Explaining legal inconsistency

Judges, scholars, and commentators decry inconsistent areas of judicially created policy. This could hurt courts’ policy making efficacy, so why do judges allow it to happen? I show judicially-created policy can become inconsistent when judges explain rules in more abstract terms than they decide cases. To do so, I expand standard case-space models of judicial decision making to account for relationships between specific facts and broader doctrinal dimensions. This model of judicial decision making as a process of multi-step reasoning reveals that preference aggregation in such a context can lead to inconsistent collegial rules. I also outline a class of preference configurations on collegial courts (i.e., multi-member courts) in which this problem cannot arise. These results have implications for several areas of inquiry in judicial politics such as models of principal-agent relationships in judicial hierarchies and empirical research utilizing case facts as predictor variables.

13. Rule of Law and Judicial Politics

This chapter examines the importance of law and the rule of law by looking at real-life situations through the lens of theoretical models that consider why people obey the law and how judges interpret the law. The chapter considers when and why citizens and elected officials follow the law. It then moves to the conditions under which this obedience of laws falls. It also explores the importance of courts and judges in interpreting the law, and analyses the interaction of politics and law as a way to try to understand how judges come to their decisions. In particular, it looks at the interaction between national and European Union (EU) law.

2. Theorizing EU Policy-Making

This chapter surveys seven decades of theorizing about European Union policy-making and policy processes. It begins with a discussion of theories of European integration, including neo-functionalism, intergovernmentalism, liberal intergovernmentalism, institutionalism, constructivism, and postfunctionalism. It then considers the increasing number of studies that approach the EU through the lenses of comparative politics and comparative public policy, focusing on the federal or quasi-federal aspects of the EU and its legislative, executive, and judicial politics. It finally explores the vertical and horizontal separation of powers in the EU and concludes by looking at the ‘governance approach’ to the EU, with emphasis on multi-level governance and EU policy networks, Europeanization, and the question of the EU’s democratic deficit.

Judicial Politics and Judicial Reform

In the early years of the next regime, conservative courts will face off against liberal Democratic politicians. Courts are very unlikely to be able to do much to repair constitutional rot. Constitutional renewal must come from popular mobilizations and demands for reform, including constitutional reform. Growing frustration with the courts will lead to calls for reform of the federal judiciary. Reforms should aim at lowering the stakes of judicial appointments and assisting depolarization. Court-packing proposals achieve neither goal. Three better approaches are (1) instituting regular appointments to the Supreme Court; (2) achieving the equivalent of term limits for Supreme Court justices by changing quorum rules; (3) increasing the Court’s workload (instead of limiting its jurisdiction); and (4) using sunrise provisions that take effect in the future so that partisan advantages are harder to predict. Each of these proposals can be implemented constitutionally through ordinary legislation.

Politics and the Federal Court of Malaysia, 1960–2018: An Empirical Investigation

Since its inception in 1957, Malaysia’s Federal Court (FC) has often been embroiled in high-profile decisions that have dramatically shaped the rule of law and constitutional practice in Malaysia. Recent political change has renewed hope that the FC can reassert its early role as an independent and impartial arbiter of political conflict. This paper investigates determinants of the FC’s behaviour since 1960. It draws on a unique data set of 102 major political cases and socio-biographic profiles of the 73 judges who voted in these cases. After describing patterns of court decisions across time and judges, we test specifically for the impact on their decisions of the 1988 judicial crisis, length of time on the bench, the terms of successive prime ministers, and judges’ personal attributes, such as religion and ethnicity. Ethnicity, appointment after 1988, and the appointing prime minister proved to be closely associated with the direction of voting. We then position the results in the context of Malaysia’s evolving constitutional democracy and discuss their implications for students of comparative judicial politics.

7. Spain: Pragmatic Europeanism or the End of Unconditional Support for European Integration?

This chapter examines the different aspects of Spain’s adaptation to the European Union, and more specifically how Europe became a source of benefits and modernization for the country. Spain is the only country among all those which have joined the EU after 1958 whose political parties and citizenry were in full support of acccession. Europeanization has affected most policy areas, particularly economic and social policies in response to EU pressures during the financial crisis. The chapter first considers the pattern of Spain’s relations with the EU before discussing the overall assessment of its EU membership among public opinion and political parties. It then analyses the impact of EU membership on Spain’s political institutions and governance, judicial politics, and policy adaptation in areas such as the Common Agricultural Policy and environmental policy. The chapter concludes by exploring how Spain’s unconditional support for integration has become more conditional since the financial crisis.

Judicial Politics

In this chapter, we discuss the judicial politics within the Spanish Constitutional Court from three main points of view. First, we discuss the origins and institutional design of the Court from a comparative perspective. Second, by making use of the standard approaches (attitudinal, strategic and legalist models of judicial behaviour), we examine the extent to which and the different ways in which political actors and other agents have engaged with the Court and what this has meant for its role in Spanish politics and policy-making. Finally, we focus on judicial behaviour in the Court, both from a comparative and an empirical perspective, and with a particular emphasis on the Court’s role in the allocation of powers and competencies between the central government and the ‘comunidades autónomas’.