Judicial Hierarchy Research Articles

Hierarchical Interactions and Compliance in Comparative Courts

Given their place within the judicial hierarchy, judges on lower courts face a complex array of challenges including heavy caseloads, mandatory dockets, and the threat of Supreme Court reversal. Despite the extensive scholarship on the American courts, little is known about judicial interactions in comparative contexts. We articulate and evaluate a framework for lower court adherence to Supreme Court precedents by leveraging a cross-national design in three countries—Canada, the United Kingdom, and the United States—with similar systems but meaningful institutional variability. We find that the mechanisms promulgating adherence to Supreme Court precedents do not substantially vary across design or institutional context. Instead, our results demonstrate that legal factors exert a consistent, homogeneous effect on lower court compliance across judicial systems. Our work offers new and important implications for studies on law and courts and comparative institutions, more broadly.

International Donor Agencies Funded Judicial Reforms Endeavors in Pakistan: Old Wine in New Bottle

Many governments and international organizations in Pakistan have introduced various reforms to promote the justice system in the country, but their efforts have ended in vain. The justice system in Pakistan has not been able to provide justice to common citizens. The reforms were aimed at decreasing the time span trials usually take in Pakistan and minimizing the cost of litigation; however, the basic purpose of the justice system, that is, the dispensation of justice, has remained unfulfilled. The reforms strengthened judicial hierarchy, improved infrastructures, and amended certain procedural laws but did nothing to address the real issues that were hindering the deliverance of justice to the common people. The legal fraternity and international donor agencies, who were the forces behind these reforms, have been the defenders of the formal justice system in Pakistan for reasons that are many.

Ideological Determinants of Citations to Supreme Court Precedent Across the Federal Judiciary

AbstractHow do ideological factors explain the citation patterns of federal courts? Current literature uses citation data in myriad ways but leaves open the question of how ideological factors may influence citation from each level of the judicial hierarchy differently. Combining original data on citations to Supreme Court opinions by district courts from 1969 to 2005 with existing data on citations by the courts of appeals and Supreme Court, I present a more complete portrait of the scope of a precedent across the federal judiciary. I find that ideological factors are associated with differences in citing behavior on the federal courts. Both the appellate and district courts are responsive to Supreme Court precedent, but district courts are not equally responsive to liberal and conservative updates to doctrine. Further, as the Supreme Court ideology changes from the time of setting precedent, appellate courts are less likely to cite the precedent, but district courts cite it more. These results suggest that the relationship between ideology and precedent adherence is complicated by the distinct institutional features of the Supreme Court, courts of appeals, and district courts.

Assessing the Influence of Supreme Court’s Shadow Docket in the Judicial Hierarchy

The Supreme Court’s increased use of the “shadow docket” and the salience of the issues handled on the shadow docket have raised normative concerns over its use. Critics argue that the Supreme Court should not make law without following established procedures of a full briefing, oral arguments, and deliberation. Those seeking to defend the Court point out that decisions made on the shadow docket do not create binding precedent and only resolve the issue before the Court. We examine whether shadow docket decisions are used as precedent by lower courts. We come to two general conclusions. First, shadow docket cases are invoked as precedent much less frequently than merits docket cases. Second, shadow docket cases receive more engagement from the lower courts when the Supreme Court provides a justification for its shadow docket decision and when the Supreme Court grants relief and thereby changes the status quo. Our results help evaluate and provide responses to the normative criticisms of the Court’s reliance on the shadow docket to create law.

The Emerging Authority of Magistrate Judges within US District Courts

AbstractThe federal judicial system is a hierarchy with district courts at the bottom, courts of appeals in the middle, and the Supreme Court at the top. A second, less visible, judicial hierarchy exists within district courts, with magistrate judges situated below district judges. Existing scholarship largely ignores magistrate judges, assuming they are agents tasked with procedural matters with little independent effect on federal courts adjudication. Using a combination of national administrative data (2000–2016) and original case-level data from nine district courts (1997–2014), we find that district courts not only grant meaningful responsibility and discretion to magistrate judges but do so in ways that vary substantially across and within districts. The effects of this judicial delegation extend from procedural rulings to substantive outcomes. Our findings provide evidence that a complete understanding of federal judicial decision making accounts for the roles—procedural and substantive—that magistrate judges perform.

