Vol. 30 No. 3 (April 2020) pp. 53-57BEYOND HIGH COURTS: THE JUSTICE COMPLEX IN LATIN AMERICA, by Matthew C. Ingram and Diana Kapiszewski (eds). Notre Dame, IN: University of Notre Dame Press, 2019. 344 pp. Hardcover $55.00. ISBN: 978-0-268-10281-4. eBook (PDF) $43.99. ISBN: 978-0-268-10283-8. eBook (EPUB) $43.99. ISBN: 978-0-268-10284-5.
Reviewed by Susanne Schorpp, Department of Political Science, Georgia State University. Email: sschorpp@gsu.edu.
BEYOND HIGH COURTS promises what the title suggests: an examination that pushes our focus from high courts to other actors in the justice complex of which they are part by starting with Latin American institutions. While the ultimate goal is to better understand the justice system as an organic entity, the editors rightly underscore that this requires an understanding of the parts. As such, the book can best be seen as providing a basis from which to build a more intricate web of knowledge spanning the justice complex as a whole. The focus, as the editors concede, is to understand de jure features of institutions---their design rather than their de facto behavior---as a necessary first step to assessing the gap between design and effect. As the editors state in their introduction, understanding “nonpeak institutions of justice is particularly important [...] where law is unevenly applied, employed, and enforced, and justice is distributed unequally across geographies and social classes” (p. 31). Especially laudable is the collection and presentation of rich data as well as the historical background associated with the actors that the book focusses on. Each chapter also provides a detailed overview of scholarship from both the US and Latin America on the Latin American justice complex.
Chapter 2 analyzes differences in the adoption of formal rules regarding public prosecutor’s offices (PPO) in Chile, Mexico, and Brazil during the countries’ democratic transitions. As Azul A. Aguiar-Aguilar convincingly argues, effective PPO offices are “crucial in order to foster the rule of law and implement democratic procedures” (p. 39). The protection of criminal due process (conceptualized here as an accusatorial system) and the independence of the PPO are needed to ensure the “rule of law” rather than a “rule by law” (p. 48). Aguiar-Aguilar proceeds to identify how many of the nine indicators of an accusatorial criminal system and five indicators of an independent PPO are formally included in the constitution or penal codes of each country both before and after their democratic transition. Looking at the actors [*54] and the historical contexts involved in the adoption of new rules, Aguiar-Aguilar argues that interest group mobilization rather than the preferences of elected officials explains the variation in adopted reforms regarding criminal due process and institutional independence of the PPO.
Chapter 3 nicely transitions to a more detailed evaluation of PPO independence on the example of Brazil. The chapter tackles the following puzzle concerning the Brazilian PPO: why is the PPO perceived as a strong actor, but classified as a low-independence actor in cross national studies? Ernani Carvalho and Natália Leitão argue that the answer is to be found in the divergent positions that the PPO occupies on two distinct dimensions: internal and external independence. They identify de jure indicators for each dimension and provide a qualitative analysis of the Brazilian PPO based on the identified factors. The authors also classify and plot Brazil’s PPO on both dimensions against a cross national selection of PPO’s (taken from Aaken, Feld, and Voigt 2010), revealing Brazil’s unusual position as most internally independent, yet only weakly externally independent PPO. Interestingly, the indicators plot the US lower on both axes---and particularly low on external independence. The comparison to the US---considering recent criticisms of Barr---further serves to underscore the potential role of de jure protections in de facto behavior. Carvalho and Leitão’s chapter ends with a call to further investigate the effects of internal versus external de jure independence on de facto power of the PPO.
In Chapter 4, Catalina Smulovitz shifts the focus to explain variation in access to public defense lawyers on the example of Argentina. While her quantitative analysis is more suggestive than determinative due to the small number of provinces, the results suggest---after accounting for population and size of the province---the number of lawyers is inversely related to the number of public defenders, which she argues is a function of protective professional lawyer associations seeking to “decrease the local supply of public defenders because they perceive public defenders as potential threats to their incomes” (p. 130). More broadly, Smulovitz nestles her findings at the intersection of access-to-justice and federalism scholarship to explain the heterogenous distribution of access to public defenders in Argentina’s federalist structure.
In chapter 5 Diana Kapiszewski, John Seth Alexander, and Robert Nyenhuis investigate the origins of power and independence of electoral courts (ECs) in Mexico, Argentina, Brazil, and Venezuela under three different approaches: “historical, institutional, and strategic accounts of institutional change” (p. 169). The authors [*55] leverage the findings of their institutional analysis on four de jure indicators (stability, powers, authority, and independence) and of their historical analysis for the application of known theoretical frameworks (“insurance theory, hegemonic preservation theory, credible commitments theory, and governance theory” (p.157)) to explain the creation and design of ECs in the countries under analysis. Considering that the establishment of the EC in Venezuela and Mexico coincided with a (comparatively recent) transition to democracy, they argue that the design of these two institutions can likely be explained with credible commitments and insurance theory, whereas the establishment of the ECs in Argentina and Brazil, which took place during a phase of political instability, are likely more consistent with credible commitments theory.
