Skip to main content Accessibility help

We use cookies to distinguish you from other users and to provide you with a better experience on our websites. Close this message to accept cookies or find out how to manage your cookie settings.

Close cookie message
×
Hostname: page-component-745bb68f8f-kw2vx Total loading time: 0 Render date: 2025-01-28T23:39:18.338Z Has data issue: false hasContentIssue false

11 - Does Efficiency Trump Legality?

The Case of the German Constitutional Court

Published online by Cambridge University Press:  04 December 2019

By
Christoph Engel
Edited by
Yun-chien Chang
Yun-chien Chang
Affiliation:
Academia Sinica, Taipei, Taiwan
Get access

Summary

The US Supreme Court has the power of certiorari. It may pick its fights. As a beneficial side effect, the court may allocate its resources, in particular the time and energy the justices spend on a case, to worthy causes. In economic parlance, this discretion makes the court more efficient. Efficiency comes at a political cost, though. This discretion also gives the court political power. It may direct its verdict to causes that are politically most relevant, or it may put an issue on the political agenda. Officially German constitutional law does not have certiorari. The Constitutional Court must decide each and every case that is brought. Yet over time the court has crafted a whole arsenal of more subtle measures for managing the case load. This paper shows that it uses these tools to engage in its version of allocating resources to cases. It investigates whether the ensuing efficiency gain comes at the cost of biasing the court’s jurisprudence. The paper exploits a new comprehensive data set. It consists of all (mostly only electronically) published cases the court has heard in 2011. While the data is rich, in many technical ways it is demanding. The paper uses a factor analysis to create a latent variable: to which degree has the court taken an individual case seriously? It then investigates whether observed indicators for bias explain this latent variable. Since the paper essentially investigates a single (independent) case, in statistical terms the findings are to be interpreted with caution. The paper can only aim at finding smoking guns.

Keywords

German Constitutional CourtEfficiencyCase LoadDiscretionBias
Type
Chapter
Information
Selection and Decision in Judicial Process around the World
Empirical Inquires
 , pp. 261 - 286
Publisher: Cambridge University Press
Print publication year: 2019

Access options

Get access to the full version of this content by using one of the access options below. (Log in options will check for institutional or personal access. Content may require purchase if you do not have access.)

