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TitleJudicial Independence: Often Cited, Rarely Understood
Author(s)Lydia Brashear Tiede
First Page129
AbstractIn this Article, I propose a new definition of judicial independence. I submit that "judicial independence" can and should be defined as the judiciary's independence from the executive, as measured by the amount of discretion that individual judges exercise in particular policy areas. Pursuant to McNollgast, this discretion varies depending on the political interaction between the legislature and the other branches of government. I believe this definition, compared to the others reviewed below, will provide political scientists and legal scholars with a better analytical tool for measuring and modeling judicial independence in both the United States and abroad.
To better compare the many previous definitions to my proposed definition, this Article is divided into four parts. In Part II, I will present my definition of judicial independence and show why it provides a useful analytical tool for studying the independence of courts and judges. In Part III, I will evaluate the usefulness of three other scholarly approaches to judicial independence and the underlying assumptions about the meaning of law upon which each approach is founded. The three approaches to judicial independence discussed here are as follows: 1) the institutional approach, 2)the judicial rulings against government approach, and 3) the strategic interaction approach. Under the first of these approaches, scholars focus on institutional ans structural variables that allegedly enhance or inhibit judicial independence. Scholars using this approach suggest that if a given institution is in place, judges and the judiciary as a whole will be independent from a specific branch of government-be it the executive or legislature or the judiciary in the case of individual judges' independence. Scholars espousing the institutional approach assume that it is the legal process itself that makes law legitimate. A second approach to judicial independence is defined simply by the ability of judges to use anti-government decision without retribution. this approach equates law to some specific utilitarian purpose. A third approach to judicial independence is the strategic interaction approach that looks at judicial independence as a strategic game among difference branches of government as well as different levels within the judiciary itself. Under this approach, scholars assume that law means politics or political action.
After discussing the positives and negatives of these various approaches, I will explore in Part IV the inherent tension between judicial independence and accountability in two ways. First, I will examine whether judges who are "independent" can also be held accountable. Second, I will specifically analyze whether judges can "make law" and in doing so whether they are misbehaving by making law counter to the wishes of lawmakers. With respect to such misbehavior, I will discuss the mechanisms for punishing judges, which tend to be applied in an inconsistent manner. In Part V, I will conclude by examining whether judicial independence may be logically incompatible with traditional conceptions of the rule of law.