POLI 330 FINAL EXAM QUESTIONS
WITH CORRECT DETAILED
ANSWERS
Judicial output analysis of judicial independence - independent judiciary= no litigant can
win each case that they want
- judicial output is distributed in terms of maximizing someone else's preferences
- unit of analysis is individual decisions
Reputational indices as a measure of judicial output - these are surveys done on
litigants on how they perceive the independence of the courts
- about how they feel about the outcome
- whether the courts are subservient or independent of extra judicial influence
Disadvantages of reputational indices as a measure of judicial output - - it is simply
someones perception of what the situation is
- may be skewed/not accurate of reality
- people may be afraid to give true opinion in repressive countries (surveying experts=
potential solution but then they only have knowledge of a few countries)
Win-rates as a measure of judicial output - - count how many times the government
wins when they go to court
- compare the success of the gvmt as litigant vs the average litigant
Advantages of win-rates as a measure of judicial output - - tied to the idea of rule of law
Disadvantages of win-rates as a measure of judicial output - - labour intensive (requires
the collection of massive amounts of data on individual court cases)
- requires accountability for all other possibilities
- makes arriving at a measure cross-nationally/ crosstime very not likely
Problems with judicial accountability - - Institutional reforms aimed at introducing
accountability for judges get attacked by judges
themselves as reforms that curtail their independence
- where judicial corruption might be a prob. may be difficult
Jurisdiction as an element of judicial power - - imp element
- wider the jurisdiction, the bigger potential to become a powerful court
- not enough to guarantee a powerful court
,Discretion as an element of judicial power - - less discretion = less power
- range of options would be more limited
- determined by guidelines from higher courts
Authority of courts (compliance) as an element of judicial power - - have to adopt certain
decisions
- can have wide jurisdiction but if not respected then not powerful
- easy to tell whether theres compliance or not
How can courts get around compliance? - - by passing same law over and over again
with slightly diffeent wording
- Claiming that you intend to comply and put off the compliance until the compliance is
no longer in the public attention
- Put off by insisting that there are other reasons preventing you from implementing it
Is compliance a real issue? - YES, non-compliance can really hurt the legitimacy of a
court
- it can undermine the sense that this is an institutional that matters, is consequential,
and has to be paid attention to
- High courts are often very concerned about the question of compliance because it is
directly related to how they perceive their power to be developing
Growing trend towards the judicialization of politics - meaning the growing importance of
the judiciaary in which politics operates
- const. courts have popped up since WWII
2 elements of the judicialization of politics - (1) global expansion of policy making power
of JUDGES at the expense of politicians and bureaucrats
(2) rise of activist const. courts as opposed to restrained courts
Restrain court - - negative legislator (only decide what leg's are unconstitutional)
- invalidates laws as a last resort
- stays away from consequential/debated legislation aka leaves it to the politicians
- will leave a law in place even if it can be viewed by others as unconstitutional
Activist court - - not afraid to invalidate imp. central laws
- doesn't care about legislative intent
Why is comparing restraint courts vs activists courts problematic? - - is only an
academic construct
- no checklist/fullproof way to know that a court is one or the other
- courts can vary over time
Signs a court is an activist court - - balancing jurisprudence (overreaches for justification
for decisions, moving away from the legal arguments)
, - avoid using concrete legal norms
- when a court tries to get a bigger jurisdiction
- when a ruling rests on vague const. values
- HUNGARIAN COURT used to be activist
French constitutional council & its quest for larger jurisdiction - - asserted more powers
for itself
- when it was first created was to limit the power of the parliament by constraining it
beyond the competencies given to it by the 1958 const. court
Judicialization of politics - Empowerment of the judiciary, of the constitutional judiciary
- rise of powerful activist constitutional courts and global expansion of policy making
powers
- the policy making powers of judges at the expense of policy making power of
politicians bureaucrats
- The spread of judicial decision making methods to institutions in the other two
branches of governments
Judicial decisions methods that are occurring in political forums as a sign of
judicialization of politics - - bargaining over outcomes in the open
- instead of bargaining now more emphasis on finding what the correct policy is (the
truth of a case)
- political discourse has becoming increasingly rule-laden
-majoritarian principle losing out to negative freedom principle (now have to consider
rights of all citizens)
Can judicial decisions occurring in political forums be measured/investigated? - NOT
REALLY. They are based largely on transferring metaphors and discourse, it may be a
bit challenging to find empirical ways to test that judicial decision making methods are
seeping into political decision making methods.
How do we demonstrate that judicialization of politics is a trend? - - empowerment of
judges at the expense of politicians through
increasingly powerful CC
- easy to document by seeing the spread of constitutional review throughout the world
- not only the adoption of CC in virtually every newly democratised state, but also on
increasing activity of the courts
Describe the claim that const. courts have becomes the third legislative chamber - -
enormous power of leg. process
- fundamental claim that politics have become judicialized
-ranking on how many cases a court hears does not indicate judiciability
Overturn rates - - judge the level of impact of CC: how often does the CC overturn
statutes when it considers them?
