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Bryan W. Marshall
The U.S. Congress has broad constitutional powers to shape foreign policy. However, Congress rarely shapes foreign policy as an equal partner with the president. Politics has the potential to enhance or lessen Congress’s role. What explains changes over time in congressional power in foreign policy? Why does Congress assert itself on some issues but less so on others in U.S. foreign policy? What strategies or tools does Congress employ to shape the nation’s foreign policy? The lens of New Institutionalism, two presidencies, and presidential unilateralism connect in useful ways to help explain these kinds of key questions in foreign policy. They offer scholars a future framework to continue to enhance theories explaining variation in congressional assertiveness in foreign policy.
The study of constitutionalism often begins with the question of what a constitution is. Sometimes the term refers to a single legal document with that name, but the term “constitution” may also refer to something unwritten, such as important political traditions or established customs. As a result, scholars sometimes distinguish between the “Big-C” constitution, that is, the constitutional document, and the “small-c” constitution, the set of unwritten practices and understandings that structure political life.
Constitutionalism is typically associated with documents and practices that restrict the arbitrary exercise of power. Most constitutions contain guarantees of rights and outline the structures of government. Constitutions are often enforced in court, but nonjudicial actors, like legislatures or popular movements, may also enforce constitutional provisions.
The relationship between democracy and constitutionalism is not at all straightforward, and it has received an enormous amount of scholarly attention. Constitutionalism seems to both undergird and restrain democracy. On the one hand, constitutions establish the institutions that allow for self-government. On the other, they are often said to restrict majoritarian decision-making.
Related to this question of the relationship between constitutionalism and democracy are questions about how constitutions change and how they ought to change. Can written constitutions change without changes to the text, and can judges bring about these changes? Do extratextual changes threaten or promote democracy?
Finally, not only do individual constitutions change, but the practice of writing constitutions and governing with them has also changed over time. In general, constitutions have grown more specific and flexible over time, arguably, allowing for a different kind of constitutional politics.
Research on constitutional law has come in different waves mirroring the development of states in recent decades. While the decolonization period of the 1960s still kept the old ties of constitutional “families,” comparison based on such ties has become ever less persuasive since the 1980s wave of constitution making following the fall of the Berlin Wall. Research about de facto and de jure constitutional law now tends to embrace institutional details like judicial review powers and procedures of direct democracy. The field of comparative constitutional law is controversial both in methods and substance. It still lacks a consistent framework of comparative tools and is criticized as illegitimate by scholars who insist on the interpretive autonomy within each constitutional system.
Research in the area of fundamental rights has to deal with long-lasting controversies like the constitutionality of the death penalty. Bioethical regulation is another new field where constitutional positions tend to diverge rather than converge. Embryonic stem cell research, therapeutic cloning, pre-implantation genetic diagnosis, and surrogate motherhood are examples from biotechnology and reproductive medicine where constitutional scholars disagree about what, if anything, constitutional law can contribute to provide a basis or limit for regulation. With the worldwide rise of constitutional courts and judicial review, the standards for the interpretation of fundamental rights become more important. Legal scholarship has worked out the differences between the rule-oriented approach associated with Anglo-American legal systems versus the principle-based approach common to continental Europe.
The Constitutional Treaty, which attempted to establish a constitution for Europe, never went into force because of “no” votes in referendums in France and the Netherlands. It did not involve far-reaching changes in what the European Union does, nor did it revolutionize how the institutions work. The pillar structure of the existing treaties was replaced with a single Union, but without fundamentally changing how foreign, security and defense policies were decided. A “foreign minister” was created that merged the roles of High Representative in the Council and Commissioner for External Affairs, and the European Council was established as a separate, treaty-based institution. A simple double majority qualified majority voting (QMV) procedure was introduced in the Council, and the use of QMV was extended to many more policy areas.
Given these modest reforms, what was particularly remarkable about the Constitutional Treaty was how it was negotiated. In contrast to previous major treaty reforms, the Constitutional Treaty was prepared by a more inclusive, parliament-like convention that was composed of representatives from national parliaments, the European Parliament, the European Commission, and member state governments. Although the European Convention was followed by a more traditional intergovernmental conference (IGC), the draft produced by the Convention surprisingly formed the status quo during the IGC. Therefore, the use of the Convention method to prepare treaty reforms sparked considerable interest among scholars who have explored how the change impacted who won and lost in the negotiations, and what types of bargaining strategies were most effective.
