Learning About Judicial Independence: Institutional Change in the State Courts
Posted: 6 Sep 2004
There is widespread agreement that legal institutions - independent courts in particular - are crucial to the growth of a nation. Yet systematic analysis of the factors that underlie the development of legal institutions is difficult, because most institutions change very seldom. In this analysis, I examine a legal institution that offers substantial cross-sectional and time series variation to explore: the procedures used to select and retain judges in the American states. Five different procedures emerged at different points in time over the nation's history, and all are in use today. I conclude as follows: Each new procedure was developed in attempt to increase the independence of state judges from incumbent officials and political parties, and was then superceded by a newer procedure, due in large part to unanticipated agency problems. However, not all existing states changed procedures when the opportunity arose. State's with larger legislative majorities were less likely to do so, consistent with the hypothesis that a stronger hold on power reduces the attractiveness of an independent court to incumbent politicians. More recent entrants to the Union were more likely to do so, consistent with the hypothesis that newer institutions are less costly to alter. Finally, the fact that judicial selection and retention procedures are written into state constitutions appears to have been a barrier to change: Where state constitutions did not have to be amended, or were being re-written anyway, states were much more likely to adopt new procedures.
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