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- Convenors:
-
Penny Miles
(University of Bristol)
Cath Collins (U Ulster, UK & UDP, Chile)
- Location:
- Malet 632
- Start time:
- 4 April, 2014 at
Time zone: Europe/London
- Session slots:
- 2
Short Abstract:
This panel invites discussion on the role of Latin American judiciaries and the methodological approaches to researching them. How have they responded to shifting inter-branch relations, transitional justice and a more assertive Inter-American Court? Does legal culture play a role in the process?
Long Abstract:
This panel invites discussion on the role of Latin America judiciaries and of the methodological approaches to studying these institutions. In recent decades, courts in many Latin America countries have been thrown into the spotlight with the advent of transitional justice, the strengthening of the Inter-American System of Human Rights, and the shifting role in inter-branch relations. Responses to these challenges vary across the continent, but what are the diverse socio-political, historical and institutional factors which have produced these different outcomes? Why have active Constitutional Courts emerged in some countries, and state-perpetrated abuses have been held to account more fervently in some countries than others? Has judicial reform played a role in creating more responsive and active courts? What insights can we learn from the informal institutions operating in the various legal cultures regarding the process of institutional change? How has the judiciary dealt with demands presented by new social and political actors or by the Inter-American Court of Human Rights? This panel welcomes papers from across the continent to address the issues of judicial behaviour, judicial reform, legal culture, and inter-branch relations, etc to assess the comparative merits of these processes, and the implications for Latin America and further afield. The panel also welcomes papers that address the methodological approaches and innovations applied to examine judicial actors, practice and outcomes.
Accepted papers:
Session 1Leticia Barrera (CONICET)
Paper short abstract:
This paper analyzes an Argentine Supreme Court’s practice that borrows from the US Supreme Court’s writ of certiorari. In examining the instances of knowledge disclosure and enclosure that gatekeeping unfolds, the paper points out how the tribunal builds up its authority in contemporary Argentina.
Paper long abstract:
This article provides a detailed look at the means through which the Argentine
Supreme Court of Justice decides what cases to review and what cases to discard; a mechanism that, it is argued, borrows from the United States Supreme Court's writ of certiorari. The essay does not draw a comparative analysis between how the practice of the certiorari is performed in these two different jurisdictions. Nor it points point out the alleged gap between the original practice and the imported one. Rather, it engages in an ethnographic study of a Court´s documentary practice to elaborate on the forms, meanings and effects of gatekeeping in the Argentine Court and the relations of knowledge that this practice manifests. In examining the instances of knowledge disclosure and enclosure that the operation of gatekeeping unfolds, this essay ultimately seeks to point out a particular mode of building up judicial authority in contemporary Argentina.
Mariana Llanos (GIGA Institute of Latin American Srudies)
Paper short abstract:
This paper analyses current court-executive relations in Argentina by focusing on the inter-institutional movements around two politically crucial Supreme Court decisions taken in 2013. It provides evidence for the strategic behavior of the Argentine Supreme Court, characterized as strategic negotiation.
Paper long abstract:
This paper analyses current court-executive relations in Argentina by focusing particularly on the inter-institutional movements around two politically crucial Supreme Court decisions taken in 2013: one against the executive's preferences (the inconstitutionality of the judicial council reform) and one in favor (the constitutionality of four articles of the media law). The paper provides evidence for the strategic behavior of the Argentine Supreme Court reconstructing the chronology of events taking place in the time span between April 2013 and the end of this year. As in the classical strategic accounts, the analysis is not limited to explaining judges' votes but to observe the several ways in which the policy preferences of other relevant actors, remarkably the executive, are being taken into account (Epstein, Knight and Martin 2003). Strategic behavior has already been marked as a prominent feature of judicial behavior in Argentina (Helmke 2005), taking the form of judicial defection which developed as a reaction to an informal institution dictating that presidents can remove incumbent judges when they come to office. This paper shows that the judges' strategic reaction to their political environment is today characterized by negotiation rather than defection, a behavior based on the informal institution that allows subtle communications between judges and politicians. If the judges' goal with defection was securing their posts, negotiations involve other individual and collective interests, such as policy, reputation, and corporatist benefits. Empirically, the paper uses newspaper archives as well as the systematic analysis of 23 interviews with actors and experts conducted in May 2013.
