Judicial Output Research Articles

Selecting Top Bureaucrats: Admission Exams and Performance in Brazil

Abstract In the absence of strong incentives, public service delivery crucially depends on bureaucrat selection. Despite wide adoption by governments, it is unclear whether civil service examinations reliably select for job performance. We investigate this question focusing on state judges in Brazil. Exploring monthly data on judicial output and cross-court movement, we estimate that judges account for at least 23% of the observed variation in number of cases disposed. With novel data on admission examinations, we show that judges with higher grades perform better than lower-ranked peers. Our results suggest competitive examinations can be an effective way to screen candidates.

Do constitutional courts restrict government policy? The effects of budgetary implications and bloc-politics in the Hungarian Constitutional Court's decisions between 1990 and 2018

ABSTRACT The article addresses the budgetary implications of constitutional adjudication by analysing the decisions of the Hungarian Constitutional Court (HCC) between 1990 and 2018. Our results highlight that the HCC does not narrow the parliamentary majority's room to manoeuvre by blocking policies with serious budgetary consequences, and the potential budgetary consequences of a decision do not weigh in with the judicial output. At the same time, right-leaning courts are more likely to declare a law unconstitutional passed by a left-wing parliamentary majority, whereas left-wing courts adjudicate unconstitutionality with about roughly the same likelihood in cases of right- and left-leaning parliaments.

‘I beg to differ’: Are our courts too agreeable?

If dissenting judgments perform a valuable function in the administration of justice, too little dissent may indicate that the administration of justice is not reaping the benefits of dissent. South Africa belongs to the common-law tradition, which has always allowed dissenting judgments. The civil-law system traditionally did not, and this is still the position in many countries. In the modern era, considerations of transparency and accountability favour the disclosure and publication of dissenting judgments. Although they can play a role in the development of the law, their most valuable function is to improve the quality of judicial output by requiring majority judgments to confront the dissenting judgments’ reasoning. Factors which may affect the extent of dissent in appellate courts include case complexity and control over rolls; panel sizes; judicial diversity, personality and turnover; court leadership; research resources; modes of judicial interaction; and protocols on the timeliness of judgments. Data on dissent in South Africa’s Constitutional Court, Supreme Court of Appeal and Labour Appeal Court, as well as in the United Kingdom, Australia, Canada and the United States, suggest that there is less dissent in our intermediate appellate courts than might be expected. Changes in work procedures could yield a healthier pattern.

Sądy administracyjne jako organy wymiaru sprawiedliwości w sprawach z zakresu wolności zgromadzeń

Sądy administracyjne do 2015 roku jako właściwe do oceny decyzji wydawanych przez organy administracji publicznej w przedmiocie organizacji zgromadzeń wypracowały dorobek judykacyjny, który w pełni aprobuje przyjęte na płaszczyźnie konstytucyjnej oraz międzynarodowej standardy w tej kwestii. Przeprowadzona analiza orzecznictwa sądowoadministracyjnego, dostępnego w Centralnej Bazie Orzeczeń Sądów Administracyjnych, potwierdza, że wolność zgromadzeń jest jedną z cech demokratycznego ustroju państwa, a wszelkie decyzje w przedmiocie jej ograniczenia muszą być wydane po rzetelnie przeprowadzonym postępowaniu, uwzględniającym całokształt okoliczności sprawy, w tym rzeczywiste, a nie potencjalne zagrożenie dla życia, zdrowia lub mienia w znacznych rozmiarach.

Stability and Change: Policy Evolution on the Supreme Court of Canada, 1945–2005

AbstractStudies of the Supreme Court of Canada (SCC) focus largely on its policy-making role and its interpretation of the Charter of Rights. However, less studied are the Court's decisions in earlier periods, especially in comparison to the Charter years and in cases beyond civil rights and liberties. This study fills a gap in the scholarship by analyzing the universe of decisions from 1945 to 2005 in criminal, tax and tort cases. Utilizing Baum's (1988, 1989) method to examine policy change, I explore policy trends on the Supreme Court. The findings suggest that, for the most part, the SCC has remained a stable, consistent body over the course of its modern history. It appears that most of the variation in judicial output across time is due to issue change with some shifts due to personnel and membership change.

Does the Appeals Process Reduce the Occurrence of Legal Errors?

