Kirk A. Randazzo

The Relationship Between Independence and Judicial Review in Post-Communist Courts

Following the collapse of communist rule in Central and Eastern Europe and the former Soviet Union, constitutional designers codified rules establishing independent judiciaries. To what degree do these constitutional and statutory guarantees of independence reflect the actual behavior of courts? Our analysis demonstrates that official judicial power does not predict expressions of judicial review—overturning legislation in whole or in part. Rather, exogenous factors, including economic conditions, executive power, identity of the litigants and legal issues, influence the likelihood that courts will nullify laws. Our findings should caution both scholars and institutional designers. Both formal and informal factors create the parameters in which courts operate. Although courts have become more powerful institutions in the post-communist era, they face a diverse set of constraints on independent action.

Strategic Anticipation and the Hierarchy of Justice in U.S. District Courts

Does the hierarchical relationship between the district courts and the courts of appeals influence decision making at the trial level? Do these judges anticipate responses by appellate panels and condition their decisions based on these expectations? Using a sample of district court cases from 1925 to 1996 that were subsequently reviewed by the courts of appeals, and incorporating a strategic choice statistical framework, I discover that the district courts are constrained by the anticipated responses of the appeals courts. However, this conclusion is not apparent if one analyzes the data using traditional maximum likelihood methods. Only when empirical analyses specifically model underlying strategic relationships does one discover this constraint. If the federal trial judges anticipate a negative response on appeal, then they curtail their ideological influences (the magnitude of influence decreases by approximately one-half). This pattern remains consistent when one examines civil liberties and economic cases, but not for criminal cases. Thus, the hierarchical structure of the federal judiciary appears to exert a significant constraint on the district courts.

Checking the Federal Courts: The Impact of Congressional Statutes on Judicial Behavior

This paper examines the struggle between the legislative and judicial branches by focusing specifically on congressional influences on the behavior of federal judges. We argue that Congress may constrain individual judicial behavior by passing statutes containing detailed language. To test this thesis we borrow from the bureaucratic politics literature to introduce and test a new measure of statutory constraint. Using data from the U.S. Courts of Appeals we find that appellate court behavior is constrained significantly by statutory language, although this constraint is asymmetric across ideology. We discover substantial differences between Democratic and Republican appointees both in terms of statutory constraint and ideological voting. The data indicate judges appointed by Democratic presidents are constrained by statutory language in criminal cases. Similarly, Republican appointees are constrained by statutes in civil rights cases. Yet, neither Democrats nor Republicans are constrained in economic cases.

State Supreme Courts and the Effects of Statutory Constraint A Test of the Model of Contingent Discretion

Do state supreme court judges render decisions according to their ideological preferences, or are they constrained by the language of state statutes? Using data from the Judge-Level State Supreme Court Database, the authors analyze the votes of individual judges from 1995 to 1998 to determine whether their behavior is constrained by legislation. The results indicate that more detailed language (resulting in statutes with higher word counts) significantly limits the discretion afforded to liberal judges while simultaneously facilitating the ideological voting of their conservative colleagues.

Explaining Changes to Rights Litigation: Testing a Multivariate Model in a Comparative Framework

Why do we witness variation in the level of judicial attention to rights litigation across countries and over time? Traditional explanations emphasize the constitutional recognition of rights, judicial leadership, and the development in society of a sophisticated “support structure for legal mobilization,” as key covariates of these phenomena. Yet, there is a dearth of quantitative empirical analyses that evaluate these explanations comparatively and actually test their relative influence on trends of rights litigation and protection. Perhaps the most important lacuna in this regard is an assessment of the influence of institutional conditions and modifications in bringing about or facilitating the transformation of the rights scene. To contribute to closing this gap, this article empirically assesses the short and long term impacts of ideology, support structure, and institutional protection on changes in the presence of rights litigation in the dockets of the High Courts of several democracies with Comm...

Explaining Litigant Success in the High Court of Australia

The authors examine the influence of party capability theory while controlling for legal-structural and doctrinal changes in the High Court. Based on their analysis of cases from 1970 to 2003, several notable conclusions emerge. The most interesting determinant of litigant success in Australia involves a shift within the High Court from a mechanical form of jurisprudence to a doctrine of implied rights. Once the High Court announced Mabo, ‘one-shot’ litigants gained a significant advantage and were more likely to win. Additionally, the change to a doctrine of implied rights provided barristers with new opportunities to craft novel legal arguments. Consequently, their influence over decision outcomes increased. As barristers gained more experience and more successes, the likelihood of their clients winning increased substantially.

Judicial Deference and National Security: Applications of the Political Question and Act of State Doctrines

This article briefly examines the history of federal court adjudication of national security issues to determine how judges have employed specific legal rationales for deciding not to decide in order to avoid confrontation with the executive branch. By focusing on the historical development of these legal strategies, we demonstrate that while judges have been generally deferential to the executive on national security issues, this deference increases in times of crisis. Through a series of qualitative case studies, we examine the use of threshold issues as a legally justifiable means to avoid ruling on the merits. Specifically, we focus on the use of the political question and act of state doctrines both historically and in the post-September 11th environment. We conclude that the federal courts continue to employ these techniques to avoid resolving challenges to national security, thereby promoting a continued deference to the executive branch.

Examining the Development of Judicial Independence

Scholars who examine judicial independence offer various theories regarding its development. Some argue that it serves as a type of insurance for regimes who believe their majority status is in jeopardy. Other scholars argue that insurance theory does not offer an adequate explanation until states democratize. We argue that part of the explanation for these mixed results involves the inadequacy of insurance theory as a complete explanation. Our paper develops a multidimensional theory that focuses on the interplay of constraints on ruling elites derived from levels of political competition within the government, the potential for social competition within the state, and regime type. We test our argument using a dataset of approximately 145 countries over forty years, and our results support the argument that development of judicial independence is related to the political landscape encountered by the executive. Ethnic fractionalization in the state, political competition, and regime type each has a conditional effect on the observation of judicial independence.

The Support Structure and Sustained Attention to Rights: A Rejoinder

I n his response, Professor Epp defends his support structure thesis claiming that it is a ‘‘necessary condition for sustained judicial attention to civil rights and liberties.’’ He criticizes us for devoting ‘‘most of [our] paper to refuting a thesis that is not mine’’ and for failing to ‘‘take into account the findings of research on the support structure in these countries.’’ Unfortunately, Professor Epp avoids offering a better explanation (or definition) of the support structure mechanism and how one would observe its effects on rights litigation. With this in mind, our rejoinder focuses on two issues: the appropriateness of our time-series analyses and the adequacy of our tests of the necessary but not sufficient condition.

The Politics of Judicial Retirement in Canada and the United Kingdom

In this study, we test theories of judicial retirement developed in the United States to study patterns of retirement in Canada and England. We explore whether there is evidence that justices time their departures to strategically advance partisan or policy goals. Using survival analysis to examine the career patterns of judges appointed to the Supreme Court of Canada (1875–2012), as well as the House of Lords of the United Kingdom (1875–2009), we find that there is no evidence of strategy to achieve political objectives. Instead, these judges either choose to stay as long as possible or retire for personal reasons.