Judicial Preferences Research Articles

Purging Disloyal Courts in Democratic Transitions and Judicial Preferences

ABSTRACT∞ In this article, I examine court-purging in democratic transitions through the lens of judicial preferences. Specifically, I address the debate on how court-purging during a democratic transition affects the likelihood of future court-purging. I argue that the prevailing assumption is one of static, sincere judicial preferences. In contrast, I explicitly recognize the role of dynamic judicial preferences and incentives. This recognition suggests that transitional court-purging could be minimal and cautious, while the broader judicial context may eventually achieve the same policy outcomes. The dynamic perspective is crucial for understanding past court-purging strategies and for informing the conceptual debate about the rule of law in transitional justice.

Explaining Enterprise Litigation Success with fsQCA: The Role of Local Economic Environment, Policy Preferences, Case Complexity, and Party Capability

Since the initiation of reforms and the opening-up policy in China, enterprises have played a pivotal role as a key pillar of local economic growth. Within the context of harmonious labor relations, the effective means of assisting enterprises in safeguarding their particular interests during labor disputes remains unresolved. Fuzzy-set qualitative comparative analysis (fsQCA) is able to capture a higher degree of complexity by testing theory-based conditions and environmental effects rather than focusing on a single effect of a single variable. Therefore, coming from a new institutionalist perspective, this study employed fsQCA to explore the causal relationships among factors including local economic environment, policy preferences, case complexity, party capability, and enterprise litigation success. Analyzing data from 28,685 labor dispute cases from Guangdong Province between 2015 and 2019, and utilizing enterprise data from the China Economic Information Network and the National Enterprise Credit Information Publicity System, we found that: (1) it is difficult for enterprises to succeed substantially in a single-antecedent condition; (2) There are four pathways to forming high enterprise victory, each involving different configurations of eight conditions; and (3) Judicial preference, employee legal representative, and enterprise legal representative are central elements in all aforementioned pathways, even if they are not necessary conditions for the success of high enterprises. The research results enrich our understanding of the current style of institutionalism, providing a valuable reference point for effectively improving the legal success of enterprises and improving the harmonious development of labor relations, with far-reaching implications for the further study of the judicial protection of enterprise rights under the socialist system.

What Do Judges Want? How to Model Judicial Preferences

Abstract We discuss a central question in the study of courts: What do judges want? We suggest three different domains that might serve as the basic preferences of a judge: case dispositions and rules, caseloads and case mixes, and social consequences. We emphasize preferences over dispositions on the grounds of plausibility and tractability. We then identify desireable properties of dispositional utility functions and the relationship between dispositional utility and expected utility for rules. We examine the impact on expected rule utility from case distributions that are sensitive to the enforced rule. We illustrate how to combine dipositional utility with efforts costs and time constraints. We provide examples of case spaces, dispositional utility functions, and expected utility functions for enforced rules. This essay is an early draft of a chapter of a book-in-progress on the positive political theory of courts.

From liberal to conservative? The role of Hong Kong Court of final appeal in safeguarding fundamental rights under China's One Country Two Systems policy

ABSTRACT This paper explores Hong Kong Court of Final Appeal's role in protecting fundamental rights under China's One Country Two Systems practice. It starts by giving an account of the constitutional and legal framework for Hong Kong's judicial protection of human rights. It examines the Court's efforts in obtaining constitutional jurisdiction, employing generous interpretation approach to rights guarantees, reforming standards such as proportionality and reasonableness for scrutinising rights restrictions, and broadening reference inputs by comparative approach and amicus curiae for interpretation of rights provisions. It indicates that through these ways the CFA has developed freedom-friendly common law constitutionalism and formed judicial preferences in favour of personal liberty. It advocates that the so-called conservative performance of the CFA on rights issues in national security cases may be its efforts to secure judicial independence and the common law system in a changing political climate. The article posits that due to the CFA's strong foundation in judicial protection of human rights, and its recent efforts to incorporate national security law into common law, it is well-positioned to play a crucial role in preserving the way of life for Hong Kong residents as China's Hong Kong policy enters a new era.

Courts as an arena for socioenvironmental change: Lessons from the Argentine courts

AbstractTrends in the Argentine courts indicate a judicial preference towards flexibility in light of possibly serious environmental consequences, particularly in relation to mining. Through a liberal interpretation of constitutional provisions where collective environmental rights are threatened, the courts have expanded access to justice, leading some to view the Argentine judiciary as “interventionist” or “political”. However, judicial decisions emphasise compliance with constitutional mandates without necessarily encroaching on policy‐making realms. The constitutionalisation of environmental rights has had a strong influence on the judiciary's approach, but in combination with other factors, particularly civic mobilisation, institutional changes and an evolving public ethos on environmental protection. Proactive judicial engagement with the full extent of its powers to ensure that policy‐makers meet their constitutionally mandated obligations can compel policy‐makers to address sustainability issues and rethink strategies. This positioning of the judiciary as a catalyst for more effective environmental governance offers useful insights for European courts.

