Judicial Hierarchy Research Articles

Judicial Independence in Croatia Under European Scrutiny: Analysis of the Ruling Hann-Invest and Others (Or How to Save Judges from Other Judges)

This contribution analyses the first case presented to the Court of Justice of the EU that questions the independence of the judiciary in Croatia. The case has several unique aspects. First, it addresses threats to judicial independence from within the judiciary itself, which is unusual, as most cases typically involve external pressures from the executive or legislative branches. Second, while the judicial practice under scrutiny was deemed contrary to EU law, interestingly the Court explained to Croatian authorities how they could rectify the situation. Third, the Advocate General’s Conclusions largely diverge from the Court’s ruling. While this is not so uncommon, it proves that this was not an easy case. Last, the case challenges and ultimately deems unjust a judicial practice that persists in Croatia as a remnant of the country’s communist past and which draws inspiration from an era when judges were subject to a strict judicial hierarchy to the detriment of their own autonomous opinion. The paper delves into the specifics of the Croatian case. It compares the legal reasoning of the Advocate General and that the Court of Justice, illustrating their differing approaches. The contribution explores other arguments that were not raised in the Conclusions that, interestingly, were included in the Court’s judgement. The Court ruled that Croatia’s practice – where a registrar judge, not involved in the case, could override a decision made by the court handling the case, and where an extended section of the court could also force the judges handling the case to give up their legal reasoning before they could even rule on the case – was incompatible with Article 19 TEU.

Incorporation of Kauṭilya's Principles in Modern Indian Legal Systems

The foundation of Kautlya, sometimes Chanakya, a figment of a lawyer and political philosopher whose writing commenced in the fourth century BC, is significant in legal and political philosophy. Arthashastra, his foundational works, set the primary notions regarding laws, government, and justice in ancient India. Some of them still exist in the contemporary Indian legal system; his jurisprudence underscored Dandaniti (Rule of Law), Rajadharma (Dues of the King), and Vyavahara (Judicial Procedures). Under Kautilya, Arthashastra' s theories on judicial hierarchy, legal codification, rule of law, and anti-corruption policies are aligned with the Indian Constitution, Indian Penal Code (IPC), Code of Criminal Procedure (Crpc), and Prevention of Corruption Act, 1988. Specifically, it studies how these ideas help develop modern Indian law concerning constitutional law, administrative law, and human rights. This paper analyzes carefully the various court rulings and legislative actions that can bring forth how the notions of Kautilya are assimilated into the Indian legal theory for a robust and fair legal system. This study argues that by infusing Kautilya's principles, the present-day legal systems in India become more valid and effective; it further suggests other prospects for using these principles in tackling issues of contemporary law. Addendum: There is a reference in some court judgments to Arthashastra by the Indian legal system, thus underlining its historical and cultural importance. However, much of the modern legal approach, especially concerning the individual rights-based approach, cries against Kautlya's tenets. Modern legal systems stress social justice and equality as defined in the Indian Constitution and several international human rights treaties.

To Trust and to Be Trusted: Exploring Levels and Drivers of Trust in and Between Courts in the European Multilevel Judicial System

To Trust and to Be Trusted: Exploring Levels and Drivers of Trust in and Between Courts in the European Multilevel Judicial System Recently, a research agenda emerged on trust between courts in Europe, predominantly in the context of the preliminary ruling procedure or the Protocol 16 to the European Convention on Human Rights (ECHR). However, little is known about how trust differs across the levels of judicial hierarchy in a complex multilevel judicial system such as Europe. Building on the insights from trust literature and based on empirical evidence from surveys and interviews conducted with Slovenian and Croatian judges, this article explores the divergences and drivers of trust in and between courts in Europe. More specifically, it explores reciprocal trust between first-instance, second-instance, Supreme Court and Constitutional Court judges in Slovenia and Croatia, as well as one-way trust of national judges in the Court of Justice of the European Union (CJEU) and the European Court of Human Rights (ECtHR). The result show that courts are the most trusted among the political institutions and that the CJEU, the ECtHR and national Supreme Courts enjoy the highest levels of trust. Age, training in European law, knowledge of foreign languages and trust in national versus European institutions were found to be the most important drives of judicial trust in the CJEU and the ECtHR, while trust in national Supreme Courts and Constitutional Courts is driven by trust in national political institutions, age and type of court. The article also explores the concept of reciprocal trust and concludes that trust levels between the two courts in a reciprocal trust relationship are similar, which may suggest that trusting an actor in a reciprocal trust relationship may result in being trusted back.

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

The Class Appeal

Hard Cases Make Bad Law? A Theoretical Investigation

Hard Cases Make Bad Law? A Theoretical Investigation

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

Anti-corruption courts and foreign direct investments

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.