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Case selection and judicial decision-making: evidence from French labor courts


Using a database on French labor courts between 1998 and 2012, we investigate case selection and judicial decision-making. In France, judges are elected at the labor court level on lists proposed by unions, and litigants can first try to settle their case before the judicial hearing. We show that the ideological composition of the court indirectly impacts the settlement behavior of the parties but has no influence on the decision made in court. In addition, parties have self-fulfilling behavior and adapt to institutional rules. When they anticipate long judicial procedures at court, they settle more frequently and only require judicial hearings for complex cases. The duration to decide these complex cases is longer, explaining why they observe (and build their anticipation on) long case duration. Our empirical strategy uses probit, ordered probit and triprobit estimations to control for case selection.

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  1. We focus here on the empirical literature. However, case selection has also led to a large theoretical literature. Surveys for this theoretical literature are provided by Hay and Spier (1998) and Daughety and Reinganum (2012).

  2. For surveys of Supreme Court decison-making, see Songer and Lindquist (1996); Epstein et al. (2013); Epstein and Lindquist (2016).

  3. These courts are first level tribunals. They only deal with individual disputes. Disputes affecting collective labor relationships are dealt by ordinary civil courts (Tribunal de grande instance), only composed of professional judges.

  4. Judges are elected by universal suffrage by all employers and employees registered on the electoral roll (union membership is not required to vote). They are elected through proportional representation at the highest average, without splitting or preferential voting. Elections are organized by section and by college at the court level. The last election was held on December 3rd, 2008. The mandate of the judges was exceptionally extended, so as to think to a new nomination system. Elections for labor courts suffered from high levels of abstention: Only 25.48% of workers participate to the last election in 2008.

  5. CGT is Confédération Générale du Travail/ General Confederation of Labor, CFDT is Confédération Française Démocratique du Travail / French Democratic Confederation of Labor, FO is Force Ouvrière / Worker’s Power, CFTC is Confédération Française des Travailleurs Chrétiens / French Christian Workers’ Confederation, and CFE-CGC is Confédération Française de l’Encadrement-Confédération Générale des Cadres / French Confederation of Professional and Managerial Staff – General Confederation of Professional and Managerial Staff. Other unions are SUD (Union Syndicale Solidaire / Trade Union Solidarity) and UNSA (Union Nationale de Syndicats Autonomes/ National Union of Autonomous Trade Unions), as well as some other independent unions.

  6. In other words, each court is competent for a given geographical area. If a labor conflict arises, the plaintiff cannot choose his court but has to go to the court on which his workplace depends. There are few exceptions to this general rule: for instance, workers doing work at home choose the court of the geographical area of their house.

  7. This stage is supervised by one judge representing employers and one judge representing employees.

  8. Once a decision is made either by a panel of four judges or by a panel with a professional judge, appeals can be brought before the Cour d’Appel (Chambre sociale), composed only of professional judges. Appeals against cours d’appel’s decisions are lodged in the Cour de cassation (Chambre sociale).

  9. Source: The International Labour Organization,



  12. Note that damages for illegal firing is calculated based on the employee’s salary at the date of firing. It does not take into account the duration of the trial in any form.

  13. According to the French Ministry of Justice, 8 out of 10 cases in labor courts come from dismissed workers challenging their dismissal. Other cases are about unpaid wages or unpaid compensations (De Maillard Taillefer and Timbart (2009)). More recently, Serverin and Valentin (2009) show that 91 % of claims are about employees challenging personal dismissals. See Desrieux and Espinosa (2017) for more information about the state of the French labor courts.

  14. Several cases can be grouped (jonction) into a single case in very special circumstances. Joint cases must be nearly identical regarding both facts and legal considerations (same employer, same claims of the plaintiffs, simultaneity of suits, etc...).

  15. For some specific claims, there is no mandatory conciliation phase. This includes: reclassification of a temporary contract of employment, disagreement on the employer’s refusal of days off, dismissal of an elected employee, suits about physical or mental injuries and suits in case of violation of individual rights.

  16. According to the Justice Ministry, the 2002 peak may be caused by the regulations on working time in France that were passed in 2000 (De Maillard Taillefer and Timbart (2009)).

  17. Département is an administrative subdivision of the French territory. Metropolitan France is made up of 95 Départements. We then collect the unemployment rate in the Département of each court. Région is another (and larger) administrative subdivision. Metropolitan France is currently made up of 22 regions. GDP is only available at this regional level.

  18. Note that, for each claim, these variables are collected both at the conciliation (in-court settlement) period and when the claim goes to trial (with the elected judges).

  19. In Fig. 3, “win” (resp. “loose”) refers to the probability that the case is won (resp. “lost”) by the plaintiff without the intervention of a professional judge.

  20. Given the institutional context, this assumption is very likely to hold: the unions play indeed a major role in the election process since they propose the lists of candidates allowed to compete. Therefore, they usually choose candidates who share their beliefs, and elected judges need to follow their instructions to get reelected.