Judicial Transparency as Judicial Centralization: Mass Publicity of Court Decisions in China

ABSTRACT The mass publicity of court decisions in China, this article argues, is part of the larger trend of the Chinese judiciary becoming increasingly centralized. The transparency reform enables the Supreme People’s Court to control the information reporting process within the judicial hierarchy and rein in local courts through public scrutiny. Interestingly, local courts responded strategically, making disclosure far poorer than required. Meanwhile, the central government has dispatched more cadres to local courts, and these cadres are associated with more than a 10 percent higher disclosure rate of judicial decisions, suggesting that centralization of personnel is adopted to effectively implement the centralized policy. The transparency reform, coinciding with reforms in other domains, embodies an important shift toward a more centralized judicial sector in China.

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.

Can International Courts Enhance Domestic Judicial Review? Separation of Powers and the European Court of Justice

How courts ensure the efficacy of their decisions poses one of the central challenges to the quality of modern liberal democracy. In this article, we consider how the ability of domestic courts to engage with their international counterparts through preliminary reference procedures can further this goal. Arguing that domestic courts use preliminary reference procedures to affect the probability that their governments comply with adverse judicial decisions, we construct a formal model of the reference procedure and test a series of empirical implications with a novel data set of domestic court cases involving the European Union’s preliminary reference procedure. We find that courts are more likely to refer cases as the risk of noncompliance increases and that this relationship is conditional on the level of public trust in the Court of Justice of the European Union and the position of a court in the domestic judicial hierarchy.

Reading Regents and the Political Significance of Law

Reading Regents and the Political Significance of Law

A hard look at common law administrative tribunals

This paper looks at common law administrative tribunals. For legal-historical reasons, these bodies are located at the bottom of the judicial hierarchy or outside of it; its adjudicators often have less training, formal protections and resources than judges of the general court system, yet are required to handle a huge caseload. One difficulty is that administrative tribunals are often not part of the litigation data, skewing statistics. Another difficulty is more substantive: it makes sense for “lower courts” to be assigned cases traditionally considered less legally complicated and overall “less important”; yet common law administrative tribunals often deal with highly complex, socially sensitive legal issues with major potential consequences for litigants’ rights such as bankruptcy, immigration or welfare. Not only should common law administrative tribunals be fully counted in court data, but they should also receive more resources and sufficient judicial oversight to ensure their good operation and litigants’ rights.

The Fact-Law Distinction: Strategic Factfinding and Lawmaking in a Judicial Hierarchy

Abstract A fundamental but understudied procedural institution of American law is that appellate courts defer more to trial courts’ findings of fact than to their conclusions of law. I formally model this procedural institution, showing how trial courts use factfinding to achieve their preferred outcome and how appellate courts craft rules in anticipation of trial courts’ strategic factfinding. Trial courts do not always report facts truthfully. Appellate courts do not commit to consistent rules, but consistent rules may emerge in equilibrium, creating a misleading appearance of judicial commitment to legal consistency. Preference divergence between trial and appellate courts has a nonmonotonic effect on factfinding. Fact deference can explain suboptimal rulemaking and reversals even when there is no uncertainty about the likelihood of review or the reviewing court’s ideal rule. The model is also useful in understanding why the institution of fact deference persists. Applications to policing and other domains are discussed. (JEL K40, K41, D02)

The Class Appeal

For a wide variety of claims against the government, the federal courthouse doors are closed to all but those brought by powerful, organized interests. This is because hundreds of laws—colloquially known as “channeling statutes”—require disaffected groups to contest government bodies directly in appellate courts that hear cases individually. In theory, these laws promise quick, consistent, and authoritative legal decisions in appellate courts. In fact, without class actions, government bodies avoid judicial review by selectively avoiding claims brought by some of the most vulnerable claimants in the administrative state—from veterans and immigrants to coal miners, laborers, and the disabled. This Article proposes a novel solution: courts of appeals should hear class actions themselves. In so doing, courts high in the judicial hierarchy would continue to authoritatively decide important legal questions involving government institutions, while ensuring groups of similar, unrepresented parties finally get their day in court. While appellate class actions might sound like a strange procedural innovation, appellate courts already have power do this. Relying on the All Writs Act, appellate courts long ago created ad-hoc procedures modeled after class actions to respond to systemic government harm. This Article is the first to examine nascent experiments with appellate class actions. It shows that, contrary to popular belief, appellate courts can hear class actions and explains why they should do so. In cases challenging systemic abuse, this power has become vital not only to level the playing field between the government and the governed, but to protect courts’ core function in our separation of powers—to hear claims, interpret law, and grant meaningful relief. Without classwide judgments in such cases, courts risk ceding power to the executive branch to decide for itself when judicial decisions limit its own unlawful policies.

