Guarding the guardians: Judicial councils and judicial independence

American Journal of Comparative Law

Volumn 57, Issue 1, 2009, Pages 103-134

  Garoupa, Nuno ^a,b   Ginsburg, Tom ^c  

^a UNIVERSITY OF ILLINOIS AT URBANA CHAMPAIGN   (United States)

^b IMDEA   (Spain)

^c UNIVERSITY OF CHICAGO   (United States)

Author keywords

[No Author keywords available]

Indexed keywords

EID: 60349106970     PISSN: 0002919X     EISSN: None     Source Type: Journal    
DOI: 10.5131/ajcl.2008.0004     Document Type: Review

References (89)

1. There is a large body of literature on judicial independence and quality. See, e.g., Richard Epstein, The Independence of Judges: The Uses and Limitations of Public Choice, BYU L. REV., at 827 (1990); Paul Penn & Eli Salzberger, Judicial Independence: Some Evidence from the English Court of Appeal, 42 J.L. & ECON. 831 (1999); F. Andrew Hannsen, Is There a Politically Optimal Level of Judicial Independence?, 94 AM. ECON. REV. 712 (2004); Irving Kaufman, The Essence of Judicial Independence, 80 COLUM. L. REV. 671 (1980); Daniel Klerman & Paul Mahoney, The Value of Judicial Independence: Evidence from 18th Century England, 7 AM. L & ECON. REV. 1 (2005); William Landes & Richard Posner, The Independent Judiciary in an Interest-Group Perspective, 18 J.L. & ECON. 875 (1975); J. Mark Ramseyer, The Puzzling (In)dependence of Courts, 23 J. LEGAL STUD. 721 (1994); J. Mark Ramseyer & Eric Rasmusen, Judicial Independence in Civil Law Regimes: Econometrics from Japan, 13 J.L. ECON. & ORG. 259 (1997); McNollgast, Conditions for Judicial Independence, 15 J. CONTEMP. LEGAL ISSUES 105 (2006); William H. Rehnquist, See in a Glass Darkly: The Future of the Federal Courts, WIS. L. REV. 1 (1993). For a more comparative perspective, see Josefina Calca de Temeltas, Commentary: Comparative Constitutional Approaches to the Rule of Law and Judicial Independence, 40 ST. LOUIS U. L. J. 1997 (1996).
2. See generally APPOINTING JUDGES IN AN AGE OF JUDICIAL POWER (Kate Malleson & Peter H. Russell eds., 2006).
3. Malia Reddick, Merit Selection: A Review of the Social Scientific Literature, 106 DICKERSON L. REV. 729 (2002) (providing summary of empirical evidence); Luke Bierman, Preserving Power in Picking Judges: Merit Selection for the New York Court of Appeals, 60 ALB. L. REV. 339 (1996) (advocating merit system for New York); Norman L. Greene, Perspectives on Judicial Selection Reform: The Need to Develop a Model Appointive Selection Plan for Judges in Light of Experience, 68 ALB. L. REV. 459 (2005) (merit system superior); Steven Zeidman, Keynote Address, Judicial Politics: Making the Case for Merit Selection, 68 ALB. L. REV. 713 (2005); Lawrence H. Avrill, Jr., Observations on the Wyoming Experience with Merit Selection of Judges: A Model for Arkansas, 17 U. ARK. LITTLE ROCK L.J. 281 (1995) (Arkansas); Sara S. Greene, et al., On the Validity and Vitality of Arizona's Judicial Merit Selection System: Past, Present, and Future, 34 FORDHAM URB. L.J. 239 (2007) (Arizona); Victoria Cecil, Merit Selection and Retention: The Great Compromise? Not Necessarily, 39 COURT REV. 20 (2002) (Florida); Jason J. Czarnezki, Essay, A Call for Change: Improving Judicial Selection Methods, OR. L. REV. 459 (2005) (Wisconsin); Lenore L. Prather, Judicial Selection: What is Right for Mississippi?, 72 MISS. C.L. REV. 459 (2002) (Mississippi); Jona Goldschmidt, Merit Selection: Current Status Procedures, and Issues, 49 U. MIAMI L. REV. 1 (1994) (providing extensive history of merit selection and arguing for the merit plan); Joseph A. Colquitt, Rethinking Judicial Nominating Commissions: Independence, Accountability, and Public Support, 34 FORDHAM URB. LJ. 78 (2007); Mark A. Behrens & Cary Silverman, The Case for Adopting Appointive Judicial Selection Systems for State Court Judges, 1 CORNELL J. L. & PUB. POL'Y 273 (2002) (arguing for appointment over election); Norman L. Greene, A Critical Appraisal of Appointive Selection for State Court Judges: The Judicial Independence Through Fair Appointments Act, 34 FORDHAM URB. L.J. 13 (2007) (same); G. Alan Tarr, Designing an Appointive System: The Key Issues, 34 FORDHAM URB. L.J. 291 (2007) (same); Jeffery D. Jackson, Beyond Quality: First Principles in Judicial Selection and Their Application to a Commission-Based Selection System, 34 FORDHAM URB. L.J. 459 (2007); Steven P. Croley, The Majoritarian Difficulty: Elective Judiciaries and the Rule of Law, 62 U. CHI. L. REV. 689 (1995) (judicial elections undermine rule of law); Paul R. Brace & Melinda Gann Hall, The Interplay of Preferences, Case Facts, Context, and Rules in the Politics of Judicial Choice, 59 J. POL. 1206 (1997).
