Tom Ginsburg

Rule By Law: The Politics of Courts in Authoritarian Regimes

1. Introduction Tom Ginsburg and Tamir Moustafa 2. Of judges and generals: security courts under authoritarian regimes in Argentina, Brazil, and Chile Anthony Pereira 3. Administrative law and judicial control of agents in authoritarian regimes Tom Ginsburg 4. Singapore: the exception that proves rules matter Gordon Silverstein 5. Judicial independence in authoritarian regimes: insights from Chile Lisa Hilbink 6. Law and resistance in authoritarian states: the Egyptian case Tamir Moustafa and Simon Fraser 7. Courts out of context: the authoritarian sources of judicial failure in Chile (1973-90) and Argentina (1976-83) Robert Barros 8. An authoritarian enclave? The supreme court in Mexicos emerging democracy Beatriz Magaloni 9. The institutional diffusion of courts in China: evidence from survey data Pierre Landry 10. Building judicial independence in semi-democracies: Uganda and Tanzania Jennifer Widner 11. Judicial power in authoritarian states: the Russian experience Peter Solomon 12. Courts in a semi-democratic/authoritarian regime: the judicialization of Turkish and Iranian politics Hootan Shambayati 13. Judicial systems and economic development Hilton Root and Karen May 14. Courts in authoritarian regimes Martin Shapiro.

On the Interpretability of Law: Lessons from the Decoding of National Constitutions

An implicit element of many theories of constitutional enforcement is the degree to which those subject to constitutional law can agree on what its provisions mean (call this constitutional interpretability). Unfortunately, there is little evidence on baseline levels of constitutional interpretability or the variance therein. This article seeks to fill this gap in the literature, by assessing the effect of contextual, textual and interpreter characteristics on the interpretability of constitutional documents. Constitutions are found to vary in their degree of interpretability. Surprisingly, however, the most important determinants of variance are not contextual (for example, era, language or culture), but textual. This result emphasizes the important role that constitutional drafters play in the implementation of their product.

The Unreluctant Litigant? An Empirical Analysis of Japan’s Turn to Litigation

This paper analyzes the rapid increase in civil litigation in Japan during the 1990s in light of existing theories of Japanese litigiousness. Using a unique set of prefecture‐level data, it demonstrates that the 1990s increase in litigation is best attributed to two factors: the expansion in institutional capacity for litigation traced to procedural reforms and an expansion in the bar, and structural changes in the Japanese economy related to the postbubble slowdown in growth. The paper contributes to three literatures. First, it builds on earlier institutionally oriented research on civil litigation in Japan by John Haley and Mark Ramseyer by providing new data and detail about the institutional barriers to litigation. Second, it contributes to the literature on the relationship between economic change and litigation more generally. Finally, it contributes to the empirical and comparative literature on litigation rates by providing evidence about the determinants of litigation in one country.

Does De Jure Judicial Independence Really Matter? A Reevaluation of Explanations for Judicial Independence

The relationship between de jure and de facto judicial independence is much debated in the literature on judicial politics. Some studies find no relationship between the formal rules governing the structure of the judiciary and de facto judicial independence, while others find a tight correlation. This article sets out to reassess the relationship between de jure and de facto judicial independence using a new theory and an expanded data set. De jure institutional protections, we argue, do not work in isolation but work conjunctively, so that particular combinations of protections are more likely to be effective than others. We find that rules governing the selection and removal of judges are the only de jure protections that actually enhance judicial independence in practice and that they work conjunctively. This effect is strongest in authoritarian regimes and in contexts with checks on executive authority.

The Empirical Turn in International Legal Scholarship

There is a new empirical turn in international legal scholarship. Building on decades of theoretical work in law and social science, a new generation of empirical studies is elaborating on how international law works in different contexts. The theoretical debate over whether international law matters is a stale one. What matters now is the study of the conditions under which international law is formed and has effects. International law is the product of specific forces and factors; it accomplishes its ends under particular conditions. The trend toward empirical study has expanded through the efforts of scholars in multiple disciplines, with legal scholars playing central roles independently and as collaborators in generating new empirical work. Legal scholars are also now pressed to be increasingly sophisticated consumers of this work. It is time to take stock and evaluate this new generation of multidisciplinary, multimethod empirical scholarship.

The teaching/research trade-off in law: data from the right tail.

