• Selected
• Entire List

Abstract:
At least since the Persian Gulf War, states have behaved "as if" it is costly to be unsuccessful in acquiring the legitimacy the UN Security Council confers on uses of force. This observation is puzzling for theories that seek the origins of modern institutional legitimacy in legalities or moral values. I argue that when governments and citizens look for an authority to legitimize the use of force, they generally do not seek an independent judgment on the appropriateness of an intervention but political reassurance about the consequences of proposed military adventures. Council decisions legitimize or delegitimize uses of force in the sense that they form widely accepted political judgments on whether uses of force transgress a limit that should be defended. These judgments become focal points in the collaboration and coordination dilemmas states face in enforcing limits to U.S. power while preserving mutually beneficial cooperation. The implications for the Council's legitimacy and theories of international legitimacy are discussed.

United Nations, Security Council, Legitimacy

Abstract:
Factor-analytic models can substantially improve the measurement of comparative legal systems and thereby our understanding of how legal systems influence economic outcomes. These methods yield better estimates of latent constructs, allow us to evaluate whether institutional features are representative of a theoretical construct and whether allegedly distinct theoretical constructs can be separated empirically. We illustrate these points through a re-analysis of a 2003 study by Djankov, La Porta, Lopez-De Silanes and Shleifer, using a factor-analytic method that combines continuous and categorical indicators. Our results strengthen these authors' findings with respect to how legal formalism relates to legal origin and the quality of the legal system. Yet, the results also show that many of the original index items are not significantly positively related to formalism. The results thus shed light on what institutional features should be prioritized for reform if we wished to make legal systems less formalistic. Moreover, we question the evidence that the formalism model better predicts the quality of the legal system that does the alternative "incentives" model. We argue, instead, that formalism and incentives both relate to the tendency of a legal system to use bureaucratic rule-making. Our approach can readily be applied to the analysis of legal concepts other than formalism.

legal origins, IRT models, formalism, legal reform, law and economics

Abstract:
Theories of government-international court relations assume that judges share an interest in expanding the reach of their court. Yet, casual observation suggests that international judges vary in their activist orientations and that governments are selective in selecting candidates. This paper explores a new dataset of dissents in the European Court of Human Rights (ECHR) to estimate the ideal points of judges. The results show that activism-restraint is indeed the main dimension of contestation among judges. Variation in judicial activism cannot be accounted for by different legal cultures of judges or by levels of domestic human rights observance in the judges' countries of origins. Instead, aspiring European Union (EU) members use activist judicial appointments to signal human rights commitments. Moreover, governments more favorably disposed towards European integration appoint more activist judges. These results imply that politics matters in the appointment of international judges and that EU expansion was an important driving force behind the ECHR's increased activism. More generally, the article suggests that agent selection is an important and understudied tool for influencing IOs.

International courts, judges, European Court, human rights

Abstract:
Why do some international courts and judges extensively cite decisions from other courts whereas others do not? I argue that judges anticipate what external citations communicate to third parties. Depending on their institutional environments, judges expect more or less scrutiny for engaging sources of law other than the primary treaties that they are delegated to interpret. A global analysis of cross-citation patterns and an in-depth analysis of citations to and from the European Court of Human Rights (ECtHR) are consistent with the implications of this argument. Contrary to its transnationalist reputation, the ECtHR is cautious in citing other courts although ECtHR judges regularly refer to external decisions in separate opinions. The propensity of ECtHR judges to cite external sources is correlated with judicial ideology. The findings have implications for debates on transjudicial communication, the diffusion of international legal norms, the fragmentation of international law, and international judicial behavior.

international courts, judicial behavior, transjudicial communication

Abstract:
How, if at all, do governments influence the choices that international judges make? This question has justly received ample attention in the literature. Unlike in the study of U.S. judicial politics, however, relatively few of these scholarly efforts have been devoted to the question of how governments use the appointment process to shape the international judiciary. This article evaluates what we know about the politics of international judicial appointments and identifies some areas for future research. International judges are much more diverse in their backgrounds and preferences than is commonly assumed. To some, the prototypical international judge is a committed professional with exceptional moral standards who cares deeply about the advancement of international law and is largely unresponsive to material incentives or political pressures. To others, international judges are more like diplomats who use legal reasoning as a mere guise for making decisions that fit the national interests of the governments that appointed them. Empirical research appears to show that the international judiciary contains examples of both these ideal types as well as many others. More interestingly, this research suggests that this variation can be understood reasonably well by examining the motivations of governments and the institutional details of the appointment process.

judicial behavior, international courts

Abstract:
Recent scholarship argues that even weak international organizations can influence state behavior by affecting information and accountability politics. A prominent national in a leadership position increases such leverage. This can be exploited by scholars interested in estimating whether international organizations have an independent effect on state behavior, especially when the selection of high-level officials occurs through an observable process such as rotation or competitive elections. I illustrate this point with an analysis of whether having a national elected as permanent judge increases cooperation with the International Criminal Court (ICC). Judges were chosen through competitive elections. I use a regression discontinuity design to obtain valid causal estimates; essentially comparing states that just did and just did not have a national elected as judge. The results show that states with nationals as permanent judges were less likely to undermine the ICC by signing non-surrender agreements with the United States and more likely to adopt a broad range of legislative measures that integrate the Rome Statute and cooperation with the Court into domestic law. This suggests that even indirect institutional participation that confers no meaningful influence can have meaningful behavioral effects.

international criminal court, regression discontinuity

Abstract:
Can international judges be relied upon to impartially resolve disputes? If not, what are the sources of their biases? Answers to these questions are critically important for the functioning of an emerging international judiciary, yet we know remarkably little about international judicial behavior. An analysis of a new dataset of dissents in the European Court of Human Rights (ECtHR) yields a mixed set of answers. On the bright side, there is no evidence that judges systematically employ cultural or geopolitical biases in their rulings. There is some evidence that career insecurities make judges more likely to favor their national government when it is a party to a dispute. Most strongly, the evidence suggests that international judges are policy seekers. Judges vary in their inclination to defer to member states in the implementation of human rights. Moreover, judges from former Socialist countries are more likely to find violations against their own government and against other former Socialist governments, suggesting that they are motivated by rectifying a particular set of injustices. I conclude that the overall picture is positive for the possibility of impartial review of government behavior by judges on an international court. Like judges on domestic review courts, ECtHR judges are politically motivated actors in the sense that they have policy preferences on how to best apply abstract human rights in concrete cases, not in the sense that they are using their judicial power to settle geopolitical scores.

Judicial behavior, judicial independence, impartiality, European Court of Human Rights, ECHR, EU