Federal court outcomes in asylum-related appeals 1980–1987: A highly ‘politicized’ process

Federal court outcomes (both district courts and courts of appeal) in asylum-related appeals during the period 1980–1987 are significantly related to three political variables: the political party affiliation of the President who appointed the judge or judges involved in an appeal, the nature of judicial constituencies, and the involvement of interest groups in the appeals. Court outcomes are not, on the other hand, significantly related to two contextual factors: geopgraphic region of the decisionmakers and the unemployment rate. The federal courts did not exhibit the bias of the immigration bureaucracy in favor of hostile-country aliens (aliens from communist, socialist, or leftist countries); nor did these courts favor aliens from European countries.     

Constitutional courts as veto players: Lessons from the United States,France and Germany

The number of constitutional courts and supreme courts with constitutional review rights has strongly increased with the third wave of democratisation across the world as an important element of the new constitutionalism. These courts play an important role in day‐to‐day politics as they can nullify acts of parliament and thus prevent or reverse a change in the status quo. In macro‐concepts of comparative politics, their role is unclear. Either they are integrated as counter‐majoritarian institutional features of a political system or they are entirely ignored: some authors do not discuss their potential impact at all, while others dismiss them because they believe their preferences as veto players are entirely absorbed by other actors in the political system. However, we know little about the conditions and variables that determine them as being counter‐majoritarian or veto players. This article employs the concept of Tsebelis’ veto player theory to analyse the question. It focuses on the spatial configuration of veto players in the legislative process and then adds the court as an additional player to find out if it is absorbed in the pareto‐efficient set of the existing players or not. A court which is absorbed by other veto players should not in theory veto new legislation. It is argued in this article that courts are conditional veto players. Their veto is dependent on three variables: the ideological composition of the court; the pattern of government control; and the legislative procedures. To empirically support the analysis, data from the United States, France and Germany from 1974 to 2009 is used. This case selection increases variance with regard to system types and court types. The main finding is that courts are not always absorbed as veto players: during the period of analysis, absorption varies between 11 and 71 per cent in the three systems. Furthermore, the pattern of absorption is specific in each country due to government control, court majority and legislative procedure. Therefore, it can be concluded that they are conditional veto players. The findings have at least two implications. First, constitutional courts and supreme courts with judicial review rights should be systematically included in veto player analysis of political systems and not left aside. Any concept ignoring such courts may lead to invalid results, and any concept that counts such courts merely as an institutional feature may lead to distorted results that over‐ or under‐estimate their impact. Second, the findings also have implications for the study of judicial politics. The main bulk of literature in this area is concerned with auto‐limitation, the so‐called ‘self‐restraint’ of the government to avoid defeat at the court. This auto‐limitation, however, should only occur if a court is not absorbed. However, vetoes observed when the court is absorbed might be explained by strategic behaviour among judges engaging in selective defection.     

Racial Diversity and Judicial Influence on Appellate Courts

This article evaluates the substantive consequences of judicial diversity on the U.S. Courts of Appeals. Due to the small percentage of racial minorities on the federal bench, the key question in evaluating these consequences is not whether minority judges vote differently from nonminority judges, but whether their presence on appellate courts influences their colleagues and affects case outcomes. Using matching methods, I show that black judges are significantly more likely than nonblack judges to support affirmative action programs. This individual‐level difference translates into a substantial causal effect of adding a black judge to an otherwise all‐nonblack panel. Randomly assigning a black counterjudge—a black judge sitting with two nonblack judges—to a three‐judge panel of the Courts of Appeals nearly ensures that the panel will vote in favor of an affirmative action program. These results have important implications for assessing the relationship between diversity and representation on federal courts.     

