitate the trial.
Litigation in person is a widespread phenomenon in common law jurisdictions. A right to litigate ... more Litigation in person is a widespread phenomenon in common law jurisdictions. A right to litigate in person is treated as a fundamental right, regardless of whether the litigant has the financial means to hire a lawyer or the capacity to conduct litigation effectively. Due to the high numbers of litigants in person and the various burdens placed on judicial resources by their lack of legal knowledge, they pose a serious challenge to the effective and efficient administration of justice.
This book assesses the theoretical value of a right to self-representation, and challenges the position that courts should not impose legal representation on a litigant nor require him to obtain such representation as a condition for litigation. It argues that a litigant who lacks the professional knowledge and skills to present his case effectively cannot legitimately insist upon representing himself if in doing so he is likely to inflict disproportionate costs on his opponent and on the administration of justice.
This book advances the case for mandatory representation in civil proceedings on three main fronts: a comparison with the criminal context, an assessment of the value of self-representation in terms of outcome, and an examination of its possible intrinsic justifications.
In this paper I respond to comments by Professors Ori Aronson, Tali Fisher, Jona Goldschmidt and ... more In this paper I respond to comments by Professors Ori Aronson, Tali Fisher, Jona Goldschmidt and David Luban, made in a symposium hosted by the Hebrew University, on my book Injustice in Person: The Right to Self-Representation (Oxford University Press 2015).
It is a satisfying moment in a scholar’s life when his work is noticed, let alone discussed by first-rate scholars whose distinguished work has been highly influential on his own. I am deeply grateful to Ori Aronson, Talia Fisher, Jona Goldschmidt, and David Luban for participating in the symposium on my book Injustice in Person: The Right to Self-representation (Oxford University Press 2015), hosted by the Jerusalem Review of Legal Studies at the Hebrew University. I also thank Ori Herstein and Alon Harel, who organized the event and are editing this volume. I very much enjoyed the insightful engagement with the book, both during the symposium and in the written commentaries. The thoroughness, carefulness, originality, depth, and above all generosity of each of them humble and inspire me. They helped me better understand my own position on the scope and justifiability of a right to self-representation. I am delighted to now have the opportunity to respond, and to clarify and refine some of my thoughts in the light of these comments, and so contribute to the debate that has emerged since the publication of the book.
This paper argues that the proposed Online Court is likely to suffer from various limitations if... more This paper argues that the proposed Online Court is likely to suffer from various limitations if assessed within the current paradigm—that courts should never willfully compromise the quality of their judgments. The proposed Stage 3 could be understood as an invitation for a paradigm shift. At least in times of crisis, a degree of compromise over the court’s ability to arrive at correct judgments, in exchange for faster and less costly proceedings, is a legitimate trade-off—not the retreat into ‘second-class justice’ that critics of Briggs’s Interim Report alleged. Thus, if the application of Stage 3, with its radical departure from convention, would be limited to simple and straightforward cases, the Briggs reform would be just another instalment in judicial adaptation, which would ease some pain without bringing about a root treatment that is long overdue.
This article reviews the general legal framework governing risk assessment of prisoners in the Is... more This article reviews the general legal framework governing risk assessment of prisoners in the Israeli parole process. It highlights the excessive power the Israeli courts have accorded to the professional body responsible for providing risk assessments, which severely limits the parole board’s discretion to order conditional release when prisoners persist in denying their crimes. Such prisoners, especially sex offenders, tend to be precluded from participation in treatment courses, thus substantially reducing their prospects of obtaining parole.
In common law jurisdictions litigants are free to represent themselves in person. A right to self... more In common law jurisdictions litigants are free to represent themselves in person. A right to self-representation in civil proceedings has been taken for granted as an obvious expression of the right of access to court. Consequently, no attempt has been made to investigate the theoretical justification of self-representation, and mandatory legal representation has never been contemplated. This article identifies three possible reasons for the conflation of the right to litigate in person with the right of access to court: (1) the long history of self-representation, (2) the conceptual perception of procedural rights as necessarily personal, and (3) the empirical belief that litigants in person are typically poor. The article challenges the capacity of these reasons to justify vesting litigants with an unfettered power to decide whether to represent themselves in person or to instruct counsel. It argues that as a matter of principle the right of access to court does not entail a right to self-representation in all circumstances. When a litigant in person lacks the skills and expertise to conduct his or her case competently and imposes a disproportionate strain on court resources, the court should be entitled to require the litigant to obtain legal representation as a prerequisite for proceeding with the case.
