Collegial Courts Research Articles

Are Judges on Per Curiam Courts Ideological? Evidence from the European Court of Justice

Abstract Institutional designers of judiciaries often want to provide the appearance of impartiality. As a result, many collegial courts issue per curiam rulings in which judges’ votes are not public. An extensive scholarship, however, provides evidence that ideology and mechanisms of retention affect judicial decision-making. Do per curiam rulings actively mitigate or provide cover for ideological and career-oriented judicial decision-making? I argue that – when serving as the rapporteur (opinion-writer) – a judge on a civil law per curiam court can steer their panel towards the outcome their appointer prefers. When their appointing government turns over, nonetheless, a judge is not compelled to change their decision-making to be in line with their new government, as per curiam rulings protect them from retaliation. An analysis of decisions at the Court of Justice of the European Union provides evidence for this account.

How the Chamber System at the CJEU Undermines the Consistency of the Court’s Application of EU Law

AbstractThe Court of Justice of the European Union (CJEU) uses a chamber system to more efficiently decide cases. To what extent, and under what conditions, does the CJEU’s chamber system undermine the consistency of the Court’s application of EU law? This paper contributes to the literature on the internal organization of collegial courts by presenting a computational formal model that predicts (a) that hearing cases in smaller chambers undermines the consistency of the Court’s application of EU law and (b) that the magnitude of this effect is larger when judges’ preferences are more heterogeneous and smaller when plaintiffs strategically bring cases. Based on these findings, I use machine learning and empirical data on CJEU judgments in infringement cases to estimate the degree to which we should expect the chamber system to undermine the consistency of the CJEU’s application of EU law in practice.

The Impact of Female Leadership in Collegial Courts on Time to Render Merits Decisions: Evidence from the Norwegian Supreme Court

What is the effect of gender on the deliberative process of judging? Drawing on previous research on female leaders’ inclination to foster a more inclusive and collaborative decision-making process, we argue that decision making takes more time in a collegial court when female justices preside over decisional panels. Analyzing an original data set on cases decided by the Norwegian Supreme Court between 2008 and 2019, we find that when a woman is the presiding justice, the duration of case disposition time increases. This effect, however, persists for only eight days. Our finding suggests that institutional practices take effect over gendered effects.

Lifting the veil of secrecy – dissenting opinions in the subnational constitutional courts of Germany

ABSTRACT Dissent is an integral feature of decision-making in collegial courts. However, unless procedural rules provide for the publication of a dissenting opinion and judges make use of this opportunity, courts appear to outsiders as impersonal, monolithic institutions. The following contribution explores dissenting opinions in German subnational constitutional courts (Landesverfassungsgerichte). Today, most of these courts provide for open dissenting opinions. Based on an empirical analysis of 1,115 cases decided by the constitutional courts of ten states (Länder) over a ten-year period (2009–2018), I find that dissent is driven predominantly by decision-level factors. Notably, the likelihood of dissent increases where a decision taps into the relationship between federal and state constitutional law and where more than one dissenting opinion is published. By contrast, I find no evidence for ideology or career background to impinge on the decision of a judge to author a dissenting opinion.

Unfolding Judicial Ideology: A Data-Generating Priors Approach with an Application to the Brazilian Supreme Court

Abstract Spatial models, in the form of latent response theories (ideal point estimation), have been widely used to study the voting behavior of judges in collegial courts. In some specific institutional contexts, building coherent testable hypotheses with conventional methodology is challenging. We set up a non-parametric method to identify the number and nature of the latent ideological traits allegedly orienting judicial voting behavior in the absence of prior information regarding the nature of their preferences. We draw information from explorative cluster analysis conducted on votes cast by judges in the decisions of the court to construct priors in the context of Item Response Theory. We concentrate on the Brazilian Supreme Court in the period 2009–2018. We primarily find that votes express a split which groups judges into two distinct clusters. On one side, we find judges appointed further back in time and with longer tenure on the bench; on the other side, we observe judges more recently appointed and with shorter experience. Judges are likely to respond to the presidential appointer and to elements related to their origin, university education, and career background (aside from the guidance of their own experience). Our study provides an original empirical approach that is not limited to the Brazilian Supreme Court, but is suitable to investigate judicial voting behavior when the nature of potential ideological drivers is debatable, controversial, or unknown.

