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«Informal institutions and de facto judicial independence: The Missing Link towards Formal Efficacyl» [Institutuciones informales e independencia judicial de facto. El eslabón olvidado en el camino hacia la eficacia institucional]. Política y gobierno, vol. 29, no. 2, pp. 1-17. Co-authored with Andrea Pozas-Loyo (Language: Spanish).
Building on the literature on formal and informal institutions, this paper offers a typology of the role informal institutions play in the efficacy or inefficacy of formal institutions. Particularly, whether and why de jure and de facto independence converge or diverge. We distinguish four roles that informal institutions can play: competing, reinforcing, overlapping, and redundant. To illustrate our typology, we include examples of each role from Latin American countries. In Brazil we show that a norm of professionalism reinforces internal judicial independence, whereas in Mexico a norm of patronage competes with it. In Uruguay we show that a norm of legislative cooperation is redundant with a high level of de jure external judicial independence, whereas in Paraguay a norm of militant subordination overlaps with a low level of it.
“Anatomy of an Informal Institution. The `Gentlemen´s Pact´ and Judicial Selection in Mexico, 1917-1994”. International Political Science Review, vol. 39, no. 5 (2018) pp. 647-661. Coauthored with Andrea Pozas-Loyo.
The Mexican Constitution of 1917 granted the Supreme Court the power to handpick lower court judges and oversee their careers. For almost eight decades this capacity was not regulated. To fill this void, the justices began to take turns filling vacancies which developed into an informal institution –the so-called ‘Gentlemen’s Pact’. Using original archival data, we document and describe the birth and development of this practice and argue that it consolidated into an informal institution as the judiciary increased in size. We uncover the workings of this social norm that established a patronage model of judicial selection. Our analysis period ends in 1994, when a constitutional reform created a judicial council with the explicit aim of ending patronage and corruption within the judiciary.
“Justice Institutions in Autocracies: A Framework For Analysis”. Democratization vol. 25, no. 1 (2017) pp. 1-18. Coauthored with Paloma Aguilar.
What role do justice institutions play in autocracies? We bring together the literatures on authoritarian political institutions and on judicial politics to create a framework to answer this question. We start from the premise that autocrats use justice institutions to deal with the fundamental problems of control and power-sharing. Unpacking » justice institutions » we argue that prosecutors and ordinary courts can serve, respectively, as » top-down » and » bottom-up » monitoring and information-gathering mechanisms helping the dictator in the choice between repression and cooptation. We also argue that representation in the Supreme Court and special jurisdictions enables the dictator and his ruling coalition to solve intra-elite conflicts facilitating coordination. We provide several examples from Mexico under the hegemonic system of the PRI and of Spain under Francisco Franco, as well as punctual illustrations from other countries around the world. We conclude by reflecting on some of the potential consequences of this usage of justice institutions under autocracy for democratization.
“Subnational Judicial Institutions in Mexico, 1917-2014” [Instituciones Judiciales Subnacionales en México, 1917-2014]. Colombia Internacional no. 91 (2017) pp. 243-263. Coauthored with Luis Soto Tamayo (Language: Spanish).
The purpose of this article is to describe almost one century of institutional track record of diverse aspects of the judicial power in the estates of Mexico. Starting with the original databases of the constitutions of the 31 Mexican estates and all their reforms since 1917 to 2014, we systematically describe aspects relevant to the higher courts, judicial councils and the constitutional courts of the estates, the judicial power budgeting and special jurisdictions. The most important finding is the interesting diversity of the judicial power´s institutional architecture in the estates for almost one hundred years; these include authoritarian regime periods as well as a democratic regime at national level.
“Electoral Competition and Judicial Independence in the Mexican States, 1985- 2015” [Competencia electoral e independencia judicial en los estados de México, 1985-2015]. Revista Mexicana de Sociología vol. 79, no. 2 (2017) pp. 287-318. Coauthored with Luis Soto Tamayo (Language: Spanish).
What explains variation in levels of judicial independence across Mexican states? This article examines the positive, theoretical and empirical link with electoral competition and de jure judicial independence. It distinguishes between various logics and measures associating electoral competition with the creation of judicial reforms. It also explores alternative explanations, such as the logic of insurance, dissemination and political ideology. The analysis is conducted using an original database on amendments to the mechanisms for the appointment, removal and duration of judges of the higher court in every state from 1985 to 2014.
