Seminar with David Kosar

Judicial Overstay: Meddling with the Tail End of Judicial Career

While several preeminent comparative law scholars have recently examined the phenomenon of executive overstay, there is little discussion in the academy about the equally troublesome and arguably more complicated phenomenon of “judicial overstay” – which broadly refers to when a judge sits on the bench for longer than original conditions would have allowed. To be sure, any inquiry into judicial tenure across different jurisdictions will be both hyper-complex and multifaceted. Whereas presidential term-limits are a foundation of constitutions around the world with relatively little variation, limitations on judicial tenure are far more diverse, and complex, across different countries as well as between different courts, and tiers of courts within national jurisdictions. Amidst this complexity, this article is the first to systematically describe, conceptualize, and assess the phenomenon of judicial overstay in comparative perspective.

The article highlights three primary considerations at stake in starting a judicial overstay discussion. First, as a descriptive matter, we illustrate that judicial overstay occurs in common law as well as civil law countries all around the world and both in consolidated democracies and transitioning or hybrid regimes. Moreover, it also takes place at international courts. Beyond the countries whose constitutions supply a mechanism for allowing judges to overstay their original term, judicial overstay implicates a host of other countries’ judges at different levels and in different courts. Judicial overstay is thus far from a niche phenomenon. Second, as a conceptual matter, we illustrate that judicial overstay consists of seven different types. These types include: abusive overstay, inadvertent overstay, transitional overstay, task-oriented overstay, hybrid overstay, instrumental overstay, and “golden parachute” overstay. Thirdly, we illustrate that judicial overstay can serve both noble and ignoble purposes, and introduce an analytical toolkit for how to evaluate judicial overstay across time and space. To this end, we introduce 5 spectrums along which judicial overstay may occur, with corresponding policy implications. The spectrums are: (1) ex lege versus contra legem overstay; (2) political context; (3) short overstay versus long overstay; (4) individualized versus collective overstay; and (5) backsliding-oriented versus frontsliding-oriented overstay.

By conceptualizing of judicial overstay around the world, we do not intend to pinpoint any one ideal balance. Rather, we more modestly seek to stress what we consider the core considerations at play and illustrate that judicial overstay deserves more comparative analysis and systemic evaluation. The phenomenon of judicial overstay necessitates further discussion because it implicates basic discussions surrounding the fundamental tenets of constitutional theory, not least of which includes term limits, the separation of powers and the principle of limited government.

Speaker bio

David Kosař (M.A. (Brno), LL.M. (CEU), J.S.D. (NYU) is Professor of Constitutional Law and Co-Director of the Judicial Studies Institute at Masaryk University in Brno. He authored “Perils of Judicial Self-Government in Transitional Societies” (CUP, 2016), co-authored “Domestic Judicial Treatment of European Court of Human Rights Case Law: Beyond Compliance” (Routledge, 2020), and edited the special issue on “Judicial Self-Governance in Europe” (German Law Journal, 2018, Vol. 19, No. 7, pp. 1567-2188). He has published in I-CON, EuConst, AJIL, and EJIL. David’s research interests include comparative constitutional law, constitutional theory, judicial studies, political rights, and transitional justice.

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