High Courts in Global Perspective

Description

High courts around the world hold a revered place in the legal hierarchy. These courts are the presumed impartial final arbiters as individuals, institutions, and nations resolve their legal differences. But they also buttress and mitigate the influence of other political actors, protect minority rights, and set directions for policy. The comparative empirical analysis offered in this volume highlights important differences between constitutional courts but also clarifies the unity of procedure, process, and practice in the world’s highest judicial institutions.

High Courts in Global Perspective pulls back the curtain on the interlocutors of court systems internationally. This book creates a framework for a comparative analysis that weaves together a collective narrative on high court behavior and the scholarship needed for a deeper understanding of cross-national contexts. From the U.S. federal courts to the constitutional courts of Africa, from the high courts in Latin America to the Court of Justice of the European Union, high courts perform different functions in different societies, and the contributors take us through particularities of regulation and legislative review as well as considering the legitimacy of the court to serve as an honest broker in times of political transition. Unique in its focus and groundbreaking in its access, this comparative study will help scholars better understand the roles that constitutional courts and judges play in deciding some of the most divisive issues facing societies across the globe. From Africa to Europe to Australia and continents and nations in between, we get an insider’s look into the construction and workings of the world’s courts while also receiving an object lesson on best practices in comparative quantitative scholarship today.

Contributors:Aylin Aydin-Cakir, Yeditepe University, Turkey * Tanya Bagashka, University of Houston * Clifford Carrubba, Emory University * Amanda Driscoll, Florida State University * Joshua Fischman, University of Virginia * Joshua Fjelstul, Washington University in St. Louis * Tom Ginsburg, University of Chicago * Melinda Gann Hall, Michigan State University * Chris Hanretty, University of London * Lori Hausegger, Boise State University * Diana Kapiszewski, Georgetown University * Lewis A. Kornhauser, New York University * Dominique H. Lewis, Texas A&M University * Chien-Chih Lin, Academia Sinica, Taiwan * Sunita Parikh, Washington University in St. Louis * Russell Smyth, Monash University, Australia * Christopher Zorn, Pennsylvania State University

Constitutionalism and Democracy

Acknowledgments
Introduction
1. Understanding Adjudication
2. The US Supreme Court and Other Federal Courts
3. State Supreme Courts in the United States: The Comparative Advantage
4. Examining the Empirical Study of the Supreme Court of Canada
5. Empirical Studies of Judicial Behavior and Decision-Making in Australian and New Zealand Courts
6. Empirical Studies of Judicial Behavior in the United Kingdom
7. Empirical Studies of Judicial Behavior and Decision-Making on Indian Courts
8. European International Courts: The CJEU and the ECtHR
9. Constitutional Courts in Europe: Quantitative Approaches
10. Empirical Studies of the Behavior of Justices and High Courts in Latin America: An Overview
11. Judicial Behavior Research in East Asia
12. What Do We Know about the Middle Eastern Constitutional Courts?
13. Empirical Studies of African High Courts: An Overview
14. Comparative Studies of Judicial Behavior
15. Overcoming the Barriers to Comparative Judicial Behavior Research
Notes on Contributors
Index

Sujets

• justice
• Legal History
• Droit et juridique
• Law

Informations

• Publié par: University of Virginia Press
• Date de parution: 27 août 2021
• Nombre de lectures: 1
• EAN13: 9780813946160
• Langue: English
• Poids de l'ouvrage: 2 Mo

