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Article

Christina L. Boyd and Adam G. Rutkowski

Trial court judges are often referred to as the workhorses of the judicial system. This is unsurprising given that millions of civil and criminal cases are filed and resolved in U.S. state and federal trial courts each year. Very few of these cases ever reach appellate courts, meaning that trial courts are often the first and only court with which people directly interact. At the same time, trial courts can make local and national policy, both in individual cases and in the aggregate. This important role of trial courts and their actors has not gone unnoticed by scholars across social science disciplines. One can consider trial courts in a broad sense by tracking the historical developments that led to the trial courts in the United States. As caseloads have increased, trial courts—particularly those with specialized jurisdictions—have been created out of necessity. State trial courts feature variation in their judicial selection methods, including elections and appointments. At the federal level, increased polarization has led to contentious partisan confirmation battles for federal trial court judges. Trials are a rare occurrence, with plea agreements and settlements being the most frequent methods of resolving cases. To understand trial court actor behavior, it is important to remember that state and federal trial courts sit at the bottom of their judicial hierarchies. The preferences of their hierarchical superiors, along with the presence of high trial court caseloads and the rarity of trials, rein in judges’ discretion and the potential effects of their personal characteristics and attitudes. Because of these judge constraints, actors such as prosecutors, defense attorneys, and juries play a significant role in trial court outcomes. As the literature reveals, the “repeat players” in trial courts hold significant advantages over less experienced litigants and attorneys that affect their likelihood of gaining favorable outcomes, among other things. Race and gender of these actors can have significant effects on behavior in certain types of cases. There are many hurdles that remain for scholars seeking to study trial courts. For example, state trial courts, in particular, continue to be difficult to study empirically. This is due largely to a lack of data availability. Relatedly, scholars must continue to strive to find ways to study trial court outcomes and events that do not lead to published opinions—for example settlements, plea bargains, prosecutorial declinations, and many decided motions. Each of these involves important decisions and outcomes that affect parties and may be affected by judges and lawyers.

Article

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.

Article

Sabine Saurugger and Fabien Terpan

Considered an unusually powerful actor that has furthered European integration, the Court of Justice of the European Union (CJEU) has attracted considerable interest from both scholars and the public. Legal scholars and political scientists, as well as historians, have studied the Court in the context of it being one of the main actors in the integration process. Those that saw European integration as “integration through law” originally considered the Court to be the core element driving this process. The Court’s case law has influenced market integration, the balance of power among the EU’s institutions, and the “constitutional” boundaries between supranational and national competences. The pathbreaking rulings Costa vs. Enel and van Gend en Loos introduced new legal principles of direct effect and primacy in the 1960s; the 2007 Laval and Viking rulings triggered criticism of the Court’s decision, which was said to put the rights of companies above those of workers; whereas the Mangold ruling in 2005 on age discrimination was widely welcomed in spite of some negative reactions in Germany. Hence, while “integration through law” remains a powerful narrative in the academic field of European studies, the Court’s decisions and its role in the EU system have not remained unchallenged. This view of the Court as being less central to European integration is based on two developments in this field of study. On the one hand, research findings based on various analytical approaches—from rational choice to post-positivist—suggest that “integration through law” since the beginning of European integration has been a far less straightforward process than we have otherwise been led to believe. Scholars assert that the Court has been constrained by political, administrative, and constitutional counteractions since its establishment in 1952. On the other hand, scholars have identified a number of developments in the integration process from the early 1990s and the Maastricht Treaty, such as the increase in new modes of governance and intergovernmental decision-making, that explain why the Court’s role has come into question. Understanding these debates is crucial to grasping the broader institutional as well as political and legal developments of European integration.

Article

Elizabeth A. Lane and Ryan C. Black

The Supreme Court’s docket consists of thousands of cases each term, with petitioners hoping at least four justices will be compelled to grant review to their case. The decision to move a case from their docket to their calendar for oral arguments and all intermediate steps is what is known as the agenda-setting process. This is a fundamental step in the judicial process, as the Supreme Court cannot establish precedent and affect policy change without first deciding to review.