4. But see Stephen J. Choi et al., Judicial Independence, Judicial Quality and the Countermajoritarian Difficulty: An Empirical Test Using Data from State Supreme Courts (2007), available at http://papers.ssrn.com/sol3/ papers.cfm?abstract-id= 998536 (finding that judges in partisan systems are more productive in terms of number of opinions, but that appointed judges are cited more frequently).
5. Diffusion data on file with authors.
6. See the recent volume JUDICIAL INDEPENDENCE AT THE CROSSROADS: AN INTERDISCIPLINARY APPROACH (Stephen B. Burbank & Barry Friedman eds., 2003).
7. MARTIN SHAPIRO, COURTS: A COMPARATIVE AND POLITICAL ANALYSIS (1981).
8. See, e.g., Sanford Levinson, Identifying " Independence," 86 B.U. L. REV. 1297 (2006) (identifying formal and informal pressure on the judiciary); Stephen B. Burbank, The Architecture of Judicial Independence, 72 S. CAL. L. REV. 315 (1999) (explaining judicial independence in contemporary American history); Archibald Cox, The Independence of Judiciary: History and Purposes, 21 U. DAYTON L. REV. 565 (1996) (discussing historical reasons for judicial independence); John Ferejohn & Larry Kramer, Independent Judges, Dependent Judiciary: Institutionalizing Judicial Restraint, 11 N.Y.U. L.REV. 962 (2002) (arguing that independence and accountability aim at a well-functioning system of adjudication); John Ferejohn, Judicializing Politics, Politicizing the Law, 65 LAW & CONT. PROBS. 45 (2002); John Ferejohn, Independent Judges, Dependent Judiciary: Explaining Judicial Independence, 72 S. CAL. L. REV. 353 (1999) (discussing institutional protections forjudges and the judiciary and explaining interest theories of judicial independence); Gordon Bermant & Russell Wheeler, Federal Judges and the Judicial Branch: Their Independence and Accountability, 46 MERCER L. REV. (1995) (identifying different levels of independence, including decisional independence, personal independence, procedural independence, administrative independence; and different levels of accountability, namely internal vs. external accountability); Frank Kahn Zemans, The Accountable Judge: Guardian of Judicial Independence, 72 S. CAL. L. REV. 625-56 (1999) (discussing institutional versus decisional independence); also Burbank & Friedman, supra note 6.
9. A precursor for judicial councils can be seen in the use of formal nominations committees composed of various governmental officials. See, e.g., Constitution of Albania, 1925 (judicial nominations from special committee of judges, prosecutors, and Minister of Justice).
