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.
Courtenay W. Daum
Law enforcement has a lengthy history of policing LGBTQ communities. Throughout the 20th century, police utilized laws prohibiting same-sex sexual conduct to criminalize LGBTQ individuals, and to target public gathering places including gay bars. Sodomy prohibitions were supplemented by mental health diagnoses including assumptions about criminal pathologies among LGBTQ individuals and the government’s fear that LGBTQ individuals’ sexual perversions made them a national security risk to subject LGBTQ communities to extensive policing based on their alleged sexual deviance. The successes of the gay rights movement led the American Psychiatric Association to declassify homosexuality as a mental health disorder in the 1970s, and the U.S. Supreme Court’s decision that prohibitions on sodomy run afoul of the Constitution ended the de jure criminalization of LGBTQ individuals based on their sexual conduct.
Today, policing of LGBTQ communities consists of both overpolicing and underenforcement. Law enforcement regularly profiles some facets of LGBTQ communities in order to selectively enforce general criminal prohibitions on public lewdness, solicitation, loitering, and vagrancy—consistent with the goals of “quality of life” policing—on gay men, transwomen, and LGBTQ youth, respectively. The selective enforcement of these laws often targets LGBTQ people of color and other intersectionally identified LGBTQ individuals in order to criminalize their existence based on ongoing stereotypes about sexual deviancy. In addition, police regularly fail to recognize LGBTQ individuals as victims of crimes, with the exception of particularly heinous hate crimes, and do not adequately attend to their needs and/or subject them to secondary victimization. As such, the relationship between many LGBTQ communities and law enforcement continues to be characterized by antagonisms and mistrust.
The Canadian LGBT movement has had enormous success in gaining political and legal recognition for sexual minorities—as much as any of its sister movements in other countries. This is especially remarkable because the sexual repressiveness of the Canadian social and political climate remained largely in place until the 1990s. And although activist groups across the country have had challenges in marshalling resources, mobilizing beyond the regional level, and overcoming internal inequities, advocacy pressure has been effective enough to produce a political sea change with few precedents in other issue areas. Starting in the 1990s, Canada experienced a country-wide “takeoff” in the formal recognition of sexual diversity, most dramatically in the legal status given to same-sex relationships. Even if a vocal minority of the general public opposed such moves, the acceptance of sexual minorities as legitimate members of the Canadian mosaic has become politically normalized.
Sexual diversity is far from being fully accepted, and those communities traditionally under-represented in the LGBT movement still face marginalization in a period of growing socioeconomic inequality. But the movement has made impressive gains, aided by social and institutional factors that have allowed activist leverage when the political winds blew in their favor. This success, however, presents new challenges, creating complacency within and beyond LGBT circles and increasing the difficulty of mobilizing people and resources.
The decline of religiously conservative opposition to the public recognition of sexual diversity in Canada has also created room for the movement to become more fragmented than it has been in the past. And yet there is still much need for advocacy. Socially conservative politicians are still pandering to public anxiety about recognizing sexual diversity. Activist attention is still needed in areas such as schooling, policing, social service provision, and immigration. Trans people, “two-spirited” Indigenous people, and sexual minorities within Canada’s large ethnocultural and religious minorities are often on the margins of their own communities, the broader society, and the LGBT movement itself.
From the early 1970s through the mid-2000s, the Canadian movement’s trajectory was similar to activism elsewhere. A “liberationist” period generated a long-lasting strand of radicalism alongside a slowly growing current focused on seeking rights through mainstream political channels (Adam, 1987, 1999). The analysis to follow first points to distinctive elements of the Canadian social and political context and then traces the evolution of what would become the LGBT movement from these early stages and into a period of legal and political “takeoff.” It points to strong commonalities in movement agendas, even across imposing regional lines, but also recognizes the challenges of mounting coherent movement responses to remaining inequities in a political environment so marked by activist success.