Not Taking it on Faith: State and Religious Influences on European Court of Human Rights Judges in Freedom of Religion Cases

I analyze freedom of religion case law from the European Court of Human Rights (ECHR), arguing that the ECHR has been inconsistent and deferential to state governments. To account for this phenomenon, I consider two theoretical frameworks. First, I ask whether the religious affiliation of applicants matters when it comes to judges’ willingness to decide in their favor. Second, I consider whether ECHR judges are influenced by the preferences of the states that nominated them. Employing logistic regression analysis on an original dataset of 538 judge votes on 70 freedom of religion cases, I find that Muslim applicants are substantially less likely to receive favorable judge votes, and that judges are more likely to vote in favor of the states that nominated them. Additionally, I find that West European states are especially likely to receive favorable rulings, even when controlling for differences in state protections of religious liberty.     

State Public Opinion, the Death Penalty, and the Practice of Electing Judges

Do state supreme courts act impartially or are they swayed by public opinion? Do judicial elections influence judge behavior? To date these questions have received little direct attention due to the absence of comparable public opinion data in states and obstacles to collecting data necessary for comprehensive analysis of state supreme court outcomes. Advances in measurement, data archiving, and methodology now allow for consideration of the link between public opinion and judicial outcomes in the American states. The analysis presented considers public opinion's influence on the composition of courts (indirect effects) and its influence on judge votes in capital punishment cases (direct effects). In elective state supreme courts, public support for capital punishment influences the ideological composition of those courts and judge willingness to uphold death sentences. Notably, public support for capital punishment has no measurable effect on nonelective state supreme courts. On the highly salient issue of the death penalty, mass opinion and the institution of electing judges systematically influence court composition and judge behavior.     

The Government Deference Dimension of Judicial Decision Making: Evidence from the Supreme Court of Norway

Past research has revealed conflicting findings regarding the degree to which judges on European apex courts enact their policy preferences or instead disagree on the basis of divergent legal views. We investigate disagreement between judges on the Norwegian Supreme Court between 1996 and 2016. During this period, the court dealt with a greater volume of policy-relevant cases than previously. The method of appointment to the court was also changed to a judicial appointments commission. We analyse non-unanimous cases using item response theory models. We find that judges are not divided along left–right lines but instead disagree about the appropriate degree of deference to give to public authorities. There is no significant association between the appointing government and judges' ideal points either before or after the reform to appointments. Judges who were formerly academics are however much less deferential than career judges or judges who were previously lawyers in private practice.     

Signaling and Counter‐Signaling in the Judicial Hierarchy: An Empirical Analysis of En Banc Review

We leverage the institutional features of American courts to evaluate the importance of whistleblowers in hierarchical oversight. Drawing on a formal theory of signaling in the judicial hierarchy, we examine the role of whistleblowing dissents in triggering en banc review of three‐judge panels by full circuits of the Courts of Appeals. The theory generates predictions about how dissent interacts with judicial preferences to influence circuits' review and reversal decisions, which we test using original and existing data. First, we show that judges who dissent counter to their preferences are more likely to see their dissents lead to review and reversal. Second, we show that dissents are most influential when the likelihood of non‐compliance by a three‐judge panel is highest. Our results underscore the importance of dissent in the judicial hierarchy and illustrate how judicial whistleblowers can help appellate courts target the most important cases for review.     

Defending the European court of human rights: Experimental evidence from Britain

As nationalist sentiments gain traction globally, the attitudinal and institutional foundations of the international liberal order face new challenges. One manifestation of this trend is the growing backlash against international courts. Defenders of the liberal order struggle to articulate compelling reasons for why states, and their citizens, should continue delegating authority to international institutions. This article probes the effectiveness of arguments that emphasise the appropriateness and benefits of cooperation in containing preferences for backlash among the mass public. We rely on IR theories that explain why elites create international institutions to derive three sets of arguments that could be deployed to boost support for international courts. We then use experimental methods to test their impact on support for backlash against the European Court of Human Rights in Britain (ECtHR). First, in line with principal-agent models of delegation, we find that information about the court's reliability as an ‘agent’ boosts support for the ECtHR, but less so information that signals Britain's status as a principal. Second, in line with constructivist approaches, associating support for the court with the position of an in-group state like Denmark, and opposition with an out-group state like Russia, also elicits more positive attitudes. This finding points to the importance of ‘blame by association’ and cues of in/out-group identity in building support for cooperation. The effect is stronger when we increase social pressure by providing information about social attitudes towards Denmark and Russia in Britain, where the public overwhelmingly trusts the Danes and distrusts the Russians. Finally, in contrast to Liberal explanations for the creation of the ECtHR, the study finds no evidence that highlighting the court's mission to promote democracy and international peace contains backlash. We show that the positive effects of the first two arguments are not driven by pre-treatment attitudes such as political sophistication, patriotism, internationalism, institutional trust or political preferences.     