10. In the Fifth Republic, the President of the Republic took over the appointments of all the members and reinstated most of the traditional powers of the Minister of Justice and higher-ranking judges. The cohabitation period in the 1980s eventually led to another reform (Loi Constitutionnelle of July 1993 and Loi Organique of Feb. 1994). The Council has two committees, one for judges and another one for prosecutors. The Council has a total of sixteen members. Each committee has one administrative judge chosen by the administrative judges (Conseil d'État) and three individuals chosen by the President, the Senate, and the National Assembly each. For the judicial committee, it has also five judges elected by the fellow judges and one prosecutor chosen by the fellow prosecutors; for the prosecutorial committee, it has one judge elected by the fellow judges and five prosecutors for the prosecutorial formation. The President and the Minister of Justice sit ex officio. See Cheryl Thomas, Judicial Appointments in Continental Europe, Lord Chancellor's Department, Research Series 6/97, 1997.
11. The Italian Council was made up of thirty-three members, twenty magistrates elected directly by the judges, ten lawyers or law professors nominated by the Parliament, and the President, the Chief-Justice, and the Chief-Prosecutor all serving ex officio. It has been reformed recently to include only twenty-four members, sixteen ordinary magistrates and prosecutors and eight lawyers or law professors with fifteen years experience in the legal profession, all of whom are appointed by the Parliament. See Thomas, supra note 10.
12. The Spanish Council (Consejo General del Poder Judicial) has twenty members, twelve judges and eight lawyers all appointed by the Parliament and the Chief- Justice ex officio. For prosecutors, there is a council made up of twelve prosecutors (Consejo Fiscal).
13. There are three councils in Portugal, one for judicial courts (Conselho Superior da Magistratura), one for administrative courts (Conselho Superior dos Tribunals Administrativos e Fiscais), and one for prosecutors (Conselho Superior do Ministério Público).
14. A good summary can be found in Thierry-Serge Renoux, 2000, Les Conseils Supérieurs de la Magistrature en Europe, Documentation Française (Coll. Perspectives sur la justice). About the unionization of the judiciary, see Willem de Haan et al., Radical French Judges: Syndicat de la Magistrature, 16 J.L. & SOC'Y 477-82 (1989) (explaining the role of the union of judges).
15. See Michael. H. Davis, A Government of Judges: An Historical Re-View, 35 AM. J. COMP. L. 559 (1987) (explaining why the American government of judges is disliked by the French legal scholars); John Bell, Principles and Methods of Judicial Selection in France, 61 S. CAL. L. REV. 1757 (1988); ALEC STONE, THE BIRTH OF JUDICIAL POLITICS IN FRANCE (1992); Vincent Wright, The Fifth Republic: From the Droit d'Etat to the Etat de Droit?, 22 W. EUR. POL. 92 (1999), and Dories Marie Provine & Antoine Garapon, The Selection of Judges in France: Searching for a New Legitimacy, in APPOINTING JUDGES IN AN AGE OF JUDICIAL POWER 176 (Kate Malleson & Peter H. Russell eds., 2006).
16. See Doris Marie Provine, Courts in the Political Process in France, in COURTS, LAW AND POLITICS IN COMPARATIVE PERSPECTIVE, at 203-04 (Herbert Jacob et al., eds., 1996).
17. VALÉRY TURCEY, LE CONSEIL SUPERIEUR DE LA MAGISTRATURE FRANÇAIS: BILAN ET PERSPECTIVES (2005).
18. See Thomas, supra note 10.
19. Patrizia Pederzoli, The Reform of the Judiciary in ITALIAN POLITICS: QUO VADIS 153-71 (Carlo Guarnieri & James Newell eds., 2004); David Nelken, The Judges and Political Corruption in Italy, in THE CORRUPTION OF POLITICS AND THE POLITICS OF CORRUPTION 95-112 (Michael Levi & David Nelken eds., 1996); Carlo Guarnieri, Judicial Independence in Latin Countries in Western Europ, in JUDICIAL INDEPENDENCE IN THE AGE OF DEMOCRACY, CRITICAL PERSPECTIVES AROUND THE WORLD (Peter Russell & David M. O'Brien eds., 2001).
20. See, e.g., Rebecca Bill Chavez, The Appointment and Removal Process for Judges in Argentina: The Role of Judicial Councils and Impeachment Juries in Promoting Judicial Independence, 49 LATIN AMERICAN POL. & SOC. 33 (2005) (Argentina). Some refer to a distinction between a "Northern European Model" more focused on management concerns and a "Southern European Model" that is constitutionalized and focusing on structural independence. Wim Voermans & Pim Albers, Councils for the Judiciary in EU Countries, European Council for the Efficiency of Justice, CEPEJ (2003). We reject this distinction as unhelpful, but rather develop an index of powers and competences discussed infra, section V.
