Learning about Judicial Independence: Institutional Change in the State Courts

Abstract

There is widespread agreement that independent courts are crucial to the growth of a nation, yet analysis of the development of the institutions of an independent judiciary is difficult, because effective judicial institutions seldom change. In this paper, I develop a simple model and use it to investigate a judicial institution that offers substantial variation to explore: the manner by which judges are selected and retained in the American states. Five different selection and retention procedures have been designed and disseminated over the last 200 years. The paper concludes that each new procedure emerged in response to an evolving understanding about the nature and significance of the relevant agency problems. In short, both the need for, and the appropriate institutional structure to support, an independent judiciary had to be learned.