Tilko Swalve
  • Postdoctoral Researcher, University of Hamburg

Karlsruhe’s Casino? Estimating Inconsistency in the German Federal Court

Working Paper

Abstract
Do different panels at the German Federal Court apply different legal standards? Several recent studies document disparities between decision-makers in asylum adjudication and sentencing, mostly within the U.S. courts. However, we still know little about inconsistency in adjudication in countries with a civil law tradition, where judges are generally thought to play a more modest role than in common law countries. In this paper, I develop a novel two-step estimator of inconsistency in judicial decision-making. I apply the estimator to an original dataset of more than 22,000 appeals in criminal cases from 1990 to 2016 at the German Federal Court. The results suggest that around 18.5% of appeals (or 4090 cases) would have been decided differently if randomly reassigned to a different panel. Panels disagree the most on whether to reject or partially grant an appeal, assault cases, and appeals filed by the prosecution. The findings have direct implications for policy-makers concerned with the quality of adjudication as well as for the study of judicial behavior in civil law countries.