Explaining legal inconsistency

Judges, scholars, and commentators decry inconsistent areas of judicially created policy. This could hurt courts’ policy making efficacy, so why do judges allow it to happen? I show judicially-created policy can become inconsistent when judges explain rules in more abstract terms than they decide cases. To do so, I expand standard case-space models of judicial decision making to account for relationships between specific facts and broader doctrinal dimensions. This model of judicial decision making as a process of multi-step reasoning reveals that preference aggregation in such a context can lead to inconsistent collegial rules. I also outline a class of preference configurations on collegial courts (i.e., multi-member courts) in which this problem cannot arise. These results have implications for several areas of inquiry in judicial politics such as models of principal-agent relationships in judicial hierarchies and empirical research utilizing case facts as predictor variables.

Selecting Chief Justices by Peer Vote

AbstractWhat characteristics do state supreme court justices prioritize when choosing leaders? At the federal level, collegial court leaders are appointed or rotated by seniority. A plurality of states permit peer-vote selection, but the consequences of employing this mechanism are not well known. We develop a theory of chief justice selection emphasizing experience, bias, and politics. Leveraging within-contest variation and more than a half century’s worth of original contest data, we find that chief justice peer votes often default to seniority rotation. Ideological divergence from the court median, governor, and legislature is largely unassociated with selection. Justices who dissent more than their peers are, however, disadvantaged. We find no evidence of discrimination against women or people of color. The results have implications for policy debates about political leader selection.

The Future Matters: Judicial Preferences Over Legal Rules and Decision-Making on Collegial Courts

AbstractHigh courts such as the US Supreme Court announce legal rules that guide subsequent decisions by lower courts and other actors. Because legal rules are forward-looking in this sense, judges’ expectations about the distribution of future cases are critical. Focusing on this fact, we provide microfoundations for judicial preferences over legal rules by deriving them directly from expectations about the distribution of future cases. Doing so has important consequences: in contrast to standard assumptions in models of judicial decision-making, preferences over legal rules are asymmetric rather than symmetric. We demonstrate that this has significant implications for judicial decision-making on collegial courts. Finally, we show that changes in the case distribution—for example, as a result of technological change—can lead to significant legal change, even in the absence of ideological or doctrinal change on the court.

Общие и специальные теории уголовного процесса

The relevance of the article can be determined on the basis of research on general theories of criminal procedure. The main theoretical provisions of the criminal procedure of continental Europe began to be developed in 1864, after the adoption of the Charter of the Criminal Proceedings of Russia. Theoretical developments included a conceptual approach that defined guarantees for the rights, freedoms and interests of participants in the procedure, basic principles, forms of evidence and proving, the procedure for investigative and judicial actions. The aim of the article is to reveal the theoretical content of the general theory of the procedure and to determine new special theories enshrined in the current legislation. If general theories of the procedure have been considered at the level of monographic research, special ones have remained outside the scope of studies. The novelty of the research consists in the disclosure of theoretical and practical aspects of general and special theories of criminal procedure on the basis of existing legislation and the practice of its application by criminal justice authorities and the collegiate court. The article considers the theoretical aspects of a special theory. Issues of the optimization and procedural economy of criminal procedure based on benchmark theory are related to the release of a person from criminal liability and the use of alternative measures. New legal definitions are proposed that establish a clear mechanism for procedural, investigative (search), judicial actions in establishing, securing, evaluating evidence of guilt or innocence of a person. The existing legal constructions of general theories provide an impetus for the application of special theories of criminal procedure, which are associated with solving the problems of criminal proceedings, its optimization, and procedural economy of applying criminal procedural repression. The current criminal procedural law does not fully define the concept of general and special theories of the procedure. The article proposes theoretical aspects and practical solutions to these emerging problematic issues. The basic concept of the article includes the analysis of general and special theories of criminal procedure, the determination of the provisions for its optimization and procedural economy on the basis of the unified content of criminal and procedural rules in establishing circumstances related to the closure of criminal proceedings, and the release of a person from criminal liability. Based on the analysis of the current criminal procedural legislation, the content of procedural repressions, which are determined on the basis of the procedural status of prosecution and the mechanism of their application with respect to a particular category of participants in criminal proceedings, is revealed.

