Georg Vanberg

Legislative-Judicial Relations: A Game-Theoretic Approach to Constitutional Review

from 1983 to1995. ourts with the power to exercise constitutional review-as constitutional courts or in a decentralized system of judicial reviewconstitute central institutions of governance in most Western-style democracies. I present a simple game-theoretic model that provides a unified account of the multi-faceted interactions between such courts and the legislatures they are, at least in part, intended to control. The model addresses legislative anticipation of judicial review, legislative reactions to judicial rulings, and investigates the implications for judicial behavior. It demonstrates that the political environment in which a court must act is crucially important to the manner in which it will use its powers. As a result, the analysis provides important insights into the extent and the limits of judicial influence, thereby addressing questions that have been a recurring topic of debate among judicial scholars in the last decade (e.g., Holland 1991; Stone 1992; Tate and Vallinder 1995). In addition, the model lends insight into the current debate concerning the extent of strategic behavior by justices, demonstrating under which circumstances justices are likely to be constrained by strategic considerations and when this will not be the case (e.g., Carrubba 2000; Ferejohn and Weingast 1992; Rogers 2001; Segal 1997). The article is organized as follows. The next section introduces the substantive feature of legislative-judicial relations that is central to the analysis. The third section describes the model. In the fourth section, I present the equilibria of the game and interpret the results. The fifth section provides an empirical test of some of the models conclusions using data on the decisions of the German Constitutional Court. The final section concludes.

Coalition Policymaking and Legislative Review

Political scientists know remarkably little about the extent to which legislatures are able to influence policymaking in parliamentary democracies. In this article, we focus on the influence of legislative institutions in periods of coalition government. We show that multiparty governments are plagued by “agency” problems created by delegation to cabinet ministers that increase in severity on issues that divide the coalition. We also argue that the process of legislative review presents an important—but understudied—institutional opportunity for coalition partners to overcome these tensions. We evaluate our argument using original legislative data on over 300 government bills collected from two parliamentary democracies. The central implication of our findings is that legislatures play a more important role in parliamentary democracies than is usually appreciated by providing a key institutional mechanism that allows coalition partners with divergent preferences to govern successfully.

Wasting Time? The Impact of Ideology and Size on Delay in Coalition Formation

Coalition theory has a distinguished tradition in comparative politics. Beginning with William Rikers The Theory of Political Coalitions , William H. Riker, The Theory of Political Coalitions (New Haven, Conn.: Yale University Press, 1962). comparativists have made considerable theoretical and empirical progress in understanding the complexities of coalition politics, most significantly with respect to government formation and termination.

Coalition Government and Political Communication

One of the central challenges facing multiparty governments in parliamentary democracies is the need for coalition parties to communicate to their constituents that they have not strayed significantly from their electoral commitments when agreeing to policy compromises. We argue that one of the main ways parties attempt to make their case to constituents is through their behavior in legislative debate. Debate provides a unique opportunity—tied directly to the policy the government is implementing—to declare party positions on the coalition compromise. In an analysis of several hundred legislative speeches in two parliamentary democracies, we show that coalition parties communicate with constituents much more extensively on internally divisive issues, especially as the next parliamentary elections draw near. We also demonstrate contextual and institutional effects (including the impact of junior ministers) that complement emerging findings in the literature on coalition governance.

Assessing the Allocation of Pork: Evidence From Congressional Earmarks

Distributive politics represents one of the most important and controversial aspects of legislative policymaking. In the U.S. Congress, controversies over distributive politics are most evident in the area of legislative earmarking. In this article, we employ a unique set of data matching earmarks to their legislative sponsors to assess the leading explanations of distributive politics. We find that members of the majority party do considerably better than equally situated members of the minority. Moreover, party leaders target earmarks to those holding pivotal agenda-setting positions and to electorally vulnerable members. These findings have direct implications for both the extensive political science literature on distributive politics and the practical politics of earmarking reform.

Measuring Policy Content on the U.S. Supreme Court

Political scientists have developed increasingly sophisticated understandings of the influences on Supreme Court decision making. Yet, much less attention has been paid to empirical measures of the Courts ideological output. We develop a theory of the interactions between rational litigants, lower court judges, and Supreme Court justices. We argue that the most common measure of the Supreme Courts ideological output—whether the Courts decision is liberal or conservative—suffers from systematic bias. We trace this bias empirically and explain the undesirable consequences it has for empirical analyses of judicial behavior. Specifically, we show that, although the Courts preferences are positively correlated with the ideological direction of the justices’ decision to reverse a lower court, the attitudes of the justices are negatively related—and significantly so—to the ideological direction of outcomes that affirm lower court decisions. We also offer a solution that allows scholars to work around this “affirmance bias.”

