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Standard explanations of judicial behaviour (i.e. legal, rational-choice, attitudinal, and institutional models) are overly static and exogenous, interested in instances of sudden change in judicial behaviour, as triggered by appointments, legal reforms, or shifts in the political context. While these models are useful in understanding the external incentives affecting judicial behaviour, they are unsuitable for explaining sustained judicial empowerment beyond temporary strategic calculations. In response, recent 'ideational' approaches, especially studying constitutional courts, highlight the importance of judges' ideas about their role - not their ideologies or policy preferences - in instilling a mission, rather than an incentive-oriented view of the judicial function. Yet, despite their more dynamic approaches, those methods have overlooked how ideational change in the 'outside' world translates into change 'inside' this type of courts. Due to those limitations, this study proposes a complementary explanation of judicial empowerment: a theory of informal mandates and endogenous empowerment. Viewed through this lens, change and variation in judicial empowerment within and across cases are explained by the construction, expansion, and endurance - or absence and collapse - of collective internal understandings of the court's role and mission. Such understandings are developed as legal doctrines and articulated under broader informal mandates by 'mission leaders'. Gradually, these informal mandates can expand and gather majority support from strategic partnerships formed between 'mission leaders' and 'supporting leaders' - usually justices with high seniority. The more these informal mandates expand and endure inside the court, the less exogenous factors and strategic incentives over-determine its behaviour in the long-run. Judicial empowerment, thus, is better understood as a process that develops and expands gradually, endogenously, and informally, with a mission-oriented purpose. The theory is applied in the constitutional tribunals of Costa Rica, Chile, and Uruguay from 1990 to 2016. These countries have similar rule-of-law conditions, but their constitutional tribunals differ considerably in the strength and endurance of their informal mandates and, as a result, have attained different levels of judicial empowerment.

The "law versus politics" debate is central in the study of the Supreme Court's institutional role in US democracy and law making. Research has sought to determine if the Supreme Court is an unconstrained political actor or if it is constrained by precedent. This dissertation contributes to this debate by theorizing that there is not a direct tradeoff; instead, even a politically motivated Court can be constrained by precedent. Given precedent is an internally imposed norm, what incentive does a politically motivated Supreme Court have to adhere to precedent when it results in outcomes that deviate from the Court's most preferred ideological outcome? There has been a lack of theoretical development and empirical testing that would explain the Court's incentive to adhere to precedent. I argue that even a politically motivated Supreme Court has an interest in adhering to precedent as a means of control over the lower courts. The Court has a role as a principal with the Courts of Appeals acting as an agent. The Supreme Court uses precedent as a standard that guides lower court decision-making in thousands of cases that the Court will never hear. The Supreme Court is willing to sacrifice the dispositional outcome (who wins and who loses) in a given case to issue or adhere to a precedent that will better guide lower court decision-making in a given area. To test this theory, this project will construct an original data set using a new measure of precedent. Specifically, "the law" and "precedent" for a case will be coded in terms of the standard of review. The standard of review can be understood as a precise legal statement of which party has the burden of proof or justification in a given case and the nature of that burden. This is an ordinal measure (coded 0-4) based on the Court's finite legal rules in a given area of law (rational basis, heightened rational basis, intermediate, heightened intermediate and strict). This novel understanding better captures the legal content of court opinions.

The interactions, often clashes, between our branches of government are some of the most salient and important features of the U.S democratic system. The Supreme Court, given its unique position within this system, finds itself at the center of many of these clashes. While considerable literature in American political science dedicates itself to the study of the interactions between the Supreme Court and other political elites, we remain without a complete understanding of how political elites interact with the Court. Specifically, we fall short in our understanding of how political elites, both liberal and conservative, react following Supreme Court decisions governing their policy interests. This study intends to bridge this gap in knowledge. By studying the reactions of political elites following 8 specifically chosen Supreme Court decisions, via an extensive content search using an expansive newspaper database, this paper identifies an asymmetry in the actions taken by liberal and conservative political elites.

During periods of turmoil when ideological preferences between the federal branches of government fail to align, the relationship between the three quickly turns tumultuous. Electoral realignments especially have the potential to increase tension between the branches. When a new party replaces the 'old order' in both the legislature and the executive branches, the possibility for conflict emerges with the Court. Justices who make decisions based on old regime preferences of the party that had appointed them to the bench will likely clash with the new ideological preferences of the incoming party. In these circumstances, the president or Congress may seek to weaken the influence of the Court through court-curbing methods. One example Congress may utilize is changing the actual size of the Supreme The size of the Supreme Court has increased four times in United States history, and three out of the four alterations happened after an electoral realignment. Through analysis of Supreme Court cases, this thesis seeks to determine if, after an electoral realignment, holdings of the Court on issues of policy were more congruent with the new party in power after the change in composition as well to examine any change in individual vote tallies of the justices driven by the voting behavior of the newly appointed justice(s). / Master of Arts