The American Catholic Church has a long history in health care. At the turn of 19th century, Catholic nuns began developing the United States’ first hospital and health care systems, amassing a high level of professionalization and expertise in the field. The bishops also have a well-established record advocating for health care, stemming back to 1919 with the Bishops’ Program for Social Reconstruction, which called for affordable and comprehensive care, particularly for the poor and vulnerable. Moving into the latter part of the 20th century, the bishops continued to push for health care reform. However, in the aftermath of Roe v. Wade (1973), the American bishops insisted that any reform or form of universal health care be consistent with the Church’s teaching against abortion, contraception, and euthanasia. The bishops were also adamant that health care policy respect religious liberty and freedom of conscience. In 1993, these concerns caused the bishops to pull their support for the Clinton Administration’s Health Security Act, since the bill covered abortion as a medical and pregnancy-related service. The debate over health care in the 1990s served as a precursor for the United States Conference of Catholic Bishops’ (USCCB) opposition to the Obama Administration’s Affordable Care Act (ACA) and the Department of Health and Human Services’ (HHS) contraception mandate. The ACA also highlighted a divide within the Church on health care among religious leaders. For example, progressive female religious leadership organizations, such as the Leadership Conference of Women Religious (LCWR) and their affiliate NETWORK (a Catholic social justice lobby), took a different position than the bishops and supported the ACA, believing it had enough protections against federally funded abortion. Though some argue this divide lead to institutional scrutiny of the sisters affiliated with the LCWR and NETWORK, both the bishops and the nuns have held common ground on lobbying the government for affordable, comprehensive, and universal health care.
The question of membership and belonging is widely recognized to have been at the root of many political crises in Africa since independence. The legal frameworks for citizenship were largely inherited from the colonial powers and still show strong affinities across colonial legal traditions. However, most African states have enacted significant amendments to citizenship laws since independence, as they have grappled with issues of membership, aiming to include or exclude certain groups. Substantive provisions have diverged significantly in several countries from the original template. African states have shared global trends toward gender equality and acceptance of dual citizenship. In relation to acquisition of citizenship based on birth in the territory (jus soli) or based on descent (jus sanguinis), there has been less convergence. In all countries, naturalization is inaccessible to all but a few. Manipulation of citizenship law for political purposes has been common, as political opponents have at times been accused of being non-citizens as a way of excluding them from office, or groups of people have been denied recognition of citizenship as a means of disenfranchisement. Moreover, even in states where a substantial proportion of residents lack identity documents, it seems that the rules on citizenship established by law have themselves had an impact on political developments.
The citizenship status of many thousands of people living in different countries across Africa remains unclear, in a context where many citizens and non-citizens lack any identity documentation that records their citizenship. The content of the law is arguably therefore less influential than in some other regions. A rapid development in identification systems and the increasing requirement to show identity documents to access services, however, is likely to increase the importance of citizenship law.
In response to these challenges, the African continental institutions have developed, through standard setting and in decisions on individual cases, a continental normative framework that both borrows from and leads international law in the same field.
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.
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.
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.
Enlargement has always been an essential part of the European integration. Each enlargement round has left its mark on the integration project. However, it was the expansion of the European Union (EU) with the 10 Central and Eastern European Countries (CEECs), Cyprus, and Malta, unprecedented in scope and scale, which presented the EU with an opportunity to develop a multifaceted set of instruments and transformed enlargement into one of the EU’s most successful policies. The numerous challenges of the accession process, along with the immensity of the historical mission to unify Europe, lent speed to the emergence of the study of EU enlargement as a key research area. The early studies investigated the puzzle of the EU’s decision to enlarge with the CEECs, and the costs and benefits of the Eastern expansion. However, the questions about the impact of EU enlargement policy inspired a new research agenda. Studies of the influence of the EU on candidate and potential candidate countries have not only widened the research focus of Europeanization studies (beyond the member states of the Union), but also stimulated and shaped the debates on the scope and effectiveness of EU conditionality. Most of the analytical frameworks developed in the context of the Eastern enlargement have favored rational institutionalist approaches highlighting a credible membership perspective as the key explanatory variable. However, studies analyzing the impact of enlargement policy on the Western Balkan countries and Turkey have shed light on some of the limitations of the rationalist approaches and sought to identify new explanatory factors.
After the completion of the fifth enlargement with the accession of Bulgaria and Romania in 2007, the research shifted to analyzing the continuity and change of EU enlargement policy and its impact on the candidate and potential candidate countries. There is also a growing number of studies examining the sustainability of the impact of EU conditionality after accession by looking into new members’ compliance with EU rules. The impact of EU enlargement policy on the development of European Neighbourhood Policy (ENP) and comparative evaluations of the Union’s performance across the two policy frameworks have also shaped and expanded the debate on the mechanisms and effectiveness of the EU’s influence. The impact of the Eastern enlargement on EU institutions and policymaking is another area of research that has emerged over the last decade. In less than two decades, the study of EU enlargement policy has produced a rich and diverse body of literature that has shaped the broader research agendas on Europeanization, implementation, and compliance and EU policymaking. Comprehensive theoretical and empirical studies have allowed us to develop a detailed understanding of the impact of the EU on the political and economic transformations in Central and Eastern Europe. The ongoing accession process provides more opportunities to study the evolving nature of EU enlargement policy, its impact on candidate countries, the development of EU policies, and the advancement of the integration project.
