Seminar Description

THE UNIVERSITY OF CALIFORNIA, BERKELEY
The Dilemmas of Judicial Power in Comparative Perspective

A Sawyer Seminar Project Sponsored by a Grant from the Andrew W. Mellon Foundation.

Gordon Silverstein, principal investigator
Malcolm M. Feeley, Robert A. Kagan and Martin Shapiro, co-principal investigators

Center for Study of Law & Society
Thursdays 4-6pm
2007-2008

Supported by a Sawyer Seminar grant from the Andrew W. Mellon Foundation, this year long, cross-disciplinary project brings together some of the leading scholars working on courts in a comparative context.

The interaction of government, law and politics profoundly shapes and constrains policy and practice in every facet of public and private life in constitutional democracies around the world – developing and developed alike. A great deal of attention has been devoted to the growth of judicial power, but it has tended to be narrowly focused on individual countries or regions. This project is designed as a collaborative effort to construct broad, cross-national and cross-disciplinary theory that will help us understand how and when and why judicial power emerges, grows, responds to challenges and even recedes.

As the many existing studies of judicial power and high courts have suggested, high courts have been assigned or have assumed a number of vital functions around the world including (1) entrenching the rule of law and defining and policing the institutional boundaries of executive power; (2) institutionalizing the protection of individual rights and liberties with a particular emphasis on political participation, speech, press and religious freedoms; (3) improving the provision of social welfare and equal treatment under the law; (4) reinforcing property rights, guarantees for free enterprise, contract assurances and economic rights more generally; (5) redefining the original constitutional bargain; and (6) engaging directly in the reshaping or stabilization of the political system itself.

Do these functional roles emerge in a consistent pattern? Are they the product of consistent sets of incentives? Or are they highly culturally and historically specific? Our objective is to step back to develop more general, cross-national and cross-disciplinary theories that will help us to understand the conditions under which courts and judicial authorities play one important role rather than another, play several roles at once, or fail to play any significant role at all.

This project begins with the recognition that the interaction of government, law and politics profoundly shapes and constrains policy and practice in every facet of public and private life in constitutional democracies around the world – developing and developed alike. A great deal of attention has been devoted to the growth of judicial power, but it has tended to be focus narrowly on individual countries or regions. With the support of a grant from the Andrew W. Mellon Foundation, the Sawyer Seminar will bring together leading experts on judicial politics to engage in a collaborative effort to construct broad, cross-national and cross-disciplinary theory.  The objective is a better understanding of how, when, and why judicial power emerges, grows, responds to challenges, and recedes.

The project proceeds in three phases, outlined below:

First Phase – Constructing a Common Foundation (Fall 2007/Spring 2008): To address the inherent challenge of developing general theories about courts in vastly different polities, and to move us collectively toward more general theory-building, the Seminar will feature the presentation of a series of papers that identify critical turning points in the institutional roles courts play in a wide range of countries and regions, such as France, the Former Soviet Republics, Africa, India, Singapore, Northern Asia, Italy, the European Union, the United States and Latin America, among others. Specifically, these scholars will draw on their extensive expertise to analyze what they believe to be a key moment(or set of moments) in the development of the courts in their respective nations or regions of study. These will be moments that, in their view, constitute a critical tipping point in terms of the roles that courts play in entrenching constitutionalism and protecting rights, and/or in economic governance or politics.

These might be moments at which choices made by judicial and political actors either propelled or restrained the development and exercise of judicial power, leading courts into, or dissuading them from playing, critical institutional roles. The idea is to assemble a set of papers that will help us collectively to identify patterns, propose meaningful typologies, and set the stage for the second and third phases of our program, in which we hope to develop more concrete, cross-national theory. We anticipate that these papers will range considerably, and encourage a lively debate 

Second Phase – Synthesis and Theory-Building (late Spring of 2008): In the second phase, we will bring another set of distinguished scholars to campus (including John Ferejohn, Lee Epstein, Kim Lane Scheppele, Alec Stone Sweet and Martin Shapiro) to serve as what we call provocateurs théorétiques - scholars who will help the Seminar to refine the initial papers; to pose, test and evaluate broader theoretical concerns; and to develop an initial template or set of theoretical templates that will allow us to move toward the development of more comprehensive theory about the role of law and courts in comparative context.

Third Phase – Theory Building Plenary Conference (October or November 2008): Our third phase will involve a two-day conference in Berkeley that will bring together all of our invited experts, along with our core Berkeley Seminar participants.  Here our country and regional experts will present a revised paper for discussion. Participants will then engage in a collective effort revise and refine the preliminary theoretical template produced by the core Berkeley Seminar participants, and to produce a concrete framework for the development of comparative theories of judicial institutions. Our ultimate goal is a published volume that will open new avenues of inquiry and theory-building in an increasingly important area of research.

For more information on the Seminar, and to join the seminar website as a participant, please contact Beth Neitzel at bneitzel@berkeley.edu