Consensus Decision Making: A Comparative Analysis of Judging and Judicial Deliberations

Abstract

This article seeks to shed new light on how judicial consensus is formed. Through a multi-country series of 17 interviews with judges and clerks in six different courts – both ordinary and constitutional – across Europe, I investigate how judges negotiate and bargain to create final outcomes, and how the deliberative process itself may help to shape outcomes. Interview responses suggest two factors affect the probability that judges will be able to reach consensus outcomes: the complexity of the case and the background of the case rapporteur. These interview responses are then paired with an original dataset of case outcomes from seven European constitutional courts. The dataset of court outcomes suggests that the complexity of the case matters greatly, though limited testing shows judicial backgrounds do not appear to be a significant factor in the creation of consensus.