21. See Linn Hammergren, Do Judicial Councils Further Judicial Reform? Lessons from Latin America (Working-Paper Series Democracy and Rule of Law Project 28, 2002). See also Pedro C. Magalhaes, The Politics of Judicial Reform in Eastern Europe, 32 COMP. POL.43-62 (1999) (discussing the judicial institutional design in Bulgaria, Hungary, and Poland and how it relates to the bargaining process between the different political actors);); Pilar Domingo, Judicial Independence: The Politics of the Supreme Court of Mexico, 32 J. LAT. AMER. STUD. 705 (2000) (arguing that specific constitutional reforms and the politics of co-optation subordinated the judiciary to the dominant party until 1994); Peter H. Solomon, Putin's Judicial Reform: Making Judges Accountable as well as Independent, 11 E. EUR. CONST. REV. 117-23 (2002) (discussing the reforms to the Judicial Qualification Commission); Lauren Castaldi, Judicial Independence Threatened in Venezuela: The Removal of Venezuelan Judges and the Complications of Rule of Law Reform, 37 GEORGETOWN J. INT'L L. 477 (2006) (discussing the current situation in Venezuela).
22. Art. 3.2.
23. Art. 3.1.
24. Subject to review by the Supreme Court. Art. 3.4.
25. Recommendation No.R (94) 12 of the Committee of Ministers to Member States on the Independence, Efficiency and Role of Judges (1994) (Council of Europe Recommendation), art. I. 2.C
26. Violane Autheman & Sandra Elena, Global Best Practices-Judicial Councils: Lessons Learned from Europe and Latin America, IFES, 2004 (arguing that judicial councils should be composed of a majority of judges elected by their peers and should be tasked with selection, promotion, discipline, and training).
27. See Owen Fiss, The Right Degree of Independence, in TRANSITIONS TO DEMOCRACY IN LATIN AMERICA: THE ROLE OF THE JUDICIARY 55-72 (Irwin Stotzky ed., 1993) (focusing on independence within the judicial hierarchy).
28. Nicholas L. Georgakopoulos, Discretion in the Career and Recognition Judiciary, 7 CHI L. SCH. ROUNDTABLE 205 (2000).
29. See Thomas, supra note 10.
30. See THIJMAN KOOPMANS, COURTS AND POLITICAL INSTITUTIONS, 76-84 (2003) (describing the growth of power of the Dutch judiciary).
31. The creation of the Council for the Judiciary followed the Leemhuis Commission's advice to the Minister of Justice by the report "Updating the Administration of Justice", in 1998.
32. The 1977 Brazilian council (Conselho Nacional da Magistratura) was another good example. However, the 2004 council (Conselho Nacional de Justiça) has nine judges from different courts, including the Chief-Justice ex officio, two prosecutors, two lawyers (representatives of the bar association) and two laymen appointed by the Senate and the House respectively.
33. Voermans & Albers, supra note 20, provide the examples of Guatemala and Argentina.
34. See the discussion by Maria Angela Oliveira, Reforming the Brazilian Supreme Federal Court: A Comparative Approach, 5 WASH. U. GLOBAL STUDIES L. REV. 99 (2006).
35. The new model includes nine judges, two prosecutors, two lawyers, and two laymen appointed by the legislature.
36. See Georgakopoulos, supra note 28. Debate in common law countries tends to focus on the merits of the appointees and diversity concerns. See, e.g., Kate Malleson, Selecting Judges in the Era of Devolution and Human Rights, in Building the UK's New Supreme Court, in NATIONAL AND COMPARATIVE PERSPECTIVES (Andrew Le Sueur ed., 2004).
37. Cf J. MARK RAMSEYER & ERIC RASMUSEN, MEASURING JUDICIAL INDEPENDENCE (2004) (documenting political manipulation of judicial career structures in Japan). However, see David M. O'Brien & Yasou Ohkoshi, Shifting Judicial Independence from Within: The Japanese Judiciary, in JUDICIAL INDEPENDENCE IN THE AGE OF DEMOCRACY, CRITICAL PERSPECTIVES AROUND THE WORLD (Peter Russell & David M. O'Brien eds., 2001) (arguing that Ramseyer and Rasmusen have misunderstood the manipulation of the judiciary in Japan as political by the LDP when it is merely bureaucratic by the faceless General Secretariat of the Supreme Court).
