Once the sole province of U.S. scholars—and mostly political scientists at that—researchers throughout the world, drawing on history, economics, law, and psychology, are analyzing judicial behavior: why judges make the choices they do and what effect those choices have on society. How the field moved from a modest, niche project of political scientists working in the mid-20th century to the powerhouse it has become makes for an interesting story, marked by several key developments along the way. One is certainly the influx of scholars and theories from other disciplines that have supplemented and challenged existing knowledge. Other developments include the growing interest in judging from a comparative perspective; the massive improvements in data acquisition through technological advancements; and, perhaps most importantly, the sheer number of topics that now fall under the rubric of “judicial behavior.” Although the field has advanced markedly, much work remains. Many of the canonical theories of judicial behavior rest on the assumption that judges are rational, goal-oriented, actors. But decades’ worth of studies in social psychology, including experiments on judges, raise serious questions about the plausibility of this assumption. Should observational results converge with the experimental evidence, scholars must grapple with how to integrate insights from social psychology into the analysis of judicial behavior. On the empirical side, however notable the improvements in data infrastructure, most products ignore obvious objects of interest: the actual opinions produced by judges. Developing tools carefully calibrated to account for the unique ways judges develop and frame their work products presents yet another challenge. But it is one worth pursuing if only because of its potential to bring scholars closer to the goal of developing a fuller, more realistic conception of judicial behavior.
Lee Epstein and Nicholas W. Waterbury
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.
Lisa M. Holmes
The American judicial system is not a static, simple, or mechanical entity. Rather, it is a complex organization that is developed and staffed in response to changing caseload and societal pressures through a process that is inherently political. The key personnel who help the judiciary function bring varied backgrounds and perspectives with them that influence the work they do. As is the case with any political system, understanding American politics and policy making requires an understanding of the judiciary’s role in the American political system. In addition, on a daily basis, courts function to resolve disputes. While most cases have little direct impact on American policy or society broadly speaking, the resolution of these cases is important to those who turn to the courts of law to resolve their disputes.