Background: There is a long scholarly debate on the trade-off between research and teaching in various fields, but relatively little study of the phenomenon in law. This analysis examines the relationship between the two core academic activities at one particular school, the University of Chicago Law School, which is considered one of the most productive in legal academia. Method: We measure of scholarly productivity with the total number of publications by each professor for each year, and we approximate performance in teaching with course loads and average scores in student evaluations for each course. In OLS regressions, we estimate scholarly output as a function of teaching loads, faculty characteristics, and other controls. We also estimate teaching evaluation scores as a function of scholarly productivity, fixed effects for years and course subject, and faculty characteristics. Result: Net of other factors, we find that, under some specifications, research and teaching are positively correlated. In particular, we find that students’ perceptions of teaching quality rises, but at a decreasing rate, with the total amount of scholarship. We also find that certain personal characteristics correlate with productivity. Conclusion: The recent debate on the mission of American law schools has hinged on the assumption that a trade-off exists between teaching and research, and this article’s analysis, although limited in various ways, casts some doubt on that assumption.

Beyond Presidentialism and Parliamentarism

The presidential-parliamentary distinction is foundational to comparative politics and at the center of a large theoretical and empirical literature. However, an examination of constitutional texts suggests a fair degree of heterogeneity within these categories with respect to important institutional attributes. These observations lead us to suspect that the classic presidential-parliamentary distinction, as well as the semi-presidential category, is not a systemic one. This paper investigates whether the defining attributes that separate presidential and parliamentary constitutions predict other attributes that are stereotypically associated with these institutional models. The results lead us to be highly skeptical of the “systemic” nature of the classification. Indeed, the results imply that if one wanted to predict the powers of the executive and legislature, one would be better off knowing where and when the constitution was written than in knowing whether it was presidential or parliamentary.

Rule by Law: The Politics of Courts in Authoritarian Regimes: Introduction: The Functions of Courts in Authoritarian Politics

Two decades ago, Martin Shapiro urged public law scholars to expand their horizons and begin studying “any public law other than constitutional law, any court other than the Supreme Court, any public lawmaker other then the judge, and any country other than the United States” (Shapiro 1989). Shapiro recognized that American public law scholarship stood at the margins of political science because it did not adequately engage the broad questions in the field0. Perhaps more importantly, Shapiro recognized that judicial institutions had become important political players in a number of countries and that a “judicialization of politics” was on the advance across much of the world. Since Shapiros first call for more comparative scholarship, there has been an explosion in the judicial politics literature focused on a variety of regions and themes, including the role of courts in democratizing countries, the relationship between law and social movements, and the judicialization of international politics. However, there has been relatively little research on the dynamics of judicial politics in non-democracies. This gap in the literature is likely the result of a long-standing presumption among many political scientists that courts in authoritarian regimes serve as mere pawns of their rulers, and that they therefore lack any independent influence in political life. Yet, as many of the contributors to this volume have demonstrated elsewhere (Barros 2002, Hilbink 2007, Moustafa 2007, Pereira 2005, Solomon 1996), the empirical reality in many authoritarian regimes cuts against this conventional wisdom.

Pitfalls of Measuring the Rule of Law

The recent demand for new measures of the rule of law confronts several methodological challenges. This article calls for careful attention to fundamental social science ideas of conceptualization and measurement in approaching the rule of law. Efforts to measure complex social phenomena such as the rule of law are challenging, and thus require that researchers and policy makers pay attention to the cautionary rules of social science in their efforts. Violating these basic rules risks producing measures that are not reliable or valid, and could be a bad basis for policymaking. This paper demonstrates some of the pitfalls that rule of law researchers have fallen into and suggests improvements in measurement approaches.

Constitutions in Authoritarian Regimes

Constitutions in authoritarian regimes are often denigrated as meaningless exercises in political theater. Yet the burgeoning literature on authoritarian regimes more broadly has produced a wealth of insights into particular institutions such as legislatures, courts and elections; into regime practices such as co-optation and repression; and into non-democratic sources of accountability. In this vein, this introduction to a new edited volume explores the form and function of constitutions in countries without the fully articulated institutions of limited government. The chapters in the book utilize a wide range of methods and focus on a broad set of cases, representing many different types of authoritarian regimes. The book offers an exploration into the constitutions of authoritarian regimes, generating broader insights into the study of constitutions and their functions more generally.