The highest Dutch courts and the preliminary ruling procedure: Critically obedient interlocutors of the Court of Justice

Little is known about the motives of national courts to request a preliminary ruling from the Court of Justice of the EU (CJEU) or their satisfaction with and implementation of answers. This article aims to fill this empirical gap on the basis of an analysis of judgments complemented with interviews with judges of the highest courts in the Netherlands. This article shows that judges extensively use the procedure and follow its outcome almost without exception, despite some dissatisfaction. This discontent has surprisingly not affected the courts' willingness to refer in future. The findings also downplay the bureaucratic politics and judicial empowerment theses emphasising strategic motives to refer. Instead, legal‐formalist considerations and the desire to contribute to the development of EU law explain most of the references of the Dutch Supreme Court. The decision (not) to refer of the three highest administrative courts is primarily based on practical and pragmatic considerations.     

The Evolving Judicial Politics of European Integration: The European Court of Justice and national courts revisited

This article analyzes how the judicial politics sparked by the European Union's (EU) legal development have evolved over time. Existing studies have traced how lower national courts began cooperating with the European Court of Justice (ECJ) to apply EU law because this empowered them to challenge government policies and the decisions of their domestic judicial superiors. We argue that the institutional dynamics identified by this ‘judicial empowerment thesis’ proved self‐eroding over time, incentivizing domestic high courts to reassert control over national judicial hierarchies and to influence the development EU law in ways that were also encouraged by the ECJ. We support our argument by combining an analysis of a dataset of cases referred to the ECJ with comparative case study and interview evidence. We conclude that while these evolving judicial politics signal the institutional maturation of the EU legal order, they also risk weakening the decentralized enforcement of European law.     

Judicial Impartiality and Independence in Divided Societies: An Empirical Analysis of the Constitutional Court of Bosnia‐Herzegovina

The role of constitutional courts in deeply divided societies is complicated by the danger that the salient societal cleavages may influence judicial decision‐making and, consequently, undermine judicial impartiality and independence. With reference to the decisions of the Constitutional Court of Bosnia‐Herzegovina, this article investigates the influence of ethno‐national affiliation on judicial behaviour and the extent to which variation in judicial tenure amplifies or dampens that influence. Based on a statistical analysis of an original dataset of the Court's decisions, we find that the judges do in fact divide predictably along ethno‐national lines, at least in certain types of cases, and that these divisions cannot be reduced to a residual loyalty to their appointing political parties. Contrary to some theoretical expectations, however, we find that long‐term tenure does little to dampen the influence of ethno‐national affiliation on judicial behaviour. Moreover, our findings suggest that this influence may actually increase as a judge acclimates to the dynamics of a divided court. We conclude by considering how alternative arrangements for the selection and tenure of judges might help to ameliorate this problem.     

The Impact of Training and Language Competence on Judicial Application of EU Law in Hungary

The aim of this research is to identify the role that training in EU law and in a foreign language play in the use of EU law by Hungarian judges in domestic proceedings. Judges in the new Member States face the problems of no or inadequate official EU translations of relevant EU law or case‐law. The need to compare the meaning of other language versions therefore comes into play in order that the judges comply with the requirements of Union loyalty in the Treaty on European Union: Hungarian judges are shown to exhibit certain creative responses to these challenges. The approach to the research is based on an examination of the institutional framework for judicial training, a selection of pertinent case‐law of the Hungarian courts as well as interviews with a number of judges involved in the application of EU law in their courts.     

Maintaining Stability by Law: Protest‐Supported Housing Demolition Litigation and Social Change in China

Housing demolition has been one of the major sources of social conflict in contemporary China. Drawing on evidence collected in fieldwork investigations, this article examines the pressure of protest‐supported housing demolition litigation and its impacts. It finds that under the pressure of litigation, the courts have devised coping mechanisms to constrain the housing demolition authorities, and that social change angling toward more transparency and accountability has occurred. The article argues that this change is made possible as the maintenance of social stability has become not only the paramount concern of the regime, but also the performance assessment criterion for local officials and judges. The findings deepen our understanding of the causes and consequences of judicial empowerment in China and shed light on the dynamics of judicial politics in other regimes.     

