March 5, 2016

Two New Papers by Mathilde Cohen: on "French Capture" of Linguistic Design of Multinational Courts, and the "Bureaucratization" of the CJEU and ECtHR

Network member Mathilde Cohen (UConn) has alerted us to two new papers, which we understand are stirring some interesting discussions on both sides of the Atlantic.  The first is entitled "The Linguistic Design of Multinational Courts: The French Capture" and is forthcoming in I-Con.  The second is entitled "Judges or Hostages? The Bureaucratization of the Court of Justice of the European Union and the European Court of Human Rights" and is forthcoming in the forthcoming collective volume edited by Fernanda Nicola and Bill Davies, entitled European Law Stories (Cambridge). Both pieces are available on SSRN (here and here respectively) and the abstracts can also be found below.

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This Article discusses the importance of language in the institutional design of European and international courts, which I refer to as “linguistic design.” What is at stake in the choice a court’s official or working language? Picking a language has far-reaching consequences on a court’s composition and internal organizational culture, possibly going as far as influencing the substantive law produced. This is the case because language choices impact the screening of the staff and the manufacture of judicial opinions. Linguistic design imposes costs on non-native speakers forced to use a second (or third) language and confers a set of advantages on native speakers. It has profound implications on judgments as it imports a set of writing conventions that live on even as the institution becomes more cosmopolitan. Using the example of French at the Court of Justice of the European Union, the European Court of Human Rights, and the International Court of Justice, I argue that granting French the status of official language has led French lawyers and French judicial culture to disproportionately influence the courts’ inner workings. This is what I call the “French capture.”

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Court staff occupy a critical position in the administration of justice around the world. They typically represent a diverse corps of subordinated professionals whom judges delegate responsibilities for multiple aspects of their adjudicative and administrative functions. The Court of Justice of the European Union (CJEU) and the European Court of Human Rights (ECtHR) are no strangers to this practice. The size and influence of their non-judicial personnel is striking, raising the question of whether judges have become hostages to the bureaucracy in their own courts. Drawing on the emerging field of the sociology of European institutions, this chapter argues that the two supranational European courts exhibit a number of typically bureaucratic traits, such as organization by functional specialty, hierarchical relationships, impersonality and consistency in decision-making.

What can account for this level of bureaucratization? Along institutional design, I single out as explanatory factors the specific constraints imparted by international adjudication which generate various asymmetries between the judges and the staff. The chapter hypothesizes that the rise of a European court bureaucracy may paradoxically foster elements of non-bureaucratic culture. Judges and staffers are not separated by an invisible (and impassable) wall. Both the CJEU and ECtHR hire domestic judges to work as staffers. At the same time, a growing number of judges are recruited from among the rank of their court’s staff or other European bureaucracies. This growing professional endogamy could make judges captives to their staff, but I suggest instead that it facilitates exchanges across the judge-staff divide, leading to more opportunities for intra-court deliberations.

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