POLI 330 Lecture Notes - Clean Hands, Totalitarianism, False Accounting

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2 Oct 2014
Course
Professor
Lecture 23
Tuesday, November 26, 2013
- Discuss the politicization of the judiciary
Definitions
- Judicialization of politics
o Speak of the judiciary acquiring increasing powers vis-à-vis politicians
§ Either because politicians delegate these powers or because the judiciary asserts them
o Refers to increasing power of the judiciary and increasing insertion of the judiciary in
the political decision making process
- Politicization of the judiciary
o Insertion of political actors and their considerations and preferences into the judicial
decision making process
o Increasing use of the courts to settle political accounts, fight political battles, etc.
§ Courts become an instrument in the hands of political incumbents
o How is politicization different from low-level independence?
§ Low judicial independence is a component of the politicization of justice
· Political decision makers are influencing judicial decision making and having their
preferences maximized through court decisions
o Increasing use of the courts in more and more aspects of political life
§ Includes more arenas of political competition
o See this trend when more legal issues become contaminated by political interference
§ Courts lose their independence in more and more legal areas
· Replaced with an increasing number of instances in which politicians feel they can
use the courts to achieve political objectives
o Example – country in only which the high level cases end up being politicized show
problems of judicial independence
§ However this probably does not have a large level of politicization of justice
· Political interference in judicial decision-making happens in a limited number of
cases
o Example – Soviet Union
§ Virtually all cases were political
· Judicial independence did not vary over time (throughout entire period courts were
dependent on politicians)
§ Totalitarian regimes cared about the outcome of almost every case
· All had political importance and meaning
o Example – Spain
§ Growing room for the judiciary to act without as much political interference because
political competition were played out differently
Predicted Probabilities of Success in Court according to the political affiliation of non-
viable candidates – compare Russia and Ukraine
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- These are candidates that are not likely to be elected in the first place
- Russia
o The probability of non-viable candidates winning is roughly the same when compared
between pro-government and opposition candidates
§ Pro-government candidates have a little bit of an advantage
· However no significant difference
- Ukraine
o Difference between pro-government and opposition candidates is significant
§ Pro-government candidates have a higher probability of winning their case in court
than opposition
o Political preferences of important political actors were reflected in the judicial
decisions
If virtually all decisions in all kinds of issue areas in that the judiciary acts in are
affected by political considerations, we have higher political interference
In the soviet totalitarian era, all cases were political
oThroughout the entire period, the courts were largely dependent on politicians
oThe politicization of justice varied – totalitarian regimes really cared about the
outcomes of the case because each case had political importance
In some authoritarian regimes (i.e. Spain, later soviet period), there was growing
room for the judiciary to act without as much political interference because political
competition was played out differently
In Russia and the Ukraine – predicted probabilities of success in court according to
the political affiliation of non-viable candidates: comparisons between Russia and
Ukraine
oDid political affiliation of the litigant affect the probability of winning in court
oCandidates weren’t likely to get elected in the first place
oPro-government candidates in Russia 23%
oOpposition candidates in Russia 18%
oPro-government candidates in Ukraine 64%
oOpposition candidates in Ukraine 37%
oIn Russia – roughly the same – the difference is not statistically significant
Pro-government candidates have a little advantage but not significant
oIn the Ukraine – the difference between pro and opposition candidates is
significant
Pro-government candidates have a higher probability of winning
The political preferences of important political actors are very much
reflected in the decisions taken by the judiciary
Same study for viable candidates
oRussia – no significant difference between opposition and pro-government
candidates (although pro-government are slightly more likely to win)
oUkraine – pro-government candidates are statistically more likely to win
Win-rates for different types of plaintiffs in defamation lawsuits by the media
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