Michael J. Nelson and James L. Gibson
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.
John Stuart Mill is a liberal icon, widely praised in particular for his stirring defense of freedom of speech. A neo-Millian theory of free speech is outlined and contrasted in important respects with what Frederick Schauer calls “the free speech ideology” that surrounds the First Amendment of the U.S. Constitution, and with Schauer’s own “pre-legal” theory of free speech. Mill cannot reasonably be interpreted to defend free speech absolutism if speech is understood broadly to include all expressive conduct. Rather, he is best interpreted as defending an expedient policy of laissez-faire with exceptions, where four types of expression are distinguished, three of which (labeled Types B, C, and D) are public or other-regarding, whereas the fourth (labeled Type A) is private or self-regarding. Types C and D expression are unjust and ought to be suppressed by law and public stigma. They deserve no protection from coercive interference: they are justified exceptions to the policy of letting speakers alone. Consistently with this, a moral right to freedom of speech gives absolute protection to Type B public expression, which is “almost” self-regarding. Type A private expression also receives absolute protection, but it is truly self-regarding conduct and therefore covered by the moral right of absolute self-regarding liberty identified by Mill in On Liberty. There is no need for a distinct right of freedom of expression with respect to self-regarding speech. Strictly speaking, then, an expedient laissez-faire policy for public expression leaves the full protection of freedom of private expression to the right of self-regarding liberty.
An important application of the neo-Millian theory relates to an unjust form of hate speech that may be described as group libel. By creating, or threatening to create, a social atmosphere in which a targeted group is forced to live with a maliciously false public identity of criminality or subhumanity, such a group libel creates, or significantly risks creating, social conditions in which all individuals associated with the group must give up their liberties of self-regarding conduct and of Type B expression to avoid conflict with prejudiced and belligerent members of society, even though the libel itself does not directly threaten any assignable individual with harm or accuse him or her of any wrongdoing of his or her own. This Millian perspective bolsters arguments such as those offered by Jeremy Waldron for suppressing group libels. America is an outlier among advanced civil societies with respect to the regulation of such unjust hate speech, and its “free speech ideology” ought to be suitably reformed so that group libels are prevented or punished as immoral and unconstitutional.
Christopher A. Whytock
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.
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.
Mikael Rask Madsen and Mikkel Jarle Christensen
Over the past several decades scholars have intensively debated what factors drive globalization. Answers have ranged from the emergence of the information society and the global economy to value-conflicts embedded in different civilizations. A different yet closely related question is who is driving globalization? That is, however, much less studied, even if it is arguably key to making global governance intelligible. A whole list of actors seem to offer possible answers to the question of who the globalizers are: Are they global institutions such as the World Trade Organization (WTO) or the International Criminal Court (ICC); communities of experts providing technocratic solutions; transnational networks of activists seeking to alter global and national politics by pursuing, for example, environmental or human rights agendas; or are they powerful individuals forming transnational elites taking the fate of the global society in their hands at a safe distance from ordinary politics in places such as Brussels, New York, or Davos?
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.
John P. Kastellec
Crucial to understanding the behavior of judges and the outputs of courts is the institutional context in which they operate. One key component of courts’ institutional structure is that the judiciary is organized as a hierarchy, which creates both problems and opportunities for judges. For instance, one problem for judges at the top of a hierarchy is how to best exercise oversight of lower court judges, whose decisions are often not reviewed by higher courts. One opportunity is that higher courts can reverse errors by lower courts; another is that, as new legal issues emerge, hierarchy provides opportunities for judges to learn from one another.
Scholars of the judicial hierarchy have pursued two broad approaches. The “team perspective” begins by assuming that all judges in a hierarchy have the same values or principles, and thus care only about achieving the correct outcome in a given case. In the team approach, the key problem in adjudication is informational. All judges agree on the correct outcome of a case, conditional on understanding the relevant facts, but may lack this understanding due to resource constraints or informational advantages enjoyed by litigants. The agency approach, by contrast assumes that judges in the hierarchy have differing preferences, and the key problem is how higher courts can ensure compliance by lower courts.
Despite these different foundational assumptions, the team and agency approaches have both been employed successfully to study core questions regarding the judicial hierarchy, including: why hierarchy exists; how higher courts can best oversee lower courts; how learning takes place both within and across the levels of the judiciary; and how collegiality influences judicial decision-making. Yet, while our understanding of the judicial hierarchy has greatly increased in recent years, many questions remain, such as how judges learn and how to measure legal doctrine.
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.