Suhong Yang and Shuai Guo on Selection process of judges and members at international courts and tribunals: in search of efficient transparency (JIDS)

"Selection process of judges and members at international courts and tribunals: in search of efficient transparency"
Suhong Yang (Global Academic Fellow), Shuai Guo
Journal of International Dispute Settlement, Volume 16, Issue 3, September 2025
Published online: August 2025

Abstract: Public attention has focused a lot on who the international judges are; however, the transparency of the selection process for judges and members at international courts and tribunals has been of less discussion. Transparency calls for more openness in the stages of nominating, selecting, and appointing judges or members, which in turn opens the door to public oversight of the process and may contribute to a better guarantee of the competence of judges and members. To improve the transparency of the judge selection process, this article comprises a comparative study of the judge selection process at the International Court of Justice, the International Criminal Court, the World Trade Organization Dispute Settlement Body, and the International Centre for Settlement of Investment Disputes. It suggests an account of efficient transparency, which aims to achieve transparency with efficiency and align with the goals of these courts and tribunals.

Raymond Wacks on Complicity or Complacency? Judging Judges in Authoritarian States (The Montréal Review)

"Complicity or Complacency? Judging Judges in Authoritarian States"
Raymond Wacks
The Montréal Review
Published online: June 2024

Courts personify the law. In the more grandiloquent accounts of the legal system, judges are depicted as its custodians, guardians of its values, sentinels of justice and fair play. They embody fairness, evenhandedness, and impartiality. And an independent judiciary is among the hallmarks of the rule of law. The jurist Ronald Dworkin memorably observed that ‘courts are the capitals of law’s empire, and judges are its princes.’

Judges are not, however, always perceived in these lofty terms. In the words of a distinguished English judge:

[T]he public entertain a range of views, not all consistent (one minute they are senile and out of touch, the next the very people to conduct a detailed and searching inquiry; one minute port-gorged dinosaurs imposing savage sentences on hapless miscreants, the next wishy-washy liberals unwilling to punish anyone properly for anything), although often unfavourable.

Judges are, like all of us, tainted by personal predilections and political prejudices. Yet occasionally it is asserted that to acknowledge judicial frailty is, in some sense, subversive, ‘as if judges’, as the illustrious American judge Benjamin Cardozo put it, ‘must lose respect and confidence by the reminder that they are subject to human limitations.’ They are, nevertheless, the archetypical legal institution. Their independence epitomises the very apotheosis of justice, and the ostensible demarcation between legislation and adjudication is one of the most cherished elements of a free society.

Lending legitimacy

Whatever their imperfections, independent judges perform another important role in a democratic society......(Please click here to view the full text of the article)

Benjamin Chen et al on Would Humans Trust an A.I. Judge? More Easily Than You Think (Slate)

"Would Humans Trust an A.I. Judge? More Easily Than You Think"
Benjamin Chen, Alexander Stremitzer, and Kevin Tobia
Slate

Published on 28 February 2023

Introduction: Artificial intelligence judging has become a reality. Last month, a Colombian judge used ChatGPT to generate part of his judicial opinion. Colombia is not alone. Estonia has piloted a robot judge, and the United States. and Canada increasingly use A.I. tools in law.

      These recent events have sparked a debate about “unethical” uses of A.I. in the judiciary. As the technological hurdles to A.I.-judging recede, the remaining barriers are ones of law and ethics.

        Would it be fair to citizens for an A.I. judge—an algorithmic decision-maker—to resolve disputes? 

Ying Sun & Hualing Fu on Judge Quota and Judicial Autonomy: An Enduring Professionalization Project in China (The China Quarterly)

"Of Judge Quota and Judicial Autonomy: An Enduring Professionalization Project in China"
Ying Sun & Hualing Fu

The China Quarterly 

Published on 24 March 2022

Abstract: This article presents the findings of original research on “judge quota” reform. The reform's agenda was essentially aimed at professionalization: by edging out a given percentage of judges, only the better qualified judges would be re-appointed to create a more professionalized judiciary. A key component of the reform was to reduce the level and the intensity of both political and bureaucratic control over judges in adjudication and to decentralize judicial power to the rank-and-file judges, restoring individualized judging while enhancing judicial accountability. This article critically examines the potential and limits of the judge quota reform in the context of incremental legal reform in a party-state.

