Mandatory Jurisdiction Research Articles

Possible remedies to prevent the misuse of diplomatic immunity

Since 1945, diplomatic immunity has altered. There are many factors which inhibit immunity. Firstly, consistent Cold War retaliation existed. Second, national security in the nuclear age was prioritized. The intricacy of international politics and mission expansion influenced a change. Also, the abuse of diplomatic and non-diplomatic immunity necessitated modification. In the 1960s, when hundreds of diplomats were sued, diplomatic immunity was called into doubt. Diplomatic abuses should force a reform of the Vienna Convention. Functional needs explained immunity modifications in the 1960s. Increasing and expanding immunity categories contributed to the improvement of the theory. However, there is no abuse remedy that is universally acceptable and enforceable. Should functional necessity theory replace immunity’s cloak? The pacta sunt serva concept of the noncontroversial law of treaties could be utilized to obtain multilateral agreement on the nature, cause, and effect of the functional necessity theory. A Permanent International Diplomatic Criminal Court with mandatory jurisdiction over accused diplomats and its own punishment system has been under discussion since the late 1980s. It never occurred, yet it may have resolved the diplomat disagreement between the victim and the accused.

Brazil and the International Court of Justice: A Necessary Reconciliation

In 1948, by not renovating its signature to the mandatory jurisdiction clause set out in Article 36 §2 of the Statute of the International Court of Justice (ICJ), Brazil placed itself at the margin of the most important international tribunal nowadays. This normative is recognized as an advance in international relations in its civilizing historical framework. Therefore, such an attitude denotes an incredulity vis-à-vis international law, in disagreement with the Brazilian fundamental charter of 1988. In its article 4, the Constitution includes governing principles in international relations: the solution to peaceful conflicts, the defense of peace, and the cooperation of peoples for human progress. Consequently, it is fair to think that the 1988 text is relatively receptive to international law, making Brazil’s refractory position to the ICJ inconsistent with the constitutional norm. Thus, the primary purpose of this article is to demonstrate that the arguments invoked to justify the waiving of the jurisdiction clause are unfounded. Theoretically, this article is justified by the need to take a stand in favor of a school of thought that believes in the maintenance of international peace through dialogue, reason, the application of moral principles and institutionalized justice. In order to convince the Brazilian State to reconcile with the ICJ, qualitative, bibliographical, and documentary research will be carried out based on comparative and historical methodological procedures, guided by a deductive approach grounded on the case study. In this regard, the article analyzes ICJ’s historical evolution, studies its role in the international system, and evaluates why the Brazilian State rejected its contentious jurisdiction. In light of the French and North American experiences, which also denounced the clause, the arguments upheld against the Court are critically examined. The conclusion is that the ICJ contributes to world peace by consolidating public international law and that Brazil should, therefore, return to the scope of the United Nations’ jurisdiction.

Controle difuso de convencionalidade:

A promoção dos direitos humanos implica buscar o respeito aos tratados e convenções internacionais que estabelecem regras de proteção, levando ao crescimento da relação entre o Direito Interno e o Direito Internacional. Nessa interação surge o controle de convencionalidade como mecanismo de tutela dos direitos humanos, por meio da aferiçãode compatibilidade entre o ordenamento jurídico pátrio e as normas de direito internacional. O Brasil está inserido no Sistema Interamericano de Proteção dos Direitos Humanos e reconheceu a jurisdição obrigatória da Corte Interamericana de Direitos Humanos, podendo ser processado em ações de responsabilidade internacional por violação de direitos humanos, obrigando-se, assim, a implementar suas decisões. Além do sistema regional, o Brasil integra o sistema universal ou global de proteção aos direitos humanos. Nessa ordem de ideias, o presente estudo propôs-se a investigar a atuação da Defensoria Pública da União por meio do controle difuso de convencionalidade, ou seja, aquele levado a efeito em âmbito interno pelos órgãos jurisdicionais domésticos. Constatou-se que, mesmo com limitações, o mecanismo do controle de convencionalidade é instrumento para a tutela dos direitos humanos, porquanto relacionado à nova doutrina que prestigia esses direitos e promove uma interlocução entre o direito interno e o direito internacional, com enfoque na maior proteção ao indivíduo.

