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Public Choice Theory on Jurisdiction - Dictionary of Arguments

Parisi I 195
Jurisdiction/Public choice theory/Farber: Courts are important actors in democracies. One question is why they are allowed to operate independently rather than being controlled by the executive or the legislature. There are clear societal advantages to judicial independence, since the rule of law provides benefits by maintaining property rights, contractual enforceability, and personal liberty. From a narrower point of view, judicial independence makes legislative bargains more durable (Landes and Posner, 1975)(4).
Nevertheless, there is also clearly a short-term advantage to politicians if they can intervene in pending cases, either in pursuit of their own policy goals or on behalf of constituents.
Restrictions: The question is how (…) restrictions come to be implemented and maintained, given that at any given time legislators could benefit if they were able to exert influence on judges. One option is constitutional protection for judges such as protection from removal. Constitutionalizing these restrictions raises the cost of overcoming judicial independence, since doing so requires either overcoming the barriers to constitutional amendment or rejecting the binding force of the constitution and thereby jeopardizing benefits received from other rules.
Independence/question: (…) to the extent judges are free from outside influence, what does drive their decisions? This is obviously an issue of importance to public choice since implementation of laws often involves judges. Unless other actors can anticipate how judges will rule, they have no way
Parisi I 196
of knowing the ultimate impact of laws or regulations, and thus no way of determining whether laws or regulations will advance their own goals.
Judges/decisions/Shepsle: "judges are enigmatic actors in political life" (Shepsle, 2010(1), p. 486). Economics usually proceeds on the theory that incentives drive behavior, but to the extent judges enjoy independence, the usual economic incentives are absent or at least substantially weakened (Shepsle, 2010(1), p. 47 3). Thus, like voters in the privacy of the voting booth, judges are free to follow whatever goals they choose.
Political orientation: Empirical studies confirm that a good deal of judicial behavior correlates with the political party of the appointing President. Since public choice generally views other actors as driven solely by preferences over some set of policies, it is tempting to draw the same conclusion about judges. In assessing these findings, it is important to keep in mind that ideologies do not differ only in their value schemes (that is, their preferences across various states of the world). Of particular relevance to judges, ideologies may also include not only values and factual beliefs but also views about constitutional issues such as the appropriate roles of judges, executives, and legislators. Thus, finding a correlation with ideology does not necessarily indicate that decisions are simply driven by differing values among judges. There is evidence, however, that judicial conduct is more complex. Many appellate decisions are unanimous, and judicial
Parisi I 197
divisions do not always fall neatly on an ideological scale. There is also evidence that judges (at least on federal courts of appeal) are influenced by the views of other judges: panels of mixed Republican and Democratic appointees tend to produce more moderate decisions; while judges who are a political minority on a panel are more likely to move their views toward the majority. Thus, judges apparently either compromise in the interest of consensus or are persuaded by each
other's arguments (Stephenson, 2010(2), pp. 307-308). (…) there is evidence that judges are influenced by precedent, both of higher courts and of their own courts. Presumably they are also influenced by statutory and regulatory texts, since otherwise it would be hard to understand why legislators and administrators bother enacting them. Thus, purely "legal" considerations do play a role in judicial decisions (Stephenson, 2010(2), pp. 308-310).
Interests/equilibrium: Perhaps judges actually care about legal rules for their own sake, or perhaps they value their professional reputations. Or, most intriguingly, perhaps adherence to legal rules is an equilibrium serving the longer-term interest of individual judges in having a policy impact.
Thus, it appears that ideology, a desire for agreement, and legal rules all influence judicial votes (Jacobi, 2010)(3).


1. Shepsle, K. A. (2010). Analyzing Politics: Rationality, Behavior, and Institutions. 2nd edition.
New York: W.W. Norton & co.
2. Stephenson, M. C. (2010). "Statutory Interpretation by Agencies," in D. A. Farber and A. J.
O'Connell, eds., Research Handbook on Public Choice and Public Law, 19—48. Northampton, MA: Edward Elgar.
3. Jacobi, T. (2010). "The Judiciary," in D. A. Farber and A. J. O'Connell, eds., Research Handbook on Public Choice and Public Law, 234—259. Northampton, MA: Edward Elgar.
4. Landes, W. M. and R. A. Posner (1975). "The Independent Judiciary in an Interest-Group Perspective." Journal of Law and Economics 18(3): 875—901.

Farber, Daniel A. “Public Choice Theory and Legal Institutions”. In: Parisi, Francesco (ed) (2017). The Oxford Handbook of Law and Economics. Vol 1: Methodology and Concepts. NY: Oxford University Press


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Explanation of symbols: Roman numerals indicate the source, arabic numerals indicate the page number. The corresponding books are indicated on the right hand side. ((s)…): Comment by the sender of the contribution. Translations: Dictionary of Arguments
The note [Author1]Vs[Author2] or [Author]Vs[term] is an addition from the Dictionary of Arguments. If a German edition is specified, the page numbers refer to this edition.
Public Choice Theory
Parisi I
Francesco Parisi (Ed)
The Oxford Handbook of Law and Economics: Volume 1: Methodology and Concepts New York 2017


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Ed. Martin Schulz, access date 2021-05-12
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