Symposium Introduction: Conversations with Justices Aharon Barak, Sabino Cassese, and Dieter Grimm (German LJ)

"Introduction: Conversations with Justices Aharon Barak, Sabino Cassese, and Dieter Grimm"
Alec Stone Sweet and Giacinto della Cananea
German Law Journal (2021), 22, pp. 1511-

In the symposium that follows, we present interviews with three of the most important jurists of our time: Aharon Barak (born in 1936), President of the Israel Supreme Court (1995-2006); Sabino Cassese (born in 1935), Justice of the Italian Constitutional Court (2005-2014); and Dieter Grimm (born in 1937), Justice of the German Federal Constitutional Court (1987 to 1999). As a group, each is a contemporary, and they know each other well, not least, as long-time participants of the Global Constitutional Seminar that takes place annually at the Yale Law School. Readers of the German Law Journal will also know that each has been an influential law professor, and made important contributions to government and public commissions. The Justices have served academia in numerous capacities, as authors of books and articles of enormous importance, administrators of major research institutions, and as mentors of generations of law students and young professors. While the interviews make no attempt to cover all matters of importance, or to produce a set of congruent, “parallel” conversations, certain common themes emerge. These include reflections on changes in legal education and mentorship, the status of European and international law in domestic constitutional law, the significance of the constitution and general principles, and the role of dialogues with external courts. In addition, each has published highly personal books on judging, and on constitutional law and courts. Finally, today there are many prominent women who have served on national, European, and international courts, and we hope these interviews will spur further conversations on a wide range of careers and experiences.

Alec Stone Sweet & Giacinto della Cananea in Conversation with Aharon Barak, President of the Israel Supreme Court (1995-2006) (German LJ)

"A Conversation with Aharon Barak (born in 1936, President of the Israel Supreme Court (1995-2006))"
 Alec Stone Sweet and Giacinto della Cananea
German Law Journal (2021), 22, pp. 1512–1525

'A. Before Joining the Supreme Court

A. Barak: I am not sure why I studied law; I doubt there was a good reason for it...

F. Challenges, Past, and Future

A. Barak: ... Judges should not think about backlash. Our job is to take the right decision in law, not to make the other branches happy. There must be friction among the branches—it’s a healthy thing. When the court comes under attacked, it is prohibited to retreat into a bunker. The court must continuously renew its commitments and seek to render judgements that correspond to its usual practices, and with the usual legal tools at its disposal. At the center of this tool-box are human rights, proportionality, and the general principles.

The role of the court is not to defend itself, but to defend democracy. Its goal should be to construct a kind of legal “iron dome,” that protects the state from the missiles deployed to destroy democracy. A judge must act in accordance with constitutional principles, otherwise it will be complicit in the death of the constitutional democracy it has pledged to uphold. Only if the judge is not sure about the proper course of action—only if he has an internal dilemma with himself about the solution to the problem—may he allow himself to let the missile reach its target.'  Click here to read the full conversation.

Alec Stone Sweet & Giacinto della Cananea in Conversation with Sabino Cassese, Justice of the Italian Constitutional Court (2005-2014) (German LJ)

"A Conversation with Sabino Cassese (born in 1935, Justice of the Italian Constitutional Court (2005-2014))"
Alec Stone Sweet and Giacinto della Cananea
German Law Journal (2021), 22, pp. 1526–1540

'A. Training and Academia

S. Cassese: I knew the hard sciences were not for me. I preferred history or philosophy. But a degree in these fields would not open the road to a job. I chose law, then brought my interest in history and philosophy to my legal studies.

                                                        ...

E. Challenges, Past and Future

S. Cassese: ... I share the view that we had an important period in which great progress was made, and now we are experiencing a certain regression. On the other side, one sees the development of a global public sphere, of the kind that Habermas theorized. If an African-American is killed by policemen in an American city, people see it on TV all over the world and the reaction is global. There now exists an ongoing process of “education,” so to speak, in favor of human rights. People are also much more mobile. The world now has more than seven and a half billion people, and they travel, live, and work abroad, migrate. The politics of rights protection can’t be kept strictly national and it never truly was.'  Click here to read the full conversation.

Alec Stone Sweet & Giacinto della Cananea in Conversation with Dieter Grimm, Justice of the German Federal Constitutional Court (1987 to 1999) (German LJ)

"A Conversation with Dieter Grimm (born in 1937, Justice of the German Federal Constitutional Court (1987 to 1999))"
Alec Stone Sweet and Giacinto della Cananea
German Law Journal (2021), 22, pp. 1541–1554
'A. Training and Academia
D. Grimm: There were no academics in my family; I was the first to attend university. At age 18, I was determined to go into politics, and I thought law was the best preparation for a political career...

