Judicial review and the power of the executive and legislative branches

The legal system can affect what policies a government can implement. In particular, when there is separation of powers, the strength of the judiciary to review and overturn actions of the executive and legislative branches can affect such things as how much redistribution these policy-making branches can do. Surprisingly, having judicial review helps the policy-making branches—the stronger is the judiciary, the more redistribution they are able to do. This occurs because the policy-making branches must make promises on and off the equilibrium path to individuals in order to make redistribution possible. However, in many circumstances, the government wants to renege on these promises, either to do more redistribution than promised or to not carry out severe threats against any individuals who lied. Judicial review can prevent reneging on these promises, thus making them credible.We develop this in the context of an optimal income tax model with a finite number of individuals where the government knows the exact distribution of types but not which individual is of which type. In this finite model, the government can detect misrevelation by even a single individual so that an individual׳s taxes can depend not just on one׳s own actions but also on others’ actions. Piketty (JET, 1993) showed that the government could implement any full-information Pareto optimal allocation if the government could commit to its announcements, even to infeasible allocations in circumstances after some individuals misreveal. We derive the sequential equilibrium allocations when individuals reveal their types by simple announcements when feasibility on and off the equilibrium path is imposed. Increasing the degree of judicial review expands the set of achievable allocations on the full-information utility possibility frontier. We also relate the different possible legal rules to different solution concepts in game theory.     

Principles and politics: Like oil and water

In a democracy, public policies require majority support to be enacted, so politicians must enlist the support of others to further their political agendas. Successful politicians are those who can negotiate in the political marketplace to steer outcomes their way, and to succeed, politicians must be willing to set their principles aside and trade their votes away to get something better. In contrast with the principled politician whose support cannot be bought, the unprincipled politician’s support must be bought, so unprincipled politicians accumulate political IOUs that they cash in to advance their agendas. Democratic politics by design reinforces unprincipled behavior and punishes principled behavior.

Judicial Branch, Checks and Balances and Political Accountability

This paper attempts to combine the political economics models on separation of powers between the legislature and the executive with public choice theories on the behavior of the judicial branch. We obtain a model of political accountability and checks and balances with up to three government branches: the executive, the legislature and the judiciary. We conclude that an independent judiciary improves the political accountability of democratic systems relative to the political economics models with two government branches. An accommodating judiciary, however, changes the distribution of political rents without improving accountability.     

Judges and Taxes: Judicial Review,Judicial Independence and the Size of Government

The study investigates how judicial review of policy and judicial independence affect the relative size of government. Judicial oversight of policy is the authority of courts to check the legality of policy measures and annul measures which are incompatible with the constitution or are enacted without following the procedures laid down by the law. Using a model of constitutional political economy, where policy making is subject to judicial oversight, it is predicted that the relative size of the public sector decreases as judicial review and judicial independence increase. The theoretical predictions are tested in an international cross section sample of 52 countries. Controlling for the effects of real income, age dependency, openness of the economy, the legal origins of a country and other socio-political variables the results show that the checks and balances provided by the judiciary lead to a smaller relative size of taxes in the economy.JEL Classifications: D70, D72, D74, D78, H30, K41.     

Managing judges mathematically: an empirical study of the medical malpractice litigations in Shanghai

The post-Mao China has been increasingly managed mathematically, not the least in its judicial system. In this paper, I looked into some of the mathematical indicators used to judge the performance of judges in this nation, and ascertained their effects on the judicial decisions on medical malpractices in Shanghai. The findings of this paper support the previous study that qualitatively identified the judicial responses to such a quantified evaluation system. Underlying the effect of performance indicators is the Chinese judiciary’s bending toward populist pressure. Essentially, therefore, this paper serves to place in perspective the judicial populism well documented in the latest literature on Chinese judiciary. At the same time, however, my study also endorses the theory on courts’ reluctance to exercise discretion in a hierarchical judicial system. Thus, as hinted by the data, the actual behaviors of Chinese judges might be complex under a combination of institutional constraints embodying policy preferences of political leaders as well as structural characteristics of the judiciary.     

