Defining independence:

1
Defining independence

• Two dimensions of independence, and their sources

2
Control vs. Independence

• Autonomy/Control the degree of uncertainty we
  will tolerate in judicial decisions the amount
  of discretion left to individual judges
  
• Independence/Partisanship the extent to which
  the decision-maker is identified with one of the
  parties to the dispute.

3
Control over preferences vs. control over
decision-making

• lack of preference independence the
  over-identification of judges with a party that
  has an interest in the dispute (often, the
  executive)
• E.g., the Menem court in Argentina, the
  Constitutional Court in Kyrgyzstan under Akayev
  
• lack of decisional independence the capacity of
  an interested party (often, the executive) to
  interfere with judicial decision-making
  
• E.g., telephone justice in Bahia and across the
  region

4
The source of control institutional design

• Mechanisms of appointment produce different
  levels of control over the preferences of
  appointees
  
• Compare simple majority of Senate, to simple
  majority with filibuster rule, to 2/3 majority
  
• Mechanisms that control decision-making
  (discipline, promotion, compensation, appellate
  oversight) produce different levels of control
  over decision-making
• Compare impeachment, to discipline and promotion
  by an oversight body
  
• Variation in degrees depends on capacity access
  to information, available sanctions, ease of use
  

5
The source of partisanship politics

• Factional dominance of mechanisms of appointment
  and control
  
• Open and public mechanisms force the use of more
  consensual standards, so reduce any one factions
  capacity to bias outcomes
  
• Internal mechanisms typically have more
  information than external mechanisms and are more
  effective, but harder for outside factions to
  control
• When these mechanisms are controlled by an
  identifiable faction, the courts lose (at least
  the perception) of independence.
  
• Political Partisanship
• Other kinds of factions e.g. economic elites
  (São Paulo, Brz) conservative social elites
  (Córdoba, Arg)

6

• In short
• Politics interacts with institutional design to
  produce varying levels of independence and
  control.

7
Independence vs. Uncertainty