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1. Breaking the Principle of Secrecy_ An Examination of Judicial Dissent in the European Constitutional Courts - Bricker - 2017 - Law & Policy - Wiley Online Library.pdf

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  04/09/2018Breaking the Principle of Secrecy: An Examination of Judicial Dissent in the European Constitutional Courts - Bricker - 2017 - Law …https://onlinelibrary.wiley.com/doi/10.1111/lapo.120721/27      A     d     v    e      r    t      i    s     e     m    e     n    t  Law & Policy/   Volume 39, Issue 2 Original Article     Full Access Breaking the Principle of Secrecy: An Examination of Judicial Dissent in theEuropean Constitutional Courts Benjamin Bricker  First published: 08 November 2016 https://doi.org/10.1111/lapo.12072 Cited by: 1The author thanks Paul Collins, Scott Comparato, and Scott McClurg for very helpful comments onprevious versions of this work, and Jakub Wondreys for excellent research assistance. The author alsogratefully thanks the eight interview subjects who took time out of their busy workdays to meet anddiscuss their work. A previous version of this article was presented at the 2015 American Political ScienceAssociation annual meeting in San Francisco. Abstract As “oracles of the law,” judges are trained to provide certainty and guidance within anoften ‐ uncertain legal landscape. Nowhere is this statement truer than in the civil lawtradition, where the idea of legal certainty has been prized as a “supreme value.” Despitethis tradition, dissenting opinions are now quite common within most Europeanconstitutional courts. Using new data from ve countries and interviews withconstitutional court judges and clerks, I investigate factors that contribute to dissent onconstitutional courts. Results indicate that legal and policy characteristics matter, but sodo judicial backgrounds and the issues reviewed. Introduction As “oracles of the law,” judges are trained to provide certainty and guidance within an often ‐ uncertain legal landscape. Nowhere is this statement truer than in the civil law tradition,where the idea of legal certainty has been prized as a “supreme value” in the legal system(Merryman 1985, 48). However, in the European courts, the prize of certainty has often     About  SectionsAccess By UFRN - Universidade Federal do Rio Grande do Norte      04/09/2018Breaking the Principle of Secrecy: An Examination of Judicial Dissent in the European Constitutional Courts - Bricker - 2017 - Law …https://onlinelibrary.wiley.com/doi/10.1111/lapo.120722/27 come at the cost of openness. For example, in her study of the Italian Constitutional Court,Mary Volcansek (2000) recounts how the court's sta burns the voting and deliberationrecords for each case after the court's opinion has been announced. For many years, thistradition of secrecy also included formal requirements that courts produce only one opinionfor the court—no dissenting views were permitted. Public displays of judicial dissent, it wasthought, would remove the perception of certainty in the law and ultimately harm thepublic's condence in law and the courts. However, slowly but surely these rules havechanged, particularly for the courts that exercise judicial review: Most Europeanconstitutional courts now permit judges to issue dissenting opinions, and many judges inthe ordinary court systems are also allowed to express dissent. Yet the academiccommunity has not fully caught up to this change. Instead, the tendency of many scholarsand jurists still is to think of these courts “as a faceless unit” (Merryman and Perez ‐ Perdomo2007, 37), a tendency that has contributed to a general lack of knowledge about the innerworkings of the European courts in general and constitutional courts in particular.This article seeks to shed new light on the issue by examining factors—legal, political,personal, or otherwise—that may contribute to dissent within the European constitutionalcourts. Using new data—over 1,000 cases collected from constitutional courts in Germany,Poland, Latvia, Slovenia, and the Czech Republic—I examine dissent at both the macro level,using court ‐ centered data on judicial outcomes, and at the level of the individual judge. Ialso utilize interviews with seven current and former constitutional court judges and lawclerks to help explain the inner workings of European constitutional courts and to generatetheoretical predictions.Investigating the incidence of dissent in the European courts is signicant for severalreasons. Given the relative secrecy that still exists within most European court systems—forexample, the voting process and vote outcomes on many courts remain secret—examiningpatterns of dissent can provide us with an important window into the inner workings of these courts and the dialogues that exist among European judges working on constitutionalquestions. Further, most bargaining, deliberating, and even opinion writing on the Europeanconstitutional courts actually takes place ex ante —that is, before  any hearing occurs. Thus,this study also provides important insights into processes of deliberation wholly dierentfrom most (but not all) US courts—the locus of most current research on dissent. Morebroadly, by bringing new evidence to bear on the question, this study can also potentiallycorrect age ‐ old misconceptions regarding the practice of dissent in Europe. Finally, thisstudy investigates patterns of judicial behavior in an environment (continental Europe) thatremains underexamined. Exploring theories of outcome creation and patterns of judicialbehavior in new environments can only lead to a better understanding of the broadermotives and methods of judging. 