Research

With democratic backsliding spreading globally, international courts increasingly find themselves serving as democratic guardrails. This task poses a challenge, as national governments may attempt to punish international courts for trying to constrain their backsliding agendas. Since a government’s calculus for attacking a court is likely in- fluenced by public opinion, we consider the impact of partisanship on the extent of public support for backlash against international courts in backsliding democracies. We theorize that support for backlash is driven by more than partisanship alone. For government partisans, support for backlash decreases with support for the international organization to which the court belongs, while for opposition partisans it depends on their commitment to the democratic norms the court’s decision defends. We support our expectations by analyzing original survey data collected from Hungary in March 2022, immediately following a major pro-democracy decision by the Court of Justice of the European Union.

Explanations for the successful expansion and consolidation of the European Union and its legal system have long emphasized the importance of domestic courts sending preliminary references to the Court of Justice. Key to many of these theoretical accounts is the claim that domestic courts are better equipped to compel national governments to comply with EU law than the bloc’s high court, the Court of Justice. Integrating insights from the comparative judicial politics literature into the context of the EU’s preliminary references system, we provide a theoretical and empirical foundation for this claim by arguing that incorporating domestic courts into the EU legal process enhances public support for expansive judicial interpretations of EU law. We go on to argue, however, that this transference of legitimacy depends on citizens’ views of the national and European courts. We support our argument with evidence from a preregistered survey experiment fielded in Germany.

Institutional designers of judiciaries often want to provide the appearance of impartiality. As a result, many collegial courts issue per curiam rulings in which judges’ votes are not public. An extensive scholarship, however, provides evidence that ideology and mechanisms of retention affect judicial decision-making. Do per curiam rulings actively mitigate or provide cover for ideological and career-oriented judicial decision-making? I argue that – when serving as the rapporteur (opinion-writer) – a judge on a civil law per curiam court can steer their panel towards the outcome their appointer prefers. When their appointing government turns over, nonetheless, a judge is not compelled to change their decision-making to be in line with their new government, as per curiam rulings protect them from retaliation. An analysis of decisions at the Court of Justice of the European Union provides evidence for this account.

A successful democratic transition requires citizens to embrace a new set of political institutions. Citizens’ support is vital for these institutions to uphold the burgeoning constitutional and legal order. Courts, for example, often rely on citizens’ support and threat of electoral punishment against the government to enforce their rulings. In this article, I consider whether education under democracy can engender this support. Using regression discontinuity, difference-in-differences, and difference-in-difference-in-differences designs, I find an additional year of schooling after the fall of the Berlin Wall has similar positive downstream effects on East Germans’ support across institutions. Since schooling similarly affects public support for judicial, legislative, and executive institutions, citizens are not necessarily inclined to electorally punish the other branches when they ignore a court’s ruling. This potential inability of courts to constrain unlawful government behavior threatens the foundation of the separation of powers and the survival of democracy.

Under what conditions will international compliance-monitoring institutions pursue violations of international law? The European Commission’s infringement procedure is a multi-step process that culminates at the Court of Justice of the European Union when a member state has allegedly violated EU law. The Commission, however, does not have meaningful enforcement powers, and may potentially spend valuable time and resources on a case only for a member state to continue to not comply with EU law. To manage this opportunity cost of pursuing other violations of EU law, I argue that the Commission will strategically delay advancing a case through the infringement procedure when it anticipates the political conditions will be more favorable for compliance in the future. I provide evidence that the Commission delays infringement proceedings when it expects the election of a more pro-EU or more left-wing government that will be more likely to comply than the incumbent government.

International institutions can create pretrial bargaining procedures to resolve disputes over noncompliance with international law. In this article, we consider how international institutions can improve the efficiency of pretrial bargaining, thereby improving compliance. We use a quasi-experimental research design and difference-in-difference (DD) estimators to analyze the effectiveness of a recent policy initiative in the European Union (EU) — called EU Pilot — that was designed to improve the efficiency of pre- trial bargaining in the EU. By evaluating the effectiveness of EU Pilot, we provide new evidence of a proposed management school solution to noncompliance — proper rule interpretation. By prevent accidental noncompliance, EU Pilot allows the Commission and member states to more quickly process cases involving intentional noncompliance, improving the efficiency of pretrial bargaining in the EU.