Hard Cases Make Bad Law? A Theoretical Investigation

I use formal models to probe the aphorism that “hard cases make bad law.” The analysis illuminates important features of the common law process, especially the influence of case characteristics on lawmaking and the role of strategic litigators. When a case raises concerns that are not reflected in doctrine, the court might distort the law to avoid a hardship. Distortion is more likely when the case is important or the facts are close to the border of legality. Litigators may exploit courts’ attention to extra-doctrinal concerns by strategically selecting cases for litigation. Surprisingly, though, a strategic litigator improves lawmaking relative to random case selection--even when her preferences are far from the ideal rule--if her influence over case selection is modest. The effect is more nuanced when the strategic litigator has greater selection power. Finally, the analysis incorporates a judicial hierarchy with asymmetric information and factfinding discretion.

To Refer or Not to Refer, That Is the (Preliminary) Question: Exploring Factors Which Influence the Participation of National Judges in the Preliminary Ruling Procedure

This paper explores factors that either motivate or constrain national judges’ participation in the preliminary ruling procedure. By incorporating insights and evidence from American judicial politics literature and drawing from three models of judicial decision making: the attitudinal model, the team model, and the resource management model, it places the study of judicial behaviour with respect to the preliminary ruling procedure on more rigorous theoretical grounds. The paper is based on survey results conducted among 415 national judges from two new EU Member States: Slovenia and Croatia. In line with the theoretical predictions, the results show that the decision to make a referral to the CJEU is determined by several individual- and court-level factors. These are the position that a court occupies in a national judicial hierarchy, the judicial workload and availability of resources, and judges’ knowledge and experiences with respect to EU law and Article 267 TFEU proceedings. Keywords: CJEU, preliminary ruling procedure, judicial behaviour, team model. This work is licensed under the Creative Commons Attribution − Non-Commercial − No Derivatives 4.0 International License. Suggested citation: M Glavina, ‘To Refer or Not to Refer, That Is the (Preliminary) Question: Exploring Factors which Influence the Participation of National Judges in the Preliminary Ruling Procedure’ (2020) 16 CYELP 25.

Anti-corruption courts and foreign direct investments

We look at the association between anti-corruption courts and foreign direct investments. We find the position of anti-corruption courts in the judicial hierarchy influences the relationship between anti-corruption courts and foreign direct investments. While First Instance Court and Hybrid Court systems are negatively associated with foreign direct investments, a Comprehensive Parallel Court system is positively associated. Additional evidence from bilateral foreign direct investments suggests that investor countries with high corruption are associated with an increase in their direct investments to countries that establish First Instance Court and Hybrid Court. However, those corrupt investor countries are associated with a decrease in direct investments if a country, instead, creates a Comprehensive Parallel Court.

Penerapan Peradilan Adat Berbasis Kuasi Yudisial Dalam Memutus Sengketa Adat

The customary court is not a judicial institution that can decide a dispute with the direction of justice as in the national court so that recognition of customary decisions does not get permanent legal force which results in legal uncertainty in dispute resolution through customary court institutions. Thus, there is an idea that is offered in this research that implements customary courts as quasi-judicial in resolving customary disputes. Through normative juridical research, it is found that: first, the position of customary courts is only limited to deliberative dispute resolution, and in the judicial hierarchy its position is not recognized. Second, the quasi-judicial model that can be applied in customary courts can emulate KPPU in deciding disputes where to obtain permanent legal force, the KPPU's decision needs to be ruled by a district court, and if some object to the verdict, they can file an objection legal remedy in the domestic court. a period of 14 days from receipt of the decision on the parties.

