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INSTITUTIONAL WEDGES

Judges then balance a range of considerations when deciding on whether to hear an appeal, what the result of an appeal will be, whether to write a dissent, and so on. This balancing will be affected by the rules of a particular court. To take a simple example, if a judge is prohibited from earning money from extrajudicial activities while on the bench (such as from speaking engagements or books), she will likely not consider immediate extrajudicial material returns in her judicial decisions. We are interested in how this balancing of factors by a judge is influenced by the fact that she is embedded in a particular institution— the high court of a given country.

We will use a broad definition of institutions. As Douglass North has famously defined them, institutions are the “rules of the game"[1] These rules can be formal, including statutes, regulations, and rules. There are also informal rules contained in the norms or conventions that exist in different contexts. The key is to examine “how institutions constrain the sequence of interaction among the actors, the choices available to particular actors, the structure of information and hence beliefs of the actors, and the payoffs to individuals and groups"[2]

We will look at institutions in two ways—how institutions influence the choices of judges, and how judges influence the shape of institutions.[3] We will spend most of the time on the former: how do formal and informal rules affect the choices made by particular judges? For example, does a judge feel more or less reputational pressure if there is a formal rule requiring a court to hear appeals en banc as opposed to using smaller panels? Does an appointments process that is highly political yield high court justices who have greater preference for ideological voting than would a process that is more independent of politics? The same questions arise for informal rules or norms.[4] Does a judge feel constrained to follow precedents rather than her own personal views because of the norms of a particular court? Does she seek agreement with others because the court has a “norm of consensus”?[5] These norms or conventions may connect to other issues such as whether to appoint females to the court or to rotate the selection of chief justice across different groups (such as from different parts of the country).

Part of our analysis then is how these formal and informal rules constrain or shape the choices made by judges. The rules are taken as given or exogenous. These rules provide opportunities for or limit the effect of the various factors judges take into account—they act “by affecting the justices’ beliefs about the consequences of their actions”[6] Further, the formal and informal rules can either help overcome the barriers to rational decisions such as lack of information or exacerbate them.[7] Allowing interveners, for example, may help alleviate a judge’s lack of information about the effect of his decision to the litigants or broader society, or it may provide a signal of how a judge will be viewed if he decides in a particular fashion (and so what will happen to his reputation). We then will look across the formal and informal rules of different high courts, taking these rules as given to see whether they influence how judges decide.

We will, however, also examine (though to a lesser extent) how judges influence their own institutional structure—that is, how judges’ decisions change the rules over time. As Arvind and Stirton note, there is a need for “the creation of a proper institutionalist account of the judicial branch of government which studies the norms, conventions, aims, purposes and strategies that underlie the functioning of the judiciary, and the institutional processes by which these evolve, change, are adapted to new uses, and disappear, rather than simply starting with assumptions as to what these are”[8]

Part of the story of why institutions arise comes from the need to find cooperative solutions where otherwise there would be none.[9] For example, consider the argument that judges will vote in accordance with their personal views and ignore the “law,” but everyone would be better off if the judge instead followed the “law” As Weingast notes, judges will vote in line with their own preferences unless there is some solution to bring about cooperation. One solution is to ensure that the judges interact repeatedly over time. Each judge will cooperate as long as the others do, which can lead to long-term cooperation in certain cases such as where the judges interact indefinitely. However, in other cases repeated interactions will not lead to cooperation, such as where there is no agreement on what constitutes non-cooperation or non-cooperation is not observable.[9]

Rules then may develop to either create a norm of what constitutes cooperation or to ensure that non-cooperation is punished. For example, ensuring cooperation in the sense of not voting in line with one’s personal preferences requires a norm about what constitutes voting in line with one’s personal views, or at very least that such voting is impermissible. Similarly, although there may be a norm of not deciding in line with personal views, it may be difficult for a judge not on the panel that hears a particular appeal to know why a judge who was on the panel actually decided as he did as the non-panel judge would need considerable information about the case and about the individual judge. Rules about court size and panel size may limit or exacerbate this constraint on how judges decide. It may be more difficult for a judge to observe and punish noncooperation (deciding a case on personal preferences) on a large court with small panels (such as India) as opposed to a small court with no panels (such as the United States). Note however that these effects can be offsetting. Although the united States may have a weaker norm against deciding in line with one’s personal views, this weakness may be counterbalanced to a certain extent by a greater ability to police the norm on the small court with no panels.

