2
The last years have witnessed the development of a great body of Law & Courts literature
based on strategic models of judicial decision-making. Relying on rational-choice assumptions
and methods, these works suggest that judges in the U.S. do not always vote their true
preferences, but that rather adjust their behavior to rational expectations about the actions by
other external actors, and the institutional structure in which they are inserted (see, more
generally, Epstein & Knight, 2000; Langer 2002; Ferejohn and Weingast 1992 ). One of the
prevailing research lines in this growing subfield analyzes the reaction of courts (as institutions)
and judges (as individual actors) to the constraints placed by the Executive and the Legislature,
among other external influences which arguably compel them to depart from
their own
preferences to avoid potential sanctions.
Alternatively, some scholars have maintained that the judges on some top appellate
courts have enough judicial independence to enable them to vote their own attitudinal
preferences and/or their own views on what is required by “the law” regardless of the
preferences of the government. This judicial independence is generally thought to derive from
the institutional characteristics of the specific courts. For instance, Segal and Spaeth (1993;
2002) maintain that on the U.S. Supreme Court, the justices are free to vote their private
attitudinal preferences because of the independence of the Court from political constraint and
because "they lack electoral or political accountability, ambition for higher office, and comprise a
court of last resort that controls its own jurisdiction" (1993, 69). According to their Attitudinal
Model, it is these institutional factors which set the Supreme Court apart and allow the individual
justices to vote their policy preferences without regard for legal constraints (Rohde and Spaeth
1976; Segal and Spaeth 1993, 2002). The top appellate courts in other stable democracies
including Canada and Great Britain appear to share these same institutional features and to enjoy
Convention