Can a leopard change its spots? Strategic behavior versus professional role conception during Ukraine's 2014 court chair elections

AbstractDo judges respond to institutional and strategic incentives or do they strictly follow dominant professional role conceptions? This article weighs in by exploring whether an ideational shift toward judicial empowerment and independence can germinate from institutional reforms. Ukraine's 2014 Euromaidan revolution and the comprehensive judicial reform adopted in its wake provide a test of the competing theoretical accounts. A judicial lustration law sacked all incumbent court chairs, who had been appointed by the executive, and gave Ukrainian judges the right to elect new chairs via secret ballot. I analyze this radical step toward judicial self‐government using an original data set with individual‐ and court‐level data. The key finding is that less than a fifth of Ukrainian judges embraced their newly granted agency and elected a new chair for their court, whereas the overwhelming majority followed dominant professional norms of deference and reelected the sacked court chairs. This finding holds for all rungs of the judicial hierarchy and for all regions of Ukraine. Even protégés of ousted president Yanukovych won the secret ballot vote by their peers more often than they lost it. Beyond Ukraine, these results suggest that empowering individual judges in the highly hierarchical structure of a civil law judiciary is unlikely to lead to a judicial behavior shift, at least in the short run.

Judicial Hierarchy in the Preliminary Ruling Procedure: Exploring the Relationship Between the First and Second Instance Courts

The paper contributes to the scholarly debate on cross-court variations in referral rates by exploring the role of the judicial hierarchy on the propensity of national judges to refer legal questions to the CJEU. The novelty of the paper lies in placing a particular emphasis on the cooperation between the first instance and appellate national courts. The questions that this paper deals with are: How do first and second instance judges perceive their role in the preliminary ruling procedure? Are there any differences between the first and second instance judges? If yes, what could explain these differences? These questions are explored from a judge-level based on the data obtained by surveying and interviewing national judges from two new EU Member States: Slovenia and Croatia.

Article 131 – Original Jurisdiction of the Supreme Court

Original jurisdiction means the power to hear and determine a dispute in the first instance. The Supreme Court has been given exclusive original jurisdiction which extends to disputes (a) between the Government of India and one or more States, (b) between the Government of India and one or more States on one side and one or more States on the other, (c) between two or more States. However, this jurisdiction shall not extend to a dispute arising out of the treaty, agreement, etc. which is in operation and excludes such jurisdiction. The jurisdiction is extremely wide, provided the dispute is a justiciable one. The intention of the Constitution-makers is that such disputes should not be subjected to several tiers of the judicial hierarchy, but should come, for once and for all, before the highest court of the land.

LEGAL SOCIALISM IN THE HISTORY OF FRENCH POLITICAL AND LEGAL THOUGHT OF THE 19TH–20TH CENTURIES

The article investigates the characteristic features of legal socialism as one of the popular directions of French political and legal thought during the period of existence of the French Third Republic (1870–1940). For the fi rst time in the Russian science the similarities and differences of French legal socialism with the related political and ideological systems (Marxism, solidarism) and also with some foreign legal doctrines (legal socialism of Anton Menger von Wolfensgrün, Ferdinand Lassalle) are highlighted. The article focuses on the political and legal views of Emmanuel Levy, a prominent French jurist and socialist, who, according to many contemporaries, was the founder of legal socialism in France. On the basis of the analysis of literary sources of the epoch as well as modern publications, the author of the article evaluates Emmanuel Lévy’s contribution to the substantiation of socialism in legal categories (legal description of the logic of socialism). To achieve this goal, the author of the article considers Lévy’s ideas about the relative nature of law, about class antagonism as a factor of social life, about the absorption of individual law by collective law, about the triumph of collective law as the fi nal chord of the historical epoch of industrialisation, about the understanding of law as a social function and about the expansion of the boundaries of legal responsibility. Lévy’s ideas about the parameters of a peaceful and non-violent social revolution, the realization of which was linked to the growing infl uence of socialistically thinking judges in the French judicial hierarchy, were also studied. Responding to the social markings of the epoch and the demands of public opinion, these judges were to promote the establishment of a socialist legal order in the state by means of free interpretation of bourgeois laws (in the interests of poor classes).