Abstract This paper challenges the commonly held belief that the appeals process reduces the occurrence of legal errors. We show that, although the right to file an appeal or request adjudication offers an opportunity to correct mistakes made at trial, the final impact of the appeals process on the accuracy of judicial decisions is not always desirable because of its effects on the trial court decision-maker’s effort and on deterrence. In particular, we find that if (i) the trial court decision-maker is more concerned with legal errors than with her reputation, (ii) few potential offenders attribute high benefits to committing harmful acts and (iii) the additional effort exerted by the decision-maker has a stronger impact on wrongful acquittals than on wrongful convictions, then the implementation of an appeals process may spur a decision-maker to reduce her effort and may thus be detrimental to the quality of judicial output.

Measuring Activism and Restraint or How to Conflate Doctrine with Activism: A Response to Professor Riddell's Small-Scale Judicial Output Study

In his essay responding to our 2015 article Exclusion of Evidence under Section 24(2) of the (Riddell 2016; citing Murchison and Jochelson 2015), Troy Riddell critiques our methodology, exaggerates our claims, creates several straw persons, and ultimately concludes by proffering his own study, which our view, is unrelated to the stream of literature and research agenda that generated our original paper. (1) Riddell offers his narrow definition of activism and his consequent methodology as a superior approach to section 24(2) analysis under the Charter. He fails to recognize that our study is one a series of four papers (which include analyses of other Charter rights), (2) which purposely complicate and contextualize studies of judicial activism using over 60 years of extant literature and culminating the multifactorial approach used by Cohn and Kremnitzer (2005). Riddell acknowledges the complexities of judicial activism by referencing some earlier work (e.g., Canon 1983) and ultimately concludes that our work does little to explain the Supreme Court's relation to police powers. Ours was not a study of police powers per se but an attempt to seize on the activism literature to see how the Court sees its own activism relation to the multifactorial approach. Thus, the content analysis Riddell (2016: 93) suggests as a superior in their own approach would do little to place the Court's words the context of the storied history of activism studies. (3) As with any coding exercise, some subjectivity exists. These sorts of methodological critiques exist every time categorical variables are operationalized. Activism and restraint could always be operationalized differently, but re-operationalizing, as Riddell has claimed to do, does not warrant rejecting an entire approach to research design and analysis or even the specific operationalization our study. We posited that our findings were consistent with recent literature security studies, not that 9/11 was causative of socio-legal change. Riddell expands on alternate explanations that we provided our own paper as explicative of flaws. Given our own admissions of alternate hypotheses, we are not troubled. Explaining potential alternate explanations does not prove that they are causative. That one study cannot assess every variable desired does not indicate that our study has low external or internal validity. We are troubled by the baffling claim that terrorism and the responses to it have no relation to Court decisions regarding the deployment of state police power. If terrorism has no relationship to criminal law (a possibility), one cannot deny that Court responses generative of police powers that result the inclusion of otherwise impugned evidence (section 24(2)) surely have some relationship to security and surveillance Canada, which has obvious relations to state responses to terrorism. As some argue that Canadian society has become more surveillant (Haggerty and Ericson 2006; Gazso and Haggerty 2009), we offered our work this context. It hardly matters if the Court's language is causative of social changes or if the Court's language was caused by other phenomenon. All that matters is, as part of a surveillant assemblage, the Court's decision making is consistent with social changes. Seeing how the Court speaks of its own activism is revealing since it tells us how the Court relates to the original intent of Parliament, to past cases, to the changing of legal tests, to the use of extra-jurisdictional factors, to its role as guardian of the constitution, and to other multifactorial roles developed by Cohn and Kremnitzer (2005). Riddell's study cannot make these connections, as it is, at best, a judicial output study rooted doctrinal traditions and, at worst, a myopic decontextualized analysis. (4) The most curious of Riddell's moves is to append a fine judicial output study on a body of work that seeks to discredit a multifactorial judicial activism study rooted the Cohn/Kremnitzer model. …