Santiago Basabe Serrano (German Institute of Global and Area Studies (GIGA))
Paper short abstract:
This paper analyzes the quality of high court judicial decisions. Using logistic regression, it argues that external judicial independence, corruption and the academic background of the judges explain the variation in the quality of judicial decisions in 16 Latin American supreme courts.
Paper long abstract:
This paper describes and explains the quality of judicial decisions in Latin American supreme courts. Using an original database of surveys, curriculum vitae of judges and institutional indicators, the paper argues that external judicial independence, corruption and judges' academic background explain why some supreme courts cast better rulings than others. Through a logistic estimator applied to judges of 16 Latin American supreme courts, the paper shows that endogenous and exogenous variables influences the performance of the high courts of that region. Contrary to common views, the paper suggests that salaries and workload are not significant in explaining the quality of judicial decisions.
Cath Collins (U Ulster, UK & UDP, Chile)
Paper short abstract:
Judiciary-focused explanations for breakthroughs in prosecuting past state crimes ignore the fact that police, prosecutors, forensic services and civil society activists are key gatekeepers of change. This paper explores this reality as seen in post-Pinochet human rights trials in Chile.
Paper long abstract:
Chile has seen a remarkable domestic revival over the past decade and a half in the prosecution and jailing of former military officers responsible for past atrocities. Since this has taken place in a context of relatively low political will and without legislative innovation, many reach for supply-side explanations in judicial politics and the impact of judicial reform. While it is true that judicial receptivity shifted 'just enough' in Chile from the mid 1990s, there are many other elements that should be considered in looking at what changes justice system outcomes over this and other issues with strong resonance in international law. This paper will trace the importance of specific police and forensic service actors - state 'enclaves' friendly to domestic accountability change - the role of relatives' associations and their lawyers; and the increasing activism and valence of neighbouring jurisdictions and of the Inter-American human rights system in seeking a more comprehensive account of how judicial behaviour is constituted and shaped.
Penny Miles (University of Bristol)
Paper short abstract:
This paper explores the ability of Chilean judges to incorporate understandings of LGBTI issues into their everyday practice and the barriers to them doing so. This has become increasingly important since the Inter-American Court recommended that judges should receive training in LGBTI issues.
Paper long abstract:
In August 2011, the Inter-American Court of Human Rights (IACtHR) presided over its first case dealing with sexual orientation rights as human rights. The case of Karen Atala vs Chile was presented before the Inter-American System in 2004, following a Chilean Supreme Court ruling that effectively denied Ms Atala, herself a Chilean judge, the custody of her three children on the basis of her sexual orientation. In February 2012, the Court ruled that the Chilean state had violated Ms Atala's human rights, and for the first time in its history, the Court conceptualised LGBTI rights as human rights. Among its recommendations, it ordered the Chilean judiciary to train its staff in matters relating to sexual orientation. This paper draws on interviews conducted with Chilean judges in the late 2000s and explores attitudes within the judiciary towards LGBTI rights issues and litigation prior to the IACtHR ruling. It is concerned with how judges are able to incorporate understandings of LGBTI issues into their everyday practice and the potential barriers to them doing so. The feminist and critical underpinnings of the work are concerned with how dominant power structures and cultures are challenged or come to change. Within that, it focuses on the extent to which discourses establishing heterosexuality as the norm are being challenged, as adherence to moral conservatism has been a feature of both the Chilean polity and judiciary, as illustrated by the initial Supreme Court ruling which denied Karen Atala the custody of her children.