Court of Public Opinion: Government Accountability and Judicial Independence

Using a simple model of policy making in a system characterizedby formal separation of powers, judicial dependence on governmentsupport, asymmetric information between voters and the government,and political accountability of the policy branch, I show conditionsunder which rational voters force the government to cede powerover legislative decisions to the courts. Specifically, thepublic uses its ability to hold the elected branches of governmentaccountable to enforce a judicial veto when judicial oppositionto legislation provides more reliable information to votersthan government support for legislation does. The model thusprovides a theoretical justification for, and suggests importantlimits to, the common assumption that disregard for judicialdecisions is politically costly for elected politicians. Themodel also demonstrates how other observed patterns in judicialpolitics—including judicial rubber-stamping of governmentdecisions and government "passing the buck" to courts—canarise as equilibria in the same simple framework.     

POLITICAL AND JUDICIAL CHECKS ON CORRUPTION: EVIDENCE FROM AMERICAN STATE GOVERNMENTS

This paper investigates the effects of checks and balances on corruption. Within a presidential system, effective separation of powers is achieved under a divided government, with the executive and legislative branches being controlled by different political parties. When government is unified, no effective separation exists even within a presidential system, but, we argue, can be partially restored by having an accountable judiciary. Our empirical findings show that a divided government and elected, rather than appointed, state supreme court judges are associated with lower corruption and, furthermore, that the effect of an accountable judiciary is stronger under a unified government, where the government cannot control itself.     

The Role of the Judiciary in the Public Decision‐Making Process

Empirical work on the relationship between political corruption and the design of public institutions suggests that the structure of judiciaries is an important determinant of corruption. This study develops a simple political economic model to investigate the role of judicial oversight in the policy‐making process for corruption deterrence, focusing on two dimensions of quality of the judiciary, namely efficiency and integrity. Our analysis explicitly accounts for the possibility that, while being independent of the political authority, the judiciary itself may be vulnerable to pressure from special interests. We study endogenous policy‐making under complete information and provide general conditions for the existence of deterrence (zero‐bribe) equilibria. In particular we show that preserving the independence of judiciaries in corrupt societies proves crucial to the existence of corruption‐deterrence effects.     

It's easier to contract than to pay: Judicial independence and US municipal default in the 19th century

It is well established in the literature that an independent judiciary can act as a signal of credibility by a sovereign state and as a guarantor of creditor rights. However, to date there has been little systematic work analyzing how an independent judiciary reacts to fiscal stress and public-sector default. This article addresses that very question by evaluating how and if judicial independence affects default rates using US municipal data through the nineteenth century. Overall, the results do indicate that greater judicial independence is associated with a significantly lower likelihood of default. This channel largely occurs through the method by which a member of a state's court of last resort is selected (either appointment or popular election) and term length.     

Medical practice and malpractice litigation in an evolutionary context

We model the interactions between the behaviors of physicians and patients, subject to clinical and legal risks, by means of evolutionary game theory. We propose an original game in which patients may sue their physician for medical malpractice, and physicians have to choose between two alternative treatments, with different levels of benefits and risks. The safer treatment is also the less effective, therefore its provision corresponds, under the assumptions of our model, to practicing negative defensive medicine. We study the Nash equilibria, test their stability in the replicator dynamics, and analyze their welfare properties. We find that the accuracy of the judicial system plays an important role, with possible counter-intuitive effects related to legal reforms. If the court is not sufficiently accurate, defensive medicine can be favored, paradoxically, by an increase in the probability that defensive physicians are sanctioned by the court. A similar outcome can be generated also by an increase in the compensation paid to patients by physicians, when sanctioned for medical malpractice.     

