Learn the basic theories of judicial decision-making, and discuss their application for comparative judicial research.

Transcription

1 Tulane University Department of Political Science POLC- 403 Comparative Judicial Politics Fall 2009 Meeting time: Mondays 3:00 5:30 pm. Classroom: TBA Prof. Raul A. Sanchez Urribarri Office: 320 Norman Mayer Phone: (504) or Office Hours: Monday, Wednesday and Friday, 10:00 10:50, and by appointment. Objectives The main objective of this course is to learn about the roles of courts in the modern state, and make sense of their increasing importance as political actors worldwide. We will discuss the thin line that often separates legal and political issues and the role judges have in defining this boundary across disparate political landscapes. Specific objectives of this course include: Understand the political role of High Courts (including Constitutional Courts), across different types of regime: Established democracies; developing democracies, and authoritarian polities. This will include looking at specific examples from around the world. Discuss explanations to the judicialization of politics and the rise of judicial power; including institutional design and configuration, social demand for judicial intervention, judge-driven judicial empowerment, and legal reform. Discuss the conceptualization of Judicial Independence in comparative perspective. Learn the basic theories of judicial decision-making, and discuss their application for comparative judicial research. Getting familiar with the different legal traditions across the world. Outcomes Given the objectives above, students should be able to: Identify the main functions of courts in the modern state. Understand the differences and commonalities across different types of legal system. Learn and discuss the basic theories of judicial behavior. Learn and discuss the theoretical framework of judicial independence and judicial power. Learn and discuss the political role of courts across different types of political systems.

2 Acquire basic methodological tools to carry out research on law & courts in political realities outside of the United States. Mission Statement Students will learn the foundations of Comparative Judicial Politics, getting to know the importance of courts across different types of political systems. Required Materials Comparative Judicial Politics is a relatively new discipline, and there is not a textbook that we can use as a single platform for the course. Therefore, we will need to read different books, chapters and articles. The following books should be acquired, either from the campus bookstore or from your preferred source, brand new or used. The instructor will place the available textbooks on reserve at the Howard-Tilton Library and you can contact him at any time at his office if you need to read a material you cannot find. Shapiro, Martin Courts. A Comparative and Political Analysis. Chicago, IL: The University of Chicago Press. Epp, Charles R The Rights Revolution: Lawyers, Activists and Supreme Courts in Comparative Perspective. Chicago: The University of Chicago Press. Ginsburg, Tom Judicial Review in New Democracies: Constitutional Courts in Asian Cases. Cambridge: Cambridge University Press. Ginsburg, Tom & Tamir Moustafa (Eds.) Rule by Law: The Politics of Courts in Authoritarian Regimes. New York: Cambridge University Press. Tate, C. Neal and Torbjorn Vallinder (eds.) The Global Expansion of Judicial Power. New York: New York University Press. Widner, Jennifer A Building the Rule of Law: Francis Nyalai and the Road to Judicial Independence in Africa. New York: W.W. Norton & Company. Additional readings will be available in Blackboard or on-line. See the class outline below. Course Requirements & Outcomes Students should fulfill these requirements: Part I: A Final Examination (35%) Requirement: The final examination may include a combination of short and long essay questions, to cover issues addressed in class and included in the course s materials. The final will take place the date, time and location assigned by the university authorities. To prepare for this exam, students should identify and summarize the relevant information provided and