К вопросу об императивной подведомственности в современном гражданском процессе

The article substantiates the position on preserving the concept of mandatory jurisdiction in modern civil procedure, taking into account the new procedural legislation under Federal law No. 451 of 28.11.2018. The expediency and effectiveness of strengthening and developing the institution of mandatory jurisdiction is argued on the example of legal relations arising from OSAGO.

Intellectual Property: A Beacon for Reform of Investor-State Dispute Settlement

This Article attempts to resolve clashes between intellectual property and investor-state dispute settlement (“ISDS”). ISDS clauses contained in bilateral, plurilateral, or multilateral trade and investment agreements give multinational investors (corporations) a right to sue a state in a binding proceeding before an independent arbitral tribunal. This jurisgenerative right to file a claim against a state in an international tribunal with mandatory jurisdiction is exceptional; it is generally reserved to other states. Only multinational corporations can use ISDS to file claims against states in which they invest, provided the state is party to a bilateral investment treaty (“BIT”) or a trade agreement containing an investment chapter (“International Investment Agreement” or “IIA”). The ISDS case filed by the global pharmaceutical company Eli Lilly against Canada based on the invalidation by a Canadian court of two patents was the first direct major clash between IP and ISDS.

ADVANTAGES OF NON-LEGAL METHODS OF DISPUTE SETTLEMENTS IN INTERNATIONAL SPACE LAW

INTRODUCTION:The law provides the rules and justification for dispute settlement. The evolution of international dispute settlement has following five phases:a)There was the concept of just war which allowed the enforcement of rights and obligations between states through a legally accepted use of armed force; b) Realization of the importance of peaceful settlement of dispute between states and before adhoc bodies; c) The establishment of Permanent Court of Arbitration (PCA) by 1899 treaty, with the awareness of the urgency to establish a standing body; d) The establishment of the Permanent Court of International Justice (PCIJ), International Court of Justice (ICJ), regional bodies such as European Court of Justice (ECJ), The European Court of Human Rights (ECHR) and International Center for the Settlement of Investment Disputes (ICSID) after World War II and in early 1980s; e) The established of various human rights commissions and tribunals (Rosanne, 1991: 4).These evolutions show clear inclinations away from the use of force and dispute settlement towards recourse to third party compulsory mandatory jurisdiction and binding decision making powers. Generally speaking, a dispute occurs when a party perceives itself to be injured; decide some other party is responsible; from a sense of entitlement to some kind of redress, and formulate a specific claim which is rejected by the other party. The method of dispute settlement to be chosen by parties depends upon following factors:a)The extent of the interaction and interdependence of the actors involved; b) Whether the parties are in a continuing relationship with each other, their relative bargaining power and ability to exert influence on each other; c) Their geographical and political relationship with each other and third party; d) The similarities or differences in their political, cultural or economic ideology; e) The history of their relationships and the methods of dispute settlement used in the past between them; and, f) Their respective commitments to international law and principle of peaceful settlement of dispute (Surds & Shany, 1999:28).The Charter of United Nations (UN) provides, in Art. 2(3) and (4), two parallel obligations, requiring all members to settle their international disputes by peaceful means in a manner that international peace and security and justice are not endangered; and to refrain from any treat or use of force in their international relations against the territorial integrity or political independence of any state, or in any other manner inconsistent with the purpose(s) of the UN (Watts, 2001:21). Article 33 of the charter of UN requires that parties of any disputes which the continuance of it is likely to endanger the maintenance of international peace and security shall first of all seek a solution by negotiation, equity, mediation, conclusion, arbitration, judicial settlement, resort to regional agencies or arrangement (Watts, 2001:21).In this paper we are about to analyze advantages and disadvantages of non-legal methods of peaceful settlement of conflicts arises in space activities, which are consultations, negotiations, inquiry and fact finding, mediation and good offices, conciliation and the claims commission (CC).NON-LEGAL DISPUTE SETTLEMENT METHODS RECOMMENDED BY SPACE TREATIES: CONSULTATIONS:Consultations and prior notification is one of the most useful methods of dispute settlement and conflict avoidance techniques. This method requires a party that might adversely affect another party, to inform the other party of its intentions and to discuss the matter and avoid any disputes. Some advantages of this method are as follows:a) Advocating a Pre-emptive and early resolution of a dispute by permitting parties to identify and attempt the settlement of potential problems at an early stage through taking action before parties' positions become rigid and polarized and their difference become more critical and intractable. …