123 Why Dissent? The need for certainty in the law—the public interest in providing clear, intelligible rules thatallow citizens to order their behavior—has long been prized in most major legal systems. In     About  SectionsAccess By UFRN - Universidade Federal do Rio Grande do Norte      04/09/2018Breaking the Principle of Secrecy: An Examination of Judicial Dissent in the European Constitutional Courts - Bricker - 2017 - Law …https://onlinelibrary.wiley.com/doi/10.1111/lapo.120723/27 continental Europe, legal certainty traditionally was realized through a set of rules andpractices, including the maintenance of a mechanical judicial decision ‐ making style and,most important, rules that required judicial panels to produce only one denitive opinionfor the court. And perhaps with good reason: unanimous decisions are viewed asparticularly powerful statements. Chief Justice Earl Warren forcefully advocated forunanimity in Brown v Board of Education  (1954) because of the statement it would send tothe country regarding the injustice of segregation in the United States. In the modern era,Chief Justice John Roberts has long professed a goal of promoting unanimity on the Court, inpart because unanimous opinions are more respected by the public (Rosen 2007). When thecourt speaks with one voice—when all judges sign their name at the end of the opinion—not only is there greater certainty in the law but also the power and legitimacy of the courtitself can be enhanced. In fact, experimental research has found that individuals who areideologically predisposed to disagree with certain court outcomes (regarding abortionrights, for example) are more likely to conclude that those decisions are neverthelesslegitimate if they are produced by a unanimous, as opposed to a divided, court (Zink,Spriggs, and Scott 2009).Why, then, do judges dissent? Previous studies of US courts have found that the decision tole a dissent provides an opportunity to advance important individual interests, notably toinuence jurisprudential change and to express policy disagreements (Epstein, Posner, andLandes 2013; Hettinger, Lundquist, and Martinek 2006). The famous colloquy between  Justices Story and Iredell in Calder v Bull   (1798) regarding the usefulness of natural law inconstitutional decision making shows the importance of separate and divergent opinions tothe creation of new jurisprudential paths. The ideological dimension of dissent is also wellknown: going back more than sixty ‐ ve years, Pritchett (1948) found that dissensus on theSupreme Court was the product of regular patterns of disagreement based on ideologicaldivides. Subsequent studies have only further reinforced the conclusion that the choice todissent has an ideological element, both on the Supreme Court and on the lower courts of appeals (e.g., Epstein, Landes, and Posner 2011). Finally, the decision to dissent also can bestrategic, aimed at publicizing specic issues to invite further review of those claims(Blackstone and Collins 2014).Though studies of US courts have led to a better understanding of why judges issueseparate and dissenting opinions, relatively little is known about the practice of dissent inother environments (see Keleman 2013). A notable exception is Chris Hanretty's (2012, 2015) examination of cases with dissenting opinions from the Spanish and PortugueseConstitutional Courts and from the Estonian Supreme Court. Hanretty uses these dissentingvotes to establish judicial ideal points and to demonstrate the existence of policy ‐ based and jurisprudential cleavages in dierent courts. Still, the specic factors leading to the decisionto dissent in the European apex courts remain to be explored.That patterns of dissent in Europe remain underexplored ground might largely be ascribedto the fact that dissent has been, until very recently, a very uncommon feature in thecontinental European legal systems. Reasons for disfavoring dissenting opinions vary, but 4     About  SectionsAccess By UFRN - Universidade Federal do Rio Grande do Norte      04/09/2018Breaking the Principle of Secrecy: An Examination of Judicial Dissent in the European Constitutional Courts - Bricker - 2017 - Law …https://onlinelibrary.wiley.com/doi/10.1111/lapo.120724/27 most center on the dual needs of ensuring legal certainty and reducing undue politicalinuences.In classic works on the civil law tradition, Merryman (1985) and Van Caenegem (1987, 54) both note the long ‐ standing belief in continental Europe that judges had to be “anonymousand faceless,” lest individual judges develop personal reputations that would undermine theauthority of the court system and weaken the certainty of law. Such ideas retain relevancein the present day. In a 2015 interview, one Polish Constitutional Tribunal justice stressedthis very concern over legal certainty in the court's decisions: when writing court opinions inwhich a dissent will be led, this judge always clearly notes that the majority rulingrepresents the denitive outcome and that any dissenting opinions attached are not law butrather individual views that do not carry legal weight. In contrast to the traditionalanonymity of the civil law judge, legal academics in many systems have developed as theprimary expositors of legal doctrine, shaping and directing the path of civil law jurisprudence (see Siems 2014; Lasser 2004; Shapiro 1981). A related concern regarding dissent focuses on the possibility that such opinions damage judicial prestige by increasing the perception that judges place personal interests, includingtheir own policy views or even personal animus for the other side, above the collectivegood. This fear that the judiciary would intrude into the political world animated not justarguments against public judicial dissent but also larger fears that a politically motivated judicial branch would actively engage in lawmaking to overturn the will of the people—themuch feared  government of judges  that French scholar Édouard Lambert popularized in1921. Though Lambert's views did not stop the creation of a constitutional tribunal in post–World War II France, arguments are still made today that permitting judicial dissent wouldgive incentives for judges to engage in policy ‐ based decision making (e.g., Luchaire 2000).Perhaps unsurprisingly, French constitutional judges, along with judges in Austria, Italy,Belgium, and Luxembourg, cannot issue separate opinions. Based on this history, Ferejohnand Pasquino (2004, 1673) argue that the inability of European judges to create separateopinions has led the European constitutional courts to successfully “avoid[] the kind of ‘politicization’ of judging that is characteristic of American courts.” With a unied opinion forthe entire court, they claim, judges are able to speak as one unit without the need forindividual members to engage in grandstanding or attempt to build their own publicpersonalities. However, as explained below, this blanket statement about Europeanconstitutional courts must be amended: in fact, most judges now can  speak individuallythrough dissenting or separate opinions. Even in systems that still formally preclude dissent,like Italy and France, we occasionally see evidence of disagreements lurking beneath thesurface. Ginsburg and Garoupa (2011), for example, note widely leaked information in theItalian media that Italian Constitutional Court justices had signicant internal disagreementsand a large number of dissenting votes on an important case involving Prime Minister SilvioBerlusconi, despite the formal unanimity of the opinion. 5678     About  SectionsAccess By UFRN - Universidade Federal do Rio Grande do Norte    

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