This study offers a theoretical framework for understanding how institutional instability affects judicial behavior under dictatorship and democracy. In stark contrast to conventional wisdom, the central findings of the book contradict some assumptions that only independent judges rule against the government of the day. Set in the context of Argentina, the study uses the tools of positive political theory to explore the conditions under which courts rule against the government. In addition to shedding light on the dynamics of court-executive relations in Argentina, the study provides general lessons about institutions, instability, and the rule of law. In the process, the study builds a set of connections among diverse bodies of scholarship, including US judicial politics, comparative institutional analysis, positive political theory, and Latin American politics.
• Identifies and documents a new empirical puzzle • Modifies the leading rational choice literature on courts by introducing a new form of strategic behavior, strategic defection • Tests the theory of strategic defection against several competing explanations using an extensive, systematic dataset
Part I. Ruling against the Rules: 1. Introduction; 2. Actors, institutions, and mechanisms; 3. Design and overview of the argument; Part II. The Logic of Strategic Defection: 4. The standard strategic account; 5. A new pattern of inter-branch relations; 6. Modifying the separations-of-powers approach; 7. Judicial motivations; 8. Problems of information; 9. Conclusion; Part III. A Theory of Court-Executive Relations: Insecure Tenure, Incomplete Information, and Strategic Behavior: 10. Politics and uncertainty; 11. The model; 12. Discussion; 13. Conclusion: testable hypotheses; Part IV. Judges, Generals, and Presidents: Institutional Insecurity on the Argentine Supreme Court, 1976–99: 14. The gap between formal and informal institutions; 15. Judges under bayonets: the military 'Proceso', 1976–83; 16. Judges under the Alfosín government; 17. Judges under the (first) Menem government: the difficulty of democratic consolidation, 1989–95; 18. Judges under the (Second) Menem government: the path toward democratic consolidation?; 19. Conclusion: an analytic narrative of institutional insecurity; Part V. The Reverse Legal-Political Cycle: An Analysis of Decision-Making on the Argentine Supreme Court: 20. Data and methodology; 21. Timing; 22. Importance; 23. Participation; 24. Target of the threat; 25. Rival hypotheses: composition, legality, and the mix of cases; 26. Conclusion; Part VI. The Dynamics of Defection: Human Rights, Civil Liberties, and Presidential Power: 27. The military court and human rights; 28. The Alfonsín Court and human and civil rights; 29. The Menem-era court and presidential power; 30. Conclusion: did defection work?; 31. Epilogue: the court and the collapse of Argentina; Part VII. Conclusion: Broader Lessons and Future Directions: 32. Strategic defection and the reverse-legal-political cycle; 33. Strategic defection in comparative perspective; 34. Further implications, future directions.