Vol. 34 No. 01 (January 2024) pp. 1-5HIGH COURTS IN GLOBAL PERSPECTIVE: EVIDENCE, METHODOLOGIES, AND FINDINGS, Nuno Garoupa, Rebecca Gill, and Lydia Tiede. University of Virginia Press, 2021. 362 pp. Cloth $55.00. ISBN: 9780813946153.
Reviewed by Jeffrey K. Staton., Department of Political Science. Emory University. Email: jkstato@emory.edu
Garoupa, Gill, and Tiede’s High Courts in Global Perspective: Evidence, Methodologies, and Findings features a collection of essays that take stock of where the field of comparative law and courts is and where it might go. As the title suggests, these assessments are centered on scholarship concerning high courts. The authors explain their choice persuasively, though it nevertheless limits the scope of the volume as so much scholarship in comparative law and courts focuses on other courts and actors in a state’s judicial system. The editors further focus their volume on statistical analyses of high court outcomes, a choice that shifts our attention away from most of the field of comparative law. Still, the global scale of the project and the fact that many of the most important questions in the field can be fruitfully developed in the context of quantitative studies of high courts ensures that the volume still retains the flavor of a general field introduction. Fortunately, the editors provide ample citations to other field summaries, which fill in the spaces that they de-emphasize. If you teach courses on law and courts; if you conduct research on the subject; and, certainly if you advise graduate students, you should own this volume.
As strongly as I recommend the volume, I do fear that you will not find in it simple answers to the field’s most critical challenges. Just as the editors provide a compelling rationale for a robust program of comparative scholarship on law and courts, the volume’s authors together illustrate how the combination of the needed tasks ahead, and professional incentives make the production of the very scholarship that we need extremely difficult to execute. The volume points us in the direction of a solution, but the particulars of how to make this solution viable are left to future thinking. We have a good sense for where we are. We have a general vision of where we ought to go. Sorting out how to get from one point to the other is a task left to the community, which is probably as it must be.
The editors’ primary goals are to ask how courts should be studied comparatively. They search for key barriers to a vibrant comparative literature on law and courts, and they ask how the field might overcome these barriers. The editors argue that a comparative approach to law and courts is essential because several important questions about the field more generally, simply cannot (or should not) be answered with single-country studies. For example, scholars wish to identify the institutional features that permit constitutional judges to carry out their role in holding powerful officials to legal limits on their authority. The editors remind us that compelling theoretical propositions regarding potential institutional features (e.g., that the fragmentation of parties in a state’s legislature ought to free courts to more aggressively police constitutional limits) have received mixed empirical support. The study of additional contexts and time periods, they argue, offers the possibility of theoretical refinement. The editors also note that constitutional reforms carried out in some countries have been grounded in the historical experience of others. Insofar as a state’s background characteristics and history likely condition the effect of institutional reforms, our recommendations ought to be grounded in the particular histories of the states in which the reforms will, in fact, be conducted. To do this well, we simply need more and better scholarship on a global scale. Effectively, the editors’ call for comparative research on law and courts is a call for comparative research into any topic: important contextual factors differ across countries and regions, and so studying the same question in multiple locations offers opportunities to better imagine critical counterfactual conditions. These counterfactual conditions are themselves important to both the development of useful theoretical models and to the evaluation of the causal claims that these models produce.
Garoupa, Gill, and Tiede divide their volume into thirds. Lewis Kornhauser leads-off and offers a helpful conceptual structure with which any scholar of law and courts ought to be familiar. Consistent with Shapiro’s (1981) classic formulation, courts are best understood as institutional mechanisms for resolving disputes between two parties. They turn facts about particular disputes (Party A claims that Party B has harmed Party A through some action or inaction) into enforceable dispositions (Party A has legally harmed Party B) via the application of legal rules that provide a link between facts and dispositions. Yet, courts do more. They announce their resolutions, and the nature of their announcements influences in several ways future behavior, including new disputes. How courts do this work turns on (1) what judges fundamentally want, (2) how courts aggregate the positions of potentially many judges in order to reach a disposition (when courts are collegial), (3) whether the court is also responsible for developing the rules that it applies/announces, (4) the form of the court’s announcement (e.g., does it give reasons), and (5) the ways in which the external political context influences the preceding factors. With these five features in mind, we can describe most (perhaps all) leading theoretical models of law and courts. There is no question that the essays that follow easily fit into Kornhauser’s conceptual framework, even if it is the rare essay that attempts to make the connections explicit. The authors’ use of this essay notwithstanding, Kornhauser’s piece serves as a powerful framing device and could effectively be used to introduce courses on law and courts at the graduate level.
The second third of the volume contains a collection of country- or region-specific essays in which the authors were asked to address the same set of questions. Each essay summarizes the literature on high courts in their region/country, identifies gaps or theoretical puzzles in these literatures, reviews methodological challenges and potential solutions, and offers proposals for future scholarship. The chapters focus on single countries when the editors or contributors believed that the scholarship on a particular country was sufficiently dense to justify a single chapter. This results in chapters on the United States, Canada, the United Kingdom, and India. There are additional chapters on pairs of countries or courts, including Australia and New Zealand and the Court of the European Union and the European Court of Human Rights. The remaining chapters are regionally-focused and include summaries of scholarship on Latin America, Europe, East Asia, and Africa. The final third of the volume contains two essays, one by Amanda Driscoll and a second by Rebecca Gill and Christopher Zorn. Both essays offer perspectives on the state of the field in light of the essays in the second third of the volume.
