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Ex Ante Versus Ex Post Deliberations: Two Models of Judicial Deliberations in Courts of Last Resort

58 Pages Posted: 20 Nov 2014 Last revised: 19 Feb 2017

Mathilde Cohen

University of Connecticut

Date Written: November 18, 2014

Abstract

This Article discusses supreme and constitutional courts’ internal organizational cultures, that is, the way in which justices organize their work and establish informal decision-making norms. Courts of last resort are often presented as exemplary deliberative institutions. The conference meeting, which convenes judges in quiet seclusion to debate, has been glorified as the most significant step in a court’s decision-making process. Based in part on qualitative empirical research, I argue, however, that French, American, and European Justices may not deliberate in the full sense that deliberative democrats have theorized.

The Article distinguishes two types of high court deliberations, which I call the “ex ante” and the “ex post” models. In the first model, prevalent in the French and European courts, judges draft and deliberate the court’s merits opinion before the case is orally argued and scheduled for the conference meeting. In other words, cases are decided before being decided. The second model is typical of Anglo-American supreme courts, in particular the United States Supreme Court; in this model, justices do most of the deliberative work after the case has been orally argued and a vote on the merits has taken place at the conference. In other words, cases are decided after being decided.

Despite different judicial cultures, one common theme is that in both ex ante and ex post courts, judges tend to decide cases through a succession of multiple small group interactions involving non-judicial personnel rather than a single prolonged face-to-face deliberation. The upshot of the Article is the formulation of a dual-influence hypothesis: a court’s style of judicial opinions may form deliberations as much as deliberations shape opinions.

Keywords: Supreme Court, Constitutional Court, Deliberation, Deliberative Theory, Court Ethnography, Comparative Law, Judges, Clerks, Judging, Courts of Last Resort

JEL Classification: K00, K33, K40

Suggested Citation

Cohen, Mathilde, Ex Ante Versus Ex Post Deliberations: Two Models of Judicial Deliberations in Courts of Last Resort (November 18, 2014). American Journal of Comparative Law, Vol. 62, pp. 401-458 , 2014. Available at SSRN: https://ssrn.com/abstract=2527625

Mathilde Cohen (Contact Author)

University of Connecticut ( email )

65 Elizabeth Street
Hartford, CT 06105
United States

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