Judicial Independence: Evidence from a Natural Experiment

In this article, we directly test the presence of judicial independence by examining judicial recess appointees who have later been confirmed by the Senate to full‐time Article III judicial positions. Specifically, we compare the votes of recess‐appointed courts of appeals judges during their temporary appointment tenure with a similar period following Senate confirmation. We find substantial differences in pre‐ and postconfirmation voting, suggesting that the structural protections of the Constitution provide judges a certain amount of independence.     

The Elastic Ceiling: Gender and Professional Career in Chinese Courts

Since the 1990s, the number of women in Chinese courts has been increasing steadily. Many women judges have risen to mid‐level leadership positions, such as division chiefs and vice‐chiefs, in the judicial bureaucracy. However, it remains difficult for women to be promoted to high‐level leadership positions, such as vice‐presidents and presidents. What explains the stratified patterns of career mobility for women in Chinese courts? In this article, we argue that two social processes are at work in shaping the structural patterns of gender inequality: dual‐track promotion and reverse attrition. Dual‐track promotion is dominated by a masculine and corrupt judicial culture on the political track that prevents women from obtaining high‐level promotions, but still allows them to rise to mid‐level leadership positions on the professional track based on their expertise and work performance. Reverse attrition enables women to take vacant mid‐level positions left by men who exit the judiciary to pursue other careers. Taken together, the vertical and horizontal mobility of judges in their career development presents a processual logic to gender inequality and shapes women's structural positions in Chinese courts, a phenomenon that we term the “elastic ceiling.”     

The Influence of the EU and the ECHR on ‘Parliamentary Sovereignty Regimes’: Assessing the Impact of European Integration on the British and Swedish Judiciaries

The paper analyses the consequences of European integration processes upon the judicial systems of the so‐called ‘parliamentary sovereignty regimes’, focusing on the British and Swedish judiciaries. The aim is to understand if the influences coming from European integration, favouring the expansion of domestic judicial power, have prevailed, or the traditional distrust of such countries in judicial power has prevented the empowerment of the domestic courts. The influences on the judicial systems are evaluated distinguishing judicial capacity, judicial attitudes and judicial independence. The paper argues that the political relevance of judges has strongly increased. However, while European integration has deeply transformed the formal means at disposal of judges, because of political and judicial culture the changes in actual judges' behaviour have been much more limited. Moreover, the paper highlights some unexpected ways in which European integration can affect the domestic political systems (eg favouring certain legislative reforms or legal principles).     

Problem‐Solving Courts: A Brief Primer

This essay traces the history of problem‐solving courts (including drug courts, community courts, domestic violence courts and others), outlines problem‐solving principles, and answers a basic set of questions about these new judicial experiments: Why now? What forces have sparked judges and attorneys across the country to innovate? What results have problem‐solving courts achieved? And what – if any – trade‐offs have been made to accomplish these results?     

'Solange, chapter 3': Constitutional Courts in Central Europe—Democracy—European Union

Abstract: Soon after the accession of eight post‐communist states from Central and Eastern Europe to the EU, the constitutional courts of some of these countries questioned the principle of supremacy of EU law over national constitutional systems, on the basis of their being the guardians of national standards of protection of human rights and of democratic principles. In doing so, they entered into the well‐known pattern of behaviour favoured by a number of constitutional courts of the ‘older Europe’, which is called a ‘Solange story’ for the purposes of this article. But this resistance is ridden with paradoxes, the most important of which is a democracy paradox: while accession to the EU was supposed to be the most stable guarantee for human rights and democracy in post‐communist states, how can the supremacy of EU law be now resisted on these very grounds? It is argued that the sources of these constitutional courts’ adherence to the ‘Solange’ pattern are primarily domestic, and that it is a way of strengthening their position vis‐à‐vis other national political actors, especially at a time when the role and independence of those courts face serious domestic challenges.     

