ARE COMMITMENT AND COOPERATION RELATED?
One question that immediately arises is whether commitment and cooperation are separate, independent qualities of judges and courts or whether they pull each other in predictable directions. If they are separate, adding a judge who decides in accordance with her personal views to a court may shift the court to the left in CC Space in Figure 1-1—changing it, for example, from a deliberative to a strategic court. The addition of the judge would not, however, affect the level of cooperation.
Commitment and cooperation may, on the other hand, be linked such that changing one affects the other. Adding a judge who decides based on his personal views may diminish the level of cooperation—the judges on the court may be less willing to seek common, objective ground. The court in our example may then move from a deliberative court to an attitudinal court with the breakdown of cooperation. Yet any change likely depends on the starting point. Adding a judge who decides based on his personal views to a court already well stocked with such judges could shift an attitudinal court to a strategic court if the judges can more readily find judges who will trade votes with them. More judges deciding in accordance with their personal views could then be associated with more or less cooperation.
We therefore view commitment and cooperation as linked but not in a way that eliminates the possibility of certain types of courts. Altering the way the court operates or who sits on a court may change the type of court by influencing either or both the level of commitment or cooperation. understanding such change requires an appreciation of how the various choices about the design of a high court relate to each other and to how judges decide cases. We seek to deepen this appreciation by examining the wide array of choices made by and for past and current high courts in different countries.