Legal composition of the court in the first instance in the criminal proceedings of Ukraine

The legal composition of the court is part of the concept of «right to a fair trial». Requirements for the legal composition of the court relate to the number of judges, and in some cases also compliance with additional (special) requirements for judges (proceedings against minors; proceedings containing information constituting a state secret; proceedings in the High Anti-Corruption Court). Violation of the requirements of the criminal procedure law regarding the consideration of criminal proceedings in the court of first instance by the legal composition of the court entails the revocation of the court decision. This study pays attention to the presence of some gaps and inconsistencies in the regulation of certain issues related to determining the composition of the court in the court of first instance, and suggests ways to overcome the identified shortcomings of the law. So, according to Article 512 of the CPC of Ukraine consideration of the application of coercive measures of a medical nature is carried out by a judge alone. But there are certain cases when such proceedings are carried out by a collegial court, including a jury trial. Therefore, it is proposed to amend Article 500 of the CPC of Ukraine, noting that the proceedings on the application of coercive measures of a medical nature are carried out by a court composed of a judge alone, except cases provided by the CPC of Ukraine. The CPC of Ukraine does not specify the composition of the court in considering a request for the application of coercive measures of an educational nature (for persons who committed a socially dangerous act that falls under the signs of an act under the Special Part of the Criminal Code before reaching the age of criminal responsibility). In our view, the CPC should clearly define the composition of the court in this case. Key words: court of the first instance, composition of the court, improvement of criminal procedural legislation.

Методологічний підхід до теорії пізнання у кримінальному процесі

Стаття розглядає елементи загальних і спеціальних теорій кримінального процесу. Центральне місце в системі кримінального процесу займає теорія доказів і доказування. Теорія доказів визначила певні конструкції доказування. Перша з них побудована на підставі закону, друга - рішення слідчого судді на стадії досудового провадження. Третя конструкція передбачає встановлення доказів за погодженням сторін процесу на стадії судового провадження.
 Основою доказування є теорія пізнання, яка включає в себе визначення методів, методології, які застосовуються під час встановлення обставин кримінального правопорушення та вини підозрюваного на стадії досудового розслідування. Теоретична конструкція методологічного підходу визначення вини підозрюваного, обвинуваченого повинна бути встановлена на підставі предмету доказування.
 Слідчий, прокурор, суддя під час виконання завдань кримінального процесу повинні неупередже-но, на основі внутрішнього переконання встановити обставини кримінального правопорушення та логічно поновити всі дії, які відбувалися у минулому. Тільки підозрюваний може відповісти на запитання, відносно якого об'єкту, за яким умислом він учинив кримінальне правопорушення. Слідчий, прокурор, суддя повинні на підставі матеріального права за допомогою форми процесу та методів пізнання закріпити фактичні дані та докази, які вказують на вину підозрюваного. На стадії судового розгляду суддя, колегіальний суд повинні перевірити усі докази та визнати вину обвинуваченого.
 Доведено, що кожна наукова галузь права формулює свою методологію, яка відображає особливості об'єкта дослідження. Наукові знання вважаються достовірними і об'єктивними, оскільки припускають застосування методів, способів, дотримання низки теоретичних і практичних положень під час досудового та судового провадження. Слідчий, прокурор, суддя повинні бути впевнені, що підозрюваний, обвинувачений вчинив кримінальне правопорушення на підставі методів пізнання у кримінальному процесі.