The Political Origins of Judicial Empowerment through Constitutionalization: Lessons from Four Constitutional Revolutions

Drawing upon an analysis of the political vectors behind constitutional reform in Israel (1992), Canada (1982) New Zealand (1990), and South Africa (1993), the article suggests that the trend toward constitutionalization in culturally divided polities has not been adequately delineated by extant theories of constitutional transformation. An examination of the political origins of these four constitutional revolutions suggests that judicial empowerment is in many cases the consequence of a conscious strategy undertaken by threatened political and economic elites seeking to preserve their hegemony vis-a-vis the growing influence of "peripheral" groups in crucial majoritarian policymaking arenas. In response to perceived threats by peripheral groups, elites who possess disproportionate access to and influence upon the legal arena often initiate a constitutional entrenchment of rights in order to insulate policymaking from popular political pressure. Power is transferred from majoritarian decision-making arenas to national high courts, where they assume their policy preferences will find greater support. This process of conscious judicial empowerment is likely to occur (a) when the judiciary's public reputation for political impartiality and rectitude is relatively high and (b) when the courts are likely to rule, by and large, in accordance with the cultural propensities and policy preferences of the traditionally hegemonic elites.     

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

Do 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.     

Understanding Judicial Hierarchy: Reversals and the Behavior of Intermediate Appellate Judges

One of the central controversies in the judicial behavior literature is the extent to which judges' ability to act according to their ideological preferences is affected by their location in the judicial hierarchy. Judges on intermediate appellate courts have different decisionmaking environments than high court judges. As a result, the goals of lower appellate court judges may differ from those of their superiors: the quest for legal accuracy may compete with the desire to pursue policy preferences. Analysis of the reversal rate of the U.S. circuit courts of appeals offers insight into the extent to which these judges balance the pressures of their own policy preferences with the desire to achieve the legally accurate result in cases they decide.     

Campaigning for the Bench: The Corrosive Effects of Campaign Speech?

A new era has emerged in the ways in which candidates for state judicial office campaign. In the past, judicial elections were largely devoid of policy content, with candidates typically touting their judicial experience and other preparation for serving as a judge. Today, in many if not most states, such campaigns are relics of the past. Modern judicial campaigns have adopted many of the practices of candidates for other types of political office, including soliciting campaign contributions, using attack ads, and even making promises about how they will decide issues if elected to the bench. Not surprisingly, this new style of judicial campaigning has caused considerable consternation among observers of the courts, with many fearing that such activity will undermine the very legitimacy of legal institutions. Such fears, however, are grounded in practically no rigorous empirical evidence on the effects of campaign activity on public evaluations of judicial institutions. The purpose of this article is to investigate the effects of campaign activity on the perceived legitimacy of courts. Using survey data drawn from Kentucky, I use both post hoc and experimental methods to assess whether public perceptions of courts are influenced by various sorts of campaign activity. In general, my findings are that different types of campaign activity have quite different consequences. For instance, policy pronouncements by candidates do not undermine judicial legitimacy, whereas policy promises do. Throughout the analysis, I compare perceptions of courts and legislatures, and often find that courts are far less unique than many ordinarily assume. I conclude this article with a discussion of the implications of the findings for the contemporary debate over the use of elections to select judges to the high courts of many of the American states.     

Judges,Litigants, and the Design of Courts

Two important perspectives on courts highlight fundamentally different elements of adjudication and yield distinct predictions about judicial outcomes. The Attitudinal Model of judicial voting posits judge ideology as a strong predictor of court outcomes. Alternatively, the Law and Economics perspective focuses on the settlement behavior of litigants and reasons that while judges may vote ideologically, litigants adapt to these ideological proclivities, nullifying the effect of judge ideology. This analysis focuses on reconciling expectations about the effects of judge ideology and litigant strategies by examining their contingent nature and the conditioning effects of institutional design. The analysis examines state supreme courts from 1995–1998 to identify empirical evidence supporting both perspectives. While some state supreme courts have discretionary dockets allowing judges greater opportunities to exercise their ideology, others lack discretionary docket control, making dockets and outcomes largely litigant driven. Support for each perspective largely hinges on this fundamental feature of institutional design.     

