The concept of the constitutional revolution has become ubiquitous, but it is applied to all manner of things that are unlike each other in notable ways. It has been generously applied to events in such far-flung places as South Africa, Eastern Europe, Great Britain, India, Canada, Iran, Israel, and the United States. Despite its oxymoronic character, it has the potential to illuminate a much-vexed subject of scholarly inquiry. This article seeks to sharpen conceptual clarity in the way we depict constitutional change, specifically that species of change that entails significant breaks or departures in the workings of the constitutional order.

The relationship between de jure and de facto judicial independence is much debated in the literature on judicial politics. Some studies find no relationship between the formal rules governing the structure of the judiciary and de facto judicial independence, while others find a tight correlation. This article sets out to reassess the relationship between de jure and de facto judicial independence using a new theory and an expanded data set. De jure institutional protections, we argue, do not work in isolation but work conjunctively, so that particular combinations of protections are more likely to be effective than others. We find that rules governing the selection and removal of judges are the only de jure protections that actually enhance judicial independence in practice and that they work conjunctively. This effect is strongest in authoritarian regimes and in contexts with checks on executive authority.

This article uses two newly collected data sets to investigate the reliance by political actors on the external vetting of judicial candidates, in particular vetting conducted by the nation’s largest legal organization, the American Bar Association (ABA). Using these data, I show that minority and female nominees are more likely than whites and males to receive lower ratings, even after controlling for education, experience, and partisanship via matching. These discrepancies are important for two reasons. First, as I show, receiving poor ABA ratings is correlated with confirmation failure. Second, I demonstrate that ABA ratings do not actually predict whether judges will be “better” in terms of reversal rates. Taken together, these findings complicate the ABA’s influential role in judicial nominations, both in terms of setting up possible barriers against minority and female candidates and also in terms of its actual utility in predicting judicial performance.

Legislative enactment is only one step in the life of a law. How a law shapes public life after enactment is frequently the result of whether the judiciary interprets the provisions contained in a law and how courts reconcile provisions within and across laws. But the factors that determine whether the judiciary ends up playing such a role are not well understood. We investigate why the courts, through statutory interpretation, address some major laws but not others and why some laws are addressed soon after enactment, while others are on the books for years before they reach the judicial branch. Our evidence shows that conditions at the time of enactment, plus features of the law, play a major role in determining whether, and when, a law reaches the courts. More specifically, both divided government and disagreement between the two chambers increase the likelihood that the courts will address significant laws.

The social construction of judicial power is a complicated process, especially in hybrid political regimes. We argue that off-bench resistance against blatant interference supported by vibrant social networks is an important manifestation of judicial autonomy. By drawing on evidence from field research, media coverage, and the existing scholarly literature, we clarify the logic of off-bench judicial resistance against external interference, outline a taxonomy of five strategies of resistance in hybrid regimes, and explain the political implications of off-bench judicial behavior.

Congress routinely relies on private lawsuits to enforce its mandates. In this article, we investigate whether, when it does so, the details of the legislation can importantly influence the extent to which the private bar is mobilized to carry out the prosecutorial function. Using an original and novel data set based on review of archived litigation documents for cases filed in the Northern and Eastern Districts of California over the two decades spanning 1981–2000, we examine the effects of the Civil Rights Act of 1991, which increased economic damages available to Title VII job discrimination plaintiffs, on their ability to secure counsel. We find that over the course of the decade after passage, the law substantially increased the probability that Title VII plaintiffs would be represented by counsel and that in doing so it reversed a decade-long trend in the opposite direction.

In this study, we test theories of judicial retirement developed in the United States to study patterns of retirement in Canada and England. We explore whether there is evidence that justices time their departures to strategically advance partisan or policy goals. Using survival analysis to examine the career patterns of judges appointed to the Supreme Court of Canada (1875–2012), as well as the House of Lords of the United Kingdom (1875–2009), we find that there is no evidence of strategy to achieve political objectives. Instead, these judges either choose to stay as long as possible or retire for personal reasons.

The emergence of constitutional review in France has attracted substantial attention from scholars of public law. Yet little has been written about the political implications of the expansion of rights-based review on the part of France’s highest administrative jurisdiction, the Conseil d’Etat. The argument is made in this article that repeat litigation by French lawyers defending the cause of immigrants is an important site for observing the symbolic power of legal forms. The analysis focuses on cases challenging immigration-related administrative regulations and shows how the process of repeatedly adjudicating these issues has focused attention away from litigants and their claims at the same time that it has reinforced the centrality of the Conseil d’Etat and its formalist jurisprudence in administrative governance. This detailed examination of the practical operation of France’s highest administrative jurisdiction leads to the surprising conclusion that this distinctly nonadversarial form of adjudication has contributed over the long term to institutionalizing a juridification of immigration-related administrative policy making.

This article is the first comprehensive empirical study of chief justice appointments to the Judicial Conference committees of the US Courts, entities with influence over substantive public and legal policy. Using a newly created database of all judges appointed to serve on Judicial Conference committees between 1986 and 2012, the results indicate that a judge’s partisan alignment with the chief justice matters, as do personal characteristics such as race, experience on the bench, and court level. These results support claims that Judicial Conference committee selection, membership, and participation may present a vehicle for advancing the chief justice’s individual political and policy interests.

Do elected judges and prosecutors change their behavior to reflect public opinion after they receive information about constituent preferences? In this article I use a unique measure of public opinion—votes on an initiative to legalize marijuana—to examine the responsiveness of prosecutors and trial court judges to a strong, issue-specific, constituency-level opinion signal. I find that, at least in recent drug cases in Colorado, both prosecutors and judges changed their sentencing behavior after receiving that signal. Prosecutors responded only to local-level opinion, while judges responded to both local and statewide opinion.

Over the past 30 years many observers of the federal courts have expressed concern over mounting dockets, arguing that the taxing workloads for federal judges could have a variety of negative consequences, including difficulties in judicial recruitment and retention. However, assessing the plausibility of those and similar claims requires the use of appropriate measures of judges’ workload. We introduce scholars and practitioners to new measures of caseload for the district courts available from 1964 through 2012. We detail the methodology for constructing our measures and then assess changes in caseload over time, both within and across courts. We argue that, in most cases, the preferred measure of caseload incorporates weighted filings and accounts for the service of senior status judges and vacancies. We conclude by pointing scholars toward additional research avenues that can be undertaken with our publicly available data.

Scholars studying judicial behavior have identified a host of factors theoretically and empirically connected to judicial decision making. One recent theory identifies economic conditions—which have implications for the decisions of voters and politicians—as influencing the voting behavior of US Supreme Court justices. Yet the US Supreme Court is a unique judicial institution addressing limited—though indisputably important—economic cases every year. State courts, on the other hand, address a multitude of issues every year with economic ramifications. Building on the rich body of literature examining state courts of last resort, I analyze whether judges, across a variety of methods for judicial selection and retention, respond to temporary changes in the state of the economy. Results indicate that the responses of state supreme court judges to changes in the state of the economy are conditional on the electoral vulnerability of the justice. This research thus offers considerable insight into judicial behavior under different selection mechanisms and the conditional influence of the state of the economy.

The declaratory theory is that “judge-made law” is discovered, not created. This article describes a scenario in which there develops a legal system such that the declaratory theory is true and shows that judges in the scenario could literally discover what they could justifiably call law. Positivist objections to the theory are rebutted. If true, the declaratory theory has implications for contemporary systems that combine legislation and judge-made law.