Avoiding the Preemption Muddle: Reading Professor Bickel and Judge Garland

Although preemption cases require courts to apply a broad range of statutory regimes, the underlying question in each is the same: Does federal law oust state law? Thus, it is reasonable to expect that the analytic framework courts use in these cases should be consistent. In all preemption cases the analysis requires four steps: the court must construe a federal law, construe a state law, determine whether any overlap or tension between the two laws may be tolerated, and identify the basis for Congress’s authority to displace state law. The Supreme Court has been fractured over the basic rules for performing each of these steps. The law in this area is indeed a “muddle.” Counter to the long-held view of the Court as the arbiter of conflicts between federal and state regulatory authority, this Article argues that as long as no stable majority of the Justices has established a position on the basic analytic framework, the Court should exercise its certiorari discretion not to review most preemption cases. Even if the Supreme Court were to do so, lower courts would remain in a bind. These courts lack the discretionary authority to refuse to hear preemption cases yet are tasked with implementing the muddle of contemporary preemption doctrine. One way in which lower courts might avoid this bind is by applying a variety of techniques that Alexander Bickel and other have referred to as “passive virtues.” This Article finds in the on- and off-bench writings by Judge Merrick Garland an illustration of how a judge with an aversion to preemption decisions that broadly and unpredictably displace state law might apply some of these techniques in order to avoid preemption decisions. The Article concludes by examining two questions. First, does the use by appellate judges of standing and other doctrines to avoid the far-reaching and unpredictable results of deciding preemption questions risk distorting the former out of proportion to the benefits of the latter? And second, is an approach premised on avoiding preemption cases a desirable one for the Supreme Court over the long term? Using Judge Garland’s judicial output as a case study, this Article suggests that while there are risks, avoidance may be preferable to the application of the current, muddled doctrine of preemption.

Measuring Activism and Restraint or How to Conflate Doctrine with Activism: A Response to Professor Riddell’s Small-Scale Judicial Output Study

In his essay responding to our 2015 article Exclusion of Evidence under Section 24(2) of the (Riddell 2016; citing Murchison and Jochelson 2015), Troy Riddell critiques our methodology, exaggerates our claims, creates several straw persons, and ultimately concludes by proffering his own study, which our view, is unrelated to the stream of literature and research agenda that generated our original paper. (1) Riddell offers his narrow definition of activism and his consequent methodology as a superior approach to section 24(2) analysis under the Charter. He fails to recognize that our study is one a series of four papers (which include analyses of other Charter rights), (2) which purposely complicate and contextualize studies of judicial activism using over 60 years of extant literature and culminating the multifactorial approach used by Cohn and Kremnitzer (2005). Riddell acknowledges the complexities of judicial activism by referencing some earlier work (e.g., Canon 1983) and ultimately concludes that our work does little to explain the Supreme Court's relation to police powers. Ours was not a study of police powers per se but an attempt to seize on the activism literature to see how the Court sees its own activism relation to the multifactorial approach. Thus, the content analysis Riddell (2016: 93) suggests as a superior in their own approach would do little to place the Court's words the context of the storied history of activism studies. (3) As with any coding exercise, some subjectivity exists. These sorts of methodological critiques exist every time categorical variables are operationalized. Activism and restraint could always be operationalized differently, but re-operationalizing, as Riddell has claimed to do, does not warrant rejecting an entire approach to research design and analysis or even the specific operationalization our study. We posited that our findings were consistent with recent literature security studies, not that 9/11 was causative of socio-legal change. Riddell expands on alternate explanations that we provided our own paper as explicative of flaws. Given our own admissions of alternate hypotheses, we are not troubled. Explaining potential alternate explanations does not prove that they are causative. That one study cannot assess every variable desired does not indicate that our study has low external or internal validity. We are troubled by the baffling claim that terrorism and the responses to it have no relation to Court decisions regarding the deployment of state police power. If terrorism has no relationship to criminal law (a possibility), one cannot deny that Court responses generative of police powers that result the inclusion of otherwise impugned evidence (section 24(2)) surely have some relationship to security and surveillance Canada, which has obvious relations to state responses to terrorism. As some argue that Canadian society has become more surveillant (Haggerty and Ericson 2006; Gazso and Haggerty 2009), we offered our work this context. It hardly matters if the Court's language is causative of social changes or if the Court's language was caused by other phenomenon. All that matters is, as part of a surveillant assemblage, the Court's decision making is consistent with social changes. Seeing how the Court speaks of its own activism is revealing since it tells us how the Court relates to the original intent of Parliament, to past cases, to the changing of legal tests, to the use of extra-jurisdictional factors, to its role as guardian of the constitution, and to other multifactorial roles developed by Cohn and Kremnitzer (2005). Riddell's study cannot make these connections, as it is, at best, a judicial output study rooted doctrinal traditions and, at worst, a myopic decontextualized analysis. (4) The most curious of Riddell's moves is to append a fine judicial output study on a body of work that seeks to discredit a multifactorial judicial activism study rooted the Cohn/Kremnitzer model. …

From Viability to Impact: Evolving Metrics for Assessing the International Criminal Tribunal for the Former Yugoslavia