Gabriel L. Negretto
Constitution-making has been a central political activity in the modern era. Enacting a new constitution was an essential ingredient in the foundation of republics, the creation of new states, the inauguration of democratic regimes, and the reequilibration of democracies during or after a political crisis. Constitution writing has also become a crucial part of the process of overcoming a legacy of violent internal conflict and a component of authoritarian regimes that seek to gain legitimacy by emulating the formalities of representative democracies. This article surveys the most important concepts and issues related to the comparative analysis of constitution-making. Although it draws examples from constitutions made in a wide variety of settings, special attention is paid to constitutional texts adopted or implemented under competitive conditions.
Several African countries are currently engaged in the constitution-making process. In Africa, constitution-making usually takes three phases. The first phase took place at independence in the 1960s and was typically led by the colonial power. Constitution-making during this phase was part of the decolonization process. In the case of former British colonies, the independence constitution was British legislation which constituted the independent state. The second phase was from independence to 1989. During this phase, constitution amendments were made to the independence constitutions designed to concentrate power in the presidency. This was the era of authoritarian governments in Africa which culminated into one-party state systems of governance. The third phase, which runs from 1989 to the present, is associated with the worldwide wave of democratization. During this period, constitution-making has centered on rebuilding the political community as well as structures that had been distorted by political manipulation and violence during the era of authoritarian rule. This third phase is also marked by promoting the participation of citizens in the affairs of their own countries and the accountability of governments. A well-designed constitution can promote these objectives. In addition, inclusiveness and peaceful settlement of conflicts can be seen as a vehicle for national dialogue, good governance, and the consolidation of peace.
William R. Thompson
Unlike many topics in international relations, a large number of models characterize interstate rivalry termination processes. But many of these models tend to focus on different parts of the rivalry termination puzzle. It is possible, however, to create a general model built around a core of shocks, expectation changes, reciprocity, and reinforcement. Twenty additional elements can be linked as alternative forms of catalysts/shocks and perceptual shifts or as facilitators of the core processes. All 24 constituent elements can be encompassed by the general model, which allows for a fair amount of flexibility in delineating alternative pathways to rivalry de-escalation and termination at different times and in different places. The utility of the unified model is then applied in an illustrative fashion to the Anglo-American rivalry, which ended early in the 20th century.
Constructivism in the social sciences has known several ups and downs over the last decades. It was rather early successful in sociology but hotly contested in international relations. Oddly enough, just at the moments it made important inroads into the research agenda and also became accepted by the mainstream, the enthusiasm for it waned, and many constructivists—as did mainstream scholars—moved from the concerns of “grand theory” or even “meta-theory” toward “normal science,” or experimented with other (eclectic) approaches, of which the “turn to practice” is perhaps the latest manifestation.
In a way, constructivism was “successful” on the one hand by introducing norms, norm-dynamics, and diffusion; the role of new actors in world politics; and the changing role of institutions into the debates, while losing, on the other hand, much of its critical potential. The latter survived only on the fringes—and in Europe more than in the United States. The Copenhagen school, building on the speech act theory, engendered at least a principled discussion of security studies, even if its use of speech acts was too simplistic.
In the United States constructivism soon became “mainstreamed” by having its analysis of norms reduced to “variable research.” Similarly, while the “life cycle of norms” apparently inevitably led to norm cascades and “boomerangs,” “norm death,” strangely enough, never made the research agenda, despite the obvious empirical evidence (preventive strikes, unlawful combatants, drone strikes, extrajudicial killings etc.).
The elective affinity of constructivism and humanitarianism seemed to have transformed the former into the enlightenment project of “progress,” where a hidden (or not so hidden) teleology of history à la Kant tends to overwhelm the analysis and thus prevents a serious conceptual engagement with both law and (inter-) national politics. This bowdlerization of constructivism is further buttressed by the fact that none of the “leading” U.S. departments has a constructivist on board, ensuring thereby the narrowness of conceptual and methodological choices to which the future “professionals” are exposed. The engagement with concepts and language, which “first generation” constructivists introduced, is displaced again by “ideal theory” (both in terms of deductive reasoning based on “unrealistic” assumptions and in the “clarification” of abstract principles à la Rawls), or by the search for “algorithms” hidden in “big data.”
