In a rising number of countries, populist parties participate in coalition governments. While there exists a consensus that populism is incompatible with core tenets of liberal democracy on a conceptual level, we know much less about whether or not the participation of populist parties in government constitutes a threat to liberal democracy in practice. We study the impact of populist parties in coalition governments using a novel dataset of more than 2000 laws that were under review at the Austrian Constitutional Court between 1980 and 2021. We provide evidence that the court did not find laws passed by governments that included a populist party unconstitutional more often than those passed by non‐populist governments. Our findings indicate that the Austrian Freedom Party did moderate its policy while in office. The results imply that it is necessary to distinguish policy positions in party manifestos and party rhetoric from policies actually implemented by governments.

This article investigates the role of political competition in explaining de facto judicial independence in non‐democratic regimes. It argues that the electoral, political insurance explanation popular in the study of courts in democracies also offers explanatory power in the autocratic context, despite popular wisdom otherwise: due to the relatively greater risks of losing power in non‐democracies, electoral competition is highly salient when present. This is examined via hierarchical and fixed effects models that show competition strongly associated with increased levels of independence. This relationship is robust to alternative model and data specification, and has strong out‐of‐sample predictive accuracy.

The preliminary reference procedure under which the Court of Justice of the European Union (CJEU) responds to questions from national courts regarding the interpretation of EU law is a key mechanism in many accounts of the development of European integration and law. While the significance of the procedure has been broadly acknowledged, one aspect has been largely omitted: The opportunity for member state governments to submit their views (‘observations’) to the Court in ongoing cases. Previous research has shown that these observations matter for the Court's decisions, and thus that they are likely to have a significant impact on the course of European integration. Still, little is known about when and why member states decide to engage in the preliminary reference procedure by submitting observations. This article shows that there is significant variation, both between cases and between member states, in the number of observations filed. A theoretical argument is developed to explain this variation. Most importantly, a distinction is made between legal and political reasons for governments to get involved in the preliminary reference cases, and it is argued that both types of factors should be relevant. By matching empirical data from inter‐governmental negotiations on legislative acts in the Council of the EU with member states’ subsequent participation in the Court procedures, a research design is developed to test these arguments. It is found that the decision to submit observations can be tied both to concerns with the doctrinal development of EU law and to more immediate political preferences. The conclusion is that the legal (the CJEU) and political (the Council) arenas of the EU system are more interconnected than some of the previous literature would lead us to believe.

Adversarial legalism, an approach to law and regulation long considered distinctive to the US, is spreading across the European Union (EU). The EU's institutional structure and its ongoing project of market integration generate political incentives and functional pressures that encourage EU policy-makers to rely on adversarial legalism as an approach to governance.

Nuancing the conventional wisdom that informal economic activities endure by marginalizing, circumventing, or colluding with the law, we use original court data from China to reveal a counterintuitive mechanism: informal finance can endure through formal litigation. Drawing on 66,843 judicial decisions, case studies of seven top-filers, and interviews, we examine how sophisticated moneylenders, inactive debtors, and embedded courts collectively helped sustain unlicensed moneylending in China before 2020. Moneylenders—whether operating through Fintech or offline channels—leverage superior legal resources to enforce semilegal debts. Debtors facing moneylenders suffer from serious hurdles in accessing justice, especially lacking professional legal help that could potentially change case outcomes. Courts, despite concerns over debtor protection, largely tolerate the semilegal lending in alignment with the pre 2020 regulatory environment that valued the expansion of private financing, particularly through Fintech. Beyond China and the financial market, this litigation-endured mechanism of informal economy reflects a pattern in high-volume civil dockets where litigation is strategically used to bypass regulation, which has contributed to access-to-justice crises in other jurisdictions, including the USA. Theorizing these dynamics raises pressing questions about the institutional role of courts in either sustaining or remedying welfare pathologies, and in shaping a just society.

Constitutional courts (CCs) in federal and quasi-federal systems are often expected to act as neutral arbiters in conflicts between levels of government. This article challenges that assumption by analysing the behavior of Spain’s Constitutional Court over four decades of constitutional litigation. Drawing on an original dataset of 1,888 rulings on all challenges to national and regional legislation (1981–2023), we examine how judicial outcomes are shaped by political alignment, institutional design, and court ideology. Our analysis reveals a consistent pattern of deference to the central government, especially when the Court is ideologically conservative or aligned with the federal executive. These results support a strategic model of judicial behavior and raise broader questions about the role of CCs in multilevel systems. Rather than acting as counter-majoritarian forces, courts may reinforce central dominance in center–periphery conflicts, limiting their capacity to protect territorial pluralism in practice.