Article 297 of the United Nations Convention on the Law of the Sea and the Scope of Mandatory Jurisdiction

ABSTRACTThis article assesses the scope and content of the automatic exceptions contained in Article 297 of the UN Convention on the Law of the Sea to the compulsory procedures established in Section 2 of Part XV. The Convention's drafting history is examined with a view to determining the validity of the diametrically opposed readings of Article 297(1) endorsed by Annex VII Tribunals in the Southern Bluefin Tuna Award and the Chagos Marine Protected Area (MPA) Award. The interpretation favoured in the Chagos MPA Award—that mandatory jurisdiction is not restricted to the three cases expressly enumerated in Article 297(1)—is consistent with the textual evolution of Part XV. The article situates the approach adopted by the Chagos Tribunal within a wider normative tradition, which holds that adjudicative jurisdiction arises in default of positive textual authorzsation (unless it has been explicitly excluded). It is argued that this approach should be embraced by courts and tribunals when interpreting the Convention's provisions, as it accords with the drafters' aspirations and it serves to strengthen the international Rule of Law.

An Assessment on the Enforcement of the ICSID Arbitral Award in China

This article examines the enforcement of the ICSID Awards in China. China is one of the most enthusiastic signatories of Bilateral Investment Treaty that grants mandatory jurisdiction to the ICSID investment arbitration system. It notes that China has failed to enact any specific legislation to comply with the ICSID Convention enforcement obligations, making its compliance with these obligations uncertain. It concludes that the only way that the China could claim to have fulfilled its treaty obligations is to declare that the ICSID Convention and related agreements have a direct effect on its domestic law. The status of treaties within China law, however, remains uncertain and unsettled. For this reason, it is likely that a judicial interpretation from the Supreme People’s Court is necessary to guarantee enforcement of such an award within China. Without such an interpretation, it is highly doubtful that a China court would enforce an ICSID award, despite the ICSID Convention plain requirement that it do so.

Inside the “Constitutional Revolution” of 1937

The nature and sources of the New Deal Constitutional Revolution are among the most discussed and debated subjects in constitutional historiography. Scholars have reached significantly divergent conclusions concerning how best to understand the meaning and the causes of constitutional decisions rendered by the Supreme Court under Chief Justice Charles Evans Hughes. Though recent years have witnessed certain refinements in scholarly understandings of various dimensions of the phenomenon, the relevant documentary record seemed to have been rather thoroughly explored. Recently, however, a remarkably instructive set of primary sources has become available. For many years, the docket books kept by a number of the Hughes Court justices have been held by the Office of the Curator of the Supreme Court. These docket books supply a wealth of information concerning the internal deliberations of the justices. Justice Pierce Butler’s docket book in particular provides a remarkably rich set of notes on the Court’s discussions of cases in conference. Yet the existence of these docket books was not widely known, and access to them was highly restricted. As a consequence scholars knew very little about the Court’s internal deliberations in the landmark cases of its 1936 October Term. This article, which is based upon a review of all of the surviving docket books from that Term, considers what those sources can teach us about the cases comprising what some have called the “switch-in-time”: West Coast Hotel Co v Parrish, which upheld Washington State’s minimum wage law for women and overruled Adkins v Children’s Hospital; the Labor Board Cases, which upheld the constitutionality of the National Labor Relations Act; and the Social Security Cases, which upheld the constitutionality of provisions of the Social Security Act establishing an old-age pension system and a federal-state cooperative plan of unemployment insurance, as well as corresponding state unemployment compensation statutes. Considered in concert with information previously known, the data revealed by these docket books shed considerable new light on the nature of the Court’s deliberations in each of these three sets of cases, on the reasons for its decisions, and on the contention that the justices wrought a “Constitutional Revolution” in the spring of 1937.