The central argument of this work is that the level of aggression of judges sitting in vulnerable courts is a function of their attempt to protect the institutional security of such courts. I argue that in contexts characterised by a lack of a culture of judicial independence, by high levels of judicial delegitimisation, and a high level of public visibility of judicial affairs, judges will attempt to simultaneously construct public support and avoid political conflicts with the Government. As a result, judicial decisions are driven by judges’ calculations of both the public’s reaction and the Government’s reaction to their rulings. I claim the level of aggression of judges’ interventions will increase when the Government's tolerance to decisions against its preferences was is higher and the public appears to be more supportive. I empirically test this theory using the case of Argentine Supreme Court Justices between July 2004 and September 2010. The findings confirm the theoretical expectations according to which judges are simultaneously concerned with the construction of public support and the avoidance of conflicts with the Government. In addition, my study shows three relevant patterns in terms of judicial behaviour. First, the Justices increased their level of aggression by using different modes of involvement when the public appeared to be more supportive and the Government’s tolerance higher during the period under study. Second, the decreased level of aggression occurred by altering the features of the same remedy in response to the political conditions in which decisions were issued. Third, existing legal constraints prevented Justices from being more aggressive.

In the presented thesis the author analyses the possible influence of judges' ideolog-ical beliefs on the Czech Constitutional court decision making. The thesis is divided into two parts, theoretical and analytical one. The first part emphasizes the need to distin-guish between the fact that courts' decisions have political consequences and the suspi-cion that those decisions are made in a political way. The theoretical part thus focuses on the discussions on the judicialization of politics, constitutional interpretation, judicial legitimacy and the attitudinal model of judicial decision making. Since the judge can no longer be seen only as "the mouth that pronounces the words of the law", other factors than the text of law (or the Constitution) that determine their decisions should be taken into account. Political beliefs could be one of such factors. Nevertheless, the author ar-gues, that judges lack democratic legitimacy for making purely political decisions and so it is important that they suppress the conscious or subconscious tendency to decide the constitutional cases according to their ideological beliefs. It is thus useful to test the sceptical hypothesis, that what judges do is actually pure politics. It is argued that the analysis of the decision making can be enriched by employing the...

That subjective and political values form the sources and function of international law, is an often encountered claim and the literature produced by schools of international legal theory in response to this inquiry diverge. On the one hand, according to classical and positivist approaches to international law, a formalistic and ideal form of the law that is also detached from the world of politics is possible. On the other hand, the perception that attitudinal and institutional constraints might determine the content of the law is common in international legal scholarship ranging from international relations approaches and the New Stream to policy oriented perspectives. Understanding the content of the law, however, would also necessitate questioning how adjudicators interpret legal texts and decide in causal-positive terms. In other words, in theorizing international law, one should explore the interpretation and application of international law in order to test whether adjudicators are influenced by background, training, personality, value preferences as well as normative and structural institutional constraints and, thus, if international law operates based on law and/or politics. Based on the theories and methods of judicial behaviour that originate from the American legal realism movement of the early 20th century, this work undertakes a non-empirical socio-legal research that studies the behaviour of ITA tribunals. It considers that law is indeterminate and that the process of judicial-decision making is a mixture of law, politics and policy. This work constructs a framework based on the political regimes approach by Clayton and May (1999), supplemented by the political jurisprudence literature of Shapiro (1964) and the historical interpretive approach of Smith (1988). It argues that ITA Tribunals “may believe that individual legal institutions are themselves embedded within, and draw meaning from, the larger political regime”. In doing so, the ITA Tribunal may assume a principal political role in order to accommodate the interests of various stakeholders involved in the broader political regime of international investment, albeit limited to constitutive and non-constitutive institutions. This work investigates the role of institutions embedded in the broader political regime in judicial decision-making in ITA. How do institutions, with their political characteristics, affect the process of decision-making in ITA or do they affect at all? To that extent, this work is concerned with whether the ITA Tribunal oscillates between the normative character of the law and the political contingency of the law. It examines the extent to which the ITA Tribunal accommodates politics in its decisions and, in this vein, whether there is a correlation between politics and decision-making in ITA. As its case study, this work studies arbitral decision-making under NAFTA Chapter 11. It first explores the broader political regime in which NAFTA tribunals operate, revisiting the original bargain that underlies the NAFTA deal. It then identifies specific constitutive institutions that are influential in NAFTA ITA decision-making. It traces the specific vocabulary or ‘grammar’ (Koskenniemi 1989) that is used by Chapter 11 Tribunals in considering the place of these constitutive institutions in ITA decision-making. Subsequently, this work studies the normative political development of Article 1105 on the minimum standard of treatment within the broader political regime under NAFTA. It investigates shifts in the specific vocabulary vis-à-vis the distortions to the two pillars of the political regime of NAFTA, namely asymmetric obligations and the regulation of environment. This work demonstrates that the development of the minimum standard of treatment under Article 1105 reflects a brief history of intrusion by non-disputing parties from sovereign states and amici. This is enabled through the constitutive institutions and draws meaning from the political regime of international investment under NAFTA. It concludes that the ITA Tribunal is able to develop a vocabulary with which it could internalize the conundrums of the broader political regime in which it operates. This shows that the ITA Tribunal is not only competent in settling disputes but also in judicial politics.