Article

Thomas M. Keck and Logan Strother

Scholars have long been interested in judicial impact—the ability of courts to meaningfully alter policy or politics—because judicial decisions shape law, have the potential to affect many people, and may even implicate democracy in a fundamental sense. Classic studies in this tradition concern the degree to which actors outside the court comply with judicial decrees, such as whether or not (or to what extent) schools desegregated in the wake of Brown v. Board of Education. However, scholars working in a variety of other traditions have likewise examined the impact of judicial decisions, though they have not always used those terms. For example, advocates of interbranch analysis have situated courts within broader ongoing policy processes, and in so doing have documented repeated instances in which policy outcomes were altered by the actions of lawyers and judges. Likewise, students of legal mobilization have documented the sometimes constitutive effects of legal ideas on a wide range of political identities, attitudes, and behaviors. In short, the concept of impact includes a variety of ways in which courts influence politics, and the field of judicial impact studies will continue to benefit from a vital diversity of methods of inquiry, subjects of analysis, and conceptions of law.

Article

Charles M. Cameron and Lewis A. Kornhauser

We summarize the formal theoretical literature on Supreme Court decision-making. We focus on two core questions: What does the Supreme Court of the United States do, and how can one model those actions; and, what do the justices of the Supreme Court want, and how can one model those preferences? Given the current state of play in judicial studies, these questions then direct this survey mostly to so-called separation of powers (SOP) models, and to studies of a multi-member (“collegial”) court employing the Supreme Court’s very distinctive and highly unusual voting rule. The survey makes four main points. First, it sets out a new taxonomy that unifies much of the literature by linking judicial actions, modeling conventions, and the treatment of the status quo. In addition, the taxonomy identifies some models that employ inconsistent assumptions about Supreme Court actions and consequences. Second, the discussion of judicial preferences clarifies the links between judicial actions and judicial preferences. It highlights the relationships between preferences over dispositions, preferences over rules, and preferences over social outcomes. And, it explicates the difference between consequential and expressive preferences. Third, the survey delineates the separate strands of SOP models. It suggests new possibilities for this seemingly well-explored line of inquiry. Fourth, the discussion of voting emphasizes the peculiar characteristics of the Supreme Court’s voting rule. The survey maps the movement from early models that ignored the special features of this rule, to more recent ones that embrace its features and explore the resulting (and unusual) incentive effects.

Article

The U.S. Supreme Court is but one of three political institutions within the structure of the U.S. federal government. Within this system of separated powers it rules on the constitutionality of some of the nation’s most important legal and political issues. In making such decisions, the nation’s highest court may be considered the most powerful of the three branches of the U.S. federal government. Understanding this process will allow scholars, students of the Court, and Court watchers alike to gain a better understanding of the way in which the justices conduct their business and to come to terms with some of the most important legal and political decisions in our nation’s history. Combining a theoretical account of Supreme Court decision-making with an examination of its internal decision-making process illuminates this opaque institution.

Article

Jeb Barnes

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.

Article

Existing theories of international law are largely state-centric. While international cooperation can benefit all, states are often tempted to violate their promises in order to manage economic and political crises. States must accordingly balance enforcement against flexibility: legal institutions must provide enough enforcement that states comply most of the time yet also provide enough flexibility that states can violate during crises. Such a balance is possible when laws are crafted and enforced by unitary actors that will tolerate occasional violations by others in order to preserve their own right to occasionally violate. However, the changing doctrine of sovereign immunity has dramatically transformed the actual practice of international law. Non-state actors and domestic courts play an increasingly important role in challenging state legal violations, generating a divergence between the theory and practice of contemporary international law. This divergence is apparent in many issue areas, including terrorism, human rights, sovereign debt, and foreign investment. This divergence suggests that political scientists and legal scholars must reconsider the limits of state-centric theories and examine the role of non-state actors and domestic courts.

Article

Susan Haire and Laura P. Moyer

Increased diversity among participants in the justice system, particularly judges, has fueled debates about the values and perspectives that women bring to the law. Difference theories advanced by social psychologists and feminist scholars argue for the premise that men and women in the legal system approach questions of justice differently. By contrast, empirical scholarship offers only limited support for the expectation that the sex of the judge is related to behavioral outcomes. Although most research has not uncovered differences in voting between men and women judges, one area in which consistent differences has been found is in sex discrimination cases. Recent studies suggest, however, that individual differences between men and women judges may emerge if the focus shifts to the litigation process. In one study of trial courts, cases assigned to women judges were more likely to be settled. In another study of appellate courts, women judges were more likely to pen majority opinions that adopted a compromise position. These findings suggest the promise of shifting the analytical focus away from behavioral outcomes to consider whether, and how, women and men in the legal system shape litigation processes. Doing so will require additional data and triangulated approaches that employ both quantitative and qualitative methods. Additional research is also needed to explore how shifts in the gender composition of the bench affect organizational norms and practices in the legal system at the federal, state, and local levels. Some work suggests that gender diversity affects deliberations on small appellate panels and consensual norms on larger courts. As the number of women and minorities appointed by recent Democratic and Republican presidents has increased, scholars are also now well positioned to conduct empirical research with larger numbers to investigate how women of color on the bench differ from white women and minority men.

