Judges Or Hostages? The Bureaucratization Of The Court Of Justice Of The European Union And The European Court Of Human Rights, Mathilde Cohen
Dec 2016
Judges Or Hostages? The Bureaucratization Of The Court Of Justice Of The European Union And The European Court Of Human Rights, Mathilde Cohen
Mathilde Cohen
Court staff occupy a critical position in the administration of justice around the world. They typically represent a diverse corps of subordinated professionals whom judges delegate responsibilities for multiple aspects of their adjudicative and administrative functions. The Court of Justice of the European Union (CJEU) and the European Court of Human Rights (ECtHR) are no strangers to this practice. The size and influence of their non-judicial personnel is striking, raising the question of whether judges have become hostages to the bureaucracy in their own courts. Drawing on the emerging field of the sociology of European institutions, this chapter argues that …
The French Prosecutor As Judge. The Carpenter’S Mistake?, Mathilde Cohen
Dec 2016
The French Prosecutor As Judge. The Carpenter’S Mistake?, Mathilde Cohen
Mathilde Cohen
In France as elsewhere, prosecutors and their offices are seldom seen as agents of democracy. A distinct theoretical framework is itself missing to conceptualize the prosecutorial function in democratic states committed to the rule of law. What makes prosecutors democratically legitimate? Can they be made accountable to the public? Combining democratic theory with original qualitative empirical data, my hypothesis is that in the French context, prosecutors’ professional status and identity as judges determines to a great extent whether and how they can be considered democratic figures.
The French judicial function is defined more broadly than in the United States, …
When Judges Have Reasons Not To Give Reasons: A Comparative Law Approach, Mathilde Cohen
Dec 2014
When Judges Have Reasons Not To Give Reasons: A Comparative Law Approach, Mathilde Cohen
Mathilde Cohen
Influential theories of law have celebrated judicial reason- giving as furthering a host of democratic values, including judges’ accountability, citizens’ participation in adjudication, and a more accurate and transparent decision-making process. This Article has two main purposes. First, it argues that although reason- giving is important, it is often in tension with other values of the judicial process, such as guidance, sincerity, and efficiency. Reason-giving must, therefore, be balanced against these competing values. In other words, judges sometimes have reasons not to give reasons. Second, contrary to common intuition, common law and civil law systems deal with this tension between …
Ex Ante Versus Ex Post Deliberations: Two Models Of Judicial Deliberations In Courts Of Last Resort, Mathilde Cohen
Dec 2013
Ex Ante Versus Ex Post Deliberations: Two Models Of Judicial Deliberations In Courts Of Last Resort, Mathilde Cohen
Mathilde Cohen
This Article discusses supreme and constitutional courts’ internal organizational cultures, that is, the way in which justices organize their work and establish informal decision-making norms. Courts of last resort are often presented as exemplary deliberative institutions. The conference meeting, which convenes judges in quiet seclusion to debate, has been glorified as the most significant step in a court’s decision-making process. Based in part on qualitative empirical research, I argue, however, that French, American, and European Justices may not deliberate in the full sense that deliberative democrats have theorized. The Article distinguishes two types of high court deliberations, which I call …
L'Épreuve Orale. Les Magistrats Administratifs Face Aux Audiences De Reconduite À La Frontière, Mathilde Cohen
Dec 2008
L'Épreuve Orale. Les Magistrats Administratifs Face Aux Audiences De Reconduite À La Frontière, Mathilde Cohen
Mathilde Cohen
This article studies a special type of deportation hearings and its status in French administrative courts. Until a 2006 legislative reform, this proceeding was the only one in French administrative litigation giving rise to hearings where all the parties were present, including: the claimants, their counsel, and the representatives of the immigration agency. Each party could set out its case and cross-examine the other party. The paper analyzes the way in which administrative judges deal with this irruption of orality in their work, traditionally dominated by a written procedure, and the meaning they give to the hearing in (re)defining their …
Reason Giving In Court Practice: Decision-Makers At The Crossroads, Mathilde Cohen
Dec 2007
Reason Giving In Court Practice: Decision-Makers At The Crossroads, Mathilde Cohen
Mathilde Cohen
According to liberal democratic theory, public institutions’ practice—and sometimes duty—to give reasons is required so that each individual may view the state as reasonable and, therefore, legitimate. Does the giving of reasons in actual court practice achieve these goals? Drawing on empirical research carried out in a French court, this Article shows that, in practice, reason-giving often falls either short of democracy or beyond democracy. Reasons fall short of democracy in the first case because they are transformed from a device designed to “protect” citizens from arbitrariness into a professional norm intended to “protect” the judges themselves and perhaps further …