Extrait

High Courts in Global Perspective
Constitutionalism and Democracy
Gregg Ivers and Kevin T. McGuire, Editors
High Courts in Global Perspective
Evidence, Methodologies, and Findings
Edited by Nuno Garoupa, Rebecca D. Gill, and Lydia B. Tiede
University of Virginia Press
Charlottesville and London
University of Virginia Press
© 2021 by the Rector and Visitors of the University of Virginia
All rights reserved Printed in the United States of America on acid-free paper -->
First published 2021 9 8 7 6 5 4 3 2 1 -->
Library of Congress Cataloging-in-Publication Data
Names: Garoupa, Nuno, editor. | Gill, Rebecca D., editor. | Tiede, Lydia Brashear, editor.
Title: High courts in global perspective : evidence, methodologies, and findings / edited by Nuno Garoupa, Rebecca D. Gill, and Lydia B. Tiede.
Description: Charlottesville : University of Virginia Press, 2021. | Series: Constitutionalism and democracy | Includes bibliographical references and index.
Identifiers: LCCN 2021005716 (print) | LCCN 2021005717 (ebook) | ISBN 9780813946153 (hardcover) | ISBN 9780813946160 (epub)
Subjects: LCSH: Courts of last resort—Congresses. | Constitutional courts—Congresses. | Judicial process—Congresses. | Political questions and judicial power—Congresses.
Classification: LCC K2123 .F33 2018 (print) | LCC K2123 (ebook) | DDC 347/.035—dc23
LC record available at https://lccn.loc.gov/2021005716
LC ebook record available at https://lccn.loc.gov/2021005717
Cover art: World map, 1942. (P. J. Mode collection of persuasive cartography, #8548, Division of Rare and Manuscript Collections, Cornell University Library; Geographicus Rare Antique Maps, http://www.geographicus.com )
Contents
Acknowledgments
Introduction
Understanding Adjudication
Lewis A. Kornhauser
The US Supreme Court and Other Federal Courts
Joshua Fischman
State Supreme Courts in the United States: The Comparative Advantage
Melinda Gann Hall
Examining the Empirical Study of the Supreme Court of Canada
Lori Hausegger
Empirical Studies of Judicial Behavior and Decision-Making in Australian and New Zealand Courts
Russell Smyth
Empirical Studies of Judicial Behavior in the United Kingdom
Chris Hanretty
Empirical Studies of Judicial Behavior and Decision-Making on Indian Courts
Sunita Parikh
European International Courts: The CJEU and the ECtHR
Clifford Carrubba and Joshua Fjelstul
Constitutional Courts in Europe: Quantitative Approaches
Tanya Bagashka and Nuno Garoupa
Empirical Studies of the Behavior of Justices and High Courts in Latin America: An Overview
Diana Kapiszewski and Lydia B. Tiede
Judicial Behavior Research in East Asia
Chien-Chih Lin and Tom Ginsburg
What Do We Know about the Middle Eastern Constitutional Courts?
Aylin Aydin-Cakir
Empirical Studies of African High Courts: An Overview
Dominique H. Lewis
Comparative Studies of Judicial Behavior
Amanda Driscoll
Overcoming the Barriers to Comparative Judicial Behavior Research
Rebecca Gill and Christopher Zorn
Notes on Contributors
Index
Acknowledgments
This project has benefited greatly from both individual and group efforts. The volume was originally conceived from draft papers, conversations, and commentary at the Workshop: Facilitating Empirical Studies of Judicial Behavior on Constitutional Courts from a Comparative Perspective (National Science Foundation Grant SES #1744299) held at the Texas A&M University School of Law, in Dallas from May 11–12, 2018. Over the two-day conference, authors presented their papers, which were followed by in-depth commentary and discussion by workshop participants. This volume benefited greatly from those scholars who participated in the conference and the lively debates that ensued regarding how best to approach the study of comparative high court behavior from an empirical perspective.
We would like to acknowledge and thank the following conference participants, without whom this volume would not have been possible: Susan Achury, Carolina Arlotta, Aylin Aydin-Cakir, Christine Bird, Tanya Bagashka, Bethany Blackstone, Dan Brinks, Clifford Carrubba, Chien-Chih Lin, Amanda Driscoll, Tao Dumas, Arthur Dyevre, Rhonda Evans, Joshua Fischman, Tom Ginsburg, Melinda Gann Hall, Chris Hanretty, Lori Hausegger, Alexander Hudson, Mark Hurwitz, Devon Jones, Vivian Kalu, Diana Kapiszewski, Lewis Kornhauser, Haimo Li, Dominique H. Lewis, Monica Lineberger, Felipe Lopes, Pedro Magalhães, Alison Merrill, Sunita Parikh, Rebecca Reid, Kristen Renberg, Julio Ríos-Figueroa, Russell Smyth, Jeff Staton, Maryam Stevenson, Jason Todd, Lee Walker, and Christopher Zorn. We also thank the authors of this volume, who put in countless hours writing their essays, which we believe form a substantial contribution to the field.
