This special issue investigates the role and influence of judicial assistants/law clerks, in different legal systems and of secretaries in arbitral tribunals in Europe. The authors, which have backgrounds in sociology, law, political science, economics and the practice of arbitral tribunals, present original research based on empirical studies using various methods, such as experiments, interviews and analyses of statistical data.
By way of a survey among 80 Dutch administrative law judges, this paper uses principal-agent theory, as well as contextual factors, to explain judicial assistants' influence on adjudication. Principal-agent theory has, thus far, been applied mainly to the setting of the US Supreme Court—to test the hypothesis that judicial assistants influence justices' decisions less, as the political attitudes of assistants and justices differ more. To create a more universal theory to explain judicial assistants' influence, we have derived five other hypotheses from principal-agent theory, which can also be used to explain judicial assistants' influence in other court settings. As expected, we find that judges' managerial role orientation, trust in judicial assistants and favourable risk-benefit perception of assistants' input increase assistants' influence. Contrary to our expectations, we did not find judges' rule of law role orientation and relative experience of assistants to be correlated with assistants' influence. Likewise, none of the contextual factors—panel judgments (vs. single-judge judgments), complexity of court cases and time pressure—are correlated with assistants' influence. While three perceived risks of defection explain the influence that judges allow assistants, contextual factors do not. As such, our study shows that—when operationalised differently—principal-agent theory can be fruitfully applied to settings apart from the politicised US Supreme Court.
The Dutch legislature has recently (2012) altered the legislation for post-conviction revision of criminal cases. The legislature aimed to improve the balance between the competing interests of individual justice and the finality of verdicts, by making post-conviction revision more accessible. In this article we describe the current legal framework for revising cases. We also study how the revision procedure functions in practice, by looking at the types and numbers of (successful) requests for further investigations and applications for revision. We observe three challenges in finding the right balance in the revision process in the Netherlands. These challenges concern: 1) the scope of the novum criterion (which is strict), 2) the appropriate role of an advisory committee (the ACAS) in revision cases (functioning too much as a pre-filter for the Supreme Court) and, 3) the difficulties that arise due to requiring a defence council when requesting a revision (e.g., financial burdens).
