Courts, Social Change and Judicial Independence

Abstract

The diversity and quality of the nine papers presented give an idea of both the broadness and richness of the seminar. Its great originality lies in the wide range of disciplinary and geographical views from which the topic has been considered, including doctrinal, historical, sociological, law-in-context or political science perspectives. The paper by Frédéric Mégret provides a critical assessment of civil society participation in supranational courts indicating a number of possible alternatives in judicial reform. He is followed by Daniel Kelemen’s contribution that questions the extent to which American adversarial legalism’ has been transplanted to the European countries. Loretta Ortiz Ahif then brings a more law-and-society approach to tackle the issue of (social and legal) conditions limiting access to justice in Latin America. Mikael Madsen then turns the attention to the broad historical and social processes in which delegation to courts takes place. Alec Stone Sweet points at the related ‘fiduciary responsibilities’ that weigh upon judges as a consequence of such delegation. Relatedly, Kim Scheppele presents reflections on the “fragility of courts” in contexts of strong populist challenges such as in Hungary. With Mattias Kumm’s contribution, the discussion moves on to the issue of ‘representativeness’ suggesting a useful typology to think thereabout. In this framework, Mark Pollack addresses the question of judicial nomination and how dissent can be organized within international courts. Iyiola Solanke closes the discussion with reflections on possible ways to reconcile representativeness and impartiality in contemporary courts. All along the seminar, a large variety of views have been discussed and many suggestions or recommendations have been put forward. Rather than shaping an unlikely consensus, this joint Policy Paper aims to clarify both conceptually and empirically the wide range of issues at stake in the emerging and evolving role of judges and courts.