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Learning about Judicial Independence: Institutional Change in the State Courts

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  • F. Andrew Hanssen

Abstract

There is widespread agreement that an independent judiciary is crucial to the growth of a nation. Yet systematic analysis of the development of independent courts is difficult, because, typically, formal judicial institutions seldom change. Here, I examine a formal judicial institution with substantial cross-sectional and time-series variation to explore: the procedure used to select and retain judges in the American states. Five different procedures emerged over the nation’s history, and all are in use today. I conclude as follows: Each new procedure was developed in order to increase the independence of state judges and was then superseded by a newer procedure, owing in large part to unanticipated agency problems. However, not all states changed procedures when the opportunity arose. States with larger legislative majorities, earlier entrance to the Union, or constitutional amendment requirements were less likely to adopt new procedures.

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  • F. Andrew Hanssen, 2004. "Learning about Judicial Independence: Institutional Change in the State Courts," The Journal of Legal Studies, University of Chicago Press, vol. 33(2), pages 431-473, June.
    • Handle: RePEc:ucp:jlstud:v:33:y:2004:p:431-473
    DOI: 10.1086/421572
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    2. Fleck, Robert K. & Hanssen, F. Andrew, 2024. "Courts, legislatures, and evolving property rules: Lessons from eminent domain," Explorations in Economic History, Elsevier, vol. 93(C).
    3. Guerriero, Carmine, 2006. "Dependent Controllers and Regulation Policies: Theory and Evidence," Privatisation Regulation Corporate Governance Working Papers 12204, Fondazione Eni Enrico Mattei (FEEM).
    4. John A. Dove, 2017. "Judicial Independence and US State Bond Ratings: An Empirical Investigation," Public Budgeting & Finance, Wiley Blackwell, vol. 37(3), pages 24-46, September.
    5. Daniel Berkowitz & Karen Clay, "undated". "Initial Conditions, Institutional Dynamics and Economic Performance: Evidence from the American States," American Law & Economics Association Annual Meetings 1083, American Law & Economics Association.
    6. Shalini Iyengar & Nives Dolšak & Aseem Prakash, 2019. "Selectively Assertive: Interventions of India’s Supreme Court to Enforce Environmental Laws," Sustainability, MDPI, vol. 11(24), pages 1-18, December.
    7. Fleck, Robert K. & Hanssen, F. Andrew, 2010. "Repeated adjustment of delegated powers and the history of eminent domain," International Review of Law and Economics, Elsevier, vol. 30(2), pages 99-112, June.
    8. Kanazawa, Mark Tooru, 2023. "The Efficiency of Occupational Licensing during the Gilded and Progressive Eras: Evidence from Judicial Review," The Journal of Economic History, Cambridge University Press, vol. 83(4), pages 1221-1252, December.
    9. Carmine Guerriero, 2006. "Endogenous Price Mechanisms,Capture and Accountability Rules: Theory and Evidence," Working Papers 2006.106, Fondazione Eni Enrico Mattei.
    10. Hadfield, Gillian K., 2008. "The levers of legal design: Institutional determinants of the quality of law," Journal of Comparative Economics, Elsevier, vol. 36(1), pages 43-73, March.
    11. Daniel Berkowitz & Karen Clay, 2007. "Legal Origins and the Evolution of Institutions: Evidence from American State Courts," Working Paper 320, Department of Economics, University of Pittsburgh, revised Jun 2007.
    12. Christian Almer & Timo Goeschl, 2011. "The political economy of the environmental criminal justice system: a production function approach," Public Choice, Springer, vol. 148(3), pages 611-630, September.
    13. Guerriero, Carmine, 2011. "Accountability in government and regulatory policies: Theory and evidence," Journal of Comparative Economics, Elsevier, vol. 39(4), pages 453-469.
    14. Dove, John A., 2015. "The effect of judicial independence on entrepreneurship in the US states," Economic Systems, Elsevier, vol. 39(1), pages 72-96.
    15. Dove, John A., 2018. "It's easier to contract than to pay: Judicial independence and US municipal default in the 19th century," Journal of Comparative Economics, Elsevier, vol. 46(4), pages 1062-1081.
    16. Dove, 2016. "Judicial independence and economic freedom in the US states," Applied Economics Letters, Taylor & Francis Journals, vol. 23(1), pages 78-83, January.

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