Comparative and Transnational Courts

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)?

Comments

[frank cross]

I'm talking about the LaPorta studies, and others, mostly by folks at the World Bank. They use not only common law but also measures of judicial efficiency, judicial independence, etc. They do not track closely to traditional judicial ideological decisionmaking research, but there are some interesting insights that are relevant.

For example, one of the theories of common law superiority is that it employs a case-by-case accretion of law produced by the judiciary that adapts to facts, rather than a top down rule oriented structure of civil law.

[Erik Voeten]

I have been pondering the same question. There is actually a very good qualitative literature on comparative and transnational courts, but very little quantitative work analyzing behavior. In case, you're interested I have a paper on SSRN that looks at dissents in the ECHR:
http://papers.ssrn.com/sol3/papers.cfm?abstract_id=705363

[Geoff McGovern]

Frank, would you be willing to share sources regarding the economic research? I wonder whether the resources you're referencing delve into questions of judicial behavior or whether, like La Porta, et al., the focus is on using legal origin as proxy for a bundle of institutions that relate more to property rights and pro-business protections than judicial decision-making.

[Chris W. Bonneau]

I teach two weeks of comparative courts in my graduate seminar. Currently, I am using Helmke's "Courts Under Constraints" as well as a series of articles. If you are interested, you can access my full syllabus by following the "Courses" link at my website: www.pitt.edu/~cwb7

[Artemus Ward]

Wendy, would you consider posting your current syllabus? I am in the process of composing a new syllabus for my fall '06 judicial politics grad seminar (the old one from two years ago can be accessed from my homepage, linked below). I agree that we need to do more to move beyond the U.S. context. Of course many of us have been using Charles Epp's excellent The Rights Revolution: Lawyers, Activists, and Supreme Courts in Comparative Perspective (Chicago: University of Chicago Press, 1998). I am adding Ran Hirschl's Towards Juristocracy: The Origins and Consequences of the New Constitutionalism (Harvard University Press, 2004) and Peter Russell's Recognizing Aboriginal Title: The Mabo Case and Indigenous Resistance to English-Settler Colonialism (Toronto: University of Toronto Press, 2005), which recently won the 2006 C. Herman Pritchett Award for “the best book on law and courts written by a political scientist and published the previous year”. I wonder if others would consider making suggestions and/or posting links to their syllabi. Of Course the Law & Courts section of the American Political Science Association maintains a Syllabi Archive, which is a wonderful resource:
http://www.law.nyu.edu/lawcourts/resources/teaching/syllabi/index.html

[frank cross]

There's a lot of economic research and data here. Most of it comparing court systems on measures such as "rule of law" or "common law" systems. I'm kind of surprised about the lack of connection between the economic and political science research.

[Jason Czarnezki]

An obvious answer to your first question is that we must look at state courts when studying judicial selection in order to assess the various alternatives (e.g., election v. appointment).