Comparative Judicial Daring: Constitutional Powers and Political Culture

Robert D. Cooter, Boalt Hall, UC Berkeley
Tom Ginsburg, University of Illinois, Champaign

Abstract

Positive political theory has developed important predictive insights into interpretation of statutes, specifically what structural conditions lead judges to defer to the preference of the legislature. Where the legislature can easily reverse judicial decisions, "strategic" judges are more constrained in interpreting statutes. This paper extends the structural model to include political factors. It then develops a comparative empirical test of the model and shows the model has explanatory power. Finally, it extends the model to include Constitutional interpretation.

A Xerox of these older working papers can be obtained on request from Jeanette Sayre at Sayrej@law.berkeley.edu.