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
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.