The Eurozone crisis and the European corporate elite: bringing corporate actors into focus

This paper uses a framework referred to as the ‘corporate reconstruction of European capitalism theory of integration’ to analyse the European Union’s response to the Eurozone crisis. Most political economy analyses of the Eurozone crisis have focused on political leaders, clashes between creditor and debtor member states and public opinions in analysing the handling of the crisis. This paper focuses instead on the input of corporate actors. It is argued that both the setting up of the European Monetary Union (EMU) and the handling of its crisis were congenial to corporate preferences. Europe’s nascent corporate elite was concerned with eliminating currency risk when the EMU was set up and therefore did not push for fiscal federalism. When the flawed architecture of the Eurozone transformed that currency risk into sovereign credit risk, corporate preferences adapted and now favoured fiscal liability pooling and ultimately the setting up of a fiscal union.     

The Norwegian Supreme Court and Equitable Considerations: Problematic Aspects of Legal Reasoning

Legitimacy, confidence and autonomy in the court system are dependent on people trusting the institution to make decisions based on predefined legal rules. Simultaneously, confidence in the system is also dependent on the system's capability to adjust to changes in values in society. The Norwegian courts appear to be increasingly basing their rulings on ‘equitable considerations’. This involves the making of decisions by reference not only to predefined rules – as expressed in structures or pre‐existing legal practice – but also to policy considerations such as utility and fairness. Judicial decisions made with reference to political considerations imply that the courts are arrogating a role that democratic theory reserves for legislators. What happens when ‘equitable considerations’ play a large part in the decisions of the Supreme Court? Does the institution have capabilities and mechanisms that sustain such a judicial practice as a legitimate form of law enforcement? I argue that the capability to adjust to changes in society only seems possible if the judges act beyond the domain of traditional judicial competence. Through different kinds of mechanisms, elements of ‘equitable considerations’ over time become hidden and difficult to grasp. On the one hand, this makes it possible for the Supreme Court to sustain a judicial practice as a legitimate form of law enforcement, but simultaneously it creates problems of confidence and legitimacy because the premises for the decisions are not explicated.     

Adapting to party lines: the effect of party affiliation on attitudes to immigration

Public opinion on immigration is increasingly relevant for political behaviour. However, little is known about the way in which citizens’ political allegiances in turn shape their attitudes to immigration. Abundant existing evidence suggests that voters often take cues from the parties they support. Using panel data from the Netherlands and Sweden, this article investigates the dynamic relation between attitudes to immigration and party preferences. The longitudinal nature of the data allows for making stronger claims about causal mechanisms than previous cross-sectional studies. The analysis shows that voters who change their preference to the Radical Right become stricter on immigration, whereas voters changing to the Greens become less strict on immigration over time. This confirms that citizens’ support for anti- and pro-immigration parties results in a ‘radicalisation’ of their views on immigration along party lines. A similar ‘spiral’ of radicalisation can be found around the issue of European integration.     

The European lavender vote: Sexuality,ideology and vote choice in Western Europe

In many European democracies, political punditry has highlighted the attempts of political parties on the left to court the ‘lavender vote’ of lesbian, gay and bisexual individuals. This article examines the presence of a gay vote in Western Europe with a focus on assessing the role of sexuality in shaping individuals’ political preferences and voting behaviour. Empirically, the effect of sexuality on both ideological identification as well as party vote choice is analysed. Using a cumulative dataset of eight rounds of the European Social Survey between 2002 and 2017, this article demonstrates that partnered lesbians and gay men are more likely than comparable heterosexuals to identify with the left, support leftist policy objectives and vote for left-of-centre political parties. The analysis represents the first empirical cross-national European study of the voting behaviour of homosexual individuals and sheds new light on the importance of sexuality as a predictor of political ideology and voting behaviour within the Western European context.     