Canadian politics is shaped by three intersecting areas of constitutional law: Aboriginal rights, federalism and Charter jurisprudence. While a canon has emerged on the role of courts in Canadian democracy, it is often asserted that Charter scholarship dominates the field. Is this true—and does it matter? We address these questions through a systematic survey of 423 studies published between 2012 and 2022 in leading Canadian journals, books and edited volumes. We find that most work is produced by legal scholars, is descriptive, focuses on the Charter and examines a narrow range of cases and themes—most notably the court’s relationship with other institutions, its legitimacy and its power of judicial review. We argue that advancing our understanding of courts in Canadian democracy requires moving beyond our tendency to stick to our lanes—engaging core theories of judicial politics, employing explanatory methods and analyzing multiple areas of constitutional law.

Research shows that women’s inclusion in decision-making bodies that produce anti-feminist policies can legitimize policies and institutions. When a woman attorney advocates for an anti-feminist outcome in the judiciary, are the courts perceived as more legitimate than when a man makes the same argument? Using a survey experiment where 1,395 participants read about a sexual harassment case argued by a male or female attorney, we find that female attorneys increase the legitimacy of anti-feminist rulings in only one specific instance: when a female attorney represents an employer and wins, and only for female participants who are much less likely to perceive that process as procedurally legitimate in the first place. Our results demonstrate that while there are some instances where attorney gender can legitimize judicial behavior, the courts are different from legislatures, and deploying women to advocate for anti-women outcomes has little impact on feelings of court legitimacy broadly.

This article maps out and evaluates the rise of ‘Deliberative Rights Theory’ (‘DRT’), a novel field of human rights analysis drawing on ideas from deliberative democracy. Deliberative democracy addresses dilemmas such as how deliberative and democratic inputs into public decision-making can each be influential, without either one dominating the other. This is especially apt for human rights, as settling complex and contentious rights cases (eg on COVID-19 vaccination, internet speech or assisted dying) calls for both technical deliberation and democratic input. There is an acute risk of noncompliance with – or even backlash against – rights decisions that lack either type of input. DRT’s normative strand of research explores conditions for uncoerced interactions between diverse participants in rights decision-making (eg ‘reasoned persuasion’, ‘epistemic diversity’ and ‘temporal deferral’). These conditions allow for an ‘integration’ of both deliberation and democracy in the course of decision-making about rights. This relatively nuanced and promising answer to the deliberation-democracy dilemma helps to account for DRT’s rising prominence. By contrast, ‘strategic’ approaches expect participants to leverage their status or power to push for outcomes they favour. The article contends that strategic approaches implicit in many existing rights theories cannot solve the deliberation-democracy dilemma, but rather allow one type of input (deliberative or democratic) or one type of institution (eg a court or legislature) to dominate. A further, institutionalist strand of research addresses how to realise DRT’s high normative ideals. The article suggests that court-focused rights models are frequently inadequate. Newer approaches, such as the mini-public model increasingly prominent in deliberative democracy, can best integrate democracy and deliberation for rights decision-making.

In this Article I suggest that, due to the changing nature of the polarization of Western societies, another important factor should be taken into account in assessing the relationship between public trust in the judiciary and judicial independence, namely court communication with various segments of the society, including the ordinary people. More specifically, my key argument is two-fold. First, we live in the disinformation age and apex courts can easily be portrayed as detached from the ordinary people. This endangers their social embeddedness, which in turn might increase the likelihood of the acceptance of court-curbing. Second, apex courts should proactively respond to this challenge by adopting embedding strategies aimed at all segments of society, and not just the elites. I identify four such strategies: (1) The media strategy; (2) proactive engagement with the precariat via “reaching out” activities such as social events and holding hearings outside the courts’ seats; (3) minimalization of controversial off-the-bench activities of judges; and (4) self-awareness and avoidance of structural judicial bias. Finally, I discuss the risks and limits which courts and judges face when they engage in these embedding strategies.