3 discussed in class; and read and critique the materials assigned. The instructor may help students by posting study guides with important questions to consider. Outcome: The final is a critical component of this course: It allows students to revise the theoretical knowledge accumulated throughout the semester, and delve into specific topics of their interest. To show a complete understanding of Comparative Judicial Politics, students will need to cover all the information discussed in the sessions, and supplement their knowledge with the materials cited in the outline. Part II: A Term Paper (30%) Requirement: Students are expected to write and complete a term paper on a comparative judicial politics topic, comparing two countries (or one country over time). The paper will be typed, may not exceed fifteen (15) pages, double spaced, with font Times New Roman 12 or equivalent, and with margins of a maximum of one (1) inch, for a total of about 4,000 words (plus graphs/figures/tables, not including bibliography). Students should cover the following aspects in their papers: 1) Research question; 2) Literature review (previous materials written about your question); 3) A basic statement of the theory; 4) A justification of the cases selected for comparison; 5) Other questions about how the research will be conducted. Students are expected to write this paper over the semester. Students should consult with the instructor in advance about their preferred topic by the third week of class. Outcome: This assignment seeks to allow students to put into practice their newly acquired theoretical and methodological research skills, creating an original research project that answers a research question of their interest. Furthermore, preparing an original paper motivates students to critically address the issues discussed in this course, master the literature, and get familiar in detail with a single aspect and country of their interest. Finally, this paper can allow students to develop ideas for future research work. Part III: Two Reaction Papers (10% + 10% = 20%) Requirement: Students will write two (2), thoughtful short reaction papers about the literature discussed in class any given week. The paper will be typed, about four (4) pages long, double spaced, with font Times New Roman 12 or equivalent, and with margins of a maximum of one (1) inch, for a total of about 1,250 words (not including bibliography). In these papers, students should write a personal critique of the work(s) discussed (strengths and weaknesses, connections to other works, novel theoretical and methodological ideas). Students will be called to speak about their papers briefly for a few minutes, and defend their views the day they turn the paper in. Students should submit their paper to the instructor by by 6:00 pm of the day before class. Each paper will be graded on the basis of ten (10) points. Students are encouraged to make constructive comments or any questions about their peers papers. Both the presentation and the students questions will be taken into account for their participation grade. Students should let the instructor know by Monday September 7 in what weeks they plan to write (by e- mail). One paper should be written before October 19, and another one afterwards. Lastly, no week will have more than five (5) students writing simultaneously: I will allocate students according to their interests and in the order they let me know their preferred session.

4 Outcome: These assignments seek to improve students writing skills; to help them getting familiar with literature specialized on comparative judicial politics; to help them to keep track of the course by encouraging them to read the relevant materials; and to allow them to generate their own thoughts on these subjects. Part V: Three Monthly Participation Grades (5% + 5% + 5% = 15%) Requirement: Participation will be graded based on their active engagement in the course, which will be related to the readings and assignments for the session in question, to sharing information about their reaction papers in class and offering constructive criticism of their peers work. Participation is graded based on five (5) points, ranging from no participation (0 points) to most active participation (5 points), per month (September, October and November). The instructor will inform students their participation grade in private via blackboard the first week following the end of the month in question. Outcome: Active class participation is essential for the course s success. It helps keeping students in track with the information and materials addressed in class. Preparing for class allows students to avoid procrastination, and to get feedback for their own work. Attendance Policy Students are expected to attend every session, and the instructor will take attendance. Attendance means to arrive in class punctually, and to leave only after class had ended. Students will be able to miss up to one (1) class without any penalty. Then, students will lose two point five (2.5) points for each absence, up to ten (10) points. A number of absences greater than five, or several absences in a row, may force the instructor to speak with the student directly and with his/her academic advisor about why this is happening, the negative consequences that might have for his/her grade, and any remedies or sanctions as applicable, included failing the course. Medical, sport or other kind of truly compelling excuses will need to be documented. Grading Scale A 92.5 and above A- 90 to 92.4 B to 89.9 B 82.5 to 87.4 B- 80 to 82.4 C to 79.9 C 72.5 to 77.4 C- 70 to 72.4 D to 69.9 D 62.5 to 67.4 D- 60 to 62.4 F 59.9 and below Make-up Policies and Late Assignments Make-ups for the final examination will be truly exceptional, and only allowed after talking to the instructor and documenting any reason that forced the student to miss the exam. Late assignments will be penalized with one less grade every day past the due date. Honor Code Academic dishonesty shall be enforced based on the Tulane University Honor Code and any other applicable regulations. Students are encouraged to get familiar with these regulations and observe their tenets in all instances. Cheating and plagiarism are completely unacceptable, will

