Scholarship@WashULaw

Document Type

Article

Language

English (en)

Publication Date

2019

Publication Title

SSRN

Abstract

Is there a rationale behind non-random case assignment at the European Court of Justice (ECJ)? I argue that the flexible system of case assignment acts as a surrogate for a full-fledged judicial hierarchy, ensuring that the decision-making of the Court reflects the preferences of the majority of judges absent many hierarchical elements commonly observed in other judicial systems. I empirically test this hypothesis using Monte Carlo simulations of the composition of chambers during the time period 2009-2012 under alternative case assignment regimes. To proxy for judicial ideology, I use information on the political preferences of appointing Member State governments vis-à-vis European integration. I find that the system of chamber assignment effectively reduced the variance of the median judges in proceedings before the Court as compared to a hypothetical system of chamber assignment as it is featured, for example, at the U.S. Federal Courts of Appeals. I also find evidence indicative of strategic behavior on the part of the judge majority. While such an "informal judicial hierarchy" potentially carries a number of negative implications, I argue that the ECJ needs it in order to ensure both the consistency of its decision-making and its effectiveness as an institution.

Keywords

Judge Behavior, European Court of Justice, Monte Carlo Simulations, Case Assignment

Publication Citation

Jens Frankenreiter, Informal Judicial Hierarchies: Case Assignment and Chamber Composition at the European Court of Justice, (2018), https://doi.org/10.2139/ssrn.2778807.

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