“An Evaluation of Cross-National Measures of Judicial Independence”. Journal of Law, Economics & Organization vol. 30, no. 1 (2014) pp. 104-137. Coauthored with Jeffrey K. Staton
We provide a conceptual map of judicial independence and evaluate the content, construct, and convergent validity of 13 cross-national measures. There is evidence suggesting the validity of extant de facto measures, though their proper use requires attention to correlated patterns of measurement error and missing data. The evidence for the validity of extant de jure measures is weaker. Among other findings, we do not observe a strong and direct link between the rules that allegedly promote judicial independence and independent behavior. The results suggest that while the measurement of both de jure and de facto judicial independence requires a careful strategy for measuring latent concepts, the way that scholars should address this issue depends on whether they are targeting the incentives for independent behavior induced by formal rules or independent behavior itself.
“Sociolegal Studies on Mexico”. Annual Review of Law and Social Science vol. 8 (2012) pp. 307-21.
Mexico has undergone a peculiar transition to a democracy that in some aspects and places still exhibits traits of the authoritarian past. The combination of authoritarian shades and democratic glares, rich diversity in socioeconomic conditions across the country, and the recent availability of a wealth of information and systematized data make for a great deal of research opportunities for sociolegal scholarship. This article reviews recent sociolegal studies on courts and judicial behavior, public security and the criminal justice system, and legal culture, pointing to several empirical puzzles and open questions that are crying out for explanations and systematic empirical analysis.
“Justice System Institutions and Corruption Control. Evidence from Latin America”. Justice Systems Journal vol. 33, no. 3 (2912) pp. 195-214.
This article explores whether the design of justice system institutions helps control corruption. Applying the basic logic of checks and balances to intrabranch institutional design, the main argument is that any justice system where judges and prosecutors, of different ranks and lev- els, are unchecked actors generates incentives for them to abuse their positions. In other words, while generally judges and prosecutors are considered organs that oversee other branches of government, they may also constitute sources of corruption if left unchecked. The essay offers preliminary evidence on the specific hypotheses derived from the general argument from samples of eighteen Latin American countries and two case studies on Chile and Mexico.
“The Politics of Amendment Processes. Supreme Court Influence in the Design of Judicial Councils”. Texas Law Review, vol. 89, no. 7 (2011) pp. 1807-1833. Coauthored with Andrea Pozas-Loyo
This article studies amendment processes, their specific characteristics, and how these characteristics shape institutional design outcomes. Amendment processes are in between the extraordinary creation of new constitutions and the ordinary process of lawmaking. Our central claim is that the design of institutions through amendments is influenced by variables that do not regularly figure in the analysis of constitution making because of their bias toward new constitutions and the «politics of the extraordinary». In particular, we argue that the design of the existing institutions and the political leverage of actors that do not participate directly in constitutional reform may exert an important influence in the design of institutions created by amendments. In other words, the more institutional power and political leverage actors have, the more likely the amendment will reflect their interests, even if they do not partake of the constituent body. To explore this hypothesis, we analyze the leverage that supreme courts have to shape the amendment processes that adopt or reform judicial councils. We claim that the more powerful supreme court judges are, the more likely they will successfully influence amendments that shape the composition and functions of judicial councils in a way that serves their interests. We offer empirical evidence from all the cases of amendments that created or reformed judicial councils in Latin America. We are to recollect that all the existing constitutions were formed in the midst of a danger which repressed the passions most unfriendly to order and concord; of an enthusiastic confidence of the people in their patriotic leaders, which stifled the ordinary diversity of opinions on great national questions; of a universal ardor for new and opposite forms, produced by a universal resentment and indignation against the ancient government; and whilst no spirit of party connected with the changes to be made, or the abuses to be reformed, could mingle its leaven in the operation. The future situations in which we must expect to be usually placed do not present any equivalent security against the danger which is apprehended.
“Enacting Constitutionalism. The Origins of Independent Judicial Institutions in Latin America”. Comparative Politics vol. 42, no. 3 (2010) pp. 293-311. Coauthored with Andrea Pozas-Loyo
When and why can constitution-making processes be expected to produce an institutional framework that formally serves constitutionalism? Based on a simple and general typology of constituent processes that captures their legal/political character and dynamic nature, constitution-making processes controlled by one cohesive and organized political group (unilateral) can be distinguished from processes controlled by at least two different political groups (multilateral). A sample of eighteen Latin American countries from 1945 to 2005 shows that multilateral constitution making tends to establish institutional frameworks consistent with constitutionalism.
