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MANAGERIAL PANEL SELECTION

A chief justice taking a managerial approach to setting panels could be concerned about a number of different effects of who hears appeals. She could be concerned about hearing the most appeals possible, or at least increasing the number of decisions rendered. There is a cost to assigning larger panels—fewer appeals can be heard, all other things being equal. If a chief justice wished to select panels to optimally allocate the court’s resources, she would assign smaller panels to very easy and very hard appeals, because very easy and very hard cases do not benefit as much from adding judges to the panel compared to cases of intermediate difficulty.[1] Consider a case so hard that it is essentially a flip of the coin—adding an extra judge may not give much return in terms of getting the right answer but it will have a cost in terms of appeals that he cannot hear.[2] Alternatively, the chief justice could be concerned about ensuring that the workload is not overly burdensome and is spread evenly across the judges on the bench. She may set panel size and who sits on an appeal based on what other cases are on the docket at the particular time or are coming up in the future. If we think back to our framework in Chapter 2, the chief justice may be concerned that if the workload gets too heavy, his justices may be less happy or satisfied or they may spend less time on each judgment.

Setting smaller panel sizes to maximize the number of appeals heard or to spread the workload evenly across judges also has a potential cost. The more important the decision, all else being equal, the greater the social benefit in getting the answer correct. As panelists are added, the majority’s chances of reaching the correct decision increases assuming each judge has a greater than 50 percent chance of getter the “correct” answer.[3] Therefore, a chief justice who seeks to allocate the court’s resources to maximize social benefit would assign larger panels to more important cases. In addition, if she sets a larger panel in an important case, the public may be more likely to accept the result as a large panel would give the impression that the decision represents the views of a larger proportion of the court.

A chief justice clearly would also care about improving the quality of decisions. A managerial chief justice would want appeals to be heard by judges with expertise in the relevant law, so far as possible. Judges with a greater understanding of a particular area of law may be able to decide such appeals faster and perhaps are more likely to be “correct.”[4] Similarly, a chief justice may appoint a judge to hear a case from her home region in some cases. This might have the advantage of exploiting a judge’s expertise in that region’s laws (which is particularly relevant in federal states) and also of potentially increasing the decision’s legitimacy for the residents of the region in question. For example, in Canada, the province of Quebec’s private law is based on the civil code, as distinct from the common law system used by the rest of Canada. As judges from Quebec are generally experts in civil law, in order to take account of both expertise and regionalism, the chief justice may assign justices from Quebec to private law cases originating from Quebec.[5]

We therefore have the following hypothesis related to the managerial approach to panel selection:

H1: Panel size should vary with factors such as the importance of the case

and experts in particular fields should be overrepresented on panels that hear

appeals in these particular fields.

More judges may be assigned to more important cases, in part because of concern about gaining acceptance of the result. If all judges participate in the decision, the parties and the public may see the result as more legitimate and having greater weight. As a very broad division, we could imagine civil rights as being seen as more important than criminal, economic, or other cases. However, looking at our data for the period 1970 to the early 2000s, only Canada and India had a higher average panel size for civil rights appeals. India had an average panel size of two judges for all types of cases except civil rights cases for which the average panel size was three judges. Canada had the greatest differentiation in panel size with civil rights having the highest average panel size (eight judges), followed by criminal (seven judges) and then economic and other (both with an average of six judges). The difference for India is likely at least partially due to the Court hearing constitutional cases in larger panels (often of five judges). The united States, which hears appeals en banc, does not differentiate across areas of law, having an average of nine judges hearing civil rights, criminal, economic, and other cases. The uK and Australia were also consistent in panel size across all areas of law, with the uK House of Lords hearings appeals with an average of five judges on the panel and Australia seven judges.

