Home Economics Commitment and cooperation on high courts : a cross-country examination of institutional constraints on judges
COMPARING HIGH COURTS
Commitment and cooperation then provide a map for locating different high courts. It is probably impossible to locate any particular high court precisely in CC Space in Figure 1-1. However, we can get a sense of where courts lie at a particular point in time. Courts where judges more often decide according to their personal views will lie toward the left of the space, with attitudinal and strategic courts having higher rates of such decisions than positivist or deliberative courts. Attitudinal courts should have lower rates of agreement than deliberative courts, all other things being equal, which should show itself in more dissents and concurrences. Situating the courts is not, however, straightforward. It can, for example, be hard to determine whether a court with judges who are less likely to decide based on their personal views is positivist or deliberative if there are few concurring opinions. A deliberative court may look positivist if the judges have very different legal backgrounds and therefore have difficulty reaching agreement, though they strive for it.
Beyond the United States there has been limited empirical work in many countries on how national high courts decide appeals. Analysis of other high courts such as in Canada, Israel, or the UK trails behind. There is even less work that compares across high courts. Moreover data on decisions of high courts in countries other than Canada and the United States is relatively sparse and of variable quality. For much of the analysis in this book, we expand on the existing empirical literature through use of the High Courts Judicial Database
(HCJD). The HCJD covers decisions of high courts from a range of countries from about 1970 to the early 2000s. Although there naturally are limitations in this data given its broad scope, it allows us to examine using a consistent set of data the relationship between high court design and how judges decide cases across countries.
Given the limited nature of the data and prior work, the best we can hope for at this stage is some general sense of where courts lie relative to each other. Such relative positioning, however, is sufficient to orient the question of how differences in the set-up of courts influence their decisions. We chose to examine only certain common law courts in order to keep at least some of the context the same in our comparison. Our primary focus will be on the uS Supreme Court, the Supreme Court of Canada, the uK Supreme Court (and former House of Lords), the Indian Supreme Court, and the Australian High Court, though we will also look at other courts in less depth such as the Israeli Supreme Court. Although not a large sample of courts, as we will see in the following brief overview of each court, these courts still differ widely in many ways. The united States, Canada, Australia, and the uK in particular work from a similar structure but with some interesting design differences that let us ask interesting questions about the potential influence of altering the design of the court. We chose to also include the Indian Supreme Court as it has ties to the same legal traditions but has made such divergent design choices that it makes a good counterpoint to the similarities across the other countries.
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