Most constructivist work in IR has attempted to account for very general outcomes in the international system, most notably the well-known research of Alexander Wendt. Whether we live in a “Kantian,” “Lockean,” or “Hobbesian” world, for instance, is in a sense a socially constructed thing rather than flowing from some inevitable structure or theory of human nature. Nevertheless, some important constructivist work has focused on more specific foreign policy outcomes, research that is examined here in depth. Constructivist analyses tend to focus on “how possible” questions rather than attempting to “explain” particular decisions, and this offers a useful addition or corrective to more traditional analyses of foreign policy. They also attempt to understand the general foreign policy orientations of states, often relying on notions of culture, role, and identity.
But such approaches have not yet fully matured into comprehensive approaches to foreign policy, in at least two senses. First of all, current constructivist approaches are somewhat limited by a focus on the social dimensions of foreign policy rather than individual ones, being sociological rather than psychological in nature. This is sometimes not an issue, but it becomes a problem when variation between decision makers with the same social identity is the object of interest or where norms are in conflict with one another. Secondly, there have been relatively few attempts to turn constructivism into a normative theory. Arguably, in order to become a fully rounded theory (as opposed to a loose framework), constructivism needs a mechanism by which it can influence actual decision makers, very few of whom currently describe themselves in opinion polls as being constructivists, as opposed to realists or liberals.
And yet both of these problems can potentially be remedied. Firstly, constructivist approaches may be combined with psychological approaches that supplement their sociological focus. Both constructivism and the psychological approach to decision making are ideational in nature rather than material; in other words, they share the belief that what people think is “out there” is often more important than what actually is. Indeed, the psychological approach to foreign policy provided a major source of inspiration for the early constructivists. Secondly, constructivist approaches can offer policy makers prescriptive advice as to how they should or ought to behave. After reviewing the literature on understanding foreign policy outcomes, this article suggests the outlines of an applied constructivism that decision makers in government would find positively useful. There is a Realpolitik and an Idealpolitik, but can there be a “Konstruktpolitik”? At least six principles might guide the development of normative constructivism. Chief among these is the axiom, “if you can’t change the physical, change the social.” Other principles include the effort to initiate “norm cascades,” the encouragement (or discouragement) of self-fulfilling beliefs and self-negating beliefs, acceptance of the role of agency, and the conscious use of argument and language as tools of persuasion.
Matthew P. Motta and Erika Franklin Fowler
Political advertising, especially negative advertising, is a prominent feature of contemporary political campaigns in the United States. Campaigns use advertising strategically to persuade citizens their candidate is preferable to the alternatives; to mobilize like-minded supporters to get out to the polls to cast a ballot for their candidate; and to acquire citizen-personal information, so they can more effectively target individuals with appropriate persuasive or mobilizing messages. Online advertising is growing, but television advertising volume has largely been on the rise, too, with 2014 being a plateau. Evidence about trends in advertising content and effects of advertising on citizens come from television advertising in particular.
Over the past decade, candidates have consistently sponsored a majority of advertising on the airwaves although their share does appear to be declining in legislative races. Interest group sponsorship of political advertising has grown, especially in Senate and presidential races, taking advantage of recent legal changes in the campaign finance landscape. Negativity is the dominant form of television advertising, constituting more than 65% and as much as 75% of all congressional general election ads (and as much as 87% of presidential ads) on air since 2006. Parties and interest group sponsors are more likely to air negative advertising by candidates, but candidates do not refrain from going negative. In fact, candidate negativity comprises roughly half of all negative ads on air. Negative ads are more likely to cite specific sources and therefore are generally considered more substantive. TV advertising is unlikely to contain partisan or ideological cues, in part, because it is targeted at swing voters.
