Lee Epstein
Lee Epsteing Ethan A.H. Shepley Distinguished University Professor
Published in 1996. Law & Society Review 30 (1): 87-130.

Jack Knight
Lee Epstein

Given that democratization is an ongoing, dynamic process, what explains the emergence and maintenance of some types of political institutions and the decline of others?  The answer, we argue, lies not in the intentional design of long-run constitutional principles but rather in the short-run strategic choices of political actors.  While many would agree with this vision as applied to legislative or executive institutions, we claim that it is equally applicable to courts.  After laying out our argument—a theory of institutional emergence and maintenance—in some detail, we test it by applying game theory to a critical moment in American history; the defining sequence of events for American presidential-court relations that played out between President Thomas Jefferson and Chief Justice John Marshall in the early 1800s.  Our analysis allows us to assess factors fundamental to most explanations of the Jefferson-Marshall conflict: the political and institutional preference of the actors (especially Jefferson’s preference over judicial review) and the larger political environment in which the conflict took place.  It also provides important insights into how we might study other interinstitutional interactions, be they of historical moment or of future concern. 

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