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Home arrow Economics arrow Commitment and cooperation on high courts : a cross-country examination of institutional constraints on judges


Given that a judge may decide anything from who spends time in jail and who has custody of children to which companies can merge, there is surprisingly little consensus about how he decides the case in front of him.[1] Most simply, he could be deciding based on the “law" constrained in his choice by the facts in the particular case along with any relevant statutes, regulations, or prior decisions. On this understanding (which has been termed the “legal” model), he mixes these legal ingredients along with background legal norms or principles to prepare an answer for even novel issues or questions about ambiguous statutes. Suppose, for example, a judge must decide whether a skateboard falls under a ban under the Parks Act stating “no vehicles are allowed in the park" On this view of how he decides, the judge would determine whether a skateboard was a “vehicle” under the Act by combining the purpose of the Parks Act, how the Act deals with other issues, how skateboards are used, and what other judges have decided is a vehicle under the Act. He would then produce an opinion on whether skateboarders can use the park and, in fact, must follow this recipe for reaching an opinion and live with the results, whether or not he personally thinks skateboards should be allowed in the park.

However, there is another commonly held view of judges: that they decide based not on the law but on their own personal attitudes and intuitions about the right answer. These attitudes may be shaped by ties to a political party, prior experience such as working as defense counsel, or growing up poor or rich. Our judge may view skateboarders as troublemakers or he may think that restrictions in parks result from an overly active government. These attitudes about skateboarders or the government then shape his interpretation. This view of judges founding their decisions in their own preferred outcomes (which is called the “Attitudinal” model3) is most strongly associated with the sharply divided judges on the US Supreme Court, grouping together most famously in Bush v Gore on whether to allow a statewide manual recount of ballots in the presidential election.4

To compare the highest courts of different countries, we can sort courts by whether the judges on the court tend to decide in accordance with one of these two views. Imagine a horizontal line with these two views of how judges decide cases as extremes at either end, as in Figure 1-1. The line shows the level of commitment of the judges to following their own views of the best outcome as opposed to following the law.5 At the farthest left on the line, all judges on

theories under a single labor-market theory, but this approach has not yet been widely adopted. See Chapter 2 for a more detailed discussion of theories of judicial decision-making.

  • 3. Jeffrey A. Segal & Harold J. Spaeth, The Supreme Court and the Attitudinal Model Revisited (Cambridge: Cambridge University Press, 2002) at 86, setting out the principal models of judicial decision-making [Segal & Spaeth, Attitudinal Model].
  • 4. Bush v. Gore, 531 U.S. 98 (2000).
  • 5. This figure is derived from Benjamin Alarie & Andrew Green, “Should They All Just Get Along? Judicial Ideology, Collegiality, and Appointments to the Supreme Court of Canada”
Commitment and Cooperation on High Courts—the CC Space

Figure 1-1 Commitment and Cooperation on High Courts—the CC Space. High courts may be arrayed across four quadrants created by two key divisions. The first (vertical) division differentiates courts where the judges act independently from those with more collegial judges. The second (horizontal) division distinguishes courts with judges who act more “politically” from courts whose judges are more likely to decide according to legal factors. The quadrants allow identification of four types of courts: attitudinal, positivist, strategic, and deliberative.

a particular court decide cases according to what they each believe best meets their preferred outcome, regardless of the underlying law or norms. We call this type of court “politicized.” At the opposite extreme, the judges on the court decide based on the law or legal norm, regardless of their own preferred policy choice. We call this type of court “legal”

The high court of a particular country, however, likely does not lie at either extreme and may even shift along the line in either direction as the judges, the area of law, or the norms of the court change. A court is a mix of individual judges, each of whom may be more or less committed to following his or her personal views. This mix may change over time if, for example, a judge who (2008) 58 University of New Brunswick LJ 73 [Alarie & green, “Should They All”]. As we discuss in Chapter 2, it can be difficult to separate out attitudes from different approaches to law. See Joshua Fischman & Tonja Jacobi, “The Second Dimension of the Supreme Court” (2016) 57 Wm. & Mary Law Review 1671.

decides based on her personal views leaves the court and is replaced by a judge who decides based on the law. Further, even if the judges on a court are all equally willing to follow their own personal views, they may have more space to do so when there is greater ambiguity in the law—when deciding when a search is “unreasonable” as opposed to whether a very specific tax form has been filed. Similarly, judges facing novel situations such as police using new investigative technology have greater room to pursue their vision.[2] Conversely, of course, detailed laws or common situations make it easier for a judge to follow the law.

Judges on a court face an additional constraint: social norms that either encourage or discourage judges from following their personal views. Norms signal appropriate behavior and can be very powerful. Consider cities where there is no norm against littering. People may feel free to throw their garbage on the ground rather than in a bin, and a city can quickly slip beneath a sea of refuse. Similarly, if the judges on a court do not follow a norm against deciding according to their personal views, the court may gravitate toward the politicized end of the scale. We will spend some time in Chapter 8 discussing the influence of norms and how they arise. It is enough for now to see that courts may vary in levels of ideological commitment across time and between countries depending on the composition and norms of the particular court.

  • [1] Lee Epstein, William M. Landes & Richard A. Posner, Behavior of Federal Judges: A Theoreticaland Empirical Study of Rational Choice (Cambridge, MA: Harvard University Press, 2013)[Epstein, Landes & Posner, Behavior]. The authors attempt to bring together a number of
  • [2] Epstein, Landes & Posner, Behavior, supra note 2.
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