Reputation and judicial tactics : a theory of national and international courts / Shai Dothan, Tel Aviv University, Faulty of Law.
2015
K2100 .D68 2015 (Map It)
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Details
Author
Title
Reputation and judicial tactics : a theory of national and international courts / Shai Dothan, Tel Aviv University, Faulty of Law.
Published
New York, NY : Cambridge University Press, 2015.
Call Number
K2100 .D68 2015
ISBN
9781107031135 (hardback)
1107031133 (hardback)
9781316121252 (PDF ebook)
1107031133 (hardback)
9781316121252 (PDF ebook)
Description
xiv, 336 pages ; 24 cm.
System Control No.
(OCoLC)880960102
Summary
"This book argues that national and international courts seek to enhance their reputations through the strategic exercise of judicial power. Courts often cannot enforce their judgments and must rely on reputational sanctions to ensure compliance. One way to do this is for courts to improve their reputation for generating compliance with their judgments. When the court's reputation is increased, parties will be expected to comply with its judgments and the reputational sanction on a party that fails to comply will be higher. This strategy allows national and international courts, which cannot enforce their judgments against states and executives, to improve the likelihood that their judgments will be complied with over time. This book describes the judicial tactics that courts use to shape their judgments in ways that maximize their reputational gains"-- Provided by publisher.
Bibliography, etc. Note
Includes bibliographical references (pages 303-322) and index.
Record Appears in
Table of Contents
Acknowledgments
xii
1.
Introduction
1
A.
Courts as long-term strategic actors that seek to maximize their reputations
3
2.
A theory of the reputation of courts
7
A.
What is courts' reputation?
8
B.
Why courts want to increase their reputation
9
C.
The reputation of parties facing the court
12
D.
How courts improve their reputations
23
1.
Demanding judgments
30
2.
Discretionary reasoning
35
3.
Dissent
39
E.
Reputation and public support
46
F.
Methods for measuring judicial reputation
47
G.
What this theory can and cannot explain
52
H.
Conclusion
60
3.
Constraints on courts
62
A.
Legal-internal constraints
63
B.
External constraints on national courts
69
1.
Noncompliance
70
2.
Criticism
76
3.
Curbing the court's jurisdiction
78
4.
Changing the law
80
5.
Establishing new courts
80
6.
Influencing judicial selection and sanctions against judges
83
7.
Manipulating the court's budget
86
C.
External constraints on international courts
87
1.
Noncompliance
89
2.
Criticism
90
3.
Exiting the court's jurisdiction
92
4.
Changing the treaty
95
5.
Establishing new courts
97
6.
Influencing judicial selection and sanctions against judges
98
7.
Manipulating the court's budget
101
D.
Comparing the constraints on national and international courts
102
E.
The influence of third parties on judicial constraints
105
F.
Conclusion and the tradeoff between external and internal constraints
112
4.
Tactics to increase courts' reputation
114
A.
Walking on the brink of noncompliance
117
B.
Matching the remedy to the court's reputation
122
C.
Matching the reasoning to the court's reputation
124
D.
Matching the remedy to the reasoning
128
E.
Incrementalism
131
F.
Distinguishing remedy and precedent
136
G.
Matching the demands to the party
140
H.
Pleasing both parties
148
I.
Spending reputation
150
J.
Conclusion
155
5.
National court case study: Israeli Supreme Court
157
A.
Background
158
B.
The court's strategy
163
1.
Shifting to discretionary reasoning as the court's reputation increases
164
2.
Matching demanding judgments with constrained reasoning
170
3.
Incrementally progressing doctrine
177
4.
Matching demanding precedents with nondemanding remedies
181
C.
The executive's response
183
D.
The court's adaptation
191
E.
Conclusion
211
6.
International court case study: European Court of Human Rights
212
A.
Background
215
B.
The court's strategy
220
1.
Increasing the demands from the states
223
2.
Progressing incrementally
236
C.
Facing the states' strategy
239
1.
Demanding more from low-reputation states
242
D.
Conclusion and the falsifiability of conflicting tendencies
257
7.
When compliance is irrelevant
262
A.
Almost certain compliance
264
B.
Almost certain noncompliance
270
C.
No tangible compliance required
281
D.
Other unique situations
285
E.
Conclusion
290
8.
Conclusions
291
A.
Summary
291
B.
Normative implications
295
Bibliography
303
Books
303
Articles
306
Judgments
315
Israeli Supreme Court
315
European Court of Human Rights
318
U.S. Supreme Court
321
International Court of Justice
321
European Court of Justice
322
Index
323