References

Ashenfelter, Orley, Eisenberg, Theodore, and Schwab, Stewart J.. 1995. Politics and the Judiciary: The Influence of Judicial Background on Case Outcomes. Journal of Legal Studies 24: 257–81.Google Scholar
Benjamin, Stuart Minor, and Vanberg, Georg. 2016. Judicial Retirements and the Staying Power of US Supreme Court Decisions. Journal of Empirical Legal Studies 13(1): 5–26.Google Scholar
Black, Ryan C., and Spriggs, James F. 2013. The Citation and Depreciation of US Supreme Court Precedent. Journal of Empirical Legal Studies 10(2): 325–58.Google Scholar
Boyd, Christina L., Lee, Epstein, and Martin, Andrew D.. 2010. Untangling the Causal Effects of Sex on Judging. American Journal of Political Science 54(2): 389–411.Google Scholar
Braslow, Laura, and Cheit, Ross E.. 2011. Judicial Discretion and (Un) equal Access: A Systematic Study of Motions to Reduce Criminal Sentences in Rhode Island Superior Court (1998–2003). Journal of Empirical Legal Studies 8(1): 24–47.CrossRefGoogle Scholar
Cameron, Charles M., and Park, Jee-Kwang. 2009. How Will They Vote? Predicting the Future Behavior of Supreme Court Nominees, 1937–2006. Journal of Empirical Legal Studies 6: 485–511.Google Scholar
Carroll, Royce, and Tiede, Lydia. 2011. Judicial Behavior on the Chilean Constitutional Tribunal. Journal of Empirical Legal Studies 8: 856–77.Google Scholar
Choi, Stephen J., Mitu Gulati, G., Holman, Mirya, and Posner, Eric A.. 2011. Judging Women. Journal of Empirical Legal Studies 8: 504–32.CrossRefGoogle Scholar
Clermont, Kevin M., and Eisenberg, Theodore. 2007. Xenophilia or Xenophobia in US Courts? Before and After 9/11. Journal of Empirical Legal Studies 4(2): 441–64.Google Scholar
Eisenberg, Theodore. 1974. Congressional Authority to Restrict Lower Federal Court Jurisdiction. Yale Law Journal 83: 498–533.CrossRefGoogle Scholar
Eisenberg, Theodore, and Miller, Geoffrey P.. 2009. Reversal, Dissent, and Variability in State Supreme Courts: The Centrality of Jurisdictional Source. Boston University Law Review 89: 1451–504.Google Scholar
Eisenberg, Theodore, and Huang, Kuo-Chang. 2012. The Effect of Rules Shifting Supreme Court Jurisdiction from Mandatory to Discretionary: An Empirical Lesson from Taiwan. International Review of Law and Economics 32(1): 3–18.Google Scholar
Eisenberg, Theodore, Fisher, Talia, and Rosen-Zvi, Issi. 2011. Does the Judge Matter? Exploiting Random Assignment on a Court of Last Resort to Assess Judge and Case Selection Effects. Journal of Empirical Legal Studies 9: 246–90.Google Scholar
Engst, Benjamin G, Gschwend, Thomas, Schaks, Nils, Sternberg, Sebastian, and Wittig, Caroline. 2017. Zum Einfluss der Parteinähe auf das Abstimmungsverhalten der Bundesverfassungsrichter–eine quantitative Untersuchung. JuristenZeitung 72(17): 816–26.Google Scholar
Epstein, Lee, Knight, Jack, and Martin, Andrew D.. 2003. The Norm of Judicial Experience and Its Consequences for Career Diversity on the U.S. Supreme Court. California Law Review 91: 903–66.Google Scholar
Freeborn, Beth A., and Hartmann, Monica E.. 2010. Judicial Discretion and Sentencing Behavior: Did the Feeney Amendment Rein in District Judges? Journal of Empirical Legal Studies 7(2): 355–78.Google Scholar
Garoupa, Nuno, Gili, Marian, and Gómez‐Pomar, Fernando. 2012. Political Influence and Career Judges: An Empirical Analysis of Administrative Review by the Spanish Supreme Court. Journal of Empirical Legal Studies 9(4): 795–826.Google Scholar
Hall, Melinda Gann. 1992. Electoral Politics and Strategic Voting in State Supreme Courts. Journal of Politics 54: 427–46.CrossRefGoogle Scholar
Harvey, Anna, and Friedman, Barry. 2009. Ducking Trouble: Congressionally Induced Selection Bias in the Supreme Court’s Agenda. Journal of Politics 71(2): 574–92.Google Scholar
Huber, Gregory A., and Gordon, Sanford C.. 2004. Accountability and Coercion: Is Justice Blind When It Runs for Office? American Journal of Political Science 48: 247–63.CrossRefGoogle Scholar
Keele, Denise M., Malmsheimer, Robert W., Floyd, Donald W., and Zhang, Lianjun. 2009: An Analysis of Ideological Effects in Published versus Unpublished Judicial Opinions. Journal of Empirical Legal Studies 6(1): 213–39.Google Scholar
King, Gary, Rosen, Ori, and Tanner, Martin A.. 2004. Ecological Inference: New Methodological Strategies. New York: Cambridge University Press.Google Scholar
Robinson, Nick. 2013. A Quantitative Analysis of the Indian Supreme Court’s Workload. Journal of Empirical Legal Studies 10(3): 570–601.CrossRefGoogle Scholar
Schubert, Glendon. 1965. The Judicial Mind: The Attitudes and Ideologies of Supreme Court Justices 1946–1963. Evanston: Northwestern University Press.Google Scholar
Segal, Jeffrey A., and Spaeth, Harold J.. 1993. The Supreme Court and the Attitudinal Model. New York: Cambridge University Press.Google Scholar
Segal, Jeffrey A., and Spaeth, Harold J.. 2002. The Supreme Court and the Attitudinal Model Revisited. New York: Cambridge University Press.Google Scholar
Shepherd, Joanna M. 2009. The Influence of Retention Politics on Judges’ Voting. Journal of Legal Studies 38: 169–206.CrossRefGoogle Scholar
Solberg, Rorie Spill, and Lindquist, Stefanie A.. 2006. Activism, Ideology, and Federalism: Judicial Behavior in Constitutional Challenges before the Rehnquist Court, 1986–2000. Journal of Empirical Legal Studies 3: 237–61.Google Scholar
Sunstein, Cass R., Schkade, David, and Ellman, Lisa Michelle. 2004. Ideological Voting on Federal Courts of Appeals: A Preliminary Investigation. Virginia Law Review 90: 301–54.Google Scholar
Thompson, David C., and Wachtell, Melanie F.. 2008. An Empirical Analysis of Supreme Court Certiorari Petition Procedures: The Call for Response and the Call for the Views of the Solicitor General. George Mason Law Review 16: 237–302.Google Scholar
Vanberg, Georg. 2004. The Politics of Constitutional Review in Germany. New York: Cambridge University Press.Google Scholar
Weinshall-Margel, Keren. 2011. Attitudinal and Neo-Institutional Models of Supreme Court Decision Making: An Empirical and Comparative Perspective from Israel. Journal of Empirical Legal Studies 8: 556–86.Google Scholar

Save book to Kindle

To save this book to your Kindle, first ensure [email protected] is added to your Approved Personal Document E-mail List under your Personal Document Settings on the Manage Your Content and Devices page of your Amazon account. Then enter the ‘name’ part of your Kindle email address below. Find out more about saving to your Kindle.

Note you can select to save to either the @free.kindle.com or @kindle.com variations. ‘@free.kindle.com’ emails are free but can only be saved to your device when it is connected to wi-fi. ‘@kindle.com’ emails can be delivered even when you are not connected to wi-fi, but note that service fees apply.

Find out more about the Kindle Personal Document Service.

Available formats
×

Save book to Dropbox

To save content items to your account, please confirm that you agree to abide by our usage policies. If this is the first time you use this feature, you will be asked to authorise Cambridge Core to connect with your account. Find out more about saving content to Dropbox.

Available formats
×

Save book to Google Drive

To save content items to your account, please confirm that you agree to abide by our usage policies. If this is the first time you use this feature, you will be asked to authorise Cambridge Core to connect with your account. Find out more about saving content to Google Drive.

Available formats
×