Issue politicization and social class: How the electoral supply activates class divides in political preferences

Against premature claims about the declining political relevance of social class in post-industrial democracies, recent research indicates that class continues to be a relevant determinant of political preferences. In post-industrial societies ‘old’ class divides on economic issues coexist with ‘new’ class alignments on cultural topics. While there is cumulated evidence of social classes’ distinct placement on these issues, this paper argues that the strength of class divides depends on the extent to which these issues are politicized by political parties. Studying preferences on economic and cultural issues (attitudes towards redistribution, immigration, gay rights and European integration), this study shows that class divides in preferences are context dependent. The multilevel analyses drawing on data from the European Social Survey and the Chapel Hill Expert Survey for 27 European democracies demonstrate that classes’ differences in preferences are accentuated on issues strongly contested and emphasized by parties, and mitigated on issues where party conflict is weaker. Adding to recent literature on parties and class conflict, this study identifies another stage at which parties can affect the strength of class voting. The varying strength of class divides across contexts also has implications for parties’ ability to garner support beyond a single class. This becomes increasingly unlikely in contexts of high issue politicization.     

National electoral cycles and European elections 1979 and 1984

How were the results of the European Elections related to national political patterns? This article adopts a cross-national comparative perspective. It concludes that government parties, irrespective of being on the right or on the left of the political spectrum, and irrespective of representing the more ‘pro-European’ or the more ‘anti-European’ forces of their country, lost the European election of 1984. European elections have proved to be additional second-order elections (like local or provincial elections), important for the ripples they create on the national political scene. The systematic relationship between voting in firstorder and second-order elections is explored in detail. On the whole, it appears that the 1984 European elections have to be seen largely as tests of opinion on domestic politics.     

The politics of judicial discretion: Rethinking the interaction between national courts and the Eurpean court of justice

The recognition that courts play a significant role in the process of European integration has focused attention on the interaction between national judges and the European Court of Justice. The prevailing theoretical model of this interaction holds that a variety of incentives impel national judges to co‐operate with the ECJ by providing it with frequent preliminary references. This article tests the ability of the model to account for the behaviour of national courts during the period 1972–94. In assessing the utility of the model two central claims are made. First, that the model as currently constructed is incapable of explaining the patterns of references originating from various member states, particularly the consistent lack of references from British courts. Second, that the level of British references, and patterns of judicial co‐operation in general, can be better understood by questioning the model's core assumption ‐ that national judges face powerful incentives to refer to the ECJ. As a first step in this direction, the article examines how the discretion to make or withhold references bestows on national judges the power to hasten or retard the pace of integration as well as to influence specific policy outcomes.     

Taking It to the Next Level: The Elevation of District Court Judges to the U.S. Courts of Appeals

We address an important aspect of judicial careers: the elevation of judges from the U.S. District Courts to the Courts of Appeals. We argue that the likelihood of a judge being elevated is a function of informational cues and signals regarding the nature of the judge and the judge's compatibility with presidential preferences. We also expect norms involving the intersection between geography and Senate politics to affect a judge's elevation chances. Using data on district court judges appointed between 1946 and 1995, we find that the likelihood of a judge being elevated is a function of the judge's ideological compatibility with the president, the judge's previous ABA rating, and Senate norms involving state "ownership" of appeals court seats. Blunt indicators of policy preferences trump direct signals when presidents decide whom to elevate, leaving judges little control over their career prospects and thus less incentive to slant their decisions in the direction of the president's preferences.     