The Future Matters: Judicial Preferences Over Legal Rules and Decision-Making on Collegial Courts

AbstractHigh courts such as the US Supreme Court announce legal rules that guide subsequent decisions by lower courts and other actors. Because legal rules are forward-looking in this sense, judges’ expectations about the distribution of future cases are critical. Focusing on this fact, we provide microfoundations for judicial preferences over legal rules by deriving them directly from expectations about the distribution of future cases. Doing so has important consequences: in contrast to standard assumptions in models of judicial decision-making, preferences over legal rules are asymmetric rather than symmetric. We demonstrate that this has significant implications for judicial decision-making on collegial courts. Finally, we show that changes in the case distribution—for example, as a result of technological change—can lead to significant legal change, even in the absence of ideological or doctrinal change on the court.

From Substantive to Procedural Law: Better Approach to Equal Treatment of Chinese State-Owned and Private Enterprises

The institutional plight of dual discrimination’ has forced Chinese private enterprises to commit crimes in order to survive, as they are treated differently from state-owned enterprises both politically and economically. In response, China’s Criminal Law Amendment (XI) has enhanced the statutory penalties for crimes committed by private enterprises to make them more similar to those committed by state-owned enterprises. Chinese scholars considered this amendment as an important step forward in achieving equal treatment for Chinese private and state-owned enterprises. With the aim of exploring the appropriate approach of equal treatment of Chinese state-owned and private enterprises, we start our research by examining the above considerations. However, from the perspective of the theory of the purpose of penalties, the punishment for crimes committed by private enterprises need not be absolutely identical to those for crimes committed by state-owned enterprises. Therefore, enhancement of the penalties aiming to protect private enterprises in criminal substantive law does not contribute to realization of the principle of equality before the law. Switching from criminal substantive law to criminal procedural law is a better approach to achieve equal treatment for state-owned and private enterprises in China. The reason for this is that, according to the theory of rectificatory justice, in order to achieve equal treatment of private and state-owned enterprises, more judicial preferences should be granted to private enterprises in the criminal procedural law, rather than in the substantive law. Within the framework of the current China’s criminal procedure law, we can take two parts of procedural strategies in application of procedure law into consideration, including: improvement in the application of China’s corporate compliance deferred prosecution institution and restriction of custody against personnel in Chinese private enterprises.

Judicial Ideology in the Absence of Rights: Evidence from Australia

This article investigates whether apex court judges behave ideologically in cases not involving civil, political, or economic rights. Research on comparative judicial behavior has yet to systematically examine the extent to which ideology affects voting behavior is outside of rights-based issues. The study contributes to existing research by exploring the predictive effect of judicial ideology on the entire corpus of judicial votes in a country without a bill of rights: Australia. We develop an ex ante measure of judicial ideology based and uses original data on every decision by Australian High Court Justices between 1995 and 2018 to test whether, and in which types of cases, the votes of Australia’s apex court judges align with their ideology. The results show a strong relationship between ideology and voting behavior, regardless of policy area, suggesting that judicial policy preferences will inevitably find an outlet, even in the absence of authority over rights.

Selective assertiveness and strategic deference: explaining judicial contestation of military prerogatives in Pakistan

ABSTRACT How do we explain variation in judicial assertiveness towards politically powerful militaries? This article argues that the judiciary’s willingness to assert itself against the military is contingent upon the type of military prerogative being challenged. Focusing on Pakistan, I find that courts are more willing to contest military prerogatives connected to the military’s political authority, than prerogatives connected to its institutional autonomy. This selective assertiveness is strategic, as concerns about military retaliation against the judiciary are more likely to outweigh judicial preferences, on questions of the military’s institutional autonomy than on questions of the military’s political authority. I test this hypothesis using an original dataset of 720 high court and supreme court judgments pertaining to military prerogatives from Pakistan. I then discuss a sample of judgments selected from the dataset to demonstrate how variation in judicial assertiveness is guided primarily by strategic concerns about the likelihood of military retaliation against the judiciary. In studying the interactions between the judiciary and the military in Pakistan, the article provides a new perspective on the sources of judicial assertiveness and restraint, and the role the judiciary can play in bringing militaries under civilian control in authoritarian and post-authoritarian states.

