Lucky you: Your case is heard by a seasoned panel—Panel effects in the German Constitutional Court

• Published date: 01 December 2022
• Author: Christoph Engel
• Date: 01 December 2022
• DOI: http://doi.org/10.1111/jels.12327

ORIGINAL ARTICLE

Lucky you: Your case is heard by a seasoned

panel—Panel effects in the German Constitutional Court

Christoph Engel

Max Planck Institute for Research on Collective Goods, Bonn, Germany

Correspondence

Christoph Engel, Max Planck Institute for Research on Collective Goods, Kurt-Schumacher-Straße 10, D 53113

Bonn, Germany.

Email: engel@coll.mpg.de

Abstract

Panel effects have been widely studied in randomly composed panels. However, for many

courts, panel composition stays constant. Then judges become familiar with each other.

They know what to expect from each other. Mutual trust may develop. A local culture

may emerge. If rejection is the default, familiarity is likely to help plaintiffs, as familiar

panels can be more effective, and more self-confident. In the German Constitutional

Court, the effect of familiarity on three success measures can be causally identified: suc-

cess on the merits, with the request for a preliminary ruling, or with a procedural request.

Justices experience multiple, exogenous recompositions of their chamber. In the logic of

regression discontinuity, the effect of familiarity on the alternative measures for success

can be identified if these recompositions lead to a clear decrease in familiarity with the

other members of the chamber.

KEYWORDS

familiarity, German Constitutional Court, panel effect, regression discontinuity

INTRODUCTION

Six eyes see more than two. Most jurisdictions rely on this maxim and entrust

important legal decisions to panels of multiple judges. The magic number seems

to be three. It strikes a balance between efficiency and diversity. Judges of differ-

ent background, gender, race, experience and possibly ideological orientation

may be represented. It is easy to define a majority, and hence to avoid an

DOI: 10.1111/jels.12327

This is an open access article under the terms of the Creative Commons Attribution-NonCommercial-NoDerivs

License, which permits use and distribution in any medium, provided the original work is properly cited, the use is

non-commercial and no modifications or adaptations are made.

©2022 The Author. Journal of Empirical Legal Studies published by Cornell Law School and Wiley Periodi-

cals LLC.

J Empir Leg Stud. 2022;19:1179–1221. wileyonlinelibrary.com/journal/jels 1179

impasse. At the same time, compared with yet larger panels, the judicial system

saves resources and may handle more cases with the existing judicial personnel.

Lawyers and political scientists have been keenly interested in the behav-

ioural effects of shifting judicial decision making to a bench of multiple judges.

Yet almost all of the evidence comes from court panels that are composed ad

hoc, often even at random. This obviously helps with identification. Panel char-

acteristics are credibly exogenous. Yet in judicial practice, court panels are often

not formed ad hoc. In the United States, this notably holds for the Supreme

Court. Justices are appointed for life. The European Court of First Instance

1

as well as the European Court of Justice decide in chambers with fixed

composition,

2

as do, for instance, the German

3

and the French courts.

4

Fixed

panels have pragmatic advantages. Benches may specialize on certain areas

of law.

5

Benches may be balanced along lines that might bias outcomes, like

ideological position or gender.

6

But fixed benches do also have a mechanical

effect. The decision-making body stays together for an extended period of

time. This creates familiarity. A rich literature in management, organization

and social psychology has shown that familiarity matters. But how does it

matter for judicial decision making?

If familiarity has an impact on outcomes, this might also hold for juris-

dictions with randomly composed panels. For these panels are composed

from a larger, but not an open set of judges, say all the judges from one of

the Circuits of the US Court of Appeals. The smaller the Circuit, and the

longer two judges have been on the Court, the more it is likely that they have

been sitting on the same panel before. Yet if panels are composed ad hoc,

isolating the causal effect of familiarity is hard. The German Constitutional

Court provides the opportunity to do this. The bulk of cases heard by the

court are constitutional complaints brought by individuals. At least offi-

cially the court does not have the power of certiorari, and indeed hears thou-

sands of cases per year. To manage the caseload, two Senates of eight

Justices for the most part split into panels (‘chambers’)ofthree.Chambers

stay together for a protracted period of time, typically multiple years. Even

if chambers are recomposed, individual justices keep their cases. Chamber

composition varies, between justices, and over time. This creates variance in

1

https://curia.europa.eu/jcms/jcms/Jo2_7038/en.

2

https://curia.europa.eu/jcms/jcms/Jo2_7029/en.

3

See, for illustration, the distribution of judges to Senates at the highest German court in matters of civil and

criminal law, the Bundesgerichtshof,https://www.bundesgerichtshof.de/SharedDocs/Downloads/DE/DasGericht/

GeschaeftsvertPDF/2021/geschaeftsverteilung2021.html;jsessionid=DB53B849220B1D01E695E7B20D5E33EB.

1_cid286?nn=10742208.

4

See, for illustration, the distribution of judges in the Cour de Cassation,https://www.courdecassation.fr/

institution_1/composition_56/.

5

The German Bundesgerichtshof for instance has a Senate specializing on corporate law (II. Senate), and another

on medical malpractice (VI. Senate), see footnote 3.

6

See The German Constitutional Court section for the German Bundesverfassungsgericht.

1180 LUCKY YOU

terms of familiarity. This variance makes it possible to empirically study the

effect of familiarity.

Yet is the degree of familiarity causal for outcomes? Panels do not only dif-

fer by joint experience, but also by the gender composition, the tenure and age

of the justices, and by the political party that has selected them. More impor-

tantly even, the measure of familiarity used in this paper is correlated with some

of these demographic variables. It is therefore important to isolate the effect of

familiarity. This is made possible by the fact that chamber composition regu-

larly changes. These changes are beyond the control of the individual justice,

and only partly predictable. This provides scope for establishing a causal effect

near the point in time when, for the individual justice, familiarity suddenly

drops. It turns out that there is indeed a substantial and significant local effect,

on multiple indicators of success.

Social psychology and organization science have demonstrated a cogni-

tive and a motivational effect of familiarity in multi-person decision-

making bodies. Experienced bodies can handle more work. They can

afford to be more forthcoming with procedural requests of the complain-

ant, although this normally means more work. Experience in deciding

together results in members better understanding and predicting each

other. This increases confidence and provides scope for the development

of mutual trust. On this channel, familiarity empowers the chamber to

take more daring decisions. In the German Constitutional Court, overall

less than 3% of constitutional complains are successful on the merits.

7

Rejection is the default. Holding for the complainant, either on the merits

or with a request for a preliminary injunction, is a salient event that

exposes the chamber to criticism: by other members of the court, the

wider legal community, policy makers or the media. This explains why, in

the German Constitutional Court, complainants benefit from higher famil-

iarity. Multiple indicators of success decrease discernibly and significantly

after the recomposition of a chamber leads to an exogenous reduction in

team familiarity.

LITERATURE

Panel effects across jurisdictions

Up till now, the debate regarding panel effects in courts has been US centric.

Exceptions include Canada (Alarie et al., 2015; Hausegger & Haynie, 2003),

South Africa (Hausegger & Haynie, 2003), Israel (Grossman et al., 2016),

7

For details see The German Constitutional Court and Data sections.

LUCKY YOU 1181