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Lee Epstein
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Lee Epsteing Ethan A.H. Shepley Distinguished University Professor
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THE ROLE OF CONSTITUTIONAL COURTS IN THE ESTABLISHMENT AND MAINTENANCE OF DEMOCRATIC SYSTEMS OF GOVERNMENT
Published in 2001. Law & Society Review 45: 362-377. (Revised version of a paper presented at the 2000 annual meeting of the American Political Science Association.)

Lee Epstein
Jack Knight
Olga Shvetsova

What role do courts play in the establishment and maintenance of constitutional democracies? To address this question, we elaborate a model that draws on existing substantive literature and on theories that assume strategic behavior on the part of judges, executives, and legislatures. This model, in turn, leads to several behavioral predictions about the interactions among the relevant political actors. While those predictions could be assessed in many distinct contexts, we focus on Russia. In particular, we provide a demonstration of how the model helps make sense of the behavior of the Constitutional Court (Konstitucjonnyj sud) in light of the difficult political situation it confronted. We conclude with some thoughts on the broader implications of our theory for the study of courts throughout Eastern Europe and how it may well illuminate constitutional politics in other parts of the world. We attempt to provide such evidence by turning to the docket books of Chief Justice Waite (1874-1888), and making the following argument: If a norm of consensus induced unanimity on Courts of by-gone eras, then the norm may have manifested itself through public unanimity in the face of private conference disagreements. Our investigation, which provides systematic support for this argument and thus for the existence of a norm of consensus, raises important questions about publicly-unified decision-making bodies, be they courts or other political organizations.

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