Research Handbook on Law and Courts
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Research Handbook on Law and Courts

Edited by Susan M. Sterett and Lee D. Walker

The Research Handbook on Law and Courts provides a systematic analysis of new work on courts as governing institutions. Authors consider how courts have taken on regulating fundamental categories of inclusion and exclusion, including citizenship rights. Courts’ centrality to governance is addressed in sections on judicial processes, sub-national courts, and political accountability, all analyzed in multiple legal/political systems. Other chapters turn to analyzing the worldwide push for diversity in staffing courts. Finally, the digitization of records changes both court processes and studying courts. Authors included in the Handbook discuss theoretical, empirical and methodological approaches to studying courts as governing institutions. They also identify promising areas of future research.
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Chapter 2: Degrees of separation: judicial–executive relations in the US and Latin America

Gbemende Johnson

Abstract

Executive and judicial power share a unique historical and political linkage, particularly in the US and across Latin America. When emerging from their colonial pasts, US constitutional framers attempted to structurally prevent the emergence of a dominant national executive; however, across a number of Latin American countries, dominant executive rule became a hallmark of postcolonial governance. This chapter explores issues and controversies that have emerged regarding the juxtaposition of judicial and executive power in separation of powers systems. How do judges navigate the complex boundaries delineating responsiveness to executive preferences versus deference to coercive expressions of executive power toward the judiciary? While significant variation exists in political environments across the US and Latin America, and across Latin American countries, conflicts repeatedly emerge over the staffing of the national and federal judiciary. Similarly, judges in separation of powers systems must strategically weigh the risks to judicial autonomy and institutional independence when ruling against the executive and executive preferred policies. Even in environments where tenure stability is high and the ability to attack the judiciary is restrained, judges will exhibit increased deference to executives with higher levels of political capital.

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