Suchergebnisse

We argue that courts may increase their autonomy and effectiveness by persuading governmental actors, who have powers over the societal impact of judicial decisions, of the legal quality of their rulings. This view combines a strategic perspective on judicial decision making with a conception of persuasion that allows courts to widen their zone of discretion. We support our argument with data from the European Union, where we find that the Court of Justice improves its legal justifications—by embedding its decisions in case law—when it faces a more adverse political environment. Our findings suggest both that the limits of judicial independence are set largely by political preferences, and that legal rhetoric may be an opportunity for courts to extend their room for maneuver. They also indicate that political audiences may indirectly influence the development of case law, by triggering courts to engage in precedent.

AbstractEffective procedural arrangements allow courts to reconcile conflicting demands of timely justice and sound legal argument. In the context of the European Union, conflict between these demands emerged most acutely in the face of paralyzing delays in the preliminary reference procedure. It was partly solved by Article 99 of the Rules of Procedure. The provision allowed the European Court of Justice to dispose of repetitive and legally undemanding cases with a reasoned order in lieu of a judgment. This article analyses all published orders of the European Court of Justice to examine the use and the implications of Article 99 of the Rules of Procedure. It is the first article to do so. We find that the Court resorts to orders to save time and to halt repeated questions from the courts of a single Member State.

Posted: 17 Dec 2020 ; The benefits of timely justice and rigorous judicial argument are impossible to overstate and hard to reconcile. In its struggle to deliver both, the Court of Justice of the European Union has initiated several reforms of its procedures. The so-called adjudicating orders arguably achieve the impossible: They fast-track recurring questions while safeguarding legal coherence. The present article unpacks this premise. It shows that seemingly inconsequential procedural amendments, often overlooked by scholars, give the Court full control over relevant European legal problems, and centralize its power. Concretely, the analysis introduces a typology of orders of the Court, to demonstrate the unique legal character of adjudicating orders. It then investigates their effects against the backdrop of manifold procedural reforms and institutional adjustments. The findings indicate that the greatest efficiency gains follow reforms, which the Court initiates and implements in relative anonymity. Moreover, the use of adjudicating orders increases in response to a sudden and considerable increase of legally similar preliminary references from one Member State. An equal increase of references from the courts of several Member States has no such effect. The findings suggest that the Court uses adjudicating orders to disengage from 'local' problems and unilaterally terminate the conversations with resolute national courts. Thereby, the preliminary reference procedure, envisaged and promoted as a collaborative tool, transforms into a centralized mechanism of speedy and authoritative dispute resolution.

We analyze the main rationale for public administrations and political institutions for supplying transparency, namely, that it generates legitimacy for these institutions. First, we discuss different theories of decision making from which plausible causal mechanisms that may drive a link between transparency and legitimacy may be derived. We find that the common notion of a straightforward positive correlation is naive and that transparency reforms are rather unpredictable phenomena. Second, we test the effect of transparency on procedure acceptance using vignette experiments of representative decision making in schools. We find that transparency can indeed generate legitimacy. Interestingly, however, the form need not be 'fishbowl transparency,' with full openness of the decision-making process. Decision makers may improve their legitimacy simply by justifying carefully afterward the decisions taken behind closed doors. Only when behavior close to a deliberative democratic ideal was displayed did openness of the process generate more legitimacy than closed-door decision making with postdecisional justifications. Adapted from the source document.

We analyze the main rationale for public administrations and political institutions for supplying transparency, namely, that it generates legitimacy for these institutions. First, we discuss different theories of decision making from which plausible causal mechanisms that may drive a link between transparency and legitimacy may be derived. We find that the common notion of a straightforward positive correlation is naïve and that transparency reforms are rather unpredictable phenomena. Second, we test the effect of transparency on procedure acceptance using vignette experiments of representative decision making in schools. We find that transparency can indeed generate legitimacy. Interestingly, however, the form need not be "fishbowl transparency," with full openness of the decision‐making process. Decision makers may improve their legitimacy simply by justifying carefully afterward the decisions taken behind closed doors. Only when behavior close to a deliberative democratic ideal was displayed did openness of the process generate more legitimacy than closed‐door decision making with postdecisional justifications.

Theoretisch