5 result in a zero (0) grade in the assignment in question, will be reported, and may eventually lead the offending student to face other regrettable academic consequences. The instructor reserves the right to check the authenticity of your work through careful assessment of your writing and the sources employed. Each student must complete all work alone, and shall refrain from colluding with other students to complete individually assigned work. Students will respect their peers and instructors, and their opinions, at all times: Diversity is one of the academic community s priceless assets and students should cherish the opportunity they have in this class to be respectfully exposed to viewpoints that differ from theirs. Failure to comply with these guidelines might negatively affect the student s grade in this course, and in extreme cases could even lead the instructor to report them or pursue other pertinent measures. Again, students should not cheat. Outline Week 1 August 24 - Course Presentation Introduction to Comparative Judicial Politics An introduction to the research agenda of Comparative Judicial Politics Ferejohn, John, Frances Rosenbluth, and Charles Shipan Comparative Judicial Politics. In Oxford Handbook of Comparative Politics. Cambridge: Cambridge University Press. Kapiszewski, Diana & Matthew M. Taylor Doing Courts Justice? Studying Judicial Politics in Latin America. Perspectives on Politics. 6(4): Tate, C. Neal The Literature of Comparative Judicial Politics: A 118-Year Survey. At: Week 2 August 31 The Structure and Functions of Courts in the Modern State What are the functions of Courts? What is the basic structure of judicial decision-making? Shapiro, Martin Courts. Chapter 1. Jacob, Herbert Introduction. In Jacob, Herbert; Erhard Blankenburg; Herbert M. Kritzer; Doris Marie Provine and Joseph Sanders. Courts, Law, and Politics in Comparative Perspective, Stone Sweet, Alec Governing with Judges: Constitutional Politics in Europe. New York: Oxford University Press. Chapter 1. Gloppen, Siri; Roberto Gargarella & Elin Skaar Introduction: The Accountability Function of the Courts in New Democracies. In Siri Gloppen, Roberto Gargarella & Elin Skaar. (Eds.) Democratization and the Judiciary: The Accountability Function of Courts in New Democracies, 1-6. Week 3 September 7 No Class

6 Week 4 September 14 The Judicialization of Politics & Judicial Power What is a powerful, influential judiciary? What are the key variables that explain disparate patterns of empowerment? Tate, C. Neal and Torbjorn Vallinder The Global Expansion of Judicial Power: The Judicialization of Politics. In C. Neal Tate and Torbjorn Vallinder (eds.). The Global Expansion of Judicial Power, Chapter 1 Ginsburg, Tom Judicial Review in New Democracies. Chapters 1-2. Epp, Charles R Do Bills of Rights Matter? The Canadian Charter of Rights and Freedoms. American Political Science Review. 90: Week 5 September 21 Judicial Independence: Theoretical Approaches What is judicial independence? How can we best approach this concept in comparative perspective? Brashear Tiede, Lydia "Judicial Independence: Often Cited, Rarely Understood. Journal of Contemporary Legal Issues. 15: Ferejohn, John. Independent Judges, Dependent Judiciary: Explaining Judicial Independence. Southern California Law Review 72 (January/March): Larkins, Christopher Judicial Independence and Democratization: A Theoretical and Conceptual Analysis. American Journal of Comparative Law, 44 (4): Week 6 September 28 - No Class Week 7 October 5 Comparative Legal Systems An overview of the different legal systems, emphasizing Common Law and Civil Law Shapiro, Martin Courts. Chapters TBA. Merryman, John and Rogelio Perez-Perdomo The Civil Law Tradition: An Introduction to the Legal Systems of Europe and Latin America. (3 rd Edition). Stanford: Stanford University Press. Chapters TBA. Week 8 October 12 Judicial Behavior: Studying Decision-Making Comparatively From the aggregate to the individual level: Explanations of judicial decision-making. Segal, Jeffrey and Harold J. Spaeth The Supreme Court and the Attitudinal Model Revisited. Cambridge: Cambridge University Press. Chapters TBA. Epstein, Lee and Jack Knight Field Essay: Toward A Strategic Revolution in Judicial Politics: A Look Back, a Look Ahead. Political Research Quarterly 53(3): Baum, Lawrence Judges and their Audiences. Princeton: Princeton University Press. Chapters TBA.

