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, …
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 …
Truth In Adjudication—A Civil/Common Law Divide, Mathilde Cohen
Dec 2013
Truth In Adjudication—A Civil/Common Law Divide, Mathilde Cohen
Mathilde Cohen
In both common-law and civil-law jurisdictions, judges have developed distinctive customs and techniques to explain and justify their decisions. They may proceed orally from the bench or through the writing and the publishing of judicial opinions or other accompanying documents, ranging from parties’ briefs, to amici curiae, to press releases, and so forth. The two judicial cultures have established their own restrictions on the range of reasons that are appropriate for judges to mention. The purpose of this paper is to ask whether judges aim at truth when they are engaged in these explanatory and justificatory activities. And if they …
Les Cours Souveraines Et Leur Nouveau Public, Mathilde Cohen
Dec 2013
Les Cours Souveraines Et Leur Nouveau Public, Mathilde Cohen
Mathilde Cohen
At the beginning of the Twentieth century, a strong high court, be it national or supranational, represents a guarantee of democracy and rule of law against political parties and other organizations’ particular interests (at the national level) and states (at the international level). The push for reason-giving is a key factor in this new institutional order. Requiring that judges explain their decisions is no longer, or at least not exclusively, a tool for monitoring them and keeping them in check. Quite the reverse, reason- giving has become a legitimatizing factor for judicial power.
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 …
On The Linguistic Design Of Multinational Courts—The French Capture, Mathilde Cohen
Dec 19
On The Linguistic Design Of Multinational Courts—The French Capture, Mathilde Cohen
Mathilde Cohen
This Article discusses the importance of language in the institutional design of European and international courts, which I refer to as “linguistic design.” What is at stake in the choice a court’s official or working language? Picking a language has far-reaching consequences on a court’s composition and internal organizational culture, possibly going as far as influencing the substantive law produced. This is the case because language choices impact the screening of the staff and the manufacture of judicial opinions. Linguistic design imposes costs on non-native speakers forced to use a second (or third) language and confers a set of advantages …
