Home Economics Commitment and cooperation on high courts : a cross-country examination of institutional constraints on judges
WHO IS BEFORE THE COURT?
The high courts we have been looking at mainly hear appeals from lower courts. These courts may be courts of appeal with national scope, such as the Federal Court of Appeal in Canada that hears most matters relating to the federal government’s use of its powers. Others may be more geographically based, as is the case for the UK Supreme Court, which hears appeals from courts in England, Wales, Northern Ireland, and to some extent Scotland. When hearing appeals, then, high court judges will be reacting to how other judges have viewed the case. Not all decisions of high courts, however, are on appeals. Some high courts are also the first court to hear certain cases. For example, the Israeli Supreme Court is the first court to hear administrative law matters, and the Indian Supreme Court the first court to address cases involving certain fundamental rights and disputes between the federal and state governments.
Perhaps not surprisingly, individuals appear most as parties before high courts, with the exception of the United States. Figure 7-4 shows the percentage of cases involving the different groupings of parties. Individuals quite starkly lead the pack as appellants in all countries, with businesses also bringing a high percentage of appeals. Government’s involvement is most prominent as a respondent in high court cases, responding to appeals more than any other party. Individuals and businesses also respond but in general to a much lesser extent. Overall, individuals play a particularly active role in India where they make up the largest percentage of appellants and act as respondents to a greater extent than in the other countries.
As we saw, judges hear not only from the direct litigants but from other parties who want to intervene in the appeal. The various high courts tolerate interveners to very different degrees. In the United States, the Court is extremely lenient in allowing third parties to intervene. It allows for “essentially unlimited
Figure 7-4 Percentage of cases of different parties as appellant and respondent, 1970 to the early 2000s. Individuals by far appealed the most whereas governments were most often the respondents. These percentages were based on the number of decisions with at least one of the particular type of appellant or respondent for all countries. source: HCJD.
amicus participation.” A private party such as an individual or business seeking to intervene must obtain the agreement of the parties to the appeal. If those parties refuse, it may ask the Court for permission to join in. In practice, the
Court almost always gives permission.8 The solicitor general and certain other government representatives do not need permission to intervene in an appeal.9 Figure 7-2 shows that the result of the lenient approach has been a striking growth in interventions.10
For the high courts in Canada,11 the uK,12 India,13 Israel,14 and Australia,15 a party seeking to intervene in an appeal must go straight to the Court for permission. In general the party must identify its position on a relevant issue, and set out why it would be helpful to the Court to allow the party to
As Figure 7-2 shows, despite these similarities in the rules, interveners take part at very different rates across the high courts. The Supreme Court of Canada grants leave to intervene very frequently, and “interveners have been active at an unprecedented level”17 Similarly, interventions rose in the 1990s in the uK, but rates are still much lower than in Canada and the united States.18 In Australia, the rates of interventions also rose, with Justice Kenny noting that interveners are rare, but should be allowed in cases where they have “more than mere intellectual or emotional concern”19 The Indian Supreme Court, on the other hand, had very low rates of interventions.
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