Early studies of advertising cast doubt on their effectiveness, but more recent work suggests that advertising effects are small (mattering at the margin in the most competitive contests) and often conditional. That is, advertising effects often vary in relation to characteristics of the messages being aired, the individuals who view them, and contextual factors relating to the campaign more generally. Scholarship suggests that advertising has persuasive but short-lived influence on citizens and that advertising volume and negativity may aid mobilization efforts (although the influence of negativity may be conditioned upon ad characteristics and timing).
Technological advances in the way TV advertising is deployed is increasing campaigns ability to target citizens in a fashion similar to online advertising, which has implications for how well researchers can continue to study it. Scholars have made considerable progress in studying 21st-century advertising effects, but a number of logistical hurdles and unanswered research questions remain.
Contextualism denotes a set of ideas about the importance of attention to context. The topic of the article is contextualism in normative political theory/philosophy, in relation to the part of political theory concerned with systematic political argument for normative claims—evaluative claims about the legitimacy, justice, or relative goodness of acts, policies or institutions, and prescriptive claims about what we should do, which decision procedures we should follow, or how institutions should be reformed.
In terms of what counts as context, it denotes facts concerning particular cases that can be invoked to contextualize a specific object of political discussion such as a law, an institution, or the like.
Contextualism denotes any view that political theory should take context into account, but there are many different views about what this means. Contextualism can be characterized by way of different contrasts, which imply that the resulting conceptions of contextualism are views about different things, such as justification, the nature of political theory, or methodology.
Here the focus is on characterizations of contextualism in terms of methodology and justification that provide different views about what role context can play in political argument. In the course of doing this, a number of problems facing the different versions of contextualism are identified, including problems of reification and status quo bias, problems of securing that political theory is both critical and action guiding while still being contextualist, and the problem of delimiting the relevant context. Different ways of avoiding these problems are sketched. It is argued that there are forms of contextualism that can avoid the problems, but that these might not be as distinctive as some contextualists think. This also means that contextualism might, in fact, be a more common approach to political theory than sometimes suggested.
Ting Gong and Sunny L. Yang
Corruption is a complex social phenomenon. It refers to the abuse of entrusted power for private gain, but it may still mean different things to different people. The definition of corruption applicable in one place may not be suitable in another setting, and the conception of corruption is highly contextualized. Adding to the difficulty of defining corruption is the lack of accurate measurements for the degree of corruption. Objective and subjective measures have been developed by scholars and practitioners, but their reliability and validity have often been challenged. The measurements developed so far are proxies for the level of corruption rather than accurate diagnostic tools. Despite the difficulties of conceptualizing and measuring corruption, its effects on public administration and social development are clearly evident. Corruption causes losses to state coffers, undermines the rule of law and regulatory regimes, distorts the provision of public services, ruins public trust in government, and weakens the overall quality of governance. Corruption may sometimes grease administrative wheels, but it usually benefits only a few individuals or groups and in the long run is detrimental to the society as a whole. When unchecked or under-checked, corruption destabilizes the economy, destroys political legitimacy, and triggers social unrest. This explains why controlling corruption has been a high priority on the government’s agenda in most countries and has been the focus of the activities of many civil society organizations. Various anti-corruption strategies are adopted; there are, for example, compliance-based, value-based, top-down, bottom-up, economic, institutional, and cultural approaches to controlling corruption. The configuration of anti-corruption agencies may also differ from country to country, displaying distinctive features. Evidently, there is no “one-size-fits-all” solution to corruption control and prevention. What works or not depends on a country’s specific circumstances. However, the experiences of Hong Kong and Singapore in fighting corruption and building clean societies reveal a few important success factors.
More Americans than ever before believe that money in politics weakens our democracy. Public opinion polls show that the number of people who believe that the country is run by a few big interests looking after themselves rose to nearly 80% over the past 20 years. The belief that corporate interests drive public policy is not all that surprising when you consider the growth of lobbying in the United States. According to the Center for Responsive Government, from 1998 to 2016, the amount of money spent on lobbying the U.S. government grew from $1.45 billion to $3.12 billion with well over 10,000 lobbyists in Washington. With this all this money attempting to influence policy outcomes in Washington, it is no wonder that Americans are skeptical of the intentions of government officials.
