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Judicial action, independence and integrity entering a new decade

Constitutions
Democratisation
Courts
Jurisprudence
Comparative Perspective
Europeanisation through Law
Judicialisation
S31
Benjamin G. Engst
Universität Mannheim
Monika Glavina
Universiteit Antwerpen

Endorsed by the ECPR Standing Group on Law and Courts


Abstract

Having entered a new decade, novel challenges require heightened judicial activity by domestic and international courts. Judicial institutions monitor the legality of political responses to the COVID-19 pandemic, are forced to settle disputes over the electoral outcome in the US, and have become mediators as populism rises worldwide. The nature of these issues draws courts in a politically polarized environment where politicians attack judicial independence; especially, as the trend of democratic backsliding continues. While current events increase the demand for a fair and just judiciary, they also increase the risk of undermining judicial integrity. The implications of these developments require looking at the judiciary's role in different regimes and shed light on the judicial interaction with political players, other courts and society at large. To do so, this section invites scholarship using a wide variety of theories, methods and cases to assess ongoing dynamics in judicial politics. 1. Informal institutions and judicial independence Chairs: Katarína Šipulová, David Kosař (Masaryk University) Last decade brought an unprecedented variety of attacks on judicial independence. While attention is generally dedicated to recommendations and guidelines on how to model political systems to secure judicial independence, emerging scholarship suggests that informal factors play a role too. The attention shifts to de facto judicial independence and the role of formal and informal institutions in protecting democracy. This panel welcomes papers that consider a variety of informal institutions and their impact on judicial independence. Focus is given to the relationship between the presence of informal institutions and court-curbing, as well as the ability of courts to resist attacks on their independence. 2. Legal mobilization under democratic crisis Chairs: Silje Synnøve Lyder Hermansen (Oslo University), Marie-Pierre Granger (CEU) Legal mobilization is a powerful tool for addressing inequalities, broadening rights, and creating policies. The conditions for legal mobilization may change in times of crisis when global politics is confronted with a risk of democratic backsliding. This panel looks at how social movements and interest groups mobilize courts to advance social change, how courts respond to such movements, and how civil actors mobilize law when the judiciary is constrained. It further seeks to understand the conditions and resources that civil actors require to engage in legal mobilization and their implications for the outcome of mobilization. 3. Judicial dialogue among inter- and supranational courts Chairs: Evangelia Psychogiopoulou (ELIAMEP), Clara Rauchegger (Innsbruck University) Scholarship has not yet sufficiently addressed patterns of interaction between different international or supranational courts. This panel focuses on judicial dialogue between different international courts, such as (but not limited to) the CJEU and the ECtHR. It welcomes papers that explore the nature and breadth of judicial dialogue between international courts and questions of whether, how and to what extent international courts engage with each other's jurisprudence. The panel also seeks to examine the effects of judicial dialogue on judicial reasoning and factors that facilitate or hinder judicial dialogue. 4. The politics of international criminal courts and tribunals Chairs: Raphael Oidtmann, Benjamin G. Engst (Mannheim University) Over the last years, international criminal courts and tribunals have evolved into politicized fora of international dispute resolution. Especially the number of international criminal trials characterized by strong political underpinning has increased. This development bears ramifications for the interplay between international law and international politics and diplomacy, pertaining to notions such as immunity for heads of state, cooperation in transnational crime suppression or post-conflict and societal reconciliation. This panel welcomes contributions addressing these and interrelated issues on international criminal courts and tribunals. 5. Europe in national courts Chairs: Philipp Schroeder (Umea University), Monika Glavina (Antwerp University) Historically, national courts have been described as allies of the CJEU. However, recent studies suggest that the relationship between the CJEU and national courts is not always as amicable as earlier scholarship suggested. National courts differ in when and how they engage with the CJEU through the preliminary reference procedure, with some courts diverging from the CJEU’s interpretations of EU law. This panel invites contributions identifying drivers of variation in relationships between national courts and the CJEU and analysing how the CJEU responds when national courts appear reluctant to follow its case law. 6. Mapping and explaining judicial decision-making Chairs: Theresa Squatrito (LSE), Oyvind Stiansen (Oslo University) Judicial decision making is central to the study of law and courts. Yet, how we categorize and measure the decisions of individual judges and judicial majorities and how we can best explain variation in judicial decision making remain open questions. This panel invites papers that seek to develop innovative approaches to measuring judicial decision making and employ these measures to understand the extent to which judicial decision making is explained by policy preferences, strategic considerations, or other factors. 7. Judicial power under legislative and executive threats Chairs: Sivaram Cheruvu (Emory University), Yulia Khalikova (Bremen University) It is well established that courts adjudicate the law but need to rely on the executive to enforce it. However, executives in the US, Hungary, and Poland have come to publicly attack the judiciary and curtail judicial independence through legal reforms and court-packing. Once judges have lost their independence, they can support unconstitutional reforms and aid the consolidation of authoritarian power. This panel looks at how courts maintain their power in an era of democratic backsliding, what tactics legislative and executive powers use to undermine courts’ performance, and what tools courts have to counteract these threats. 8. Environmental litigation and compliance beyond the nation state Chairs: Andreas Corcaci (Goethe University Frankfurt), Andreas von Staden (Hamburg University) Compliance with legal requirements takes place against the diversity of structural and context conditions of different governance levels. While legal frameworks at the national level are dense, EU law implies its own unique compliance setting. Internationally, the sovereignty of contractual partners and questions of sanctioning noncompliance add additional complexity. For example, while environmental tribunals have proliferated at regional and national levels, their role does not translate to supra- or international contexts where compliance is required. This panel welcomes contributions that explore environmental or other litigation causing compliance issues beyond the nation state.

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