Judicial ideology in economic cases: Evidence from the General Court of the European Union

We contribute new empirical evidence on the influence of ideology on the behaviour of European Union judges. As votes and other common proxies for judicial preferences are unavailable, we ask 46 competition law experts to rate the ideology of 51 judges who have served on the General Court of the European Union. The average ratings are then used to explain the outcome of competition and state aid cases (N = 655). We find that, consistent with research on United States courts, the pro-business score of the panel median is a significant predictor of General Court decisions in competition and state aid cases. We find less conclusive evidence for the influence of Europhilia. While showing that attitudes towards private business may matter more than Europhilia in economic cases, our analysis also suggests that expert ratings constitute a viable and promising alternative in settings where other measurement methods are unavailable.

On Overruling Chevron

Chevron, U.S.A., Inc. v. National Resources Defense Council, Inc., the foundation for much of contemporary administrative law, is under siege. Several members of the Supreme Court have suggested that they would like to overrule it. Under standard principles of stare decisis, doing that would be a serious mistake. Even if Chevron was wrongly decided, overruling it would create an upheaval—a large shock to the legal system, producing a great deal of confusion, more conflicts in the courts of appeals, and far greater politicization of administrative law. For example: What would happen to the countless regulations that have been upheld under the Chevron framework? Would they be newly vulnerable? More fundamentally,, a predictable effect of overruling Chevron would be to ensure a far greater role for judicial policy preferences in statutory interpretation and far more common splits along ideological lines. There is also the question of reliance interests: For decades, Congress has legislated against the background set by Chevron, and the resulting statutes reflect an understanding that the Court’s framework will apply. Though the argument for overruling Chevron is unconvincing, its critics have legitimate concerns. Those concerns should be addressed by (1) insisting on a fully independent judicial role in deciding whether a statute is ambiguous at Step One; (2) invalidating arbitrary or unreasonable agency interpretations at Step Two; and (3) deploying canons of construction, including those that are designed to serve nondelegation functions and thus to cabin executive authority.

Estimating Judicial Ideal Points in Bi‐Dimensional Courts: Evidence from Catalonia

The empirical literature has consistently shown that judicial ideal points can be estimated in a one‐dimensional space that reflects the traditional conservative‐progressive dichotomy. In this article, we develop an empirical methodology to analyze some features that may characterize bi‐dimensional courts when dissenting opinions are not frequent. We apply the analysis to the particular case of the Consell de Garanties Estatutàries de Catalunya (Catalan Constitutional Court). The results illustrate that judicial preferences on conservative‐progressive grounds are likely to affect the decision outcome of the Court on issues having significant public policy content. Conversely, judicial preferences regarding Spanish‐Catalan sovereignty tend to encroach on judgments concerning public policy, thus affecting the outcome of all judgments of the Court regardless of content type. Furthermore, we find that judicial preferences in the Spanish‐Catalan sovereignty dimension are pervasive enough to shift the outcome of all types of decisions in favor of Catalan institutions. Policy conclusions are derived.

Moving on from a judicial preference for mediation to embed appropriate dispute resolution

This paper critically considers judicial approaches to and promotion of mediation within the English civil justice system. It argues that the overzealous judicial emphasis on mediation in the ADR jurisprudence has restricted the wider concepts of ADR and ‘dispute resolution’ which in turn has created what the author terms ‘judicial mediation bias’. The paper critically explores these issues through an analysis of the ADR jurisprudence, with a focus on key Court of Appeal ADR authorities, and successive civil justice reforms. The paper makes proposals for reform, including the potential use of stages one and two of Lord Justice Briggs’ online court to promote a greater application of a variety of ADR procedures, in particular, judicial early neutral evaluation and collaborative dispute resolution.

Measuring Judicial Ideology in Economic Cases: An Expert Crowdsourcing Design

We investigate the efect of ideology on competition and state aid cases decided by the General Court of the European Union. As votes and other common proxies for judicial preferences are unavailable, we develop an alternative measurement approach designed to leverage the knowledge of legal experts. We ask EU competition law experts to rate General Court judges on several dimensions and then use these ratings to construct judicial scores for Europhilia, competition law expertise and business-friendliness. We show that, consistent with research on US courts, the pro-business score of the panel median is a significant predictor of General Court decisions in competition and state aid cases. We find less conclusive evidence for the influence of Europhilia and the rapporteur judge. While contributing new evidence on the link between ideology and adjudication, our analysis suggests that expert ratings constitute a viable and promising alternative in settings where other measurement methods are unavailable.