The New Regulatory Framework for Consumer Alternative Dispute Resolution

This concluding chapter calls for ensuring the effective provision of consumer ADR (CADR) by making the requirement of CADR mandatory in a number of sectors where there is a high demand for CADR and to set up an effective residual forum to ensure full coverage. The residual forum can be housed in a tribunal or in a much improved small claims court – it is argued that both of these options should incorporate CADR techniques and be accessible online. Another option, and one that may be less costly and more user-friendly (and thus preferred by consumers), would be the creation of a residual CADR entity with mandatory jurisdiction. The chapter then examines the main arguments against a mandatory CADR scheme, such as the argument of floodgates of complaints driving costs up for traders, the difficulties of enforcing outcomes with reluctant traders, and the restriction to the court and thus access to justice. Lastly this chapter briefly considers a number of dispute design options that policymakers should take into consideration when improving the CADR landscape.

Tie Votes in the Supreme Court

What should the Supreme Court do with a tie vote? A long-standing rule provides that when the justices are evenly divided, the lower court’s decision is affirmed and the Supreme Court’s order has no precedential effect. While tie votes arise with relative rarity, the recent death of Justice Antonin Scalia raises the specter that the Supreme Court October Term 2015 could be replete with such results, and the cases at risk of ending in ties include high-profile and contentious cases about unions, voting rights, immigration policy, and Obamacare. This Article constitutes the first detailed empirical analysis of whether the Supreme Court’s current approach to tie votes makes sense, presenting an original study of the 164 instances in which a tie vote occurred between 1925 and 2015. Those data reveal two important trends, both of which suggest the current approach is at best unnecessary. First, where a case ends in a tie, the issue involved is either presented to the Supreme Court again in relatively short order or turns out to be of little significance. Second, only 1 of the 164 cases would today fall within the Supreme Court’s limited mandatory jurisdiction. The remainder would arrive at the Court on a writ of certiorari, a docket that is entirely discretionary.Instead of affirming by equal division, the Supreme Court should utilize an alternate and equally well-established procedure to dismiss cases as improvidently granted. At a time when Americans disapprove of the Supreme Court at unprecedented levels, dismissing rather than formally announcing a tie to terminate deadlocked cases better protects the public perception of the Court’s legitimacy. Moreover, dismissal would reduce the potential for justices to write opinions that take public positions on issues that have not yet been resolved. Finally, as a matter of cognitive psychology, justices may feel internal pressure to remain consistent with a position once staked out in a vote that resolves a case. Dismissing, rather than affirming by an equally divided court, could alleviate that psychological pressures, allowing the justices to be more fair-minded when approaching cases in the future.

A Corte Internacional de Justiça e o Brasil uma reconciliação necessária

In 1948, Brazil placed itself at the margin of the most important international tribunal of the moment by not adhering to the mandatory jurisdiction clause set out in Article 36-2 of the Statute of the International Court of Justice (ICJ). The central objective of this work is to convince the Brazilian State to file with the Secretary General of the United Nations (UN) a declaration of adherence to the mandatory jurisdiction clause of the ICJ Accordingly, the article analyzes the historical evolution of the icj, studies its role in the international system and evaluates the reasons that led Brazil to reject the contentious jurisdiction of the Court. Put another way, it analyzes the examples of countries such as France and the United States, which have also decided to reject the mandatory clause; it evaluates the arguments contrary to the position of the Court and demonstrates how it has contributed to world peace through the strengthening of international public law.