  21. These two unions - sometimes called “non-reformist unions”- are considered as more likely to refuse to negotiate with firm owners, and more prompt to organize strikes. On the contrary, the other unions (“reformist unions”) are more prompt to discuss with firm owners, and to negotiate with them at both the local and the national levels (Mouriaux (2013)). We consider that non-reformist unions have stronger preferences for confrontation.

  22. Unlike the first method, the second one does not group unions into two homogeneous groups (confrontational or not), but allows for more heterogeneity (more or less confrontational).

  23. We use past inter-professional national agreements that unions had the possibility to ratify between 1996 and 2012. Inter-professional national agreements (Accords Nationaux Interprofessionnels, ANI) are country-wide agreements between worker unions and firm owners’ representative organizations. [ (Last visit: January, 2016).]

  24. The main difference between Decision2 and Decision3 lies in the way one considers the referral to a professional judge. If one believes that it mainly results from a tie between pro-employee and pro-employer votes, Decision3 is the most suitable coding. On the other hand, if one assumes that the referral to a professional judge results from legal considerations which are orthogonal to the employee vs. employer debate or is caused by the need of legal clarification, then Decision2 is a more accurate model.

  25. This variable is included for Conciliation and Withdraw, because we assume that, when settling or dropping a case, litigants anticipate their outside option, i.e. litigation, and its associated costs, such as the expected duration.

  26. We choose to display the coefficients of the probit estimations and not the marginal effects as it is usually done in Law and Economics when stuying judges’ decisions. For instance, Garoupa et al. (2011) state: “Usually with these types of econometric models, we should consider the sign and not the magnitude of the estimated coefficients. In other words, we do not assess quantitatively the marginal impact of each explanatory variable on the probability of a judge voting for constitutionality; rather there is only a qualitative assessment (the sign of the coefficient).”

  27. The most natural proxy for the omitted variable would be the proportion of votes devoted to non-reformist unions. Let us recall that seats are assigned through a proportional election at the highest average, so that there can be a slight difference between the percentage of votes and the percentage of seats each union gets. In our dataset, the empirical correlation between the proportion of seats and the share of votes devoted to non-reformist unions is equal to 0.917 for the conciliation stage and to 0.914 for the judgment stage. The percentage of votes would capture the preferences of the population while the proportion of seats would capture the real impact of elected judges. However, the inclusion of the percentage of votes for the judges’ elections is impossible because the election process is too proportional, and therefore generates too much collinearity.

  28. These unobservables were hidden in the error terms of our previous estimations.

  29. It includes all factors not present in our dataset that make an employee more likely to win his/her case.

  30. The absence of statistical significance for Referrals itself is not sufficient to conclude that the Baseline results are solely driven by a selection effect. It might be indeed that the variance of the estimated coefficient becomes larger. However, the coefficient associated to Referral was equal to 0.0898 (\(p<1\%\)) in the Baseline results, and is equal to 0.027 (\(p>10\%\)) in the triprobit estimation. In other words, the magnitude of the average estimated coefficient has been divided by 3.3, which tends to confirm the hypothesis of a selection effect.

  31. The impact of confrontational courts on the average case duration is however unclear. On the one hand, the average duration of litigated cases (i.e. cases heard by the judges) is longer in these courts because of more frequent referrals to professional judges. On the other hand, we observe more settlements and withdrawals in these courts, which shortens the duration to get the dispute solved. On average, the final impact of confrontational judges on case duration (i.e. the average duration of all cases brought to courts) is determined by these two opposite effects.

  32. In 2008, the judiciary map was reformed (Decree \(n^{0}\) 2008-514 of May 29th, 2008): some labor courts were removed, while others took over their competency. The courts that have expanded their geographical competency have received a great amount of new claims after this reform depending on the size of the removed courts (Espinosa et al. (2017b), Espinosa et al. (2017a)). We therefore exclude data after 2008 for the courts that expanded their competency.

  33. All elected judges from the removed courts were reaffected in the courts that took over removed courts’ geographical competency. The number of elected judges has not been affected by the reform. Let us precise that the reform did not modify the composition of receiving courts. The transfer of cases and elected judges’ positions occur at the same time as the elected judges elected in 2008 took their duties.

  34. Note that, because of the 2008 reform described in a previous footnote, the analysis of the 2009 replacement limits to courts that have not been affected by the reform.

  35. Researchers anticipated the possibility that some questions could be correctly answered by low-skilled students and wrongly answered by high-skilled students.


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The authors would like to thank two anonymous referees and Claude Fluet, Nuno Garoupa, Bruno Deffains, Daniel Klerman, Mathieu Lefebvre, Cécile Bourreau-Dubois, Marc Ferracci, Roberto Galbiati and Samuel Ferey for their insightful comments, participants at the seminars in CRED-Paris II, ERUDITE-Paris Est, BETA-Lorraine University and Columbia University, as well as participants to the 3rd International Workshop on Economic Analysis of Litigation, the 32nd Conference of the Journées de Microéconomie Appliquée, the 64th annual Conference of the Association Française de Science Économique, and the 31st annual conference of the European Association of Law and Economics. We are also grateful to two anonymous referees, whose comments greatly contributed to the final version of this work.

