This semester I am teaching a seminar on judicial politics and behavior. It is, for the most part, one of the standard versions taught by people who primarly teach about and study American courts. Much too narrow, of course, given that it is a one semester class and structured largely by my own intellectual interests, background, and training. (I say this in the interests of full disclosure. My guess is that I don't do any better or any worse than most faculty in this regard.) But, it is a small seminar (with four advanced undergraduates, two first-year graduate students, and two second-year graduate students). The interests of the seminar participants are quite diverse. For example, two of the graduate students are primarily interested in comparative legislative institutions, one is interested in international relations, and one is interested in judicial politics, primarily in the American context but increasingly from a cross-national perspective). Accordingly, I modified my "standard" reading list to enhance the comparative courts readings and to add a section on transnational courts.
Our seminar discussions have given rise to several queries that I would like to pose here.
First, when is it appropriate to examine theories of judicial behavior in the context of, for example, the U.S. Supreme Court or state courts of last resort and when is it more appropriate to do so in a comparative context (whether "comparative" is read as meaning comparison across several countries or as a single country study as long as that county is not the U.S.)?
Second, why is the literature on comparative courts (seemingly?) focused single-mindedly on the theory of separation-of-powers? Is that the only "judicial" behavior of interest in a comparative context?
Third, where do transnational courts (e.g., European Court of Justice) or quasi-courts (e.g., NAFTA's binational panels) fit in the study of judicial politics and behavior (or law & courts or public law or whatever your favorite rubric is)?