Interruptions in Search of a Purpose: Oral Argument in the Supreme Court, October Terms 1958-60 and 2010-12

We tend to think of the Supreme Court as an institution that is unchanging. Nothing, of course, could be further from the truth. The Court has changed in important ways throughout its history. During the last few decades, the Court has experienced many significant changes: Congress has virtually eliminated the Court’s mandatory jurisdiction; the Court has reduced by almost half the number of cases in which it grants review; the number of law clerks has increased; the numbers of lower court cases and judges have increased substantially; the Court has shortened by half the amount of time normally allowed for oral argument; the length of the post-argument conference has reportedly shrunk; the exchanges in the Justices’ opinions have become more strident; and the Justices appear to relish a kind of celebrity that even their recent predecessors had shunned. Notwithstanding these changes, Judge John G. Roberts, Jr., suggested shortly before his appointment as Chief Justice that “one thing that has remained fairly constant [since 1980] has been the level of questioning” at oral argument. That conclusion was based on a comparison of two sets of cases that were argued in 1980 and 2003, respectively. Because the Justices have seemed to other observers to have become more assertive at oral argument in recent years, we decided to inquire further by comparing a set of cases from the recent past (October Terms 2010-12) with a set from a period (October Terms 1958-60) about twenty years before the start date of the Chief Justice’s study. Our empirical study, which provides two snapshots in time, combines quantitative and qualitative methods in an attempt to understand interactions among the Justices and between the Justices and counsel; how those interactions may now be different from those of a half-century ago; and the possible significance of those differences for our understanding of the Court’s role in our constitutional system.We found significant differences. In the older cases, the nature and shape of oral argument reflected what might be taken to be the traditional purposes of oral argument, but the more recent cases suggest a different dynamic. The Justices rarely allowed counsel to develop a coherent narrative, and they often used an advocate’s limited time to state their own views and to joke or argue with each other. The Justices seemed more personally invested in individual cases at the oral argument stage, perhaps because of larger staffs and smaller caseloads, among other factors, and they often acted as if oral argument were simply an opportunity for them to say what they would like to say about a case. It may be that they do so with a view toward convincing their colleagues, and that what was once a relatively less important aspect of oral argument has become its dominant purpose. It may also be the case, however, that the Justices recognize that their colleagues also may have thoroughly studied the case and made up their minds, so that oral argument seems to be a less important exercise. It may be that the Justices now hear oral argument only because they always have done so, and abandoning it would be difficult politically, but have no theorized, shared view of its current significance. In any event, the “new oral argument” is not about the lawyers, who may often seem to be props, bystanders, or straight-men in the well of the Court. Nor is it about the parties, whose interests are at stake, or about the public. Oral argument seems to be for the Justices, and only for the Justices – time to be used in whatever ways they may find appealing at the moment. Indeed, one might say that it seems to be “all about them.” But what the Court hopes to achieve through oral argument remains unclear.We suggest that oral argument still has a role to play in the process of Supreme Court adjudication and make some suggestions for how the value of oral argument might be enhanced.

China's Socialization in the International Human Rights Regime: why did China reject the Rome Statute of the International Criminal Court?

This article uses a hard law—the Rome Statute of the International Criminal Court—to examine the depth of China's socialization in the international human rights regime and the relative weights of sovereignty and human rights norms in determining China's policy choices. It shows that the reasons for China's rejection of the Rome Statute are twofold. On the one hand, Chinese leaders have not fully internalized human rights norms, and they prioritize state sovereignty over human rights when making decisions. On the other hand, the legalized Rome Statute sets up an independent court with mandatory jurisdiction and grants the Prosecutor the ex officio right to investigate a crime. Such treaty provisions may have negative impacts on China's core sovereignty of territorial integration and regime security, thus imposing high sovereignty costs on China. Therefore, China resolutely voted against the Rome Statute, even if such an action made it a small minority outside the international mainstream. These findings indicate that China is still in a weak socialization stage and is not able to take on binding human rights and humanitarian obligations with high sovereignty costs.