The impact of judicial preferences and political context on Constitutional Court decisions: Evidence from Turkey

Many scholars have asserted that in countries where one political party dominates the political sphere, the likelihood of judges deciding against the government diminishes. Although the underlying logic of this argument is quite appealing, it does not explain why in certain cases judges ignore possible political retaliation and give anti-government decisions. Arguing that judicial preferences and the political context under which judges operate are in constant interaction, the goal of this article is to explain whether, and to what extent, the judges’ preferences moderate the impact of political fragmentation on the court’s invalidation of laws. The study uses an original data set including all decisions made by the Turkish Constitutional Court between 1984 and 2010. The empirical findings show that while the court’s political preferences vastly attenuate the impact of the political context on judicial behavior, its legal preferences have a trivial moderating effect. To put it more specifically, the results show that the effect of political fragmentation on judicial behavior highly decreases when there is a weak political alignment between the court and the government enacting the law under review. Moreover, the findings show that even under favorable political conditions for assertive behavior, the judges abstain from annulling laws based on individual rights violations.

Common law efficiency when joinder and class actions fail as aggregation devices

We develop a litigant-based model of rule selection where parties choose to litigate rules that are efficient between two parties, but inefficient as between a potential class or potentially joined litigants and a counter-party. Collective action problems lead to incomplete party formation, which generates continuous litigation of seemingly efficient rules. By accounting for externalities borne by non-parties, we show that rules which are allocatively efficient across both parties and non-parties are evolutionary stable for any given judicial ideology or judicial preference for prestige, thus preserving the explanatory power of the Efficiency of Common Law Hypothesis.

Is the Second Amendment a Second-Class Right?

In the decade since District of Columbia v. Heller, results for gun rights claimants have been fairly unimpressive. The situation leaves some people concerned that judicial opposition is turning the Second Amendment into a second-class right. This paper takes up empirical elements of the concern. We compare five fields of constitutional litigation in the U.S. Courts of Appeals from 2008 through 2016: gun rights, abortion rights, affirmative action, establishment of religion, and commercial speech. In terms of success rates, we do find significant differences in attracting judge votes across some of these case sets, with gun rights claims at the low end. We are unable to erase or fully explain the relatively poor performance of gun rights claims by introducing several independent variables. Furthermore, judges appointed by Democrats might contribute more to the disparities than judges appointed by Republicans, although neither set of judges seems to support all claims at equal rates. In terms of causes, the situation is far less clear. Plausible explanations are available that do not involve judges disfavoring gun rights, such as relatively assertive claimants and relatively cautious regulators. Existing data cannot rule out those explanations. Nor is it clear that more data will solve the problem of isolating the contribution of judicial preferences to case results across fields of litigation. More fully detailing and explaining the forces at play in all of these fields is a task for future work, a significant part of which will have to be theoretical, historical, and ethnographic.

The Politics of the U.S. Federal Judiciary's Requests for Institutional Reform

ObjectivesWe ask whether the requests the federal judiciary makes to Congress are conditioned either on political factors or on its actual institutional needs. Methods. We build a new measure of the yearly well‐being of the federal courts from 1978 through 2013 using factor analysis. We specify two formal models to generate testable hypotheses that help to untangle equilibria behavior resulting from competing claims on judicial preferences for court reforms. We test these claims using data from the chief justice's Year‐End Reports on the Federal Judiciary. Results. We find that requests are not conditioned upon the courts' actual institutional needs but instead upon their ideological proximity to the Senate. Conclusion. We conclude that the federal judiciary views its own administration in a similarly political fashion as its elected counterparts.

Chapter 3: What Do Judges Want? How to Model Judicial Preferences

We discuss a central question in the study of courts: What do judges want? We suggest three different domains that might serve as the basic preferences of a judge: case dispositions and rules, caseloads and case mixes, and social consequences. We emphasize preferences over dispositions on the grounds of plausibility and tractability. We then identify desireable properties of dispositional utility functions and the relationship between dispositional utility and expected utility for rules. We examine the impact on expected rule utility from case distributions that are sensitive to the enforced rule. We illustrate how to combine dipositional utility with efforts costs and time constraints. We provide examples of case spaces, dispositional utility functions, and expected utility functions for enforced rules. This essay is a draft chapter of a book-in-progress on the positive political theory of courts.

Exploring the Dynamics of Latent Variable Models

While latent variable models are increasingly common in political science research, there is little consensus on how these models are best adapted to accommodate time-series, cross-sectional data. In this paper, we investigate new approaches for modeling dynamic political processes. We begin by examining existing dynamic modeling strategies and outline the properties that make these models poorly suited to modeling time series data, particularly when the latent variables are subject to periods of volatility. We then develop two new models: a robust dynamic latent variable model and a finite mixture model that nests both the static and dynamic approaches. Simulation results indicate that the robust dynamic model outperforms all other modeling strategies. We then conduct replications of existing studies that model judicial preferences and democracy as latent traits. We find that the robust model performs as as well if not better than traditional models. In addition, for the case of judicial ideology, the robust model leads to new evidence about the strategic nature of judicial action.