Courts regularly delegate tasks to individual or small subsets of judges. While a substantial literature addresses delegation in the context of American courts, less is known about why and how courts delegate from a comparative perspective. With many of the world's high courts using chamber systems by which the court delegates cases to subsets of judges, this limitation of the extant literature leaves a number of empirical and theoretical questions unanswered. We argue that the threat of noncompliance presents one factor influencing the use chambers. From our expectation that cases with a greater risk for noncompliance will not be sent to chambers, we then derive empirical implications for case disposition and the willingness of a court to rule contrary to the legal merits in a case. An empirical analysis of chamber usage in preliminary reference cases at the Court of Justice of the European Union provides evidence supporting our account.

How courts ensure the efficacy of their decisions poses one of the central challenges to the quality of modern liberal democracy. In this article, we consider how the ability of domestic courts to engage with their international counterparts through preliminary reference procedures can further this goal. Arguing that domestic courts use preliminary reference procedures to affect the probability their governments comply with adverse judicial decisions, we construct a formal model of the reference procedure and test a series of empirical implications with a novel dataset of domestic court cases involving the European Union's preliminary reference procedure. We find that courts are more likely to refer cases as the risk of noncompliance increases and that this relationship is conditioned by the level of public trust in the Court of Justice of the European Union and the position of a court in the domestic judicial hierarchy

The European Union increasingly relies on the willingness of citizens to support the delegation of authority from their national governments to European institutions. Major policy crises have the ability to profoundly shape public support and opposition to greater European integration. In this article, we consider the implications of the COVID-19 pandemic for public support of greater European integration. We build on the utilitarian approaches to develop an account of the pandemic’s implications for citizens’ views on the need for more EU-level policy making. We contend that higher levels of concern for COVID-19 correspond to higher support for further European integration. We then go on to argue that this relationship is conditioned by ideology. We find support for our hypotheses using a nationally-representative survey of 4400 German respondents fielded in April and May 2020.

Under what conditions do the institutional features of courts affect the efficiency of judicial decision-making? Examining the Court of Justice of the European Union’s mandate that all judgments be written in French, I argue that francophone judges—i.e. judges from France, French-speaking Belgium, and Luxembourg—write judgments more efficiently than their non-francophone counterparts. Leveraging the institutional feature of the judge-rapporteur and using matching methods, I show that comparable cases with a francophone judge-rapporteur are a month shorter on average than cases with a non-francophone judge-rapporteur. This estimate is robust to scaling the judgments by their word counts. Although I show francophones write judgments with lower lexical diversity on average than non-francophones, existing empirical measures are limited in examining differences in judgment quality. These findings have implications for the efficient processing of cases at the Court of Justice and the potential consequences of adopting a lingua franca in the European Union.

Governments create monitoring entities to ensure that policymakers are working effectively. Increasing transparency in the retention and selection of policymakers, however, may create incentives that lead to sub-optimal outcomes. One such entity is a “merit commission” (also known as a judicial council) that evaluates judges subject to reten- tion and/or selection. How do merit commissions affect judicial behavior? Using a formal model, we show that lower-competence incumbent judges only subject to merit retention will complete cases more quickly at the expense of quality opinion writing, as their productivity is a signal of their effort. Conversely, judges subject to merit selection and subsequent retention will not make the same tradeoff, as it is more costly for a commission to negatively evaluate a judge upon retention after it has already selected them. We provide evidence leveraging the Article 255 panel for (re)appointments to the Court of Justice of the European Union.