However, political scientists have found a more mixed result when it comes to the actual influence of money on politics. One study asked if the amount of money spent on any given issue really influences policy outcomes. Other studies have shown some benefit to the private parties that lobby. Thus despite significant research on the topic, there is little agreement among political scientists on just how lobbying influences political actors or if lobbying directly impacts policy results.
When it comes to foreign policy, corporate lobbies are an ever-present influence in the crafting of government policies. Whether in the European Union or the United States or other countries around the world, corporate lobbies view representing their interests in a truly global fashion. While corporate interests are investing in shaping foreign policy in a variety of issues areas such as defense spending, arms sales, contractors on humanitarian missions, one area is particularly vulnerable to corporate influence—trade and finance. Research shows that U.S. trade politics is heavily influenced by the lobbying of business organizations and trade associations. In fact, the U.S. administration often relies on interested corporate parties to provide it with both the expertise that shapes the agreement itself and the political case for trade liberalization that shapes the public pro-trade campaign. In turn, corporate lobbying for trade agreements is a costly and involved process. For example, during the eight years of negotiations over the TransPacific Partnership Agreement, a regional trade agreement between the United States and 11 other Pacific Rim countries, corporations paid $2.6 billion dollars to lobbyists to influence the content of the agreement and to promote it to Congress and the American public. An overview of the literature on corporate lobbying and an examination of the case of U.S. trade shows a particular example of how corporate lobbying works to influence foreign policy.
Survey evidence indicates that political corruption is more prevalent in Africa than in any other global region, though there is also evidence of considerable variation between countries in degrees of corruption and where it is most likely to be located. Traditional explanations for the frequency of corrupt political behavior emphasized the effects of conflicting values that were a consequence of the imposition of modern forms of bureaucratic government upon societies in which authority rested upon personalized relationships. Contemporary African corruption’s historic roots and its variation across the continent may be the effect of the disjuncture or “incongruency” between colonial and successor postcolonial states and the precolonial political settings upon which they were imposed. Modern neo-patrimonialism is a coping response by rulers and citizens to conditions fostered by economic scarcity and institutional incapacity. Since the 1990s, democratization and liberalization have supplied fresh incentives and opportunities for venal politicians and officials. And even among Africa’s more capable and resourceful states, the institutional fluidity generated by democratic transition and economic reform has opened up possibilities of systematically organized state capture. Consequences of corruption certainly further impoverish poor people, and it is likely that corruption also limits economic growth and distorts government efforts to promote development. It is arguable that in the past, corruption may have helped to facilitate political stability but this is less likely in 2018, as evidence emerges of its corrosive effects on public trust in institutions. African anti-corruption efforts are constrained by the extent to which political power is exercised through patronage but there are instances of successful action, sometimes the byproduct of factional struggles within the political elite. As of 2018, there is no clear evidence of trends in success or failure in the work of African anti-corruption agencies.
The Council of Ministers, officially known as the Council of the European Union (EU), is a single legal composition of national ministers who meet in policy-specific formations to negotiate and adopt EU policies and laws. The Council is more than just the ministers; they depend on an infrastructure of preparatory bodies and specialist working groups, as well as rotating and permanent leadership positions and an internal bureaucracy, the General Secretariat of the Council (GSC). Over time, the Council has undergone formal restructuring, such as sharing colegislative authority with the European Parliament (EP), now called the “ordinary legislative procedure” (OLP), and redesigning how majority voting works. The Council has also witnessed informal organizational change, especially in internal pecking-order dynamics and techniques to reach consensus-based outcomes.
EU Council research has documented formal and informal decision-making dynamics, especially related to voting and consensus practices, although there is no real agreement on how formal and informal rules interact to influence the context of negotiations. There is still a divergence of interpretation in how the Council actually works, such as whether consensus is a “culture” of mutual accommodation subject to group standards or is instead a façade of relative power. As an institution, the Council deliberately promotes clublike networks of like-minded national policy specialists and experts who meet in repeat, face-to-face interactions and make collective decisions in mostly nontransparent (in camera) settings of insulation from domestic audiences. However, in the post-Maastricht era of EU politics since the early 1990s, the way the Council works is also increasingly debated in terms of transparency, accountability, and legitimacy.