Article

Rebecca Hamlin and Gemma Sala

The judicialization of politics is an expression that has been widely used in the fields of comparative law and judicial politics alike since it first emerged in the 1980s. Yet, despite its ubiquity, it is difficult to ascertain its specific meaning because it is used to refer to such a wide range of court-related phenomena and processes. Despite its varying usages and meanings, there has been a puzzling lack of scholarly discussion over the scope of the term, and very little critical analysis of its use. This silence has impeded the project of comparative constitutional law. So it is necessary to disentangle and compare the many faces of judicialization that are used in various political science literatures. There are as many as nine distinct forms of the term that are regularly used; yet the various empirical strategies for measuring, defining, and documenting this phenomenon are often incommensurable, and further, the causes of judicialization frequently overlap and occasionally contradict one another. The popularity of this term has come at the cost of conceptual clarity, and this confusion has impeded both the project of building a comparative theory of judicialization, and efforts to have a coherent normative debate about its consequences. With the goal of theory building in mind, a systematic study of judicialization and its multiple usages can be a useful way to illuminate key questions for a new research agenda geared toward a deeper and more nuanced understanding of this term.

Article

Political scientists—primarily in the discipline’s international relations subfield—have long studied international law. After considering how political scientists and legal scholars define international law, this article identifies five stages of political science research on international law, including the current interdisciplinary international law and international relations (IL/IR) stage, and it reviews three trends in political science research that constitute an emerging sixth stage of interdisciplinary scholarship: a law and world politics (L/WP) stage. First, moving beyond the “IL” in IL/IR scholarship, international relations scholars are increasingly studying domestic law and domestic courts—not only their foundational role in supporting international law and international courts but also their direct role in core areas of international relations, including international conflict and foreign policy. Second, moving beyond the “IR” in IL/IR scholarship, political scientists are adapting their research on international law to the broader world politics trend in political science by studying types of law—including extraterritoriality, conflict of laws, private international law, and the law of transnational commercial arbitration—that govern the transnational activity of private actors and can either support or hinder private global governance. Third, moving beyond the domestic-international divide, political scientists are increasingly rejecting “international law exceptionalism,” and beginning to take advantage of theoretical convergence across the domestic, comparative, and international politics subfields to develop a better general understanding law and politics.

Article

Even though most judges in the United States stand for election in the context of strong normative objections to the practice of electing judges, political scientists have produced a surprisingly thin theoretical framework for understanding how judicial campaigns affect voters. This paucity of research is particularly surprising given the increasingly politicized environment in which judicial elections operate. The literature on judicial campaigns is well-served to draw upon the well-trodden research about campaign effects for executive and legislative office. In some important respects, however, judicial contests differ from those for executive or legislative office. To this end, the Expectancy Theory pioneered by James L. Gibson provides an important theoretical development, emphasizing that the effects of judicial campaigns are highly conditional upon variation in voters’ willingness to tolerate different types of campaign activity. Moreover, the effects of campaigns are highly dependent on the context of both institutional design and voters’ own experiences with judicial elections.

Article

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.

Article

Chris Hanretty

Courts in the United Kingdom have evolved gradually over the past 700 years. The modern court system is sophisticated, displaying both specialization by area of law and regional differentiation. The English and Welsh court system, for example, is separated from the Scottish and Northern Irish court systems. Across all different jurisdictions within the UK, courts display moderate to high levels of de facto judicial independence without many guarantees of de jure judicial independence. Appointment to the courts system since the reforms of 2005 is strongly apolitical; this, coupled with a weak form of fundamental rights review, means that debates about judicial politics have been limited. Particularly sensitive issues arise in relation to courts’ handling of multilevel governance, and more particularly the relationship between the Westminster Parliament and the devolved assemblies in Scotland and Wales, and between the Westminster Parliament and the Court of Justice of the European Union. Because of the gradual introduction of human rights guarantees in domestic law, and progressive devolution of power from center to periphery, UK courts offer lessons for those interested in the introduction of rights catalogs and in theories of constitutional review.