Narrow versus broad judicial decisions

A central debate among judges and legal scholars concerns the appropriate scope of judicial opinions: should decisions be narrow, and stick to the facts at hand, or should they be broad, and provide guidance in related contexts? A central argument for judicial ‘minimalism’ holds that judges should rule narrowly because they lack the knowledge required to make general rules to govern unknown future circumstances. In this paper, we challenge this argument. Our argument focuses on the fact that, by shaping the legal landscape, judicial decisions affect the policies that are adopted, and that may therefore subsequently be challenged before the court. Using a simple model, we demonstrate that in such a dynamic setting, in which current decisions shape future cases, judges with limited knowledge confront incentives to rule broadly precisely because they are ignorant.

Law, Political Science and EU Legal Studies: An Interdisciplinary Project?

Ask anyone who does interdisciplinary work: they will say it can be a thankless task. It is virtually impossible to stay on top of the literature from your own let alone the other discipline. A person’s home discipline does not appreciate or reward attempts to cross the divide. And the other fields that share your interest are inevitably unhappy with your failure to debate the issue on their terms, using the latest literature and findings in their field. European legal studies are no exception. Perhaps because of these reasons, there is not really an interdisciplinary attempt to advance our understanding of the influence of European law and the European Court of Justice (ECJ) on European Union (EU) politics. Worse yet, there is a tendency to discount the contributions of each discipline. An example reveals the nature of this problem. Both law and political science identify similar legal phenomena and legal rulings as being important – e.g. the construction of the European legal order through ECJ decisions,1 or the Cassis de Dijon ruling establishing the principle of mutual European Union Politics [1465-1165(200203)3:1] Volume 3 (1): 113–136: 021227 Copyright© 2002 SAGE Publications London, Thousand Oaks CA, New Delhi 06 Forum (jr/d) 1/2/02 9:01 am Page 113

A Step in the Wrong Direction: An Appraisal of the Zero-Intelligence Model of Government Formation

In a recent article in the Journal of Politics, Golder, Golder, and Siegel (2012) argue that models of government formation should be rebuilt “from the ground up.” They propose to do so with a “zero-intelligence” model of government formation. They claim that this model makes no theoretical assumptions beyond the requirement that a potential government, to be chosen, must be preferred by all its members and a legislative majority to the incumbent administration. They also claim that, empirically, their model does significantly better than existing models in predicting formation outcomes. We disagree with both claims. Theoretically, their model is unrestrictive in terms of its institutional assumptions, but it imposes a highly implausible behavioral assumption that drives the key results. Empirically, their assessment of the performance of the zero-intelligence model turns on data that are of limited relevance in testing coalition theories. We demonstrate that the predictions of the zero-intelligence model are no more accurate than random guesses, in stark contrast to the predictions of well-established approaches in traditional coalition research. We conclude that scholars would be ill-advised to dismiss traditional approaches in favor of the approach advanced by Golder, Golder, and Siegel.

Financial Crises and Constitutional Compromise

Constitutional constraints are often designed with crisis in mind: Framers wish to constrain the exercise of power precisely in those circumstances in which policymakers will be tempted to take actions that may violate underlying normative commitments. These constraints are only as strong as the willingness and ability of courts to enforce them though; and because judges care about both themselves and policy outcomes, they are sometimes less than willing to enforce constitutional constraints. Existing scholarship has explored this phenomenon, focusing primarily on the possibility that the weakness of courts may prevent them from effectively policing constitutional boundaries in the face of governments determined to deal with a crisis. We suggest that such strategic judicial retreat may also result from judicial strength. In times of crisis, courts that command significant authority, and are likely to garner compliance with their rulings, confront a quandary that weaker courts can escape: The enforcement of constitutional boundaries may prevent an effective governmental response to a crisis. If judges are sufficiently concerned about the practical consequences of hamstringing a government under these circumstances, they may engage in judicial self-censoring not because they are weak, but because they are strong.