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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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Judges or Hostages? The Bureaucratization of the Court of Justice of the European Union and the European Court of Human Rights
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.