Explaining Judicial Assistants’ Influence on Adjudication with Principal-Agent Theory and Contextual Factors (original) (raw)

Today, law clerks and judicial assistants have an important position in the judicial decision making process. Yet, the legitimacy of their role is regularly questioned. In the discussion on the legitimacy, it is widely assumed that judicial assistants are actively involved in adjudication and influence the outcome of judicial decisions. However, there is still little empirical evidence to substantiate these assumptions. This article contributes to the knowledge regarding the role of judicial assistants in adjudication. It does so by means of conducting an experimental survey among Dutch administrative law district court judges (N = 80). In this survey, we measure the role and influence of judicial assistants in adjudication in three different steps. We demonstrate that judicial assistants are actively involved in adjudication via sound-boarding, preparing bench memos and drafting judgments and have a self-reported and experimentally established influence on the outcome of court cases.

While judicial assistants occupy a central position in all types of court systems, the contribution of these staff members to the process of adjudication remains largely unknown, even though their involvement can have significant effects on the perceived quality and credibility of adjudication. This research aims at unravelling the involvement of this group of judicial officers in judicial decision-making.

Lay judges are citizens with particular knowledge of and experience with the judiciary. The findings of a survey among the lay judges of ten judiciaries are examined in this chapter. It is found that the perceptions of lay judges of judicial independence, their own as well as that of the professional judges, are very similar to the perceptions of the professional judges. In addition, lay judges are most positive about their independence, when they participate in judicial panels together with professional judges and when they are taken seriously by the professional judges. For them, these conditions surpass sitting alone as a judge. Although selection effects may play a role, the results indicate that experience as a lay judge leads to a much higher appreciation of judicial independence than that of (highly educated) citizens in general. This in turn indicates that the views of the general public are too negative about judicial independence.