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A Theory of Defiant Courts in Nondemocratic Regimes

Nuno Garoupa () and Leyla D. Karakas

The Journal of Legal Studies, 2021, vol. 50, issue 1, 111 - 144

Abstract: Regimes that exhibit authoritarian features while still retaining some traditional democratic institutions are on the rise. Even though such regimes have eliminated important constraints on executive power, some still feature an occasionally defiant judiciary. We provide a novel explanation for this phenomenon by focusing on the judiciary’s role as a potential source of valuable information to the government about divisions among the regime’s elites. Under certain conditions, a defiant judiciary is observed in equilibrium only if the resulting revelation about the strength of the elites would be sufficiently informative for the government to warrant reneging on its ex ante optimal policy. Intuitively, in the absence of a strong legislative opposition or a free media, occasional judicial defiance helps the government by more informatively balancing the interests of the voters and the elites. Our results contribute to the debates about the survival of defiant institutions in authoritarian regimes.

Date: 2021
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