The political foundations of judicial independence in dictatorship and democracy

This book argues that explaining judicial independence-considered the fundamental question of comparative law and politics-requires a perspective that spans the democracy/autocracy divide. Rather than seeking separate explanations in each regime context, in The Political Foundations of Judicial Independence in Dictatorship and Democracy, Brad Epperly argues that political competition is a salient factor in determining levels of de facto judicial independence across regime type, and in autocracies a factor of far greater import. This is because a full "insurance" account of independence requires looking not only at the likelihood those in power might lose elections but also the variable risks associated with such an outcome, risks that are far higher for autocrats. First demonstrating that courts can and do provide insurance to former leaders, he then shows via exhaustive cross-national analyses that competition's effects are far higher in autocratic regimes, providing the first evidence for the causal nature of the relationship. Epperly argues that these findings differ from existing case study research because in democratic regimes, a lack of political competition means incumbents target the de jure independence of courts. This argument is illustrated via in-depth case study of the Hungarian Constitutional Court after the country's 2010 "constitutional coup," and then tested globally. Blending formal theory, observational and instrumental variables models, and elite interviews of leading Hungarian legal scholars and judges, Epperly offers a new framework for understanding judicial independence that integrates explanations of both de jure and de facto independence in both democratic and autocratic regimes.-- Introduction -- Part 1. The Expected Utility of Insurance -- Part 2. The Mechanisms of Insurance -- Part 3. Examining Insurance Across Regime Type -- Part 4. Integrating de jure Independence -- Part 5. Conclusio

Political Competition and Judicial Independence in Non-Democracies

Thesis (Ph.D.)--University of Washington, 2012This dissertation examines the relationship between political competition and judicial independence in non-democratic polities. In it I advance two key arguments. The first is that the common "political insurance" explanation of judicial independence in democracies, predicated on the incentivizing effects of electoral competition, should also offer insights to explaining independence outside the democratic context. The second argument is that when present, electoral competition should be of greater salience in non-democracies due to the significantly higher risks associated with losing office in a non-democratic regime. I begin by discussing the concept of judicial independence and approaches in the existing literature seeking to explain variation in judicial independence in democracies, and how the literature fails to adequately address the question of regime type. I then address in Chapter 2 a fundamental aspect of the insurance model of independence that to date has been assumed but never empirically examined, showing that independent courts are highly associated with positive outcomes for leaders after leaving office. Tests of the two main arguments are presented over four chapters. Chapters 3 and 4 examine non-democracies exclusively, testing the first argument and finding that it holds up across different measures of the key concepts. Chapters 5 and 6 address the conditional relationship between competition and regime type, showing both globally and in an extended study of the postcommunist region that the effects of competition are much greater in non-democracies. This dissertation contributes to the study of judicial independence broadly, and the growing focus on judicial institutions outside of consolidated democracies. It further stands as one of the most thorough treatments of the dominant insurance model of judicial independence, providing the first ever test of one of its key assumptions and offering insights into the scope conditions and explanatory power of political competition. Most critically, I extend this explanation to the non-democratic context, arguing that the logic of the explanation implies it should be of even greater explanatory power in non-democracies. I test my argument exhaustively, using multiple measures of the key concepts and assessing the strength of the argument both globally and in the postcommunist states of Eastern Europe and the former Soviet Union

(Re)examining the insurance model of judicial independence across democracies

Despite being a dominant explanation of judicial independence in democracies for over a decade, the "insurance model" has received little systematic attention. I argue that how we conceptualize democracy is especially important for analyses of judicial independence employing this insurance framework, demanding more careful attention from scholars. I illustrate that how empirical results are contingent on specific conceptualizations by replicating the single existing study examining the insurance model across democracies globally. In doing so I demonstrate that existing findings are largely driven by classifying electoral authoritarian regimes like Kazakhstan and Russia as democracies

Replication Data for: The Provision of Insurance? Judicial Independence and the Post-tenure Fate of Leaders

Leading explanations of judicial independence argue political competition incentivizes those in power to create independent courts as insurance against uncertain futures. While much work addresses the role competition plays, little analyzes the fundamental assumption that courts provide political insurance. I offer an original hypothesis as to how independent courts provide insurance against post-tenure punishment and test this using data on post-tenure fate of leaders from 1960-2004. Results show independence is associated with significantly higher probabilities of unpunished posttenure fate. The article builds on and extend existing political insurance explanations, and offers the first test of one of their critical assumptions

Replication Data for: Rule By Violence, Rule by Law: Lynching, Jim Crow, and the Continuing Evolution of Voter Suppression in the U.S.

Although restricting formal voting rights—voter suppression—is not uncommon in democracies, its incidence and form vary widely. Intuitively, when competing elites believe that the benefits of reducing voting by opponents outweigh the costs of voter suppression, it is more likely to occur. Internal political and state capacity and external actors, however, influence the form voter suppression takes. When elites competing for office lack the ability to enact laws restricting voting due to limited internal capacity, or external actors are able to limit the ability of governments to use laws to suppress voting, suppression is likely to be ad hoc, decentralized, and potentially violent. As political and state capacity increase and external constraints decrease, voter suppression will shift from decentralized and potentially violent to centralized and mostly non-violent. We illustrate our arguments by analyzing the transition from decentralized, violent voter suppression through the use of lynchings (and associated violence) to the centralized, less violent suppression of black voting in the post-Reconstruction South. We also place the most recent wave of U.S. state voter suppression laws into broader context using our theoretical framework