Home Economics Commitment and cooperation on high courts : a cross-country examination of institutional constraints on judges
JUDGES, THE LAW, AND INSTITUTIONS
Drawing this discussion together, we can then think of three interrelated categories of influences on how judges decide—whether they decide more or less “ideologically” or “cooperatively”:
A judge who tends to want to favor the accused in criminal cases may have more opportunity to acquit an accused in cases where the offense is framed in a more open-ended manner. This factor may, however, also be influenced by institutional design. For example, judges on courts with more discretion about the cases they hear may hear more cases that provide scope for application of policy preferences—either because such cases are more controversial, or because the judges prefer to hear such cases.
• The institutional incentives or constraints on decisions: Even given a particular set of judges and laws, different choices about the design of the court may increase or decrease the costs to a judge of making certain decisions. Think again of the judge who wants to favor accused individuals. Different institutional rules may make it more or less costly to satisfy that preference. For example, a norm against deciding in accordance with policy preferences may raise the cost of such a choice. We will examine a range of design choices that may raise or lower these costs.
It will of course be difficult to separate the influence of each of these factors in particular cases, and they may interact such as where a norm of political voting leads to a more political appointment process. We can, however, look for some indications in how judges decide that point in one direction or the other. We start with the most basic of the institutional choices—how to choose the judges who sit on the court.
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