Richard Ned Lebow
Counterfactuals seek to alter some feature or event of the pass and by means of a chain of causal logic show how the present might, or would, be different. Counterfactual inquiry—or control of counterfactual situations—is essential to any causal claim. More importantly, counterfactual thought experiments are essential, to the construction of analytical frameworks. Policymakers routinely use then by to identify problems, work their way through problems, and select responses. Good foreign-policy analysis must accordingly engage and employ counterfactuals.
There are two generic types of counterfactuals: minimal-rewrite counterfactuals and miracle counterfactuals. They have relevance when formulating propositions and probing contingency and causation. There is also a set of protocols for using both kinds of counterfactuals toward these ends, and it illustrates the uses and protocols with historical examples. Policymakers invoke counterfactuals frequently, especially with regard to foreign policy, to both choose policies and defend them to key constituencies. They use counterfactuals in a haphazard and unscientific manner, and it is important to learn more about how they think about and employ counterfactuals to understand foreign policy.
Jun Koga Sudduth
Political leaders face threats to their power from within and outside the regime. Leaders can be removed via a coup d’état undertaken by militaries that are part of the state apparatus. At the same time, leaders can lose power when they confront excluded opposition groups in civil wars. The difficulty for leaders, though, is that efforts to address one threat might leave them vulnerable to the other threat due to the role of the military as an institution of violence capable of exercising coercive power. On one hand, leaders need to protect their regimes from rebels by maintaining strong militaries. Yet, militaries that are strong enough to prevail against rebel forces are also strong enough to execute a coup successfully. On the other hand, leaders who cope with coup threats by weakening their militaries’ capabilities to organize a coup also diminish the very capabilities that they need to defeat their rebel challengers.
This unfortunate trade-off between protection by the military and protection from the military has been the long-standing theme in studies of civil-military relations and coup-proofing. Though most research on this subject has focused primarily on rulers’ maneuvers to balance the threats posed by the military and the threats coming from foreign adversaries, more recent scholarship has begun to explore how leaders’ efforts to cope with coup threats will influence the regime’s abilities to address the domestic threats coming from rebel groups, and vice versa. This new wave of research focuses on two related vectors. First, scholars address whether leaders who pursue coup-proofing strategies that weaken their militaries’ capabilities also increase the regime’s vulnerability to rebel threats and the future probability of civil war. Second, scholars examine how the magnitude of threats posed by rebel groups will determine leaders’ strategies toward the militaries, and how these strategies affect both the militaries’ influence over government policy and the future probability of coup onsets. These lines of research contribute to the conflict literature by examining the causal mechanisms through which civil conflict influences coup propensity and vice versa. The literatures on civil war and coups have developed independently without much consideration of each other, and systematic analyses of the linkage between them have only just began.
Lisa Hilbink and Matthew C. Ingram
Under what conditions can courts be effective and the rule of law be meaningful in developing countries? A vast literature has emerged over the past several decades seeking to understand the factors that support or impede healthy judicial functioning in developing countries, as well as those that account for its stagnation and erosion. Scholars analyze four phenomena that shape the judicial role in politics: empowerment, activation, behavior, and impact. Works on judicial empowerment analyze identifiable moments of change in formal, de jure rules governing the jurisdiction, independence, accessibility, and efficiency of legal institutions, whether at the constitutional or at the legislative level. Studies of activation examine when, how, and why actors identify particular harms or grievances as legal wrongs and pursue litigation as a means of redress. Judicial behavior studies address how and why judges vote on issues or rule on cases, either individually or collectively as collegial bodies, with a particular eye to the factors that enable or constrain independent judicial decision-making. In developing countries, scholars have also begun analyzing off-bench judicial behavior. A final category of research on courts in developing countries seeks to assess the impact of judicial behavior on political processes, policy outcomes, and society at large. Compliance is a major focus of such works, but scholars also seek to understand how court decisions transform the way social actors frame their struggles and mobilize politically, and to assess the promise and pitfalls of the judicialization of politics.