从制度上保证审判独立——以司法独立的国际标准为参照

司法独立的国际标准要求法院和法官在行使审判权的时候不受干预,有关各方也不得进行干预,并且还应当为法院和法官独立审判提供积极保障。我国的审判独立原则包含了法院集体独立和法官个体独立的内涵,但无论是在立法上还是在实践中,都与国际标准存在着一定差距。只有以国际标准为指导,对我国不符合审判独立要求的制度和做法进行改革,才能够达到从制度上保证审判独立的目的。     

Splitting the Difference: Modeling Appellate Court Decisions with Mixed Outcomes

In rendering a decision in a particular case, judges are not limited to finding simply for the appellant or for the respondent. Rather, in many cases, they have the option to find for the former on one or more issues and for the latter on one or more other issues. By thus “splitting the difference,” judges can render a judgment that favors both litigants to some degree. What accounts for such mixed outcomes? Several theoretical perspectives provide potential explanations for this phenomenon. First, Galanter (1974) suggests that litigants with greater resources will achieve more favorable outcomes in the courts. Where two high‐resource, repeat‐player litigants meet in the appeals courts, these more sophisticated and successful parties may be able to persuade the court to render decisions with mixed outcomes that at least partially favor each party. Second, split outcomes may result from strategic interactions among the appeals court judges on the decisionmaking panel. Where majority opinion writers seek to accommodate other judges on the panel, split outcomes have the potential to serve as an inducement for more ideologically extreme judges to join the majority opinion. Finally, Shapiro and Stone Sweet ( Stone Sweet 2000; Shapiro & Stone Sweet 2002 ) propose that courts will sometimes split the difference in order to enhance their legitimacy (and ultimately enhance compliance by losing parties). For example, in highly salient cases, where noncompliance would more clearly threaten court legitimacy, judges may be more likely to split the difference in order to mollify even the losing party. We develop an empirical model of mixed outcomes to test these propositions using data available from the U. S. Courts of Appeals Database and find evidence supportive of all three theoretical perspectives.     

Transnational Jihadism and the Role of Criminal Judges: An Ethnography of French Courts

Lower national courts are increasingly asked to perform a transnational role, being directly involved in major geopolitical issues such as conflicts, migration, and transnational terrorism. Based on an ethnography of French criminal courts, this article aims to examine this emerging role of national lower courts as transnationalized players. Through an examination of terrorism prosecutions in France and the positions of the different judicial actors, it is argued that lower criminal courts, acting within a transnational context, can offer more robust resistance to states’ policies than supreme courts. This is because of the routine and the banality of their function and the direct interaction with the accused persons coupled with the judges’ own professional ethos and notion of judicial independence. Unlike supreme courts, whose role is more visible, and thus under the constant scrutiny of the political branches of the state, lower courts can operate in a more distant, independent space.     

深化改革背景下对司法行政化的遏制

司法行政化,即以行政的目的、构造、方法、机理及效果取代司法自身的内容,形成以行政方式操作的司法。法院司法运作的全过程均带有行政化色彩,表现为司法目的和价值的行政化、案件审判活动的行政化、上下级法院关系的行政化、司法人事制度和法院结构的行政化以及审判管理的行政化等。在给定的约束条件下,司法行政化可以弥补一线司法能力之不足,可以抗制外部干预。但其过度发展会妨碍依法治国,损害办案质量与效率,危及司法权威和公信力,阻碍法院工作的可持续发展。司法行政化的根源在于基本权力结构及其运行机制;司法功能设定的非司法化和资源配置的有限性,统一的人事管理制度和财政供应制度以及国家机能分化不足,亦为重要原因。遏制司法行政化需强化法院的司法审查功能、审判功能以及终局性纠纷解决功能;需阻隔行政性要素介入审判,建立审判独立的"二元模式";需在法院审判管理、司法行政管理、上下级法院业务管理上"去行政化"。     

High‐End Demand: The Legal Profession as a Source of Judicial Selection Reform in Urban China

Most studies of comparative judicial politics suggest that judicial autonomy emerges from democratic competition, but despite its authoritarian political system, China has introduced reforms that increase merit‐based competition, transparency, and modest professional autonomy in local courts. Variations in judicial selection procedures across urban China reflect differences in local markets for professional legal services: when mid‐ranking judges can easily find lucrative local employment as lawyers, court leaders strategically reform appointment and promotion mechanisms to retain these young, but experienced, judges. These findings are based on nearly fifteen months of in‐country fieldwork, conducted between 2012 and 2014, including forty‐nine interviews with judges across three different cities: Shanghai, Shenzhen, and Chengdu. Employing the subnational comparative method, this article not only builds theory regarding the legal profession's role in authoritarian states, but also offers new empirical detail regarding the selection, performance evaluation, and behavior of judges in urban China.