Given the scope of the volume, I summarize only a few key lessons. In the introduction to his section on gaps in the literature on the United States, Joshua Fischman writes “There is widespread understanding that judicial decisions are influenced by judges’ internal preferences, strategic considerations, and legal sources. Beyond this basic understanding, there is much disagreement” (p. 48). My reading of the essays is that Fischman’s statement fairly characterizes the global scholarship reviewed in the volume. There is a kind of consensus around the general forces that influence judicial behavior, but conflicts remain over the relative size of these forces as well as the conditions under which one force is likely to be more important than another. Differences about these core elements of judicial behavior influence scholarship on other topics including the judicialization of politics, the effects of race, ethnicity, and gender on many aspects of the law, and more recently, on the place of courts in the context of democratic backsliding.
Three other lessons are closely linked. First and foremost, although there are many cross-national studies of both institutions of constitutional review and of judicial behavior, these studies rely on country-year level measurement of concepts like de jure and de facto judicial independence (Hayo and Voigt, 2007; Melton and Ginsburg, 2014; Epperly, 2019). There are relatively few comparative studies that draw on measures derived from case-level or judge-level information (e.g., Herron and Randazzo, 2003; Haynie et al., 2007). We lack truly comparative analyses of actual judicial decision-making, opinion-writing, coalition formation, etc. I am not sure if a truly cross-national analysis at the level of the judge-case (or judge-issue-case) is absolutely necessary for the development of the field, but I certainly agree that the absence of comparable cross-national data is a vexing omission.
Second, nearly all scholars outside of those writing on the United States, Canada, and the United Kingdom lament the lack of high quality data on decision-making, whether constrained to apex courts or the judiciary as a whole. Some of these concerns derive from the record-keeping practices of some judicial systems, which make data collection extremely costly, but scholars also identify the lack of data availability as a key problem even in states whose judicial systems are fully digitized and publicly accessible. Finally, the volume’s authors identify the relative lack of consensus on the measurement of critical concepts (e.g. judicial ideology, judicial backgrounds, etc.) such that even if decision-making data were available, it would be difficult to evaluate well-existing theoretical claims.
These lessons leave the reader with a sense of a literature that has made tremendous progress over the last fifty years, but which has yet to reach consensus on several important matters. I do not view the lack of consensus as a problem. Indeed, the field would likely profit from more heated debates about key theoretical propositions. A more significant concern is that, outside of a relatively small number of cases, we lack comparable information on many of the aspects of Kornhauser’s framework, including details of appointments, case assignment, aggregation rules, norms of debate, and approaches to the constitutional review across the many legal instruments that high courts manage globally.
In their essay, Gill and Zorn highlight the need for collaboration in the production of the basic data the field lacks. This is an important essay, especially when read in tandem with Driscoll’s, which focuses in part on the many career incentives that make it hard to produce the data we need and harder still to benefit from its production sufficiently to warrant the effort. Technological advances over the last twenty years have made it possible to automate some basic data retrieval and measurement tasks but humans will need to participate, and there is no one scholar who is knowledgeable enough to do this work alone, no matter the technology. Given the high barriers to entry in this field (scholars not only need country-specific political knowledge, and strong methods skills, but also legal knowledge of potentially many different systems), it seems transparent that a viable solution will involve a large community. This will need to include not only social scientists but also legal scholars. It also seems transparent that this cannot be done with participation from the global north only. It will require scholars in a truly global network. Many needed partners are not represented among the volume’s authors. This is absolutely understandable given the scope conditions the editors placed on the project; however, it is an omission worth reflecting upon given the collaborative task ahead.
Pointing to the need for global collaboration is extremely helpful. Yet a key missing element is a description of how exactly the field will solve the clear public goods provision and coordination dilemmas that must be addressed in order to promote the collaboration we need. I would suggest that thinking clearly about potential solutions to public goods and coordination problems will be a good starting point. What are the potential focal solutions for bringing people together around shared goals? What kinds of benefits can be offered only to contributors in this effort? Can we draw on existing international organizations or on existing international collaborations? It would seem that this cannot be done from within the context of a single disciplinary boundary. There just are not a sufficient number of political scientists or sociologists, or comparative legal scholars to get the work done alone. Surely the need for a truly interdisciplinary approach will make the public goods and coordination problems harder to solve. I suspect that this is the key reason that we find ourselves at the level of progress described in the volume.
High Courts in Global Perspective is a must read for scholars of law and politics, whether they focus on a particular country or have interests in the way that law and courts function more generally. The volume succeeds in offering summaries of scholarship on high courts in particular countries and regions, but its real value lies in clarifying the big challenges the field confronts. The most important is the simple lack of descriptive information for much of the world’s judicial systems. Although I see this challenge as no doubt quite difficult to overcome, the solution, global collaboration, is precisely the kind of thing that attracted so many of us to the field in the first place. For that reason, I remain optimistic that we are going to sort this out.
REFERENCES:
Epperly, Brad. 2019. The Political Foundations of Judicial Independence in Dictatorship and Democracy. Oxford University Press.
Haynie, Stacia L, Reginald S Sheehan, Donald R Songer and C Neal Tate. 2007. “High Courts Judicial Database.” Judicial Research Initiative, University of South Carolina. http://www. cas. sc. edu/poli/juri .
Hayo, Bernd and Stefan Voigt. 2007. “Explaining de facto Judicial Independence.” International Review of Law and Economics 27(3):269–290.
Herron, Eric S. and Kirk A. Randazzo. 2003. “The Relationship between Independence and Judicial Review in Post-Communist Courts.” The Journal of Politics 65(2):422–438.
Melton, James and Tom Ginsburg. 2014. “Does de Jure Judicial Independence Really Matter?: A Reevaluation of Explanations for Judicial Independence.” Journal of Law and Courts 2(2):187–217.
Shapiro, Martin M. 1981. Courts: A Comparative and Political Analysis. Chicago: University of Chicago Press.
© Copyright 2024 by author, Jeffrey K. Staton.