Can we dispense with lawyers as intermediaries between the law and its subjects? Can laypeople ha... more Can we dispense with lawyers as intermediaries between the law and its subjects? Can laypeople have direct access to the law? The Plain English Movement (PEM) has long promoted the use of plain language in legal writing as the way to demystify the law, and many governments and private corporations have expended significant resources on drafting legislation and legal documents in plain language. This article argues that the PEM has exaggerated the capacity of plain language to render the law intelligible to the non-lawyer, obscuring the deeper question of legal complexity by focusing solely on language and style. Using the law effectively requires expertise that goes far beyond understanding the meaning of the words used to communicate it: certain complex aspects of the law cannot be eliminated by mere simplification of language, and this article demonstrates that other specialized skills are required over and above the ability to penetrate technical language. The paradigmatic illustration of the need for such skills is litigation.
This article reviews the major developments of the general power of English courts to reconsider ... more This article reviews the major developments of the general power of English courts to reconsider their orders under r.3.1(7) of the Civil Procedure Rules 1998 (CPR). It shows that the Court of Appeal has been inconsistent in its approach to that rule, and that any attempt to provide general criteria for exercising that power fails to take into account the diversity of circumstances or the types of orders that may invoke the rule. The author proposes departing from the absolute prohibition on invoking CPR r.3.1(7) to review orders on the merits and, instead, affording trial judges the discretion to reconsider on the merits procedural orders that were made to facilitate the trial.
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Books by Rabeea Assy
This book assesses the theoretical value of a right to self-representation, and challenges the position that courts should not impose legal representation on a litigant nor require him to obtain such representation as a condition for litigation. It argues that a litigant who lacks the professional knowledge and skills to present his case effectively cannot legitimately insist upon representing himself if in doing so he is likely to inflict disproportionate costs on his opponent and on the administration of justice.
This book advances the case for mandatory representation in civil proceedings on three main fronts: a comparison with the criminal context, an assessment of the value of self-representation in terms of outcome, and an examination of its possible intrinsic justifications.
Papers by Rabeea Assy
It is a satisfying moment in a scholar’s life when his work is noticed, let alone discussed by first-rate scholars whose distinguished work has been highly influential on his own. I am deeply grateful to Ori Aronson, Talia Fisher, Jona Goldschmidt, and David Luban for participating in the symposium on my book Injustice in Person: The Right to Self-representation (Oxford University Press 2015), hosted by the Jerusalem Review of Legal Studies at the Hebrew University. I also thank Ori Herstein and Alon Harel, who organized the event and are editing this volume. I very much enjoyed the insightful engagement with the book, both during the symposium and in the written commentaries. The thoroughness, carefulness, originality, depth, and above all generosity of each of them humble and inspire me. They helped me better understand my own position on the scope and justifiability of a right to self-representation. I am delighted to now have the opportunity to respond, and to clarify and refine some of my thoughts in the light of these comments, and so contribute to the debate that has emerged since the publication of the book.
This book assesses the theoretical value of a right to self-representation, and challenges the position that courts should not impose legal representation on a litigant nor require him to obtain such representation as a condition for litigation. It argues that a litigant who lacks the professional knowledge and skills to present his case effectively cannot legitimately insist upon representing himself if in doing so he is likely to inflict disproportionate costs on his opponent and on the administration of justice.
This book advances the case for mandatory representation in civil proceedings on three main fronts: a comparison with the criminal context, an assessment of the value of self-representation in terms of outcome, and an examination of its possible intrinsic justifications.
It is a satisfying moment in a scholar’s life when his work is noticed, let alone discussed by first-rate scholars whose distinguished work has been highly influential on his own. I am deeply grateful to Ori Aronson, Talia Fisher, Jona Goldschmidt, and David Luban for participating in the symposium on my book Injustice in Person: The Right to Self-representation (Oxford University Press 2015), hosted by the Jerusalem Review of Legal Studies at the Hebrew University. I also thank Ori Herstein and Alon Harel, who organized the event and are editing this volume. I very much enjoyed the insightful engagement with the book, both during the symposium and in the written commentaries. The thoroughness, carefulness, originality, depth, and above all generosity of each of them humble and inspire me. They helped me better understand my own position on the scope and justifiability of a right to self-representation. I am delighted to now have the opportunity to respond, and to clarify and refine some of my thoughts in the light of these comments, and so contribute to the debate that has emerged since the publication of the book.