Policymaking under Constraint: Decision Modes in the U.S. Courts of Appeals

The caseload of the U.S. Courts of Appeals has increased dramatically while the volume of cases decided by the United States Supreme Court has declined precipitously. Thus, the Courts of Appeals have increasingly assumed an important policymaking role as the final arbiter of federal law, while simultaneously confronted with increased demand to monitor the decisions of the U.S. District Courts for error. In the present study, we exploit this dilemma to examine how courts with mandatory jurisdiction respond to the challenge to increase their policymaking role under the increasing resource constraints posed by caseload growth. We focus on shifts in the use of two important policymaking institutions of the Courts of Appeals—disposition with oral argument and by en banc rehearing. We find that as caseload stress has become particularly acute, the Courts of Appeals have prioritized disposition by oral argument over the use of en banc rehearing. Given the decline in the docket of the Supreme Court, an implication of this finding is that the constraint produced by rising caseloads has diminished oversight and increased autonomy for policymaking by three-judge panels in the Courts of Appeals.

State Judicial Sovereignty

In our “dual sovereignty,” we have a dual judiciary. While the Constitution creates a single Supreme Court, and gives Congress the power to constitute inferior tribunals, predating our federal union were the courts of the states. Through concurrent jurisdiction, these courts, subject to the complete control of the states, were deemed parallel forums to adjudicate federal claims. Yet, in specific areas, Congress designated the federal courts as the exclusive forums of certain federal claims, depriving the state courts of that jurisdiction. In other areas, the Supreme Court has determined that state courts, with or without the consent of the state, are required to entertain certain federal causes of action. Each of these well-known features of our judicial system — concurrent, mandatory, and exclusive jurisdiction — represents efforts by one sovereign, the federal government, to command and control the jurisdiction of another sovereign, the states. Though the power to mandate, and exclude state court jurisdiction has been construed broadly, certain limits have been placed on this authority based on a respect for the autonomy of each state to manage their courts. I refer to the basis of these constraints on federal power as state judicial sovereignty. State judicial sovereignty refers to the power of states to vest their courts with subject matter jurisdiction to hear, or not to hear, federal causes of action. This article articulates a framework to explain how the autonomy of the states to control their own courts interacts with Congress’s efforts to use, or disregard the state courts for federal claims. Building on the analysis of concurrent, mandatory, and exclusive jurisdiction, I identify three attributes of state judicial sovereignty that are repeated throughout the Court’s precedents. First, state judge sovereignty refers to the constitutional obligations and state-law duties, of state judges with respect to federal causes of action. Second, state jurisdictional sovereignty, explains the autonomy of the states to vest their state courts with jurisdiction, subject to the strictures of the federal constitution. Third, state judge sovereignty, working under the auspices of state jurisdictional sovereignty, places a limit on the federal government’s power to regulate the state court, based on the anti-commandeering principle. The bounds of federal authority over the way state courts conduct their business have remained undefined for over 200 years. This article aims to bring some clarity to those boundaries.

Group decision making on appellate panels: Presiding justice and opinion justice influence in the Israel Supreme Court.

