The Judicial Trilemma visits Latin American Judicial Politics

Abstract

The Judicial Trilemma, by Jeff Dunoff and Mark Pollack, studies the dynamic relations between accountability, transparency, and independence, and suggests that designers can only maximize two of these three values at once. 1 They can create a court that has high levels of (1) independence and accountability, (2) transparency and independence, or (3) accountability and transparency, but only at the cost of having a low level of the third value. The article explores these ideas using four different international tribunals, but its insights are not limited to international courts. Domestic designers also have to decide what levels of accountability, independence, and transparency their courts should have, and in making a decision they will face the Judicial Trilemma and confront the hard choice of selecting primarily two out of three values. This essay will take readers to a world of political judges, faceless tribunals, court purges, and insincere dissents, and explore how the Judicial Trilemma's logic applies in a Latin American context. The Judicial Trilemma helps us understand many features of Latin American courts. However, these courts also expose the limits of the theory and how under different circumstances the Trilemma's responses can become perversely self-defeating.