38. The composition of the JAC is fifteen, seven are judges and magistrates, two lawyers (one barrister and one solicitor), and six are laymen (including the chairman). It started selecting judges in Apr. 2006. KATE MALLESON, THE LEGAL SYSTEM ch. 17.40 (2005), argues that the JAC is effectively dominated by the judiciary. The fact that the council is chaired by a non-lawyer does not seem to counter a strong judicial membership. The traditional role of the Lord Chancellor in judicial appointments has been the object of study by Anthony Bradney, THE JUDICIAL ACTIVITY OF THE LORD CHANCELLOR 1946-1987: A PELLET, 16 J.L. & SOC'Y 360 (1989).
39. For a discussion on the extent to which merit selection is consistent with affirmative action in the judiciary, see Kate Malleson, Rethinking the Merit Principle in Judicial Selection, 33 J.L. & SOC'Y 126-40 (2006); see also Kathleen A. Bratton & Rorie L. Spill, Existing Diversity and Judicial Selection: The Role of Appointment Method in Establishing Gender Diversity in State Supreme Courts, 83 SOCIAL SCIENCE QUARTERLY 504 (2002) (presenting empirical evidence that appointed systems of judicial selection produce more diversity than election systems). The Canadian experience of provincial and federal advisory committees has been appraised as a good model to promote women and minorities within the judiciary. There are wide different models in Canada, but usually judges are not a majority in the council. The federal committee has seven members, three laymen, three lawyers, and one judge. See Kate Malleson, The Use of Judicial Appointment Commissions: A Review of the US and Canadian Models, Lord Chancellor's Department, Research Series 6/97, 1997.
40. Empirical analysis is provided by Mita Bhattacharya & Russell Smyth, 30 THE DETERMINANTS OF JUDICIAL PRESTIGE AND INFLUENCE: SOME EMPIRICAL EVIDENCE FROM THE HIGH COURT OF AUSTRALIA, J. LEGAL STUD. 223-52 (2001) and Pushkar Maitra & Russell Smyth, Judicial Independence, Judicial Promotion and the Enforcement of Legislative Wealth Transfers - An Empirical Study of the New Zealand High Court, EUR. J.L. & ECON., at 17 (2004). See also discussion by John M Williams, Judicial Independence in Australia, in JUDICIAL INDEPENDENCE IN THE AGE OF DEMOCRACY, CRITICAL PERSPECTIVES AROUND THE WORLD (Peter Russell & David M. O'Brien eds., 2001) (showing that while the structural guarantees are quite robust and few attempts have made to remove judges, there are serious proposals for reform).
41. See Kim Teck Kim Seah, The Origins and Present Constitutional Position of Singapore's Legal Service Commission, SING. ACAD. L.J., at 2 (1990).
42. The judicial branch of the Legal Service Commission is headed by the Registrar of the Supreme Court but the ultimate responsibility for managing lies with the Chief Justice.
43. Gordon Silverstein, Singapore: The Exception that Proves Rules Matter, in RULE BY LAW: THE POLITICS OF COURTS IN AUTHORITARIAN REGIMES (Tom Ginsburg & Tamir Moustafa eds., 2008).
44. In Missouri, the Commission has seven members: the Chief Justice, three lawyers elected by the bar from different appellate districts, and three laypersons appointed by the Governor. For an analysis, see Hanssen, supra note 1.
45. Roscoe Pound, The Causes of Popular Dissatisfaction With the Administration of Justice, 20 J. AM. JUD. SOC'Y 178 (1937).
46. Peter Webster, Selection and Retention of Judges: Is There one Best Method?, 23 FLA. ST. U. L. REV. 1 (1995); Reddick, supra note 3, at 10 (noting only thirty-three judges lost retention elections in the entire United States between 1942 and 1978).
47. F. Andrew Hannsen, Learning About Judicial Independence: Institutional Change in State Courts, 33 J. LEGAL STUD. 431-62 (2004).
48. See, e.g., Reddick, supra note 3 (reviewing literature).
49. Hanssen, supra note 1, at 721.
50. For at least one indicator, both these methods have less political competition on some indicators than the residual category of "other" appointment methods (such as legislative or gubernatorial appointment. Id. at 720 ("In 95 percent of partisan election states the same party controlled both houses of the legislature, versus in 87 percent of merit plan states and 81 percent of other states").
