Constitutional Judicial Behavior: Exploring the Determinants of the Decisions of the French Constitutional Council

Abstract

International audienceThis article empirically assesses the relevance of three theories of judicial decision-making for the French Constitutional Council. Our empirical analysis follows previous works by integrating more recent observations, and proposes a new methodology by exploiting new data for cases post 1995. After analyzing the 612 cases published between 1974 and 2013, we focus on cases post 1995 for which we know the exact composition of the court. Our results suggest that (1) political/ideological voting occurs, (2) Justices restrain themselves from invalidating laws, and (3) a court's independence suffers from political power concentration in other institutions. All in all, these results suggest the need for a reform of the Constitutional Council to strengthen its independence. keyword constitutional court, attitudinal model, judicial self-restraint, opportunistic independence , judicial decision-making, politicization, judicial independence

Aspiring Top Civil Servants’ Distrust in the Private Sector

“…19 For comparison, Germany ranks 20 th and the UK is 7 th . Source: http://www.doingbusiness.org/data/exploreeconomies/france 20 For debates about judges' preferences in French labor courts, see Espinosa (2017); Espinosa (2017, 2018). private partnerships.…”

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“…While the liberal-conservative spectrum is often not as meaningful in less polarized political contexts, there are also normative dimensions more specific to the IP contexts along which judges can differ: Lazega et al (2017, p. 15), for example, found "divergence in the substantive interpretation of the European patent" with respect to whether a patent should be seen as an exception to the freedom of copying or as a reward for inventive effort among an international panel of patent judges attending the prestigious Venice Forum. The relationship between judicial preferences and judicial outcomes furthermore need not be direct: Based on studies of cases at the Federal Circuit, Miller and Curry (2015;2009;2017) argue that expertise amplifies (or is even a necessary condition for) ideologically consistent decision-making, providing further support for a realist viewpoint on decision-making in patent law. Next to directly shaping a decision outcome through their verdict, judges have also been found to exert indirect influence based on their preferences, e.g., through their choice of experts (Helland, 2019).…”

“…These systems differ in important aspects, not least of which is the fact that the US rely on a case-based legal system, while many European countries implement civil law systems. Accordingly, academic attention has also extended to different geographic and legal contexts, more recently, such as the French (Espinosa, 2017) or German (Engel, 2022) Constitutional Courts, the German Federal Court of Justice (Swalve, 2022), the Brazilian Supreme Court (Medina et al, 2022), or Chinese local courts (Yu & Sun, 2022). Driven by its economic implications for, e.g., innovation policy and strategy, variation in judicial outcomes has also become of interest in the context of more specialized legal fields, such as patent law (Allison & Lemley, 2000;Cremers et al, 2017;Lanjouw & Schankerman, 2001;Moore, 2000).…”

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“…For example, Amaral-Garcia et al (2009) investigate 270 constitutional court decisions from Portugal and find that judges are sensitive to their political affiliations and their political party's presence in government when voting. Espinosa (2017) analyzes 612 cases from the French Constitutional Council and also finds evidence of voting along political/ideological lines and that judges restrain themselves from invalidating laws. Berger and Neugart (2011) provide evidence for a nomination bias in German labor court activity-that is, courts are more active if unemployment rates are high.…”