Chapter 6 explains rulings by the Brazilian electoral court (Tribunal Superior Eleitoral, TSE) as a function of their institutional preference. Sídia Maria Porto Lima’s analysis suggests that rulings by the TSE are made purposively, “with the aim of reinforcing Brazil’s democratic institutions” (p. 210). In line with Vanberg’s (2015) observation that “instituting an independent, powerful court [...] does not explain the continuing influence of such a court in day-to-day politics” (p. 169), chapters 5 and 6 are excellent demonstrations of changed dynamics explaining the emergence of institutions on one hand and the behavior of institutions on the other. Porto Lima’s study can be understood as supporting evidence that the link between democratization and judicial independence (Carrubba 2009) can be positive and self-reinforcing (as it is in this case) when the court’s preference (understood as increased authority and power) is correlated with increased democratization.
In chapter 7, José Mário Wanderley Gomes Neto, Ernani Carvalho, Danilo Pacheco Fernandes, and Louise Dantas de Andrade analyze contextual factors that predict the successful use of “writs of suspension” (WS) in Brazil. The executive branch can use the WS to petition the Chief Justice of either the Supreme Federal Tribunal (STF) or Superior Tribunal of Justice (STJ) to “suspend the enforcement of a lower court ruling” (p. 222) under certain conditions. Considering the classical theoretical frameworks of legal, attitudinal, and strategic judicial decision making, the authors’ analysis suggests that the CJ is mainly influenced by attitudinal and strategic considerations. In particular, the authors find that partisanship of the CJ and economic conditions interact to predict successful WS petitions in the aftermath of PT’s 2002 election, where PT-appointed judges were particularly deferential to the executive under poor economic conditions. [*56]
In chapter 8, Matthew C. Ingram leverages variation in the institutional design of judicial councils in Mexico as a starting point to classify and predict the emergence and strength of judicial councils. The data collected from 33 jurisdictions show variation in both internal and external independence, as well as in the powers assigned to each of the councils. With an exploratory quantitative analysis, Ingram tentatively suggest that judicial councils are more likely to originate under right-leaning (PAN) governors, but that “stronger councils are more likely to emerge under left-leaning PRD governors” (p. 294).
Shifting their focus from subnational to supranational actors, Mary L. Volcansek and Matthew C. Ingram assess the impact of the Inter-American Court of Human Rights (IACtHR) on domestic protection of human rights. Nestling their work within the scholarship on European courts and U.N. treaties, Volcansek and Ingram collect data on IACtHR decisions to measure the link between IACtHR outcomes and domestic changes in human rights protection. Their findings suggest that the IACtHR has a positive, albeit delayed, effect on rights protection. Involvement of the IACtHR had an “identifiable effect about five years after the court’s decision” (p. 322).
Martin Shapiro rounds out the edited volume with a focus on the interdependency of institutions and actors in the justice complex. Using the example of the “two trial problem,” Shapiro shows how the characteristics of a given institution have the potential to reverberate throughout the justice complex. The two trial paradox “is that the more adequate the trial before the trial” (grand jury process or preliminary hearing, for example), the more likely that participants of the second trial “will be aware that the defendant has already been found something like guilty by some one or another who is behaving very like a judge” (p. 338), endangering the presumption of innocence. While Shapiro addresses the various institutional questions raised in this edited volume, I think the two trial problem he poses in the beginning of the chapter best captures the two main reasons for the call to arms that the editors and contributors are undertaking: focusing on one institution, say a supreme court---even when going beyond the U.S. context---artificially isolates the apex court from the justice complex it is part of. Secondly, institutional design matters---even when it is primarily through the perception that it generates.
As Shapiro notes in the last chapter, there are, of course, important actors that (by necessity) are slighted in this volume. I would add that I missed a more systematic incorporation of the role of regime [*57] type, particularly in cross national analyses (though regime type was generally a part of the historical analyses). Outside of these minor quibbles, BEYOND HIGH COURTS delivers a range of essays that are not only of interest to those of us who study courts or Latin American institutions. Viewed within the context of democratic erosion, the book offers data and analyses on a selection of actors in the justice complex that have the ability of either checking the elected branches or serving as their pawns. The authors take a first small step towards understanding when institutions are more likely to become one or the other. While their focus is on predicting de jure indicators of these institutions, several chapters also present (mostly tentative) analyses to link institutional features to political outcomes. The book’s intent is to clearly shine some light down the less explored path of de facto behavior of these neglected institutions for future scholars to explore.
REFERENCES:
Carrubba, Clifford James. 2009. “A Model of The Endogenous Development Of Judicial Institutions In Federal And International Systems.” THE JOURNAL OF POLITICS 71(1): 55-69.
Taken, Anne van, Lars P. Feld, and Stefan Voigt. 2008. “Do Independent Prosecutors Deter Political Corruption? An Empirical Evaluation Across Seventy-Eight Countries.” AMERICAN LAW AND ECONOMICS REVIEW 12(1): 204-244.
Vanberg, Georg. 2015. “Constitutional Courts in Comparative Perspective: A Theoretical Perspective.” ANNUAL REVIEW OF POLITICAL SCIENCE 18(1): 167-85.
© Copyright 2020 by the author, Susanne Schorpp.
