Do Fewer Judges Reach Different Decisions? Evidence from a Procedural Change in Asylum Appeal Decision Making

Abstract

One of many dimensions along which courts differ is panel size. Whereas some courts hear cases en banc, others do so in panels of between nine and three judges or even have two or one judge(s) decide cases. Fueled by pressures to organize procedures more efficiently, one strategy ad- opted by policy-makers has been to reduce judicial panel size. Yet, we have only very limited empirical evidence as to if and how that affects judicial decisions.

This paper investigates whether the introduction of the so-called simplified procedure that effectively reduced the number of judges on a panel from three to two in cases ‘clearly with or without merit’ led to significantly different appeal decisions. Drawing on the experience of the Swiss Federal Administrative Court and a dataset of all asylum appeals that were decided in Switzerland between 2007 and 2015, I show that fewer judges make more restrictive asylum appeal decisions. A fuzzy regression discontinuity design approach suggests that appeals lodged after the introduction of the new procedure and thus decided by one judge with the consent of a second instead of a three-judge panel were much less likely to be granted than comparable cases lodged before the introduction of the simplified procedure. Though perhaps particularly consequential in the field of asylum law, this finding draws attention to the importance of decision-making procedures for the consistency of judicial decisions more broadly.