Groupthink Bias in International Adjudication

Abstract One of the most common assumptions about decision-making is that groups usually enhance the quality of the outcomes of deliberative processes. The research on groupthink behaviour challenges this belief by hypothesizing that certain group constellations excessively seek concurrence and thereby increase the probability of faulty decision-making. Since the decision-making process in international adjudication almost always involves group choices, it is crucial to consider the group environment of collegial court decision-making. This article utilizes the General Group Problem Solving model (GGPS) to ascertain how strong the different group conformity antecedents are pronounced in five international courts (the ICJ, the ITLOS, the WTO AB, the ECtHR and the ICC). The results of the GGPS analysis indicate that the WTO AB and the ICC are most likely susceptible to groupthink effects while the other courts are relatively resilient.

Groupthink Bias in International Adjudication

One of the most common assumptions about decision-making is that groups usually enhance the quality of the outcomes of deliberative processes. The research on groupthink behaviour challenges this belief by hypothesizing that certain group constellations excessively seek concurrence and thereby increase the probability of faulty decision-making. Since the decision-making process in international adjudication almost always involves group choices, it is crucial to consider the group environment of collegial court decision-making. This article utilizes the General Group Problem Solving model (GGPS) to ascertain how strong the different group conformity antecedents are pronounced in five international courts (the ICJ, the ITLOS, the WTO AB, the ECtHR, and the ICC). The results of the GGPS analysis indicate that the WTO AB and ICC are most likely susceptible to groupthink effects while the other courts are relatively resilient.

Вопросы участия сословных представителей в рассмотрении уголовных дел судебными палатами российской империи (вторая половина XIX-начало XX вв.)

The article gives an analysis of the advantages and disadvantages of collegiate court, the involvement of society elements during criminal trials. The author examines the Institute of public participation in legal proceedings in the Russian Empire in the second half of XIX-early XX centuries. Distinctive characteristics and functional problems of estate representatives participation have been under examination. Moreover, much attention is given to the legal framework for conditions and legal proceedings in case of the special presence in the Judicial Chambers. Effectiveness of functioning and comparatively low level of the repressiveness of estate representatives participation in trial by Judicial Chambers has justifiable grounds. It is especially noted that there had been a great amount of institutional and substantive issues in their activity. Well-established positions are encouraged to support the usage of similar institutions in modern criminal procedure after their adaptation to the current level of legal proceedings. The author’s conclusions are confirmed by archive material from the State Archive of Irkutsk Region and the Moscow Central Historical Archive.

NLRB Statutory Interpretation and Chevron Deference in the Appellate Courts

What statutory methods does an appellate court use in reviewing decisions of an administrative agency? In doing this review, are appellate judges more likely to cite to the text or legislative history when they expressly cite the Chevron two-step process versus if they apply a different deference regime? And what role does the opinion author’s race, age, gender, and prior employment at a federal agency or Congress, among other demographic attributes, play in both choice of statutory method and deference regime? This Article explores the answers to these questions using an original dataset of all 199 statutory interpretation cases culled from more than 2,500 cases decided in appellate courts reviewing National Labor Relations Board (“NLRB”) decisions from 1994 through 2018. This analysis concludes that although there are clear partisan trends in which statutory methods Democrat-majority or Republican-majority panels favor, for the most part usage does not differ statistically. Rather, courts regardless of majority party on the court, commonly use text, language canons, substantive canons, legislative history, precedent, policy, and practical considerations to achieve certain aims, such as favoring a particular method when reviewing conservative Board decisions, or when overruling such decisions, or to advance an interpretation that is ideologically consistent with that of the majority. Democrat-majority and Republican-panel differ in their propensity to rule in a pro-employee direction and they are using whatever statutory method is best suited to achieve the end goal, whether it be textual or purposive in nature. The data also reveals that courts specifically citing and using the Chevron two-step process are more cognizant of citing and using the text, language canons, and substantive canons in the writing of the opinion than when they do not specifically cite Chevron, thus suggesting that the choice of the Chevron framework itself may play a role in influencing how judges choose statutory methods. By contrast, those who decline to apply Chevron deference or a similar “reasonableness” standard are more likely to cite legislative history and precedent, perhaps viewing these methods as a substitute to give the opinion greater legitimacy when courts decline to apply Chevron. Further, some interesting bivariate relationships exist between choice of statutory method or deference regime and opinion-author demographic features. White authors sitting with at least one minority colleague are less likely to apply Chevron in overruling liberal Board decisions while judge-authors with congressional experience cite substantive canons more overall. Other insights based on party, race, gender, and prior educational and employment background are discussed in the Article. Although the study is of a single agency — and one of the most politically charged ones at that — it offers fresh insight into how empirical analysis can be used to look beyond the black box of statutory interpretation by federal courts to see what shapes judicial opinions. The Article’s findings also underscore the need for more research on the way that diversity influences judicial decision making on a collegial court.