Twenty years after the UN Security Council created the International Criminal Tribunal for the former Yugoslavia (ICTY), the Court remains fertile ground for contested claims about what it can achieve, the degree to which it has met specific goals and whose interests it should serve. A series of high-profile acquittals since November 2012 have stoked renewed controversy,1 dispelling prospects that some measure of consensus might emerge as the ICTY approached retirement. Animated debates about the ICTY now span several disciplines, as the books reviewed here reflect. Approaching the Tribunal from several perspectives, they illuminate what it took to secure arrests of ICTY suspects; select aspects of the Tribunal’s judicial output; and how former Yugoslav citizens perceive its work. Together, they throw into sharp relief a fundamental question: How do we know whether the ICTY has been a success? When the Security Council created the ICTY, its action was widely seen as a fig leaf for its failure to staunch the violence then raging in the former Yugoslavia. While many welcomed the ICTY despite such concerns, the Court’s early years were marked by debilitating doubts, centered above all on whether it could secure custody of those charged with crimes of surpassing cruelty and scope. Lacking a constabulary, the ICTY had to rely on states to arrest its suspects (prompting its first president to call the Court a ‘giant without arms and legs’), and arrests were glaringly rare in its early years. Against this background, many still cite as a signal achievement the fact that all of the Tribunal’s indictments have been answered.

Judging Women

Justice Sonia Sotomayor's assertion that female judges might be better than male judges has generated accusations of sexism and potential bias. An equally controversial claim is that male judges are better than female judges because the latter have benefited from affirmative action. These claims are susceptible to empirical analysis. Using a data set of all the state high court judges in 1998–2000, we estimate three measures of judicial output: opinion production, outside state citations, and co-partisan disagreements. For many of our tests, we fail to find significant gender effects on judicial performance. Where we do find significant gender effects for our state high court judges, female judges perform better than male judges. An analysis of data from the U.S. Court of Appeals and the federal district courts produces roughly similar findings.

ProCD v. Zeidenberg and Cognitive Overload in Contractual Bargaining

Judge Frank Easterbrook’s opinion in ProCD v. Zeidenberg has been heavily criticized for ignoring the law and making unrealistic assumptions about the ability of consumers to read and understand contract terms. This contribution to a symposium on Judge Easterbrook’s judicial output argues that the opinion is a classic example of the manipulation of legal doctrine to advance a policy goal - here, enabling sellers to communicate contract terms when buyers’ time and attention are limited. Contrary to the conventional wisdom, Judge Easterbrook implicitly assumes that buyers are fallible, not hyperrational; his doctrinal solution persuasively addresses the problem of cognitive overload while endorsing a valuable business tool - the “terms later” or “rolling” contract - that reduces the cost of transacting.

Supreme Court Justices and Supreme Court Nominations: Do Nomination Battles Affect the Decisions of Sitting Justices?

While the President and the Senate select a new Supreme Court justice, the Court often continues to announce decisions. These decisions are noteworthy because they come while an extraordinary amount of public and political attention is focused on the Court. If justices are concerned about approbation, then the extra attention raises the relative price they pay for unpopular decisions and may encourage them to accommodate public opinions in their voting. Using three measures of judicial output, I assess the impact of an announced retirement or death of a U.S. Supreme Court justice on the voting patterns of sitting members of the Court. I find that following an announced retirement or death, liberal justices are more likely to adopt positions which are unusual given their voting record. Additionally, conservative justices are more likely to find themselves in the majority. Vacancies also seem to make justices more reluctant to declare actions unconstitutional.

Main Achievements of the ICTR

Since trials began in 1997, the International Criminal Tribunal for Rwanda (ICTR) has conducted cases involving 50 accused, involving a prime minister and several ministers, prefects, bourgmestres and other leaders, who would otherwise not have been brought to justice. Judgments have been rendered in respect of 25 accused, with three acquittals. During the first mandate (1995^1999), the Tribunal delivered ground-breaking judgments concerning genocide, such as Akayesu and Kambanda. In the second mandate (1999^2003), the judicial output doubled and included theMedia judgment. Halfway into the third mandate (2003^2007), trials involving 25 accused are ongoing. The ICTR is an efficient judicial institution which has conducted fair trials, created important jurisprudence, and made a significant contribution to the development of international criminal justice.