Au tournant des années 2000, on observe une augmentation des litiges mettant en jeu un conflit potentiel entre le droit de l'UE et les droits constitutionnels nationaux. Face à cette situation de tensions constitutionnelles, réelles et plus seulement théoriques, la CJUE et les juridictions suprêmes nationales se retrouvent dans une situation d'impasse ontologique au sens où, d'une part, le statu quo est intenable, car le surgissement d'un conflit constitutionnel ouvert mettrait en danger tout l'édifice européen et, d'autre part, toute solution juridique de sortie du statu quo est impensable car hors de ce que permet le paradigme de la hiérarchie des normes. Contrairement aux prédictions de la théorie néofonctionnaliste, notre étude, qui développe une approche constructiviste, montre que les acteurs juridictionnels ne vont pas approfondir l'intégration juridique en reconnaissant la primauté absolue du droit de l'UE, mais vont passer d'un mode de régulation juridique du risque de conflit constitutionnel à un mode de régulation extra-judidique, la gouvernance constitutionnelle des juges, basé sur des mécanismes informels de convergence cognitive et de socialisation. L'identité devient une variable dépendante. Plus que cela, ils instituent un espace de dialogue informel régi par la rationalité communicationnelle, au sens habermassien. La culture du dialogue des juges change également en ce que les acteurs juridictionnels développent une sémantique de l'appartenance commune, ainsi qu'une axiologie de co-responsabilité, et tendent à former une communauté de sécurité juridictionnelle fondée sur la certitude d'une règlement pacifique des différends constitutionnels. / From the 2000s, one can observe an increase of litigations putting at stake a potential conflict between EU law and national constitutional laws. Facing this situation of real – and no longer only theoretical – constitutional tensions, the ECJ and the national high courts find themselves in an ontological stalemate. On one side, status quo is not bearable, because the happening of an open constitutional conflict could endangered the whole EU. On the other side, the paradigm of the hierarchy of norms doesn't allow any legal solution to escape from this status quo. Contrary to neofunctionalist predictions, our study, which develops a constructivist approach, shows that judicial actors don't deepen the legal integration by recognizing an absolute EU law's supremacy, but shift from a legal mode of regulation of constitutional conflict risks to an extra-legal mode, that we call the constitutional governance of judges, based on informal mechanisms of cognitive convergence and socializations. Identity becomes a dependent variable. Moreover, they institute informal spaces for dialogue governed by communicative rationality, according to the Habermassian meaning. The culture of judicial dialogue changes as well: judicial actors develop a semantic of the common belonging and a moral of shared responsibility, and tend to form a judicial security community based on the certainty that constitutional conflict would always be peacefully solved.

The purpose of this dissertation is to examine under what political conditions public policy issues are likely to become judicialized in Argentina. This study shows that the most widespread theoretical explanation, the loser argument, is too general and does not provide much analytical insight about the relationship between the political context and the judicialization of policy. Meanwhile, other explanations developed by the literature, mainly the politically disadvantaged group and the fragmented legislative power, although theoretically valid, have a limited empirical coverage and cannot fully explain the phenomenon of policy judicialization in Argentina. Taking into account the limitations and contributions of the existing theories, the theoretical argument of this dissertation is predicated upon the idea that there are various, alternative political scenarios under which judicialization is likely to occur. In other words, there is not just one, but several, different political conditions or combinations of conditions that might trigger the involvement of courts in public policy. Within this conceptual framework, the dissertation argues that policy disputes are likely to become judicialized under two political scenarios which have not been considered by the existing literature: first, when the state apparatus is unable to implement or enforce policy goals and mandates already approved by the political branches of government, and second, when the political elites in charge of the executive do not fully support existing policy mandates, and the legislature is too passive or deferential to the government regarding that policy issue. In these types of political contexts, social actors are likely to judicialize their policy claims. To assess these arguments, the dissertation develops a qualitative comparative analysis (QCA) of 13 major policy conflicts that occurred in Argentina during the last two decades, complemented by case studies. As a result of my analysis, I identify three combinations of political conditions that are sufficient to trigger the judicialization of policy in Argentina. Two of these combinations clearly fit with my theoretical argument and expectations about what political scenarios are likely to lead to policy judicialization, while the third combination closely reflects the political disadvantage argument. / text