A Comparison of Collegiate Women’s Court and Beach Volleyball Injury Data: A Three Year Retrospective analysis

Objectives: NCAA Division I beach volleyball is a recently introduced sport that has been played for 3 seasons to date. Since the introduction of this new level of athletic participation for women’s’ beach volleyball, no study has been performed to compare the injury patterns between court and sand volleyball playing surfaces. The goal of this study is to compare the injury patterns and incidence in women’s collegiate court and beach volleyball in order to aid trainers, coaches and medical staff in effectively preparing and treating these collegiate athletes. Methods: A 3 year, retrospective review of all training room injury reports were analyzed for both beach and court volleyball from the 2015 through 2017 seasons. Non-athletic injuries or illness were excluded from analysis. Standardized injury rates for beach and court surfaces were calculated by normalizing the total number of injuries by the number of athletes and sets played. To compare the injury patterns among court versus beach volleyball players, injuries were categorized into one of six body regions (abdomen, lower extremity, upper extremity, thorax, head, and back). The proportion of injuries to each of these regions by playing surface was then calculated to compare injury patterns by playing surface. Chi-squared test and odds ratios were used to compare injury rates. Results: Between 2015 and 2017, 90 court volleyball injuries were recorded, while 49 beach volleyball injuries were recorded in the same time period. Court volleyball players had nearly quadruple the injury rate when compared to beach volleyball players, 0.039 and 0.010 injuries per athlete-set respectively (OR 4.05, 95%CI 2.85-5.76, p<0.0001). Court volleyball players suffered a higher proportion of lower extremity injuries when compared to beach volleyball players (51.5% vs. 12.8% respectively, p=0.004), and beach volleyball players suffered a significantly higher proportion of back injuries when compared to court volleyball players, (23.4% vs. 7.8% respectively, p=0.010). Conclusion: The data suggests a significantly higher incidence of injury for court volleyball players when normalized for gameplay exposure. There were, also significant differences in injury patterns with court volleyball players having a higher proportion of lower extremity injuries and beach volleyball having a higher proportion of back injuries. Recognizing these differences can aid in the establishment of preventative strength and conditioning programs as well as post training treatment protocols for these athletes which may increase both the individuals as well as the teams overall competitive success.

ORGANIZATION AND ACTIVITY OF JUDICIAL BODIES IN GALICIA IN THE COMPOSITION OF AUSTRIA AND AUSTRIA-HUNGARY (1772-1918)