E. Challenges, Past and Future

Questions: The development of the European courts, too, pose challenges to constitutional law.

There is now a widespread sensitivity to what is sometimes called “national constitutional identity.” The notion is today a legal construct, that gives a structure to inter-court dialogue, both cooperative or conflictual. The BVerfG, of course, has been at the forefront of these developments, from the Solange cases,15 to Görgülü,16 to the recent decision on the European Central Bank. Earlier, you stated that the ultimate issue is whether and when the BVerfG actually uses its powers to declare an EU act ultra vires. The issue has now been engaged, in the BVerfG’s ruling on the ECB, of May 2020.

Dieter: I expected it to happen at some point. Whether the PSPP case17 on the Bank was the best occasion is a different question. The Danish Supreme Court and Czech Constitutional Court did it earlier, but only the German Court’s refusal to follow the CJEU drew wide attention. It is a mistake to judge the ultra vires jurisprudence only from the viewpoint of the efficacy and unity of EU law. By definition, every European ultra vires act withdraws a subject matter from the domestic political process without authorization, thus limiting the range of the national constitution. The CJEU does not understand itself as protector of national democracy. It is also obvious that the Commission and the Council, too, can be the source of ultra vires acts, not just the CJEU. But the CJEU is extremely reluctant to declare European legal acts as ultra vires. consequently, the only safeguards of national democracy are the constitutional or highest courts of the member states.

Question: Looking forward, in the EU, national constitutional courts are now using the preliminary reference procedure more often. And in the ECHR, Protocol no. 16 now permits advisory opinions. Might these procedures help to structure more constructive dialogue among courts.

D. Grimm: That is indeed my hope.'  Click here to read the full conversation.

John Zhuang Liu et al on Precedents and Chinese Judges: An Experiment (Am J of Comp L)

"Precedents and Chinese Judges: An Experiment"
John Zhuang Liu, Lars Klöhn, Holger Spamann
The American Journal of Comparative Law
Published on 30 July 2021

Abstract: We experimentally study the decision-making process of judges in China, where judges are specifically prohibited from citing prior decisions as the basis for their judgments, and where, in past surveys, most judges explicitly stated that precedent played at most a marginal role in their decisions. In an experiment resembling real-world judicial decision making, we find, however, that precedent seems to have a significant influence on the decisions of the participating Chinese judges. Indeed, judges spend more time reading prior cases than statutes, and they typically read precedents before they access the statutes. On the other hand, judges rarely mention the precedent in their reasons. Our findings suggest that the Chinese judiciary operates much more similarly to its homologues in the United States and elsewhere than their written opinions and much folklore would suggest.

Benjamin Chen, Alexander Stremitzer, and Kevin Tobia on Having Your Day in Robot Court (SSRN)

"Having Your Day in Robot Court"
Benjamin Chen, Alexander Stremitzer, and Kevin Tobia
SSRN & the University of California, Los Angeles School of Law, Public Law & Legal Theory Research Paper Series​.

Featured on the Legal Theory Blog  ​
Published in May 2021

Abstract: Should machines be judges? Some balk at this possibility, holding that ordinary citizens would see a robot-led legal proceeding as procedurally unfair: To have your “day in court” is to have a human hear and adjudicate your claims. Two original experiments assess whether laypeople share this intuition. We discover that laypeople do, in fact, see human judges as fairer than artificially intelligent (“AI”) robot judges: All else equal, there is a perceived human-AI “fairness gap.” However, it is also possible to eliminate the fairness gap. The perceived advantage of human judges over AI judges is related to perceptions of accuracy and comprehensiveness of the decision, rather than “softer” and more distinctively human factors. Moreover, the study reveals that laypeople are amenable to “algorithm offsetting.” Adding an AI hearing and increasing the AI interpretability reduces the perceived human-AI fairness gap. Ultimately, the results support a common challenge to robot judges: there is a concerning human-AI fairness gap. Yet, the results also indicate that the strongest version of this challenge — human judges have inimitable procedural fairness advantages — is not reflected in the views of laypeople. In some circumstances, people see a day in robot court as no less fair than day in human court.