51. J. Mark Ramseyer, The Puzzling (In)dependence of Courts, 23 J. LEG. STUD. 721 (1994); see also Tom Ginsburg, JUDICIAL REVIEW IN NEW DEMOCRACIES (2003); Mathew Stephenson, When the Devil Turns... The Political Foundations of Independent Judicial Review 32 J. LEG. STUD. 59 (2003); Lee Epstein et al., Selecting Selection Systems, in JUDICIAL INDEPENDENCE AT THE CROSSROADS: AN INTERDISCIPLINARY APPROACH 191-226 (Stephen B. Burbank & Barry Friedman, eds., 2002).
52. Webster, supra note 46; Henry Glick, The Promise and Performance of the Missouri Plan: Judicial Selection in the Fifty States, 32 U. MIAMI L. REV. 519 (1978). See further discussion in Choi et al., supra note 4.
53. Reddick, supra note 3, at 15 of manuscript.
54. Hanssen, supra note 47, at 452.
55. For example, Stevens mentions several important episodes of political interference with the judiciary (including the right of the Crown not to reappoint judges on the change of a monarch) but notes the declining role of the judiciary until the 1960s. He argues that the development of high formalism that protected the English judiciary from possible political interference made the judiciary increasingly irrelevant. See ROBEHT STEVENS, THE ENGLISH JUDGES: THEIR ROLE IN THE CHANGING CONSTITUTION (2005), chs. 1 and 2. See also the recent volume BUILDING THE UK's SUPREME COURT: NATIONAL AND COMPARATIVE PERSPECTIVES (Andrew Le Seur ed., 2004).
56. See J. Steyn, The Case for a Supreme Court, 118 L. Q. R. 382 (contesting this view and emphasizing that in practice the Lord Chancellor delegates to the Law Lords judicial business).
57. See J.A.G. GRIFFITH, THE POLITICS OF THE JUDICIARY (5th ed. 1999), at chs. 8 and 9, where he argues that the myth of neutrality has undermined the building-up of a strong judiciary. The author defends a political role of the judiciary in areas such as law and order or social issues. See also Stevens, supra note 55, at chs. 6 and 7, and ROBERT J. MARTINEAU, APPELLATE JUSTICE IN ENGLAND AND THE UNITED STATES: A COMPARATIVE APPROACH (1990).
58. The contradictory decisions taken by different panels of three Law Lords were not easily understood by the public. For a detailed account, see Stevens, supra note 55, at ch. 8.
59. McGonnell v. UK (2000) 30 EHRR 289.
60. See, among others, Robert Stevens, A Loss of Innocence? Judicial Independence and the Separation of Powers, 19 OXFORD J. LEG. STUD. 365 (1999) and Matthew Flinders, Mechanisms of Judicial Accountability in British Central Government, 54 PARLIAMENTARY AFFAIRS 54 (2001).
61. For an empirical analysis, see Jordi Blanes & Clare Leaver, An Economic Analysis of Judicial Diversity Part I: Judicial Promotions, Oxford University mimeograph (2007). See also Griffith, supra note 57, at 18-21 and Herbert M. Kritzer, Courts, Justice and Politics in England, in COURTS, LAW AND POLITICS IN COMPARATIVE PERSPECTIVE 91, at 92 (Herbert Jacob et al. eds., 1996).
62. See GRIFFITH, supra note 57, at chs. 3 to 6.
63. In the case of Scotland, judicial appointments were under review since Sept. 1999 and an independent Judicial Appointments Board was established in June 2002.
64. The President of the Courts of England and Wales sits in the Court of Appeal, the High Court and the Crown Court, among others, is responsible for expressing the views of the judiciary and for welfare, training, and guidance of the English judiciary. He is not the President of the Supreme Court.
65. The new Supreme Court is to be launched in 2008 with the current twelve Law Lords (the Lords of Appeal in Ordinary). There will be a Supreme Court ad hoc selection committee presided by the President of the Supreme Court for future appointments. The remaining Lords of Appeal who are members of the House of Lords and eligible to hear and decide judicial business under the Appellate Jurisdiction Act 1876 will not be moved to the Supreme Court (in Jan. 2007, there were thirteen including three former Lord Chancellors).