Judicial Activism: A Multidimensional Model

The article addresses the question of the role of the judiciary in the constitutional democratic state through an analysis of the concept of judicial activism. The model advanced in the article is based on a composite theory of the role of the judiciary, drawing on, and developing, Canon’s (1982) analysis of judicial activism and more recent multidimensional approaches to the assessment of judicial output. The article supplements the traditional vision of the judiciary as law enforcer in two directions. Drawing on the ‘constitutional dialogue/constitutional interdependence’ paradigm, the article perceives the judiciary as participant in a multi-player web of constitutional interactions, in which other government branches, individuals and public bodies participate in the decision making process; arguments on the omnipotency of the judiciary are thus replaced by a model of interdependency and interaction. The constitutionalist tradition serves as basis for the third vision, under which the judiciary is an active protector of core ‘thin’ societal values.These three visions of the role of the judiciary support a multidimensional analysis of judicial activism, under which judicial output is considered not only against pre-decision law, but also on the basis of post-decision dynamics and the value content of the decision.The model comprises seventeen distinct parameters, which include, inter alia, the degree of change in the law, interpretation techniques, interference with democratic processes, rhetoric, obiter dicta, reliance on comparative sources, the extent of the decision, and the complexity of the legal question brought before the court. Under this group of parameters, any change in the law, or action that extends beyond the mere settlement of the dispute before the court, would be considered activist. Additional parameters draw on the second vision of the role of the judiciary, and consider post-decision reaction of the legislature, the administration, the public and the judiciary itself as basis for supplementary assessment. In this context it is argued that a decision that is fully accepted and implemented by other members of the constitutional web should be viewed as less activist than a decision that is subsequently rejected; in the former case the decision conforms with societal consensus or equilibrium, while in the latter case, post-decision processes reflect judicial deviance from such consensus. A final parameter pertains to the value-content of the decision, under which a decision that promotes and protects core societal values should be considered less activist than one that intervenes in low-value policy areas. The model advanced in the article provides a basis for composite qualitative and quantitative assessments of the impact of the judiciary in the social and political spheres.

Whose Day in Court is it Anyway?

President Gault explores the argument that New Zealand's appellate system is onerous. While the appeal process is part of the fundamental right to access the courts, the author argues that such values would not necessarily be lost with the adoption of a more streamlined court process. In terms of judicial input, it is noted that judges' workloads have increased significantly over the past few decades. The author accordingly explores limitations to appeals, including statutory and judicial controls, non-legislative limits, declining of jurisdiction, and the requirement for leave to appeal. President Gault argues for a reduction in the requirements for leave to appeal, having a smaller panel of appellate judges in a judgment, an introduction of extensive requirements to screen out unmeritorious appeals, and confining oral hearings. In terms of judicial output, the author calls for more efficiency in publishing reasons for decisions, such as reducing re-statements of reasons upon appeal.

Is the Ninth Circuit too Large? A Statistical Study of Judicial Quality

Abstract This paper provides an empirical test of the claim that the U.S. Court of Appeals for the Ninth Circuit has too many judges to be able to do a good job. Reversals (especially summary reversals) by the Supreme Court and citations are used as proxies for quality of judicial output. The overall conclusion is that (1) adding judgeships tends to reduce the quality of a court's output and (2) the Ninth Circuit's uniquely high rate of being summarily reversed by the Supreme Court (a) is probably not a statistical fluke and (b) may not be a product simply of that circuit's large number of judges.

Jury Size and Verdict Consistency: “A Line has to be Drawn Somewhere”?

This research tests the simulated impact of Supreme Court decisions which allow for smaller than twelve-member juries. It identifies variation in judicial output that results from competing operating structures of jury decision making. The research employed a quasi-experimental design to address important problems of simulation, such as structural and functional verisimilitude. The sample consisted of 110 juries composed of nearly 1000 jurors. The findings indicate that a jury's size affects its behavior. Larger juries hang more often than smaller ones do. The degree to which this avoids the committing of a Type I or Type II judicial error remains to be seen; nevertheless, the Court was wrong in assuming that there are no differences in the behavior of twelve- and six-member juries.

The Problem of Congestion and Delay in the Federal Courts

In order to co-ordinate the work of the federal courts there was created in 1922 the Judicial Conference of the United States. In 1939 a law provided for a director of an administrative office to serve as executive assistant to the Con ference and for judicial councils of the circuits consisting of the judges of the courts of appeals to exercise local supervision. The district judges have been given the assistance of law clerks; pre-trial conferences to reduce and simplify the issues before trial and incidentally to conduce to settlements have been promoted; and the judicial output of the individual judges has increased. But serious congestion and delay remain in some courts. For firmer administration the Judicial Confer ence should be authorized to prescribe administrative practices instead of merely to make suggestions; the chairmen of the judicial councils should have administrative assistants; and chief judges of courts should be appointed instead of succeed ing by length of service. The paramount need is for more judges to cope with the present volume of litigation. The Congress is under a clear duty to provide for them.