WITH CORRECT DETAILED
ANSWERS
Judicial output analysis of judicial independence - independent judiciary= no litigant can
win each case that they want
- judicial output is distributed in terms of maximizing someone else's preferences
- unit of analysis is individual decisions
Reputational indices as a measure of judicial output - these are surveys done on
litigants on how they perceive the independence of the courts
- about how they feel about the outcome
- whether the courts are subservient or independent of extra judicial influence
Disadvantages of reputational indices as a measure of judicial output - - it is simply
someones perception of what the situation is
- may be skewed/not accurate of reality
- people may be afraid to give true opinion in repressive countries (surveying experts=
potential solution but then they only have knowledge of a few countries)
Win-rates as a measure of judicial output - - count how many times the government
wins when they go to court
- compare the success of the gvmt as litigant vs the average litigant
Advantages of win-rates as a measure of judicial output - - tied to the idea of rule of law
Disadvantages of win-rates as a measure of judicial output - - labour intensive (requires
the collection of massive amounts of data on individual court cases)
- requires accountability for all other possibilities
- makes arriving at a measure cross-nationally/ crosstime very not likely
Problems with judicial accountability - - Institutional reforms aimed at introducing
accountability for judges get attacked by judges
themselves as reforms that curtail their independence
- where judicial corruption might be a prob. may be difficult
Jurisdiction as an element of judicial power - - imp element
- wider the jurisdiction, the bigger potential to become a powerful court
- not enough to guarantee a powerful court
,Discretion as an element of judicial power - - less discretion = less power
- range of options would be more limited
- determined by guidelines from higher courts
Authority of courts (compliance) as an element of judicial power - - have to adopt certain
decisions
- can have wide jurisdiction but if not respected then not powerful
- easy to tell whether theres compliance or not
How can courts get around compliance? - - by passing same law over and over again
with slightly diffeent wording
- Claiming that you intend to comply and put off the compliance until the compliance is
no longer in the public attention
- Put off by insisting that there are other reasons preventing you from implementing it
Is compliance a real issue? - YES, non-compliance can really hurt the legitimacy of a
court
- it can undermine the sense that this is an institutional that matters, is consequential,
and has to be paid attention to
- High courts are often very concerned about the question of compliance because it is
directly related to how they perceive their power to be developing
Growing trend towards the judicialization of politics - meaning the growing importance of
the judiciaary in which politics operates
- const. courts have popped up since WWII
2 elements of the judicialization of politics - (1) global expansion of policy making power
of JUDGES at the expense of politicians and bureaucrats
(2) rise of activist const. courts as opposed to restrained courts
Restrain court - - negative legislator (only decide what leg's are unconstitutional)
- invalidates laws as a last resort
- stays away from consequential/debated legislation aka leaves it to the politicians
- will leave a law in place even if it can be viewed by others as unconstitutional
Activist court - - not afraid to invalidate imp. central laws
- doesn't care about legislative intent
Why is comparing restraint courts vs activists courts problematic? - - is only an
academic construct
- no checklist/fullproof way to know that a court is one or the other
- courts can vary over time
Signs a court is an activist court - - balancing jurisprudence (overreaches for justification
for decisions, moving away from the legal arguments)
, - avoid using concrete legal norms
- when a court tries to get a bigger jurisdiction
- when a ruling rests on vague const. values
- HUNGARIAN COURT used to be activist
French constitutional council & its quest for larger jurisdiction - - asserted more powers
for itself
- when it was first created was to limit the power of the parliament by constraining it
beyond the competencies given to it by the 1958 const. court
Judicialization of politics - Empowerment of the judiciary, of the constitutional judiciary
- rise of powerful activist constitutional courts and global expansion of policy making
powers
- the policy making powers of judges at the expense of policy making power of
politicians bureaucrats
- The spread of judicial decision making methods to institutions in the other two
branches of governments
Judicial decisions methods that are occurring in political forums as a sign of
judicialization of politics - - bargaining over outcomes in the open
- instead of bargaining now more emphasis on finding what the correct policy is (the
truth of a case)
- political discourse has becoming increasingly rule-laden
-majoritarian principle losing out to negative freedom principle (now have to consider
rights of all citizens)
Can judicial decisions occurring in political forums be measured/investigated? - NOT
REALLY. They are based largely on transferring metaphors and discourse, it may be a
bit challenging to find empirical ways to test that judicial decision making methods are
seeping into political decision making methods.
How do we demonstrate that judicialization of politics is a trend? - - empowerment of
judges at the expense of politicians through
increasingly powerful CC
- easy to document by seeing the spread of constitutional review throughout the world
- not only the adoption of CC in virtually every newly democratised state, but also on
increasing activity of the courts
Describe the claim that const. courts have becomes the third legislative chamber - -
enormous power of leg. process
- fundamental claim that politics have become judicialized
-ranking on how many cases a court hears does not indicate judiciability
Overturn rates - - judge the level of impact of CC: how often does the CC overturn
statutes when it considers them?