The judiciary’s ability to safeguard liberal democracy critically depends on whether government institutions abide by their rulings. Among other constraints, courts face the possibility of the legislature overriding unwanted decisions when adjudicating cases in which legislators have an interest. I argue that this threat heightens when courts’ decisions affect legislative agenda-setters that can prioritize bills favoring override, prompting courts to act strategically in response. Leveraging exogenous variation in agenda-setting power from the six-month rotating terms of the Council of the European Union Presidency, I provide evidence that the Court of Justice of the European Union strategically delays deciding a case when the member state holding the Presidency expresses interest in the case’s outcome. A difference-in-differences design demonstrates that this effect disappeared with the introduction of the Trio Presidency in 2007, which reduced each individual Presidency’s agenda-setting power.

This paper considers the interaction of two prominent global trends: the expansion of international law and the rising politicization of domestic institutions. As international legal processes frequently incorporate domestic institutions, how citizens react to the development of international law may become influenced by their perceptions of those domestic institutions. We argue that involving politicized domestic institutions in the international legal decision-making process increases support for rulings among those that believe domestic institutions are favorable towards their political party but weakens it for those who believe they are unfavorable. The results of a survey experi- ment fielded in Hungary provide partial support for our argument. While we find that opposition partisans withdraw support for a European Union law decision when it is issued by a Hungarian court rather than directly by the European Court of Justice, we find no support-enhancing effect for this treatment among the Fidesz government’s supporters.

We reassess two foundational narratives of European legal integration that appeared to corroborate “end of history” claims in post-Cold War international and comparative politics research. The first narrative asserts that EU law was locked-in by a virtuous cycle of cooperative national courts applying international rules and governments increasingly deferring to judges. The second narrative posits that the enlargement of the EU bolstered states’ commitment to the rule of law and the European Commission’s resolve to act as “Guardian of the Treaties.” Drawing on dozens of recent studies and novel data, we demonstrate that judicial and political conflicts continue to destabilize the EU legal order and that the on-the-ground authority of EU law has become more uneven over time. To overcome teleological theories of a more institutionalized and law-abiding EU, we propose a new agenda anchored in the concept of “intercurrence:” the overlapping and often conflictual operation of politically-embedded legal orders.

Courts’ maintenance of judicial power over the executive and citizenry is critical for the survival of democracy. Lacking the tools of enforcement, courts are often reliant on public support for the exercise of this power. In contrast to existing explanations that emphasize endogenous government-court relations and partisanship, we argue that this support may derive from the design of judicial institutions themselves. We test this argument using Afrobarometer data from 32 countries over seven rounds and original data on Conseils d’E ́tat (councils of state). We find that countries with a Conseil d’E ́tat have lower support for courts’ vertical power over people but find no differ- ences regarding horizontal power over the president. These lasting effects of historical institutional design on support for judicial power have implications for present-day separation of powers politics.

Research assessing judges' political preferences typically focuses on courts that publish individual votes and opinions, yet many courts issue per curiam judgments that do not permit public dissent. To overcome this limitation, we use convolutional neural networks (CNNs) to model the variation in judges' expressed preferences from language in aggregated judgments. Specifically, we apply CNNs to analyze the written judgments of judges-rapporteur and opinions of advocates-general from the Court of Justice of the European Union. Along a pro/anti-EU dimension, we estimate how judgments differ within (1) each case to the advocate-general's opinion, providing a baseline for the case's legal merits, and (2) each judge-rapporteur, which measures how judges alter their writing across cases. Our results provide novel empirical support for theoretic models of European judicial decision-making: more pro-EU opinions driven by the Court, not the advocates-general or judge-rapporteur, are associated with larger chambers and stronger external signals of compliance.

The judiciary is frequently reliant on executive and legislative bodies to implement its decisions. Scholars argue that public trust in the judiciary helps compel the other branches to comply. As noncompliance may erode public trust, courts are sensitive to government threats to not implement their decisions. Public trust, however, is also contingent on a court maintaining a consistent case law, which may require it making unpopular decisions that risk government noncompliance. How can courts manage this tension? I argue that when the legal merits favor a ruling against a government’s preferences and the threat of noncompliance is high a court will provide the government more flexibility in implementing its ruling. This strategy allows courts to build public trust through the appearance of government compliance, while also building trust by advancing case law in a legally consistent manner. An analysis of Court of Justice of the European Union decisions provides evidence supporting this account.