司法者激励对司法公正影响的模型分析

司法公正与法官激励是当前司法领域中所面临的最为紧迫而关键的问题.本研究运用博弈论来模拟现实的审判过程.通过分析基于个人效用最大化的法官最优选择的基础上来研究法官的法律遵从度、工作勤勉程度、工资收入、外部干预(如贿赂)、司法权的有效配置等重要因素对法官裁判的影响,进而解决社会所获得的公正执法水平.对于不同法律遵从度的法官而言,贿赂、工资等因素的影响是不同的.提高法官法律遵从度并调整法官与社会之间的效用关系,从制度上实现司法权的有效配置,对于实现司法公正至关重要.这为解决当前司法领域所存在的问题提供了理论依据和方法.     

Repeated moral hazard with persistence

Summary. This paper considers the optimal contract when the current (hidden) action of an agent has a persistent effect on the future outcome. The optimal contract in a two-effort choice, two-period setting is characterized analytically and numerically. In particular, we show that persistence tends to make compensation less responsive to the first-period outcome. At the extreme, there are cases where the agent is perfectly insured against the first-period outcome: the agent obtains the same utility regardless of the first-period outcome. The model is extended to three periods. We also present a computational method to characterize an N-period model with two-period persistence.Received: 9 December 2003, Revised: 13 February 2004, JEL Classification Numbers: D82, J31, J65. Correspondence to: Ayegül ahinWe are grateful to an anonymous referee, Jack Barron, Mark Bils, Hugo Hopenhayn, Per Krusell, Lance Lochner, Steve Williamson, and seminar participants at Concordia University, Purdue University, the applied theory meetings at University of Rochester, the Conference of the Society for the Advancement of Economic Theory 2003, the Rochester Wegmans Conference 2002, and the Society for Economic Dynamics Meetings 2003 for their comments and suggestions. We also wish to thank Vera Brencic, Nancy Marmon, and Roxanne Stanoprud for excellent research assistance.     

The time-varying independence of Italian peak judicial institutions

The paper investigates the stability of the degree of independence of the judiciary vis à vis both the classical political branches and other independent institutions, such as regulatory agencies, using evidence about the Italian Constitutional Court and the Council of State. Both peak judicial courts feature time varying factors of independence that affect their jurisprudence, especially in the case of the legitimacy review by the Constitutional Court. The less conclusive evidence found in the Council of State related to decisions of independent regulatory authorities might be due to the more complex set of interactions in which the Council operates.     

Islamic constitutionalism and rule of law: a constitutional economics perspective

This study investigates the relationship between Islamic constitutionalism and rule of law. Al Azhar, one of the most respected Sunni religious institutions in the world, developed a model of an Islamic constitution. This study uses Al-Azhar’s constitution as a model of Islamic constitutionalism and examines its stance in regard to the rule of law. We find the Al-Azhar’s constitution to be incompatible with essential concepts of rule of law. For example, the powers vested in the head of the Islamic state are enormous, making the executive branch of government far superior to the legislative and judicial branches. Women and non-Muslims are explicitly discriminated against throughout the constitution. Moreover, laws stemming from this constitution are not stable since many differences exist among schools of Islamic jurisprudence (fiqh). Consequently, we show that state-of-the-art Islamic constitutionalism lacks essential components needed in any constitution based on rule of law.     

Economic growth and judicial independence,a dozen years on: Cross-country evidence using an updated Set of indicators

Over 10 years ago, Feld and Voigt (2003) introduced an indicator for objectively measuring the actual independence of the judiciary and demonstrated its utility in a large cross-section of countries. The indicator has been widely used, but also criticized. Many new indicators for judicial independence have been developed since. Yet, all of them are based on subjective evaluations by experts or confined to measuring the legally prescribed level of independence. This paper presents more recent objective data on de jure and de facto judicial independence (JI) and strongly confirms previous results that de jure JI is not systematically related to economic growth, whereas de facto JI is highly significantly and robustly correlated with growth. In addition, we show that the effect of de facto JI depends on the institutional environment, but not on a country’s initial per capita income.     

