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Volume15
Year2006
TitleConditions for Judicial Independence
Author(s)McNollgast
First Page105
AbstractIn this Article we shed new light on the debate about judicial independence by defining judicial independence as an outcome that emerges from strategic interactions among the judiciary, the legislature, and the executive. Indeed, for us, judicial independence is not the automatic result of constitutional or statutory provisions that establish life tenure for judges, nor is judicial independence limited by checks and balances or legal traditions. Rather, judicial independence waxes and wanes with changes in the political composition of our three branches of government.
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The purpose of this Article is to explore the ideas central to Hamilton's argument in The Federalist No. 78. To do this we model the Supreme Court's choice of doctrine within a policymaking game, where doctrine defines the rules by which policy is to be chosen, but does not itself define the policy choices. The core of the model involves a game wherein the Court sets doctrine and monitors compliance with its doctrine. We then examine the trade-offs that arise as a result of scarcity and uncertainty in attaining compliance from the Court's agents.

Our key conclusions are threefold. First, the Court, due to imperfect information and limited resources for hearing appeals, cannot induce perfect adherence to its doctrine by its agents.
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Second, stare decisis emerges in this model from strategic interaction by the Supreme Court in its supervisory role of the lower courts, not from any norm or preference on the part of judges to follow precedent.
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Third, political actors can take advantage of this situation by exacerbating the Supreme Court's scarcity; that is, they can influence judicial doctrine by expanding the number and reach of executive agencies, commissions, lower courts and so on.
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This Article proceeds as follows. In Part II, we discuss various theories of judicial decisionmaking and present our model. In Part III we discuss the implications of our model. In Part IV, we derive the key comparative statics of our model. In Parts V & VI, we conclude with a discussion of how our model sheds light on the waxing and waning of judicial independence in the United States, and we also discuss the application of our model to the comparative context.