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tends to side with the government; conversely, once the government in office begins to lose
power, judges who lack institutional security begin facing incentives to increase their
antigovernment rulings to distance themselves from the weakening government. How to explain
this reverse-logical trend? Helmke claims that these decisions are not evidence of an
independent judiciary, but of judges who are constrained vis-à-vis the opposition who will form
the incoming government, and who will have the power to impose sanctions on them. Helmke
argues that this “defection” by judges from the government that appointed them is motivated by
the expectation that if “the court has decided cases close to the views of the incoming
government, the future government will be less likely to sanction the justices.” (2002: 293)
While Helmke’s innovative approach has been recognized as having the potential to
make a significant contribution to the understanding of the role of courts around the world, many
questions about this theory remain unanswered. Moreover, Helmke’s core evidence is so far
restricted to a single case –Argentina and the Argentinean Supreme Court
In this paper, we develop the foundations of a cross-country study of the Strategic
Defection theory. We seek to examine a sample of judicial decisions in National High Courts in
countries with a documented history of political instability and/or change of regimes, and with a
specific focus on cases with a governmental interest. Thus, the first part of this work is a
theoretical discussion of how to draw an appropriate cross-country test to the strategic defection
theory, what data should be collected, how to code it, and finally how to analyze it. Then, we
discuss a very preliminary analysis of courts in four countries (Canada, the Philippines, South
Africa, and Venezuela) as potential cases that deserve further exploration.
The Strategic Defection Theory
Convention