The article is devoted to historical and legal analysis of the organization and activity of judicial bodies in Galicia in the composition of Austria and Austro-Hungary (1772–1918). The activities of gentry, church and city courts in the first years of the Austrian authorities in Galicia are characterized. The main attention is paid to the analysis of the organization of county district courts as well as the Highest district court in Lviv in the composition of Austria and Austria-Hungary. It is noted that the district court in Lviv consisted of the following departments: management of civil court deposits, the court office, the management of soil books, the management of prisons, the sanitary service, priests, court interpreters, chemists, lustrators, land surveyors, appraisers of land estates, buildings with industrial facilities, buildings in Lviv, examination in matters of print and publishing, notaries and the notary chamber in Lviv, lawyers and the chamber of lawyers in Lviv. Other county courts as well as District court in Chernivtsi did not differ significantly from Lviv district court. The county court in Sambir extended its jurisdiction over «mountain» cases to the Sambir, Syanotsky, Przemysl, Stryi, Lviv and Zhovkva regions. At the same time, there were doctors, notaries, trade senators, appraisers of estates, appraisers of mines, earthmover, translator, appraisers of houses and urban areas, appraisers of haberdashery and «Nuremberg» goods, appraisers of joiner’s products and, finally, an expert chemist. Other county courts sometimes had other appraisers (of sewing products, drinks, etc.). In such a form, district courts existed before their liquidation in 1918. It is shown that the revolution of 1848 in the Austrian Empire initiated the process of reforming the judicial system. Transformations were bourgeois and aimed at finally separating the court from administration, liquidating civil courts, abolishing «self-governing» city courts, making all courts public, and thus strengthening state power. The principles of the implementation of judicial reform in the final stages of separating the judiciary from administrative bodies are emphasized. It is noted that in 1849, after the proclamation of the March Constitution, the law on the restructuring of the judicial system was adopted, under which the jurors, district courts and county collegial courts were introduced. The reorganization of the judiciary in the Austrian empire took place on the basis of the Court Statute of 1849, extended to Galicia and Bukovyna in 1850. Both of these areas were divided into judicial districts, in which district courts were created. There were several district courts in the administrative district. In Galicia, consequently, 218 judicial districts were created, and district, county courts, as well as the Highest district court in Lviv were organized. It is also stated that the Austrian Constitution of 1867 restored the jury (abolished in 1852). The Criminal Procedure Code of 1873 referred to their competence 22 types of serious criminal offenses (punished by imprisonment of at least 5 years) and 9 crimes of a political nature. The jury (12 persons) acted in the district and county courts.

THE EFFICACY OF THE DECISIONS OF THE SUPREME FEDERAL COURT IN CONSTITUTIONAL REVIEW

In the current constitutionality control system prevailing in Brazil, decisions rendered incidentally to the verdict in a concrete case, which any court has competence to issue, coexist with a direct judgment, these being an exclusive attribution of the Supreme Federal Court. This Court, exercising its role as a guarantor of the Constitution, as defined by the very Magna Carta, represents not only a collegiate court inside the Judiciary structure, but also a true Constitutional Court. The objective of this paper is to analyze the effectiveness of the (un)constitutionality decisions rendered by the Supreme Federal Court, trying to establish, in principle, the differences between those which originate from direct constitutional control from the ones which originate from incidental control, while analyzing primarily the legislative and jurisprudential changes that indicate a tendency of convergence between both.

THE EFFICACY OF THE DECISIONS OF THE SUPREME FEDERAL COURT IN CONSTITUTIONAL REVIEW

In the current constitutionality control system prevailing in Brazil, decisions rendered incidentally to the verdict in a concrete case, which any court has competence to issue, coexist with a direct judgment, these being an exclusive attribution of the Supreme Federal Court. This Court, exercising its role as a guarantor of the Constitution, as defined by the very Magna Carta, represents not only a collegiate court inside the Judiciary structure, but also a true Constitutional Court. The objective of this paper is to analyze the effectiveness of the (un)constitutionality decisions rendered by the Supreme Federal Court, trying to establish, in principle, the differences between those which originate from direct constitutional control from the ones which originate from incidental control, while analyzing primarily the legislative and jurisprudential changes that indicate a tendency of convergence between both.

THE EFFICACY OF THE DECISIONS OF THE SUPREME FEDERAL COURT IN CONSTITUTIONAL REVIEW

In the current constitutionality control system prevailing in Brazil, decisions rendered incidentally to the verdict in a concrete case, which any court has competence to issue, coexist with a direct judgment, these being an exclusive attribution of the Supreme Federal Court. This Court, exercising its role as a guarantor of the Constitution, as defined by the very Magna Carta, represents not only a collegiate court inside the Judiciary structure, but also a true Constitutional Court. The objective of this paper is to analyze the effectiveness of the (un)constitutionality decisions rendered by the Supreme Federal Court, trying to establish, in principle, the differences between those which originate from direct constitutional control from the ones which originate from incidental control, while analyzing primarily the legislative and jurisprudential changes that indicate a tendency of convergence between both.