Clerks influence

[Jonathan Miller]

In the Argentine model, all law clerks of the Supreme Court are 
permanent members of the judiciary.  Each judge will have at least three 
"secretarios letrados" as well as some more junior staff that may help 
out with simple cases as well as clerical functions.  The secretario 
letrado has the rank of a District Court judge and typically has had at 
least a few years of experience working in other courts, the solicitor 
general's office, or in a junior post in the Supreme Court.  Separately 
from these secretarios letrados there are also "secretarios" of the 
Supreme Court with the rank of court of appeals judges, who will also 
have teams of secretarios letrados working under them.

When a case arrives at the Court it will be assigned to either one of 9 
judges of the Court or to a secretario's office for an opinion, which 
will almost always be drafted by  a secretario letrado.  Then that 
opinion circulates among the 9 judges who will either sign or draft 
their own opinion.  The Argentine Supreme Court, while formally 
following the U.S. jurisdictional model, permits what is called the 
"recurso extraordinario por sentencia arbitraria" -- a "constitutional" 
argument that the decision of the lower courts was so arbitrary as to 
violate due process and therefore fall within the Court's jurisdiction.  
While the Court probably grants relief in less than two or three percent 
of these cases, it hears thousands of them, and these cases get decided 
almost exclusively on the basis of the work of the secretrarios 
letrados.  The judges rarely write the first draft of anything, but do 
work closely with their secretario letrados on the drafting of important 
decisions.

While two of the present judges of the Court have now been sitting for 
22 years, some of the secretarios have been there even longer and have a 
lot of internal prestige.  They cannot be fired without cause.

The practical effect of the model is to allow some judges -- but not all 
-- to avoid having to struggle with the technicalities of a decision in 
important cases and turn more to their political judgement.  The ones 
who see themselves as judges focused on the facts of the cases before 
them, are very  busy and are troubled by the amount of delegation, and 
the ones who see themselves in other terms have a lot of time to travel.

Jonathan Miller

Raul Alberto Sanchez Urribarri wrote:

>  Between the USA model (where clerks tend to be brilliant, but relatively 
>inexperienced JDs) and the German model depicted by Prof. Kommers (with highly 
>experienced, career-clerks having a huge influence in judicial decision-
>making), we should find different types of arrangements.  For instance, in 
>Venezuela, every Justice has its own team, probably of 5 to 
>10 lawyers, organized in terms of experience and specialty.  The 'top-rank' 
>clerks, by default, are experienced lawyers who tend to spend most of their 
>careers at the court (and even survive the eventual justices-replacement 
>events).  Some of them started their professional lives in the court and were 
>promoted according to their own expertise.  Others arrive in the Court after a 
>few years of private practice or experience at bureaucratic agencies.  
>On the other hand, the 'lower-rank' clerks tend to be young lawyers, with 
>strong qualifications, and their work is normally supervised by the more 
>experienced clerks.  
>
>I am inclined to believe that this 'mixed' model is followed in other Latin 
>American jurisdictions. I would certainly appreciate comments on this point.  
>It would be interesting to hear from overseas list members, in order to have a 
>better idea of the cross-country variation in this region, and elsewhere.
>
>Raul S.
>
>Raul A. Sanchez Urribarri, LL.M.
>Ph.D. Candidate in Political Science
>Department of Political Science
>University of South Carolina
>Columbia, SC
>
>
>
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