The Politics of Law and Courts

Courts play vital roles in shaping politics and policy worldwide. Judges decide on matters such as the legality of political responses to the COVID-19 pandemic, whether governments’ inaction to fight climate change violates citizens’ rights, and the limits of religious freedom. At the same time, the authority and independence of many domestic and international courts frequently face challenges. This section invites scholarship scrutinizing the politics of law and courts from different theoretical and methodological perspectives. 1. The Politics of Building Judicial Precedent Chairs: Philipp Schroeder & Theresa Squatrito Judicial precedents may constrain the decisionmaking of other courts, policymakers as well as courts’ future selves. Despite the central role precedent plays in judicial interpretations, the building of precedent remains a lacuna for the study of judicial decisionmaking. The panel invites both empirical and theoretical contributions that examine the mechanisms through which and under what conditions courts build precedent. Contributions may explore courts’ strategic selection of sources and their authoritativeness when building precedent, the determinants of courts’ choice to amend or overrule existing precedents, as well as the types of legal questions and issues courts use to build precedent. 2. The Future of Investor-State Dispute Settlement, Chairs: Tarald Berge & Taylor St John Disputes between foreign investors and host states have long been settled through international arbitration. Currently states are, however, considering new avenues for dispute resolution. Some states have exited the international arbitration system altogether; some have pivoted toward dispute prevention and ombudsman systems; others are attempting to set up a multilateral investment court. This panel invites theoretical, normative, and empirical contributions exploring the dynamics of investor-state arbitration and/or future avenues for dispute resolution between foreign investors and host states. Contributions may explore both the functioning of investor-state dispute settlement, as well as processes that may lead to judicial reform. 3. Judicial Review of Administrative and Political Decisions, Chairs: Karin Leijon & Livia Johannesson Individuals’ right to appeal decisions made by governments and public agencies to courts is considered necessary for an efficient monitoring of the regulatory welfare state. How courts carry out such judicial review over administrative and political decision-making has implications for individual appellants, the allocation of public resources and the legitimacy of the judicial system. This panel invites contributions connected to how courts review procedural and substantive aspects of administrative and political decisions. Contributions may focus on how judges determine individuals’ need for welfare benefits, how judges understand judicial principles such as equality before the law and, how individual appellants experience the court proceedings. 4. Judges and Autocrats Chair: Øyvind Stiansen Scholarship on strategic interactions between domestic and international courts and governments has primarily focused on how such politics unfold in democratic contexts. Currently, several previous democracies are experiencing backsliding and electoral autocracy is now the world’s most common regime form. While court-curbing and attacks on judicial independence is often at the core of autocraticization efforts, courts continue to be at least nominally independent from executives and backsliding regimes may face challenges in international courts. This panel invites panels studying the choices domestic and international courts face in response to autocratization and courts' ability to safeguard democracy, individual rights, and their own independence in authoritarian systems. 5. Implementation of supra- and international environmental law, Chair: Andreas Corcaci This panel addresses the implementation of international environmental law against the background of various dispute settlement systems (international courts; multilateral agreements) and different enforcement mechanisms: formal (quasi-)judicial decisions; informal noncompliance mechanisms (NCMs). Strengthening the role of courts as well as NCMs in resolving environmental disputes constitutes a major societal challenge, one that is made more difficult by repeated attacks from autocratic governments. However, little is known about the connection between legal questions and political issues of implementation. The panel brings together political scientists, legal scholars and other researchers to address the topic from conceptual, empirical, and normative perspectives. 6. Courts and the Public Chairs: Mariana Llanos & Cordula Tibi Weber Courts increasingly try to be transparent. Courts are not only enabling the active participation of societal actors through mechanisms such as public hearings, they are also using social media tools. From a strategic view, courts aim at increasing their legitimacy in order to defend against possible attacks from the elected branches of government. From an ideational perspective, the new conception of the role of the court highlights the importance of openness to society. This panel invites scholars who investigate how courts engage with the public, the motivations for doing so, and the effects on relationship between courts and the other branches. 7. Informal Judicial Institutions Chair: Katarína Šipulová Informal institutions, ranging from legislative norms to clientelism often shape judicial behaviour and decision-making outcomes even more strongly than formal rules. For example, “gentlemen’s pacts” between judicial associations may substitute formal rules governing selection and promotion of judges. They may entrench patronage and vertical as well horizontal gender segregation or allow a smooth court-packing. Politically savvy chief justices can tweak the formal rules and forge alliances with politicians. This panel addresses the existence of informal institutions within the judiciary and explores their effect on judicial governance and decision-making. 8. The CJEU and New Forms of Executive Power Chairs: Anna W Ghavanini & Marta Morvillo The Court of Justice of the EU has held an exceptionally strong position vis-à-vis the other EU institutions and the Member States. However, recent trends have seen the executive gaining ground, through increased reliance on soft law and expert governance, exposing the limits of the judicial role in holding these new forms of public power to account. How have these developments affected the EU judiciary’s ability to review the actions of executive actors? This panel invites both empirical papers examining the exercise of judicial power and theoretical papers addressing the principle of separation of powers within the Union and the CJEU’s role in developing it.