Judges or Hostages?

Cohen, Mathilde; Nicola, Fernanda; Davies, Bill

doi:10.1017/9781316340479.004

Cited by 8 publications

(9 citation statements)

References 5 publications

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“…The Supreme Court's arguments of having short-term clerk contracts are easy to adopt at the courts of appeal level as well. Interestingly, this pattern is exactly the reverse of what we find at the Court of Justices of the European Union (CJEU) and the European Court of Human Rights (ECtHR) where members of the key legal support team are permanently employed while judges have short-term contracts (Cohen 2017).…”

Section: Four Dynamicsmentioning

confidence: 66%

“…In contrast to domestic apex courts where judges have life tenure and clerks have short-term contracts, at the Court of Justices of the European Union (CJEU) and the European Court of Human Rights (ECtHR) the situation is reverse: the key legal support teams are permanently employed while judges have short-term contracts. This configuration shifts the legal expertise and the institutional memory and bestows greater decision-making influence on bureaucrats at the expense of judges (Cohen 2017;Butler 2015).…”

Section: International Journal For Court Administrationmentioning

confidence: 99%

“…From our study of the clerks at the Borgarting and Gulating courts of appeal, we observe that backlogs, case complexity, and court efficiency are issues that drive the need for clerks. Later, quality was also acknowledged and valued as judges reported that the decisional outcomes remained the same, but that the contributions from the clerks infused the final decisions with higher quality (AFF 2018) and perhaps also a standardization of the decisional process (Cohen 2017). Second, at the Supreme Court the monotonic increase in the number of clerks reached a point where the clerks had to be organized as a separate unit.…”

Section: Four Dimensionsmentioning

confidence: 99%

See 2 more Smart Citations

From Backlogs to Quality Assurance. The Development of Law Clerk Units at Norwegian Courts

Grendstad¹,

Shaffer²,

Sunde³

et al. 2020

International Journal for Court Administration

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The Consultative Council of European Judges (CCJE) approves of the role of law clerks assisting judges in their decision making but cautions against clerks replacing judges. In this article we put CCJE's caution to a test and study law clerks at the Norwegian Supreme Court and the Borgarting and the Gulating courts of appeal, the country's two largest courts of appeal. The general pattern for all three courts is that the pretext for hiring clerks changes from backlog problems to quality assurance, that clerks become organized in separate units, that the number of tasks performed by clerks increases, and that women constitute an outsized presence in the clerk units. The growth in clerks contributes to institutionalizing courts. We conclude that clerks perform tasks of the judges, that to some degree they replace judges, that clerks influence decision making, but that clerks have not become judges or make final decisions.

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Section: Four Dynamicsmentioning

confidence: 66%

Section: International Journal For Court Administrationmentioning

confidence: 99%

Section: Four Dimensionsmentioning

confidence: 99%

See 1 more Smart Citation

From Backlogs to Quality Assurance. The Development of Law Clerk Units at Norwegian Courts

Grendstad¹,

Shaffer²,

Sunde³

et al. 2020

International Journal for Court Administration

View full text Add to dashboard Cite

show abstract

“…In principle, there is no hierarchy among judges on multimember courts, especially if they are governed by the principle of collegiality, thereby rendering their mutual relationships the weakest form of hierarchy. 60 It is therefore all the more important what personality, leadership style and court practices the respective president of a court adopts. 61 There are only few 'commentaries' on the Presidents' individual personalities who therefore became merely known by personal anecdotes.…”

Section: A President Of the Courtmentioning

confidence: 99%

The faceless court? The role of individual CJEU members

Gragl

2023

Maastricht Journal of European and Comparative Law

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The CJEU is perceived to be a rather faceless court due to the principle of collegiality that is supposed to suppress individuality in its inner workings. This paper argues that this is not necessarily true in all cases and discusses instances wherein individual faces of the CJEU's members become discernible, in particular in their roles as President and Vice-President, respectively, the judge-rapporteur, Advocates General, single judges at the General Court, during public oral hearings, as litigants themselves, and of course in their academic publications. It also shows that judicial visibility can, in itself, certainly be construed to support the legitimacy of a court, but that it can, at the same time, also undermine its functioning, especially when judges are, as appointees, dependent on the will of their home Member State and others in the Council. Overall, it will be demonstrated that there are various situations in which individual CJEU members may emerge from an otherwise anonymous bench and play important judicial roles as individuals, thus rebutting the long-standing presumption that the CJEU is a faceless court.

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“…For instance, the Court of Justice of the European Union (CJEU) is known for its impressive number of staff members, whose positions are typically life-long careers. Cohen (2017) and Kenney (2000) both referred to the asymmetry that can arise when assisting staff members ("référendaires") have much more experience at the institution than the judges themselves. 1 Kenney (2000, 614) stated that "longevity gives référendaires power, particularly when their knowledge of EC law and the institutional workings of the CJEU is paired with the lack of experience of a new judge."…”

Section: Introductionmentioning

confidence: 99%

Does Delegation of Drafting Duties to Law Clerks Result in Judgments That Show Lack of Confidence in Terms of Writing Style? A Stylometric Analysis

Mascini

Holvast

2023

J. law courts

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Based on an analysis of all administrative court cases published in the Netherlands in 2020 (N = 4,642), we tested the hypothesis that experienced law clerks write judgments with greater confidence than less experienced clerks. A confidently written judgment was defined as being shorter, less standardized, and containing fewer legal references than a less confidently written judgment. In support of this hypothesis, our results showed that law clerks with more experience co-signed judgments that were less standardized and contained fewer legal references. However, contrary to the confidence hypothesis, we established that these judgments were also longer than judgments co-signed by less experienced clerks. Our study contextualizes the concerns expressed in studies on the US Supreme Court about the delegation of drafting duties to inexperienced law clerks. The study challenges the assumption that delegation of drafting duties to law clerks automatically results in judgments with a less confident writing style, due to the clerks’ inexperience. The assumption may hold for the US Supreme Court, where all law clerks are relatively inexperienced. However, the assumption does not hold in jurisdictions in which law clerks can be just as experienced (in terms of years worked in the legal field) as judges. This conclusion suggests that research on the functioning of the US Supreme Court cannot necessarily be generalized to other jurisdictions.

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Judges or Hostages?

Cited by 8 publications

References 5 publications

From Backlogs to Quality Assurance. The Development of Law Clerk Units at Norwegian Courts

From Backlogs to Quality Assurance. The Development of Law Clerk Units at Norwegian Courts

The faceless court? The role of individual CJEU members

Does Delegation of Drafting Duties to Law Clerks Result in Judgments That Show Lack of Confidence in Terms of Writing Style? A Stylometric Analysis

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