Abstract
The <em>Consultative Council</em> of European Judges (CCJE) approves of the role of law clerks assisting judges in their decision making but cautions against clerks replacing judges. In this article we put CCJE’s caution to a test and study law clerks at the Norwegian Supreme Court and the Borgarting and the Gulating courts of appeal, the country’s two largest courts of appeal. The general pattern for all three courts is that the pretext for hiring clerks changes from backlog problems to quality assurance, that clerks become organized in separate units, that the number of tasks performed by clerks increases, and that women constitute an outsized presence in the clerk units. The growth in clerks contributes to institutionalizing courts. We conclude that clerks perform tasks of the judges, that to some degree they replace judges, that clerks influence decision making, but that clerks have not become judges or make final decisions.
Highlights
Many European courts have gained a more prominent position in society, partly due to the judicialization of politics in which the legal domain broadens
The Consultative Council of European Judges (CCJE) states in its 2019 opinion on the role of judicial assistants, law clerks are hired by courts to “support judges or panels of judges in their adjudicating work.”
Four dimensions In this article we have studied the growth of clerks and establishment of clerk units at the Norwegian Supreme Court and the Borgarting and Gulating courts of appeal, the country’s two largest courts of appeal
Summary
Many European courts have gained a more prominent position in society, partly due to the judicialization of politics in which the legal domain broadens. We turn to the Borgarting and Gulating courts of appeal and analyze the degree to which these two lower courts display the same dimensional pattern of pretext for hiring clerks, the establishment of the clerk unit, the increasing number of tasks that clerks do, and the recruitment and demographic profile of clerks that we identified at the Supreme Court. At the turn of the century all interlocutory and merits appeals to the Supreme Court first passed through the clerk unit where a clerk would write a case memo (Sunde 2015; Aamodt 2017).. In the following discussion we take cues from the Supreme Court and compare the two courts of appeal along the four dimensions – pretext for hiring clerks, the establishment of the clerk unit, the increasing number of tasks that clerks do, and the recruitment and demographic profile of clerks – and with a view to the institutionalization of the two courts that concurred. The Gulating evaluation noted that clerks contribute constructively to the workplace environment (AFF 2018)
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