66. Stephen Burbank, Judicial Independence, Judicial Accountability and Interbranch Relations (U. Pa. L. Sch., Working Paper No. 102, 2006), available at http://lsr. nellco.org/upenn/wps/papers/102 (arguing that judicial independence in the United States is at a tipping point because of a characterization of judicial politics as ordinary politics).
67. But see Hammergren, supra note 21.
68. Hanssen, supra note 1.
69. We believe the primary rationale to be considered in assigning the task to a council is economies of scale and specialization vis-a-vis alternative managers, such as the Ministry of Justice (arguably better able to do things like purchasing supplies etc.) or the Supreme Court (a body that typically has little time or expertise for management).
70. On the other hand, the politics of setting up the councils may vary greatly depending on local circumstances, in particular the historical balance of power between government and Supreme Court. For example, the extent to which the justices are easily captured by the government will result in different models of judicial council.
71. Hanssen's data from the United States suggests that the timing of the adoption of council-type mechanisms reflects these motivations.
72. This data is from the Comparative Constitutions Project at the University of Illinois; available at www.comparativeconstitutionsproject.org
73. Hammergren, supra note 21.
74. Judicial independence on every measure is lower for these countries. Countries with constitutionalized judicial councils have a mean De Facto Independence (Voigt) score of .51, while those with nonconstitutionalized councils have score .41, though the n is too low to determine a significant difference in means. Using Howard and Carey's measure of judicial independence, the means are .47 and .16 respectively, significant at the .01 level.
75. A difference of means test gives a t-stat of -1.48 (85% confidence level), indicating close to statistical significance.
76. Logit regression confirms the direction of this relationship, although not at statistically significant levels.
77. There are no cases in our sample of democracies transitioning to autocracies.
78. CARLES BOIX, DEMOCRACY AND REDISTRIBUTION (2000); Carles Boix, Constitutions and Democratic Breakdowns, paper presented at Comparative Law and Economics Forum, Chicago (Oct. 2005). For each constitution, the country's autocracy/democracy status was considered for the five years preceding the constitution and immediately afterwards. If the country was rated a democracy in the year of or immediately following the promulgation of the constitution, and had been an autocracy at any time in the five preceding years without an intervening constitution, it was considered to have undergone a transition from autocracy to democracy.
79. Robert Howard & Henry A. Carey, Courts and Political Freedom: A Measure of Judicial Independence, 87 JUDICATURE 285 (2004).
80. We focus on their "individual independence" score, which exhibits much more variance than their collective independence indicator.
81. Lars Feld & Stefan Voigt, Economic Growth and Judicial Independence: Cross-Country Evidence Using a new set of Indicators, 19(3) EUR. J. POL. ECON. 497-527 (2003); Bernd Hayo & Stefan Voigt, Explaining De Facto Judicial Independence, Marburg Papers on Economics No. 07-2005 (2005), available at http://www.uni-marburg.de/ fb02/makro/forschung/gelbereihe/artikel/2005-07-hayo.pdf (last visited Aug. 10, 2007).
82. Data on file with authors.
83. World Bank, Worldwide Governance Indicators 1996-2006, available at http://web.worldbank.org/WBSITE/EXTERNAL/WBI/EXTWBIGOVANTCOR/0.content MDK:20771165~menuPK:1866365~pagePK:64168445~piPK:64168309~theSitePK:1740530,00. html.
84. See supra note 81.
85. See Howard & Carey, supra note 79
86. Simeon Djankov et al., Courts: The Lex Mundi Project, CEPR Discussion Papers 3344 (2002).
87. Cf. Hannsen, supra note 47.
88. Autheman & Elena, supra note 26.
89. Autheman & Elena, supra note 26, provide a very interesting report of survey data from five Central American countries. Respondents in those countries that had a judicial council reported that the Council had had a negative impact on judicial independence. Respondents in those countries that did not have a judicial council felt that adopting a judicial council would increase judicial independence. Id. at 4. These two results are not contradictory from our point of view. First, the two sets of countries have different starting places and are likely to vary systematically. Second, the countries that have adopted judicial councils may have done so to enhance accountability rather than independence, in which case, respondents are observing a successful institution.