Appellate adjudication frequently involves small group decision making. Role responsibility theory and experimental evidence suggest that high status group members may disproportionately influence other members. A judicial panel’s presiding justice and the justice who writes a case’s opinion thus may influence other justices’ votes. We compare justices’ voting patterns in cases in which they presided and wrote opinions with their voting patterns when they did not preside or write opinions. The data consist of 1,410 mandatory jurisdiction criminal law cases decided by the Israel Supreme Court in 2006 and 2007. Voting patterns varied significantly with presiding and nonpresiding status. On average justices were 4.5% more likely to vote in their preferred direction when presiding than as mere panel members, which corresponds to an increase of about 28% given a baseline rate of voting for defendants of 16%. Justices’ colleagues’ voting patterns significantly changed when particular justices did and did not preside. Colleagues were 50% more likely to vote for defendants when one justice did not preside compared with when he did. Some justices’ voting patterns varied based on opinion-writing status. This is likely due to the nonrandom process of opinion assignment.

El control jurisdiccional de la actuación de los órganos forales de los Territorios Históricos del País Vasco. Últimos criterios jurisprudenciales en la materia

<p>Las controversias suscitadas en torno a la naturaleza jurídica, caracterización y régimen competencial de los Territorios Históricos del País Vasco ha trascendido el puro debate doctrinal para trasladarse a instancias jurisdiccionales. El presente estudio analizará el complejo reparto competencial que se opera entre las instituciones comunes de la Comunidad Autónoma y los órganos forales de los Territorios Históricos, la función de la Comisión Arbitral para dirimir conflictos y la naturaleza jurídica de las normas dictadas por las Juntas Generales de los Territorios Históricos y si éstas gozan o no del valor de ley. Finalmente, se hará especial énfasis en la competencia objetiva de los órganos de la jurisdicción contencioso-administrativa para conocer de los recursos que se deduzcan contra actuaciones de los órganos forales de los Territorios Históricos.</p>

Jurisdiction and Scale: Rent Arrears, Social Housing, and Human Rights

This article draws on the recent work of Mariana Valverde on jurisdiction and scale to frame a study of the interaction between mandatory possession proceedings brought by one particular type of social housing provider – housing associations – and national as well as human rights law. It was the explicit political choice to focus social housing provision on housing associations, as opposed to local authorities, which opened up the mandatory possession jurisdiction. The essence of the argument is that, despite the apparent incommensurability of these different scales and jurisdictions, they are able to accommodate each other quite happily. Two sets of texts are used to develop this argument. First, consideration is given to the legal technicality through which mandatory possession proceedings might be challenged. Second, we draw on data from a study of housing associations practices and policies on the use of one particular mandatory ground of possession for rent arrears, demonstrating the way in which scale and jurisdiction, political rationality and technologies intertwine.

Does the Judge Matter? Exploiting Random Assignment on a Court of Last Resort to Assess Judge and Case Selection Effects

We study 1,410 mandatory jurisdiction and 48 discretionary jurisdiction criminal law case outcomes in cases appealed to the Israel Supreme Court in 2006 and 2007 to assess influences on case outcomes. A methodological innovation is accounting for factors—case specialization, seniority, and workload—that modify random case assignment. To the extent one accounts for nonrandom assignment, one can infer that case outcome differences are judge effects. In mandatory jurisdiction cases, individual justices cast 3,986 votes and differed by as much as 15 percent in the probability of casting a vote favoring defendants. Female justices were about 2 to 3 percent more likely than male justices to vote for defendants but this effect is sensitive to including one justice. Defendant gender was associated with outcome, with female defendants about 17 percent more likely than male defendants to receive a favorable vote on appeal. Our data's samples of mandatory and discretionary jurisdiction cases allow us to show that studies limited to discretionary jurisdiction case outcomes can distort perceptions of judges' preferences. Justices' ordinal rank in rate of voting for defendants or the state was uncorrelated across mandatory and discretionary jurisdiction cases. For example, the justice who sat on the most criminal cases was the fourth (of 16 justices) most favorable to the state in mandatory jurisdiction cases but the 12th most favorable in discretionary jurisdiction cases. This result casts doubt on some inferences based on studies of judges on discretionary jurisdiction courts, such as the U.S. Supreme Court, in which only discretionary case outcomes are observed.