7 Week 9 October 19 Judicial Access and Rights Consciousness: Going to the Courts The Rights Revolution Making sense of a growing demand for court policy-making. Epp, Charles R The Rights Revolution: Lawyers, Activists and Supreme Courts in Comparative Perspective. Chicago: The University of Chicago Press. (Chapters TBA) Sanchez Urribarri, Raul, Susanne Schorpp, Kirk A. Randazzo and Donald R. Songer. Explaining Changes to Rights Litigation: Testing a Multivariate Model in a Comparative Framework. (Unpublished manuscript) Week 10 October 26 Courts in Established Democracies: The Common Law World Lessons from the U.S.,Australia, Canada and the U.K Tate, C. Neal and Torbjorn Vallinder (eds.) The Global Expansion of Judicial Power. New York: New York University Press. (Chapters TBA) Ostberg, C.L. and Matthew E. Wetstein Attitudinal Decision Making in the Supreme Court of Canada. Vancouver, Canada: University of British Columbia Press. (Chapters TBA) Smyth, Russell The Role of Attitudinal, Institutional and Environmental Factors in Explaining Variations in the Dissent Rate of the High Court of Australia. Australian Journal of Political Science. 40(4): Week 11 November 2 Courts in Established Democracies: The Civil Law World The European Context: France, Germany and Italy. Stone Sweet, Alec Governing with Judges: Constitutional Politics in Europe. New York: Oxford University Press. Chapter TBA Stone Sweet, Alec Constitutional Courts and Parliamentary Democracy. West European Politics 25(1): Vanberg, Georg The Politics of Constitutional Review in Germany. Cambridge: Cambridge University Press. Chapter TBA. Volcansek, Mary L Constitutional Politics in Italy: The Constitutional Court. New York: St Martin s Press. Chapter TBA. Week 12 November 9 - Courts in Democratizing Societies (I) Latin America: Argentina, Chile, Brazil and Mexico Finkel, Jodi Supreme Court Decisions on Electoral Rules after Mexico s 1994 Judicial Reform: An Empowered Court. Journal of Latin American Studies 35(4): Helmke, Gretchen The Logic of Strategic Defection: Court-Executive Relations in Argentina under Dictatorship and Democracy. American Political Science Review 96 (2):

8 Hilbink, Lisa Judges Beyond Politics in Democracy and Dictatorship: Lessons from Chile. Cambridge: Cambridge University Press (Selected Excerpts) Rios-Figueroa, Julio. 2007a. Fragmentation of Power and the Emergence of an Effective Judiciary in Mexico: Latin American Politics and Society 49 (1): Week 13 November 16 Courts in Democratizing Societies (II) Eastern Europe, Africa and Asia: Building the rule of law Ginsburg, Tom Judicial Review in New Democracies. Chapter 4. Herron, Erik S. and Kirk A. Randazzo The Relationship Between Independence and Judicial Review in Post-Communist Courts. Journal of Politics 65 (May): Smithey, Shannon Ishiyama, and John Ishiyama Judicial Activism in Post-Communist Politics. Law and Society Review 36(4): Widner, Jennifer A Building the Rule of Law: Francis Nyalai and the Road to Judicial Independence in Africa. New York: W.W. Norton & Company. Chapters TBA Week 14 November 23 Courts in Authoritarian Contexts (I) General theory of Courts in Authoritarian Regimes Ginsburg, Tom & Tamir Moustafa (Eds.) Rule by Law: The Politics of Courts in Authoritarian Regimes. New York: Cambridge University Press. Chapters TBA. Widner, Jennifer A Building the Rule of Law: Francis Nyalai and the Road to Judicial Independence in Africa. New York: W.W. Norton & Company. Chapters TBA. Trochev, Alexei Less Democracy, More Courts: The Puzzle of Judicial Review in Russia. Law & Society Review. 38: Week 15 November 30 Courts in Authoritarian Contexts (II) Examples of Courts in Authoritarian Regimes and the Legacy of Authoritarianism Ginsburg, Tom & Tamir Moustafa (Eds.) Rule by Law: The Politics of Courts in Authoritarian Regimes. New York: Cambridge University Press. Chapters TBA. Tate, C. Neal Courts and Crisis Regimes: A Theory Sketch with Asian Case Studies. Political Research Quarterly. 46: 311. Pereira, Anthony W Political (In)Justice, Authoritarianism and the Rule of Law in Brazil, Chile and Argentina. Pittsburgh: University of Pittsburgh Press. Chapters TBA. November 30: Term Papers Due Date and Time of the Final (TBA)