The great variation within and between the vast category of developing countries greatly complicates the task of building general theory on any of the four outcomes. This variation reveals that the assumptions of dominant theories hold more tenuously in less- institutionalized contexts, where information is less clear or complete and is under shorter time horizons, and where the costs are lower for flouting the law or interfering with courts. These observations signal the need to delimit or moderate theoretical arguments about core relationships of interest according to political and economic conditions and contexts. Yet insights regarding developing countries might become increasingly relevant for understanding judicial politics in developed countries, as politics in developed countries take on features more common to developing countries, including polarization, populism, and even authoritarian tendencies like open attacks on political opponents, press, courts, and independent investigative agencies.
How do courts affect social policy? Answering this question is deceptively complex. Part of the challenge stems from the sheer scope of contemporary judicial policymaking, particularly in the United States, where litigation reaches into nearly every nook and cranny of the American welfare state and casts a shadow on policy issues ranging from marriage equality to healthcare reform. Another obstacle is that scholars remain deeply divided on fundamental questions about the nature of judicial decisions and how their policy effects should be studied. These disagreements, in turn, have engendered three very different approaches to studying the role of courts in social policy that often talk past each other. The dominant approach views judicial decisions as prescriptive rules—legal commands from the bench—and asks to what extent do judicial decisions change policy? This view implies that judicial decisions are “treatments” whose efficacy should be tested by measuring shifts in policy outcomes from the pre- to post-treatment period or across treatment and control groups. An alternative tradition envisages judicial decisions as a potential resource, which can be used by activists as leverage in building movements and pursuing agendas in multiple forums. Here, the core question is not whether court decisions produce abrupt policy shifts, but how activists use them to challenge the status quo, mobilize interests, and generate pressure for policy change. A third approach sees legal precedent as a constitutive framework that shapes and constrains policymaking and its politics over time. The test for whether law matters under this approach centers on the degree to which judicial decisions influence the developmental trajectories of policy and politics, which includes consideration of paths not taken in the policymaking process.
That is not to say that the literature is wholly discordant. Despite their significant conceptual differences, these approaches tend to converge on the general idea that judicial policymaking shares many attributes with other policymaking processes: the implementation of judicial decisions, like statues and regulations, is contested and subject to capture by sophisticated interests; litigation, like lobbying, is a form of mobilization that seeks to translate policy grievances into effective political demands; judicial precedents, like other policies, generate policy feedbacks. Identifying similarities among judicial policymaking and its counterparts is a signature achievement in the study of courts and social policy, which has largely dispelled the “myth of rights” and simplistic notions that the law is somehow removed from politics. Yet it arguably has an unintended effect. Normalizing judicial policymaking—making it seem like other types of policymaking—threatens to render it less interesting as a distinct topic for research. This article suggests the time has come for all of the various research traditions in the field to return to foundational questions about what makes judicial policymaking distinctive and systematically study how these particular tilts and tendencies influence the continuing colloquy that drives the policymaking process.
In the aftermath of the third wave of democratization, Latin American courts left behind decades of subservience, conservatism, and irrelevance to become central political players. They now serve as arbiters in struggles between the elected branches, and increasingly affirm fundamental rights. Indeed, some rulings champion highly controversial rights and have huge budgetary implications, sending shock waves across these new democracies. What explains this unprecedented expansion of judicial power? In trying to answer this fundamental question about the functioning of contemporary democracies, scholars of Latin America have developed a truly vibrant and theoretically dynamic body of work, one that makes essential contributions to our knowledge of judicial politics more generally. Some scholars emphasize the importance of formal judicial reforms initiated by politicians, which resulted in more autonomous and politically insulated courts. In so doing, they address a central puzzle in political science: under what conditions are politicians willing to accept limits to their power? Inspired by rational choice theory, other authors zoom in on the dynamics of inter-branch interactions, to arrive at a series of propositions about the type of political environment in which courts are more capable to assert their power. Whereas this approach focuses on the ability of judges to exercise power, a third line of scholarship looks at how ideas about the law and judicial role conceptions affect judges’ willingness to intervene in high-stakes political struggles, championing some values and interests at the expense of others. Finally, more recent work asks whether assertions of judicial power make a difference in terms of rights effectiveness. Understanding the consequences of judicial decisions is essential to establishing the extent to which more assertive courts are actually capable of transforming the world around them.