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Correspondence to Claudine Desrieux.

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Appendix 1: Tables

Summary statistics for each election between 1997 and 2012 are presented in Tables 8, 9, 10, 11, and 12 .

Table 8 Summary Statistics of the share of seats obtained by each union at the 1997 elections
Table 9 Summary Statistics of the share of seats obtained by each union at the 2002 elections
Table 10 Summary Statistics of the share of seats obtained by each union at the 2008 elections
Table 11 Description of the variables
Table 12 Descriptive statistics at each decision step (corresponding to the regression samples of Table 2)

Appendix 2: Bayesian estimation of ideal points

The Bayesian estimation of ideal points is usually referred as the one dimensional item response theory. Such models originally aimed at measuring students’ performance to a test, and to locate them on a unique dimension. The objective consisted in estimating three sets of parameters: (i) an ability parameter for each student, (ii) a difficulty parameter for each question of the test, and (iii) a discrimination parameter for each question. Bayesian methods were developed to discriminate students according to their ability, by taking into account questions’ difficulty level, and by estimating their ‘relevance’ to correctly discriminate students.Footnote 35

These models have then be used in the political science literature, especially in the case of Supreme Court voting (Bafumi et al. (2005), Martin and Quinn (2002), Martin et al. (2005)), where researchers were willing to locate Justices on a liberal-conservative dimension. Our approach follows this literature: we aim at locating unions on a confrontation propensity axis by investigating their ability to successfully negotiate with firms owners.

More formally, our goal consists in estimating unions’ positions (\(\beta _i\)) on a confrontation propensity axis. To do so, as explained in footnote 18, we use a database on past inter-professional national agreements (ANI). They are country-wide agreements between worker unions and firm owners’ representatives that each union can decide to sign or not. We estimate ANI-specific parameters, i.e. their location on the confrontation axis (\(\alpha _j\)) and their discrimination parameter (\(\gamma _j\)), i.e. their capacity to discriminate unions on the confrontation dimension. The model is defined by a logistic utility model, where the latent utility depends both on unions and ANI parameters:

$$\begin{aligned} u_{i,j}=-\alpha _j + \gamma _j \beta _i + \epsilon _{i,j} \end{aligned}$$

where \(u_{i,j}\) is the utility of union i to ratify ANI j, and \(\epsilon _{i,j}\) is a random component.

Ideal points are assumed to be normally distributed with mean \(\mu _\beta\) and variance \(\sigma _\beta ^2\), and the ANI-specific parameters are assumed to be jointly distributed : \((\alpha _j,\gamma _j) \sim N_2(M,T^{-1})\). In order to avoid additive and multiplicative aliasing, as well as reflection invariance, we set parameters’ priors to default values of the MCMCpackage in R (\(\mu _\beta =0\), \(\sigma _\beta =1\), \(M=0\), and \(T=0.25\)). Moreover, identification requires an additional constraint on the ideal points. Since our goal is to create a confrontational scale, we assume that the CGT, which is usually seen as the least likely to negotiate with firm owners, is more confrontational than the CFDT, which is seen as the most confrontational union. In other words, we constraint the model such that the CGT will get a positive score on the confrontational dimension, while the CFDT will get a negative score on the confrontational dimension. Of course, such a constraint does not claim that the CFDT is not confrontational at all, it only assumes that the CGT is more confrontational than the CFDT.

The first Bayesian estimate yields the results presented in Fig. 4. These results are in line with the classical distinction between confrontational unions (CGT and FO) and the others (CFDT, CGC, CFTC). It reveals however a strong heterogeneity among the two most confrontational unions, which reflects the limits of the first measure (propConfront). Indeed, the two most confrontational unions (FO and CGT) have different intensities of opposition to reforms. We use the results of this estimation to compute the second proxy for courts’ preferences for confrontation (confront).

Fig. 4
figure 4

Results of the Bayesian estimation of unions’ ideal points

The second Bayesian estimate (tv_confront) allows for time-varying preferences. The results of this estimation are given in Fig. 5. They give a similar picture to the first Bayesian estimation but shows that the ideological gap between the two most confrontational unions has varied over time. We use the results of this estimation to compute the last measure of courts’ preferences for confrontation (tv_confront).

Fig. 5
figure 5

Results of the Bayesian estimation of time varying unions’ ideal points

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Desrieux, C., Espinosa, R. Case selection and judicial decision-making: evidence from French labor courts. Eur J Law Econ 47, 57–88 (2019).

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  • Settlement
  • Case duration
  • Judicial proceedings
  • Labor courts
  • Unions

JEL Classification

  • K31
  • K41