Lucky you: Your case is heard by a seasoned panel—Panel effects in the German Constitutional Court

Abstract

Panel effects have been widely studied in randomly composed panels. However for many courts, panel composition stays constant. Then judges become familiar with each other. They know what to expect from each other. Mutual trust may develop. A local culture may emerge. If rejection is the default, familiarity is likely to help plaintiffs, as familiar panels can be more effective, and more self-confident. In the German Constitutional Court, the effect of familiarity on three success measures can be causally identified: success on the merits, with the request for a preliminary ruling, or with a procedural request. Justices experience multiple, exogenous recompositions of their chamber. In the logic of regression discontinuity, the effect of familiarity on the alternative measures for success can be identified if these recompositions lead to a clear decrease in familiarity with the other members of the chamber.

The Judicial Geography of Patent Litigation in Germany: Implications for the Institutionalization of the European Unified Patent Court

“…This is because similar mechanisms will be put in place to harmonize different interpretations of the law (Richter and Klos 2022) and ensure consistent court decisions among judges. Apart from the appellate process, which has been the focus of this article, the literature has examined additional drivers of harmonizing interpretations of the law, taking into account panel effects (Engel 2022) such as collegiality (Yu and Sun 2022), which can promote mutual trust among panel judges and improve judicial deliberation over time (Swalve 2022). Rules and principles, by and large, are only truly harmonized if the institutional processes to implement them are similarly effectively designed (Leebron 1996).…”

Empirical Foundation of Normative Arguments in Legal Reasoning

“…Below, we use several recent empirical studies with European data as examples. Engel (2022), studying the German Constitutional Court, demonstrates that the longer the judges have been serving in the same panel, the more likely they are to declare a law unconstitutional-one of the more politically difficult decisions a judge can make. The challenge arises in determining the proper normative posture.…”

Legalist and realist decision-making in patent law: Validity cases in Germany

“…In this, they are consistent with Weber's requirement that, in a collegial form, "an administrative act is only legitimate when it has been produced by the co-operation of a plurality of people according to the principle of unanimity or of majority" (Weber, 1978, as cited in Waters, 1989. The effect of collegiality on judicial decision making has recently attracted increased academic attention: panel familiarity, for example, has been found to improve deliberation (Swalve, 2022) and affect judicial outcomes (Engel, 2022). Consistent with the above definition's emphasis on consensus and thus compromise, collegiality has also been used to contest the implications of the realist model (but not its premises).…”

“…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).…”