Although the 13 United States courts of appeals are the final word on 99 percent of all federal cases, there is no detailed account of how these courts operate. How do judges decide which decisions are binding precedents and which are not? Who decides whether appeals are argued orally? What administrative structures do these courts have? The answers to these and hundreds of other questions are largely unknown, not only to lawyers and legal academics but also to many within the judiciary itself. Written and Unwritten is the first book to provide an inside look at how these courts operate. An unprecedented contribution to the field of judicial administration, the book collects the differing local rules and internal procedures of each court of appeals. In-depth interviews of the chief judges of all 13 circuits and surveys of all clerks of court reveal previously undisclosed practices and customs.

The third chapter describes how the the re-definition of the ECJ’s role from the 1960s onwards has affected its procedural and organisational law. It is well known that through decisions such as Van Gend en Loos and Costa v ENEL, the ECJ contributed to changing its mandate: from protecting the interests of the Member States to aiming to establish EU law as an autonomous and effective legal system. This chapter tells the story of how the Court’s procedure, organisation and decision-making was adpated to effectively exercise this new role. The chapter shows in detail the vast transformation the Court’s organisation and decision-making has undergone. It explains how the role of the ECJ judge was developed from state representative to neutral expert, how an inner circle of ECJ participants gradually formed that plays a central role for the acceptance and dissemination of the Court’s case law and which procedural mechanisms were devised to make ECJ decision-making more hierarchical in order to foster and maintain consistency in the Court’s case law.

The chapter deals with the assignment of cases to reporting judges and judicial formations at ECJ. EU lawyers generally consider the ECJ’s system of case assignment to be one of the most problematic features in the court’s decision-making process. They perceive a strong tension with the right to a fair trial. The aim of this chapter is to understand why the court maintains a system that has been under severe attack for a long time. By closely analysing the practice of case assignment between 2003 and 2019, charting assignment profiles of individual judges, the chapter argues that the ECJ’s assignment system is a key mechanism for the court’s institutional success. It has allowed the court to maintain a sense of common purpose, a strong and persistent idea of its mandate as a guardian of the effectiveness and primacy of EU law. The chapter identifies three key functions case assignment performs. First, supporting jurisprudential stability and continuity by creating an elite group of judges who writes the bulk of the most important ECJ decisions. Second, integrating new ECJ judges through gradually assigning them more difficult cases thereby structuring a learning process for becoming a full-fledged ECJ judge. And third, the ECJ’s system of case assignment has helped to maintain what is generally lost in courts of the ECJ’s size: a place where all twenty-seven ECJ judges and eleven Advocates General are informed on all incoming cases, jointly engage in systematizing the ECJ’s case law and framing the court’s agenda.