Comparative Judicial Discretion: An Empirical Test of Economic Models

Robert Cooter and Tom Ginsburg
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Robert Cooter: Boalt Hall, UC Berkeley
Tom Ginsburg: University of Illinois, Champagne

No 1152, Berkeley Olin Program in Law & Economics, Working Paper Series from Berkeley Olin Program in Law & Economics

Abstract: The legitimacy of the European Union rests in large part on the legitimacy of its courts and their ability to contribute to political development. Judges have their own preferences about the political order, which they can exercise through the interpretation of statutes. Judicial lawmaking is constrained, however, by the countervailing power of other officials. A judicial interpretation of a statute can be overturned by fresh legislation that explicitly stipulates the preferred interpretation of the legislators. The discretionary power of judges increases as the probability decreases that a judicial interpretation of a statute will be repealed by fresh legislation. Fresh legislation is more difficult to enact when the constitution divides power, providing more officials with the power to veto bills. Conversely, fresh legislation is easier to enact when a single, disciplined party governs the state. Therefore, we predict that courts will be more adventurous in interpreting legislation as the number of independent vetoes on fresh legislation increases and as the unity and discipline of political parties decreases. We test this prediction using data from European and other industrial democracies. The data confirms the prediction. Please contact the Program in Law and Economics at Boalt Hall School of Law, UC Berkeley, Berkeley, CA 94720 for a copy of this paper.

Date: 1995-05-03
Note: oai:cdlib1:blewp-1152

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