Durkheim's ‘Two laws of penal evolution’

Two types of recent contributions to the discussion of a ‘crisis’ in law recall issues in Weimar labour law. Wolfgang Teubner and others propound a ‘reflexive law’ patterned on the multiple constitutions of collective labour law; and American ‘critical legal studies’ dismiss legal reasoning and press for frankly ‘altruistic’ policy-making in the courts. The Weimar controversy over the extent to which ‘works-community’ supercedes the legal attributes of the employment relationship as specified by the older law of contract shows, first, that the characteristic collectivism and institutionalism of the socialist labour movement's legal strategy was premissed on a complementary political conception of the organization of labour, and, second, that Socialist lawyers defended a legal discourse which was critical of prevailing doctrine but grounded in its systematizations, as essential to their struggle against the amorphous, nominally altruistic reading of the employment relationships which the German courts and then the Nationla Socialist regime imposed upon labour. Their recognition of the problems posed by deficient or excessive politicization of law makes them again important, notwithstanding their political defeats, and their survivors' disillusionment.     

Negotiating Reconciliation in Rwanda: Popular Challenges to the Official Discourse of Post-Genocide National Unity

Reconciliation is among the most contested terms in current peacebuilding and transitional justice debates. Critics often view reconciliation as romantic—expecting immediate harmony after enormous harm—or imposed on victims by religious groups or governments that prefer the language of ‘moving on’ to addressing systemic causes of conflict. This essay reconsiders the concept of ‘reconciliation’ by drawing on community-level experiences in post-genocide Rwanda. This context highlights nuanced interpretations of reconciliation that, in key respects, respond to critics' concerns and call for reappraisal of reconciliation as a central objective after mass violence. In particular, many Rwandans' participation in the gacaca community courts—which, between 2002 and 2012, prosecuted 400,000 genocide suspects in around 1 million cases in 11,000 jurisdictions overseen by locally elected lay judges—represents a form of negotiated reconciliation. This version emphasizes long-term formal and informal negotiations between antagonistic parties during gacaca hearings but crucially long after trials have ended. In contrast, the transactional reconciliation advocated by the Rwandan government through its discourse of ‘national unity’ views reconciliation as immediate and elite-imposed—a perspective that rightly raises the ire of critics but to which negotiated reconciliation offers an important riposte. This essay is based on more than 650 interviews between 2003 and 2014 with Rwandan genocide suspects, convicted perpetrators, survivors, gacaca judges and policymakers as well as observations of 105 gacaca hearings in 13 communities across Rwanda.     

Friends of the Court? Why EU governments file observations before the Court of Justice

The preliminary reference procedure under which the Court of Justice of the European Union (CJEU) responds to questions from national courts regarding the interpretation of EU law is a key mechanism in many accounts of the development of European integration and law. While the significance of the procedure has been broadly acknowledged, one aspect has been largely omitted: The opportunity for member state governments to submit their views (‘observations’) to the Court in ongoing cases. Previous research has shown that these observations matter for the Court's decisions, and thus that they are likely to have a significant impact on the course of European integration. Still, little is known about when and why member states decide to engage in the preliminary reference procedure by submitting observations. This article shows that there is significant variation, both between cases and between member states, in the number of observations filed. A theoretical argument is developed to explain this variation. Most importantly, a distinction is made between legal and political reasons for governments to get involved in the preliminary reference cases, and it is argued that both types of factors should be relevant. By matching empirical data from inter‐governmental negotiations on legislative acts in the Council of the EU with member states’ subsequent participation in the Court procedures, a research design is developed to test these arguments. It is found that the decision to submit observations can be tied both to concerns with the doctrinal development of EU law and to more immediate political preferences. The conclusion is that the legal (the CJEU) and political (the Council) arenas of the EU system are more interconnected than some of the previous literature would lead us to believe.     

The ideological conditions for Khomeini's doctrine of government ∗

The Islamic movements and ideologies labelled ‘Fundamentalist’ share an oppositional stance to their respective governments rather than common doctrinal positions. The Islamisation of society and the state is planned on the model of the ‘original’ Islamic community of Muhammad and his immediate successors, but the interpretation of their principles in relation to modern socio-political contexts gives rise to political ideologies which represent marked departures from traditional Islamic doctrines and incorporate implicity or explicity modern political concepts. Khomeini's doctrine of government is an interesting example in that it is entirely based on traditional Shi'ite, premises and modes of reasoning and yet it reaches novel conclusions. It is argued that these conclusions presuppose the modern ideological notions of ‘the nation’ and the ‘nation-state’.