“Constitutional Justice and Human Rights Protection in Latin America” [“Justicia Constitucional y Derechos Humanos en América Latina”] Revista Latinoamericana de Política Comparada vol. 3, no. 1 (febrero 2010) pp. 8-25 (Language: Spanish)
What explains the level of judicial protection of rights? In Latina America, for example, while the Colombian Constitutional Court or the Costa Rican Sala Cuarta have been highly active in the protection of rights, the Mexican Supreme Court or the Chilean Constitutional Tribunal have not. Why, then, only some constitutional courts decide actively engage in upholding rights? This papers classifies different answers to this question based on three dimensions: socio- political, personal or ideological, and institutional. The paper discusses and explores relations among variables across the three dimensions, presents some cross- national data, and suggests some hypotheses for future research.
“Fragmentation of Power and the Emergence of an Effective Judiciary in Mexico, 1994-2002”. Latin American Politics & Society vol. 49, no. 1 (2007) pp. 31-57.
Legal reforms that make judges independent from political pressures and empower them with judicial review do not make an effective judiciary. Something has to fill the gap between institutional design and effectiveness. When the executive and legislative powers react to an objectionable judicial decision, the judiciary may be weak and deferential; but coordination difficulties between the elected branches can loosen the constrains on courts. This article argues that the fragmentation of political power can enable a judiciary to rule against power holders´interests without being systematically challenged or ignored. This argument is tested with an analysis of the Mexican Supreme Court decisions against PRI on constitutional cases from 1994 to 2002. The probability of the court´s voting against the PRI increased as the PRI lost the majority in the Chamber of Diputies in 1997 and the presidency in 2000.
Translated into Spanish and published in El Poder Judicial en la transición y consolidación democrática en México, México: Instituto Federal Electoral, 2007.
“Institutional Determinants of the Judicialisation of Policy in Brazil and Mexico”, Journal of Latin American Studies vol. 38, no. 4 (2006) pp. 739-766. Coauthored with Matthew M. Taylor.
This article offers a comparative perspective on judicial involvement in policy change in Latin America during the last decade and a half. Drawing on the literature on new institutionalism and the judicialisation of politics, and on case studies from Latin America’s two largest countries, we propose a comparative framework for analysing the judicialisation of policy in the region. On the basis of this framework, we argue that institutional structure is a primary determinant of patterns of the judicialisation of policy. In particular, institutional characteristics of the legal system affect the way political actors fight to achieve their policy objectives and the kinds of public justifications used to defend policy reform.
“The Constitutional Adjudication Mosaic of Latin America”, Comparative Political Studies vol. 38, no. 2 (2005) pp. 189-217. Coauthored with Patricio Navia.
This article maps current constitutional adjudication systems in 17 Latin American democracies. Using recent theoretical literature, the authors classify systems by type (concrete or abstract), timing (a priori or a posteriori), and jurisdiction (centralized or decentralized). This approach captures the richness and diversity of constitutional adjudication in Latin America, where most countries concurrently have two or more mechanisms. Four models of constitutional adjudication are currently in use. In the past, weak democratic institutions and the prevalence of inter partes, as opposed to erga omnes, effects of judicial decisions, prevented the development of constitutional adjudication. Today, democratic consolidation has strengthened the judiciary and fostered constitutional adjudication. After discussing the models, the authors highlight the role of the judiciary in the constitutional adjudication bodies, the broad range of options existing to initiate this adjudication process, and the prevalence of amparo (habeas corpus) provisions.
Translated into Spanish and published in Art. 105. Veinte años no es nada. La Suprema Corte y la justicia constitucional antes y después de la reforma judicial de 1994. México: Suprema Corte de Justicia de la Nación, 2018.
“Social Capital and Democracy: A Critical Review of Robert Putnam’s Making Democracy Work” [“Capital social y democracia: una revisión crítica de Robert Putnam”]. En Política y Gobierno, vol. VI, no. 2, pp. 513-529. Coauthored with Alejandra Ríos Cázares (Language: Spanish)