Article

Attempts to analyze and understand how European law developed from a set of international treaties in the 1950s to a constitutional, proto-federal legal order, accompanied by a constitutional legal discourse today, has been a key concern in European studies in the last three decades. Legal scholars, political scientists, and sociologists have explored this from their specific disciplinary viewpoints and have produced a rich literature of sophisticated theoretical as well as empirical studies. Since the mid-2000s, historians have also finally—after years of negligence—taken an interest in European law and produced a new body of archive-based studies of the history of European law from 1950 to 1993. Based on primary sources drawn from private, national, and European archives, historians have contributed with much new empirical information and managed to uncover the social, political, and legal forces that have shaped European law in a qualitatively new way. The central argument is that the constitutionalization of European law was part of the broader battle over the political and institutional soul of the European construction. Even though the ECJ successfully constructed a European legal order that resembled and worked as a proto-federal constitution, the project ultimately suffered a defeat in not being able to codify this achievement in the Maastricht Treaty as part of a broader step toward a federal Europe.

Article

Subnational policymaking is central to LGBT politics and law, in contrast to other arenas of policymaking for marginalized groups. With barriers to national policymaking in Congress and in the federal courts, LGBT rights activists have leveraged opportunities at the state and local levels to create LGBT-supportive policies. Opponents have also used subnational politics to further their agenda, particularly direct democracy, while LGBT rights activists have used elite politics, such as state courts, effectively. Subnational LGBT politics is also marked by a significant variety in policy outcomes, with a notable urban and suburban versus rural divide in policymaking and in the presence of openly LGBT elected officials. The case of LGBT policy and law has caused scholars to rethink questions such as the role of public opinion in state policymaking, morality politics, and courts and social change.

Article

In a liberal conception of democracy, courts play an important role in facilitating the rule of law by controlling the abidance to rules and by holding the political branches of government accountable. The power of constitutional review is a crucial element for exercising horizontal accountability. Courts across Africa are vested with the power of constitutional review, and, generally speaking, their independence has substantially increased since the beginning of the 1990s—although African courts enjoy overall less independence than the global average for courts’ independence. Within the African region, the level of judicial independence varies widely, between contexts that rarely allow judicial independence and contexts where courts have more power to challenge the government. Furthermore, across the continent, African courts experience undue interference—which frequently takes place informally. Informal interference can occur through the biased appointments of judges, verbal and physical threats, violent attacks, the payment of bribes, or the ouster of sitting judges. Informal networks—held together by ties based on shared educational trajectories, common leisure activities, religion, kinship relations, or political affiliations—are the channels through which such pressure can be transmitted. Yet judges also can actively build informal networks: namely, with the legal community, civil society, and international donors, so as to insulate themselves against undue interference and to increase institutional legitimacy. Research has shown that the agency of judges and courts in signaling impartial decision-making, as well as in reaching out to society, is crucial to constructing legitimacy in the African context. In contrast, the explanatory power of electoral competition as an incentive for power holders to support judicial independence is not straightforward in the context of Africa’s political regimes, where the prospect of losing office is associated with financial, and in some cases even physical, insecurity. However, research on judicial politics in Africa is still only preliminary, because the field requires more comparative studies in order to fully reveal the political repercussions on Africa’s judiciaries as well as to delineate the scope conditions of the prominent theories explaining judicial independence.

Article

Axel Tschentscher

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.

Article

The International Criminal Court (ICC) has generated considerable controversy since it came into force in 2002, principally because of its overriding focus on African conflict situations and suspects. This has led to accusations that the ICC is a neocolonial meddler in African affairs, wielding undue and unaccountable influence over the domestic political arena. Drawing on the author’s field research in Uganda and the Democratic Republic of Congo since 2006 this article contends that the neocolonialism critique of the ICC exaggerates the power of the Court while underestimating the capacity of African states to use the ICC to their own ends. Delivering distanced justice from The Hague with limited expertise on African societies and spending scant time in the field, the ICC has failed to grapple sufficiently with complex political dynamics “on the ground.” Combined with the Court’s heavy reliance on state cooperation, these factors have enabled African governments to use the ICC to target their political and military enemies while protecting themselves from prosecution. This has also emboldened African states in continuing to commit atrocity crimes against civilians, especially during periods of mass conflict and fraught national elections. While claiming to hover above the political fray, the ICC has become heavily politicized and instrumentalized by African states, with lasting and damaging consequences for the practice of national politics across Africa. To avoid being willfully used by African governments, the ICC must bolster its political expertise and become politically savvier. Rather than claiming to be neutral while hovering above the domestic terrain, the ICC must embrace its inherently political nature and deliver justice in a way that improves rather than undermines the practice of national and community-level politics across Africa.