Although the design of a court may evolve to allow cooperative solutions, not all courts will evolve or do so perfectly or efficiently. It may take a leader to change an institution. Leaders may be able to create new formal or informal rules that others follow. On courts, chief justices may be able to play such a role. They can push for formal rules of practice for the court or for changes to these rules. Perhaps more important, they may also be able to promote norms, such as norms of consensus, through either their office or through their method of assigning cases. They may, for example, punish a judge’s lack of cooperation or tendency to dissent by assigning him to fewer or less important cases.

We will spend the rest of the book attempting to draw out the influence of different institutional choices made for and by high courts in different countries. Some of this work has been done on individual countries, but there are only the beginnings of comparative work. For example, Weinshall-Margel notes that there are a number of connections between judicial decision-making and institutional norms of a high court.[11] She discusses how the method of appointment may increase or decrease the role of ideology and how both heavier caseloads and an inability to select the cases to be heard may reduce the impact of policy preferences and increase the importance of “law” in decision-making. We view these different rules as wedges that separate how judges decide in different countries—that split decision-making in different countries on two main bases: how much judges vote in line with their own personal views, and how cooperative judges are in reaching decisions. These wedges push courts into different parts of CC Space. One cannot understand patterns of voting on a court, let alone recommend altering a court’s institutional structure, without understanding how these wedges alter judicial decisions and how they are created and shaped.

  • [1] Douglass C. North, Institutions, Institutional Change and Economic Performance(Cambridge, UK: Cambridge University Press, 1990) at 3.
  • [2] Barry Weingast, “Rational-Choice Institutionalism" in Ira Katznelson & Helen Milner, eds,Political Science: The State of the Discipline (New York: Norton, 2002) 661. See also Maltzman,Spriggs & Wahlbeck, Crafting Law, supra note 9 (“[r]ather than viewing justices as unconstrained actors whose behavior is dictated by their policy preferences, recent work suggestedthat justices are strategic actors operating in an environment defined by institutional constraints" at 13).
  • [3] Kenneth Shepsle, “Rational Choice Institutionalism" in S. Binder, R. Rhodes & B. Rockman,eds, Oxford Handbook of Political Institutions (Oxford University Press, 2006) [Shepsle].
  • [4] Keren Weinshall-Margel, “Attitudinal and Neo- Institutional Models of Supreme CourtDecision Making: An Empirical and Comparative Perspective from Israel” (2011) 8:3 Journal ofEmpirical Legal Studies 556 [Weinshall-Margel, “Attitudinal”].
  • [5] Weinshall-Margel, “Attitudinal,” supra note 41; and Ostberg & Wetstein, Attitudinal DecisionMaking, supra note 6 at 36.
  • [6] Maltzman, Spriggs & Wahlbeck, Crafting Law, supra note 9 at 14.
  • [7] Vermeule, supra note 34, uses an institutionalist approach to examine statutory interpretation given the lack of information and bounded rationality of judges. Similarly, we use an institutionalist approach in the context of bounded rationality and informational concerns, thoughexamine these issues more broadly in the context of the structural rules of courts.
  • [8] T.T. Arvind & Lindsay Stirton, “Lawyers and the Legal Model: Judicial Ideology, JudicialProfessionalism and Institutional Strategy among the Law Lords” (2012) at 44, online: https://extranet.sioe.org/uploads/isnie2012/arvind_stirton.pdf.
  • [9] Shepsle, supra note 40.
  • [10] Shepsle, supra note 40.
  • [11] Weinshall-Margel, “Attitudinal,” supra note 41 at 3.
 
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