A Principal-Agent Theory of En Banc Review

This paper adds to the existing literature on en banc rehearingsin two ways. First, I incorporate theoretical results from theliterature on Supreme Court certiorari decisions and argue thatthe ideological direction of panel decisions should influencethe probability of en banc rehearing only in conjunction withthe panel's ideological predisposition. Second, I build uponexisting theories of en banc review by incorporating the multiplelevels of the judicial hierarchy into the context in which thecircuit decides to hear a case en banc. From these insights,I develop and test three hypotheses about the determinants ofen banc review. Specifically, I contend that the ideologicalrelationship between a three-judge panel, the full circuit,and the Supreme Court should all interact with the ideologicalorientation of the panel's decision when the circuit decideswhether or not to review the panel en banc. Original data includingall en banc rehearings between 1986 and 1996 are then used totest the theoretical predictions. The empirical analysis providesconsiderable support for the hypotheses. The findings representtwo important advances in the study of the judicial hierarchy:They highlight the strategic interaction between ideologicaldisposition and panel composition in the en banc review processand demonstrate the incentives created by the multiple levelsof the federal judiciary. More broadly, the theory and findingsdeveloped here have implications for strategic auditing in apolitical hierarchy. (JEL K40, D72)     

Coups,regime transitions,and institutional consequences

Coups and regime transitions are events that typically are intended to change the basic institutional framework of a country. Which specific institutions change and the consequences of these changes nevertheless remains largely unknown. Change after a coup or transition implies that some form of political or judiciary barrier has been erected or removed. We therefore focus on what happens to the quality of judicial institutions and political corruption around coup attempts and other types of regime transitions. We hypothesize that when coups are conducted by members of the incumbent political elite, they are likely to remove barriers to change while coup makers outside of the ruling elite are more likely to do the opposite and thus protect themselves from what remains of the elite in the political system. Using the new Bjørnskov-Rode coup dataset, our results suggest that successful coups are associated with degradation of institutions, with successful military coups in particular having a significant negative effect. Results are more varied for civilian coups where we find indications of differences depending on whether the coup makers are part of a political elite or not. We also explore whether the incumbent regime influences the effect of coup attempts on institutional change.     

Separation of Powers and Appointee Ideology

The traditional view of appointments to executive agencies isthat the president has virtual carte blanche in the selectionof personnel for his "team." Yet many formal models of appointmentsuggest that presidents must accommodate the policy preferencesof senators when making nominations. Several empirical studieshave confirmed that legislative preferences are a significantdeterminant of the ideology of appointees, but these studieshave focused on appointments to the federal judiciary; the researchhas not addressed appointments to executive agencies. Appointmentsto executive agencies from 1936 to 1996 are examined, by employinga special sample of appointees to those positions—thosewho have served in Congress at some point in their careers.For these "bridging" individuals, it is possible to analyzestrictly comparable measures of ideology for the appointees,their nominating presidents, and the senators who voted to confirmthem. A linear regression analysis provides significant supportfor the hypothesis that appointee ideology is affected by variationin the ideological tilt in Congress.     

科研不端行为处理程序研究——兼评《科研诚信案件调查处理规则（试行）》

2019年9月由科技部等20个部委联合发布的《科研诚信案件调查处理规则（试行）》从整体上构建了科研不端行为调查处理程序，是我国科研诚信建设的里程碑文件，但其并未真正解决调查主体多元、事实问题与学术问题混淆、程序规则公正性欠缺与救济途径缺失等问题。有必要借鉴美国科研不端的规制经验，通过法律程序弥补科学共同体自律约束的不足，在内生机制方面不断完善科研不端处理程序，在外部约束方面通过立法与司法介入倒逼调查部门规范内部调查和处理程序，构建科学共同体自律约束与法律规则外部约束相结合的科研诚信建设体系，从而真正净化学术界和推动“科教兴国”。