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Does De Jure Judicial Independence Really Matter?

University of Chicago Institute for Law & Economics Olin Research Paper No. 612

Journal of Law and Courts, Vol. 2, pp. 187-217, Fall 2014

36 Pages Posted: 13 Jul 2012 Last revised: 25 Sep 2014

James Melton

affiliation not provided to SSRN

Tom Ginsburg

University of Chicago Law School

Date Written: September 22, 2014

Abstract

The relationship between de jure and de facto judicial independence is much debated in the literature on judicial politics. Some studies find no relationship between the formal rules governing the structure of the judiciary and de facto judicial independence, while others find a tight correlation. This article sets out to reassess the relationship between de jure and de facto judicial independence using a new theory and an expanded data set. De jure institutional protections, we argue, do not work in isolation but work conjunctively, so that particular combinations of protections are more likely to be effective than others. We find that rules governing the selection and removal of judges are the only de jure protections that actually enhance judicial independence in practice and that they work conjunctively. This effect is strongest in authoritarian regimes and in contexts with checks on executive authority.

Keywords: judicial independence

JEL Classification: K1

Suggested Citation

Melton, James and Ginsburg, Tom, Does De Jure Judicial Independence Really Matter? (September 22, 2014). Journal of Law and Courts, Vol. 2, pp. 187-217, Fall 2014; Journal of Law and Courts, Vol. 2, pp. 187-217, Fall 2014. Available at SSRN: https://ssrn.com/abstract=2104512 or http://dx.doi.org/10.2139/ssrn.2104512

James Melton

affiliation not provided to SSRN

Tom Ginsburg (Contact Author)

University of Chicago Law School ( email )

1111 E. 60th St.
Chicago, IL 60637
United States

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