The lack of variety in panel sizes in most countries is at least inconsistent with the notion that the chief justice or the president varies the size of the panels for managerial reasons generally. Is there any evidence that he varies the composition to suit the nature of the case (rather than to meet some policy outcome) in those countries where panel size does vary? There is some. In Canada, Chief Justices Dickson and McLachlin were more likely to assign experts to panels within their areas of expertise.[6] Chief Justice Lamer, on the other hand, appeared to tend to leave experts off panels within their areas of expertise, although this result was driven almost entirely by his tendency to leave himself off panels deciding criminal appeals even though he was an expert in criminal law.[6] Chief Justice Lamer may have felt he had such a significant workload independent of deciding appeals that he had a high opportunity cost of sitting on a panel.[6] In addition, as he was one of the most liberal judges in criminal law, he may have intentionally left both himself and Justice L’Heureux-Dube, who was extremely conservative in criminal law issues, off criminal law panels in order to achieve balance and avoid polarization. The fact that both Lamer and L’Heureux-Dube had workloads that were lighter than the other justices during the period 1992-1997 could be evidence of this behavior.[6]

In India, a small subset of judges were more frequently assigned to speech cases, which suggests that there may be a certain degree of specialization on the Court.[10] For example, 12 out of the 50 judges appointed to the Indian Supreme Court in the 2000s sat on more than 50 percent of the speech cases during that decade, with similar patterns in other decades starting from the 1950s.[11] Unfortunately, there is no independent evidence, beyond frequent assignment to speech cases, of any actual expertise possessed by these judges. Although chief justices on the Indian Supreme Court may be assigning speech experts to speech cases, these judges may in fact have no special expertise in speech cases at all. However, even if these justices had no expertise in speech cases before being appointed to the Court, they may acquire such expertise if they are more frequently assigned to speech cases.

In Israel, cases from 1999 to 2002 appear to have been allotted to judges in part based on their fields of expertise.[12] For example, during this period, Justice Levi, an expert in criminal law, rendered 30 of the 54 criminal cases.[13] Meanwhile, Justice Rivlin decided eight cases relating to automobile insurance, a subject on which he had authored a leading book.[13] However, this trend may be time-bound, as cases seemed to be randomly assigned from 2003 to 2005. Judges appointed after 2003 seemed to have their docket divided equally among civil, criminal, and constitutional cases regardless of their expertise.[13]

Therefore, there is some limited support for the notion that chief justices of high courts take expertise into consideration when assigning judges to panels. However, not much empirical work has been done on this issue. An alternative take that we turn to now is that the selection of judges was based not on their expertise but on their policy preferences.

  • [1] Alarie et al., “Panel Size,” supra note 9 at 9.
  • [2] Alarie et al., “Panel Size,” supra note 9 at 11 (the notion that there are “correct” answers toevery legal question is not without controversy). See Alarie et al., “Panel Size,” supra note 9 at6 for further discussion.
  • [3] Alarie et al., “Panel Size,” supra note 9 at 7.
  • [4] Alarie et al., “Panel Size,” supra note 9 at 11.
  • [5] Relatedly, the chief justice could be concerned about the workload and experience of newjustices to the court. She may seek to minimize the opportunity cost of assigning a justice to apanel, where the opportunity cost is the lost social benefit from assigning a justice to one caseand thus potentially not hearing a different case, or performing another function. The opportunity cost of assigning a first-year justice to a panel is probably higher, as a newly-appointedjudge is less acclimated to the court’s work and is likely capable of doing less work overall.Likewise, a chief justice generally has administrative responsibilities in addition to hearingappeals, which increases her opportunity cost of participating in a panel. She may thereforeassign herself to fewer panels. Alarie et al., “Panel Size,” supra note 9 at 7.
  • [6] Alarie et al., “Panel Selections,” supra note 37.
  • [7] Alarie et al., “Panel Selections,” supra note 37.
  • [8] Alarie et al., “Panel Selections,” supra note 37.
  • [9] Alarie et al., “Panel Selections,” supra note 37.
  • [10] Abhinav Chandrachud, “Speech, Structure and Behaviour on the Supreme Court of India”(2012) 25:2 Columbia Journal of Asian Law 222 at 251 [Chandrachud, “Speech Cases”].
  • [11] Chandrachud, “Speech Cases”, supra note 47 at 250.
  • [12] Blum, supra note 1 at 34.
  • [13] Blum, supra note 1 at 35.
  • [14] Blum, supra note 1 at 35.
  • [15] Blum, supra note 1 at 35.
 
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