Finally, the project benefited greatly from comments received from anonymous reviewers and the support of Nadine Zimmerli, our editor at University of Virginia Press.
High Courts in Global Perspective
Introduction
S pecialized constitutional courts play a large and growing role in the review of both proposed and enacted laws. In recent years they have made decisions upholding or striking down some of the most controversial laws enacted in their jurisdictions. For example, the Portuguese Constitutional Court in 2012 invalidated many budget cuts previously negotiated with the International Money Fund. In 2017, the Spanish Constitutional Court found illegal a law that would allow a referendum for Catalonian independence, and the Supreme Court of the United Kingdom weighed in on Parliament’s procedure for Brexit. In 2019, the Italian Constitutional Court ruled that assisted suicide is not always a crime, and the following year the German Constitutional Court challenged the European Central Bank’s policies.
Similar developments abound outside the European context. The Colombian Constitutional Court upheld a constitutional amendment for President Uribe to be reelected to a subsequent term in 2005 but in 2010 found unconstitutional a law that convoked a referendum allowing him a third term in office. The Turkish Constitutional Court decided to ban one political party close to Kurdish movements in 2009. Chile’s Constitutional Tribunal approved a law decriminalizing abortion when the pregnancy endangered a woman’s life or was due to rape or an extreme fetal pathology. Taiwan’s Supreme Court legalized same-sex marriage, while the Kenyan Supreme Court upheld colonial-era laws that criminalized homosexual acts. As these examples show, high courts around the world have been engaged in nearly all conceivable policy areas. These have ranged from domestic matters, such as health care, pensions, and education, to determining the constitutionality of national peace processes, the breadth of military power, and the validity of constitutional reforms that establish the broad structures of government.
These high courts are specially constructed to review the constitutionality of legislation and ultimately to regulate the boundaries of political institutions. 1 Besides ruling on important issues that face a nation, such as inequality, health care, and electoral processes, constitutional courts are thought to provide legitimacy to the lawmaking process (Stone Sweet 2000), to balance the interests of the elected branches (Landes and Posner 1975; Whittington 2005), and to protect underrepresented minority interests (Ely 1980). These functions are increasingly important in light of democratic backsliding in many countries (Ginsburg and Moustafa 2008; Scheppele 2018). At the same time, these courts may “judicialize politics” by inducing judges, rather than elected lawmakers, to make (or veto) laws (Shapiro 1980; Stone Sweet 2000; Garoupa and Ginsburg 2015).
Justification for the Book
Despite the rising importance of these courts, systematic and rigorous comparative studies are a relatively recent phenomenon (but see Ginsburg 2003; Alarie and Green 2017). Many of the extant studies employing various empirical methods focus only on one or a limited number of courts. The authors of the region-specific essays in this volume identify this as a recurring theme. From such singular studies of courts’ and individual judges’ behavior, however, we have learned that there is great diversity among national high courts. These courts differ in terms of their specific review powers, the manner in which judges are appointed, and the manner in which judicial review can be triggered (i.e., from referral from specific government actors to citizen complaints) (see Ríos-Figueroa 2011; Brinks and Blass 2017). Scholars propose that these and many additional factors may drive the behavior of high courts and their judges on specific courts. Whether these influences are generalizable to a larger cross-section of courts, however, remains an unanswered empirical question. Likewise, some of the extant studies analyze either individual judges’ behavior or that of the court as a whole, but the linkages between these levels of analysis are underexplored. We argue that for some important research questions, it is necessary to develop theories that not only encompass comparative research, but also explain the relationship between individual judges’ preferences and those of the collegial courts within which they work.
Through the course of creating this volume, we have found that there are very few studies that compare a large number of countries and courts. While there are multiple theories