Lee Epstein
Lee Epsteing Ethan A.H. Shepley Distinguished University Professor
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Published 2001, William & Mary Bill of Rights Law Journal 10 (1): 7-36. (Revised version of a paper presented at the Washington University School of Law, Institute for Global Legal Studies, Conference on Constitutional Courts, 2001.)

Lee Epstein
Jack Knight
Olga Shvetsova

Assuming that we desire to design formal rules that would maximize the attainment of the aims of creating a distinguished and independent bench, what would those rules look like? To address this question, we need not create new rules out of whole cloth. For the world’s democracies have devised, in the form of formal constitutional provisions and laws, a number of responses to the query we propose—responses that the vast majority of American scholars have not contemplated. In light of chronic complaints with the modes of appointment and retention of U.S. state and federal jurists, this void in our thinking is not just surprising; it is also unfortunate. For, before we weigh up the sorts of rules (much less the wholesale changes or even mere alterations in the existing rules that some scholars and policy makers have proposed) that might induce particular outcomes—be those outcomes a more distinguished judiciary, a more independent one, or both—ought we not consider the range of existing possibilities?

Believing that the answer to this question must be in the affirmative, we undertake that consideration here. Specifically, we use the results of an inventory we conducted of formal judicial selection and retention systems currently in use in democratic societies throughout Europe to shed light on the sorts of institutions that may lead to a more distinguished and independent judiciary here, in the United States.

Click here for the article (.pdf).
Click here for the conference paper.
Click here for the data.