Crafting Courts in New Democracies: Ideology and Judicial Council Reforms in Three Mexican States

Abstract

Judicial strength and the rule of law are increasingly understood as vital to democratic development. Understanding the sources of strong courts, therefore, is critical, and a growing literature examines the political origins of effective judiciaries. 1 A dominant theoretical strand in this research anticipates that judicial reform is a product of rising electoral competition. That is, electoral uncertainty generates the motivations-conceptualized as material, rational-strategic incentives-required to build stronger judicial institutions. Accounts based on electoral uncertainty, however, raise unresolved puzzles of causation and prediction. Despite a broad consensus regarding the benefits of competitive politics, 2 rival causal logics underpin the effects of competition. Moreover, the incentives generated by electoral uncertainty apply to all politicians equally, thus anticipating that better institutions depend less on the ideas or identity of any given politician and arise automatically, as a quasi-mechanical side effect of competition. Further, dysfunctional institutions persist even in competitive settings; reforms frequently occur long after the start of electoral openings; and the specific content of reforms varies across similarly competitive settings, showing electoral accounts to be overly optimistic, or at least ambiguous, about their predictions regarding both the timing and content of reforms. Introducing additional complications, a core insight of a strategic bargaining account of reform anticipates that competition in previously noncompetitive settings, for example Mexico, increases the number of relevant actors, hindering policy change and inhibiting reform. 3 That is, competition might produce less reform, not more. Indeed, a motivated actor in a noncompetitive setting may have the easiest task of effectuating reform, a task that becomes more difficult as competition increases and power fragments. Electoral accounts do not anticipate this negative effect, and tell us nothing of the underlying motivations of such actors. In sum, current theories of judicial change are inconsistent and inconclusive, suffering from problems of both behavioral equivalence and indeterminacy. Rival hypotheses are in play, obfuscating causation and making predictions unclear, unstable, and even contradictory.

Power, Composition, and Decision Making: The Behavioral Consequences of Institutional Reform on Brazil’sSupremo Tribunal Federal

“…The transition appears to be driven by institutional change combined with political change, while the broader legal environment was held constant. Our results contribute to a growing literature on judicial behavior in civil law settings, and especially to those documenting changes in legal culture and a widening division between more traditional, passive, positivist judges, and more progressive, active, assertive, interpretivist judges like that documented in Spain, Chile, and elsewhere (Hilbink 2007a;2007b;Couso 2010;Huneeus 2010;Ingram 2012). Thus, our findings challenge the existing literature on the persistent, apolitical professionalism of the Brazilian STF, highlighting a crucial new cleavage in Brazilian judicial politics, but also complement recent studies that examine transformations in judicial behavior in the civil law tradition.…”

Agencification and the administration of courts in Israel

“…Recent years have seen the emergence of councils for judiciaries, often cast as independent agencies, buffering the judiciary from its surrounding branches. They are said to safeguard the judiciary's independence while holding it accountable to the public (Bunjevac ; Ng ; Pozas‐Loyo & Ríos‐Figueroa ; Zimmer ; Ingram ; Garoupa & Ginsburg ).…”

“…The institution that has direct control over the daily working conditions of a judge (or of a court) has power over that judge (or over the court). It is not surprising, therefore, that we witness the flourishing of schemes directed at placing judges and judicial councils at the center of court administration, inter alia with a view to tackling persistent challenges to judicial independence and accountability (Garoupa & Ginsburg , ; Piana ; Pozas‐Loyo & Ríos‐Figueroa ; Ingram ). According to the literature, such schemes coincide with the overall increase of judicial power, as courts purportedly wade through turf traditionally dominated by elected powers (e.g.…”

Institutionalisation, Reform and Independence of the Public Defender’s Office in Brazil

“…There are several theories aimed at explaining judicial strengthening or empowerment, that is, the granting by the Executive and Legislative Branches of part of their power to the Judicial Branch. The most prominent theories are insurance theory (FINKEL, 2005), hegemonic preservation theory (HIRSCHL, 2000), the thesis of governance (NUNES, 2010a(NUNES, , 2010bWHITTINGTON AND DEVINS, 2005) and the theories of ideational empowerment (INGRAM, 2012;HILBINK, 2009;HILBINK and WOODS, 2009).…”

“…In order to understand the context of the reform, we use the concepts of institutional and judicial independence (AGUIAR, FORTHCOMING;CARVALHO and LEITÃO, 2010, FORTHCOMING;STATON, 2009, 2011) and the theoretical discussion on judicial empowerment (FINKEL, 2005;HILBINK, 2009;HILBINK and WODS, 2009;HIRSCHL, 2000;INGRAM, 2012;NUNES, 2010aNUNES, , 2010bWHITTINGTON AND DEVINS, 2005 , 2004, 2006, 2009). This data, along with demographic data, was analysed using software package SPSS, which enabled indexes to be established.…”