In contemporary democracies, backsliding typically occurs through legal machinations. Self-enforcing democracy requires that political parties refrain from exploiting legal opportunities to tilt electoral rules. Using a formal model, we argue that informal norms of mutual forbearance and formal constitutional rules are fundamentally intertwined via a logic of deterrence. By circumscribing how far each party can legally bend the rules, legal bounds create reversion points if mutual forbearance collapses. If legal bounds are symmetric between par-ties, they deter electoral tilting by making credible each party’s threat to punish transgressions by the other. If legal bounds become sufficiently asymmetric, however, the foundations for forbearance crumble. Asymmetries emerge when some groups (a) are more vulnerable than others to legally permissible electoral distortions and (b) favored and disfavored groups sort heavily into parties. We apply this mechanism to explain gerrymandering and voting rights in the United States in the post-Civil Rights era.
"Insecure Institutions: A Survivalist Theory of Judicial Manipulation in Latin America" (Co-authored with YeonKyung Jeong and Jae-Eun Kim, Journal of Law and Courts, Forthcoming) Most theories of judicial politics are built around explaining the puzzle of judicial independence. This paper instead theorizes explicitly about the conditions under which politicians are prone to manipulate their courts. By positing that courts can partly endogenously shape leaders’ fate at the hands of legislative opponents, we argue that greater political insecurity leads presidents to gut judicial independence, not shore it up. Drawing on a novel dataset of judicial crises across eighteen Latin American countries following the third wave of democratization, we show that variation in judicial crises is systematically correlated with the president’s risk of non-electoral instability as captured by the history of past presidential crises, presidential power, and anti-governmental protests. To identify whether the effects of protest on judicial manipulation are causal, we use an instrumental variable approach based on international commodity prices weighted for each country. By treating institutional crises as inter-connected strategic decisions, this paper cuts against the tendency in the literature to treat these phenomena along parallel tracks; with one literature on presidential crises and another on judicial politics. Rather, constitutional hardball -- in all of its manifestations -- should be studied under a unified theoretical framework.
When a party or candidate loses the popular vote but still wins the election, do voters view the winner as legitimate? This scenario, known as an electoral inversion, can give power to candidates or parties in democratic systems who lose the popular vote, including the winners of two of the last five presidential elections in the United States. We report results from two experiments testing the effect of inversions on democratic legitimacy in the U.S. context. Our results indicate that inversions significantly decrease the perceived legitimacy of winning candidates. Strikingly, this effect does not vary with the margin by which the winner loses the popular vote nor by whether they are a co-partisan. The effect is driven by Democrats, who punish inversions regardless of candidate partisanship; few effects are observed among Republicans. These results suggest that inversions may increase sensitivity to such outcomes among supporters of the losing party.
"Sounding the Alarm: Transgressing Democratic Norms and the Effects of Political Pushback" (Co-authored with Seda Ozturk, August 2020, Pre-analysis Plan) In competitive democracies political norm violations rarely occur in a vacuum; nor do citizens experience them as such. Rather, transgressions are constantly being mediated for the public by political elites across the political spectrum. To date, however, there has been little systematic analysis of the role that political pushback by elites plays in shaping citizens’ reactions to leaders who flout democratic norms. Our proposed research seeks to fill this gap. We draw on literatures in political behavior, social psychology, and game theory to distill a series of plausible testable implications about the varying effects of elite political pushback. The second part of the proposal develops a novel survey experiment designed to evaluate and to adjudicate among these alternative hypotheses.
"Judicial Manipulation in Latin America" (Submitted for Oxford Handbook of Constitutional Law in Latin America, Forthcoming) Judicial manipulation is antithetical to judicial independence, limited government, and the rule of law. Whereas much attention has been focused on how Latin American judges respond to constraints on their independence, far less is understood about the calculus of manipulation itself. From broader statements about the nature of delegative democracy to standard separation of powers models of court-executive relations, most scholars simply take as their starting point the view that judges in the region are subject to manipulation. And, yet, not all leaders in Latin America seek to control the judiciary. Courts have been routinely reshuffled in places like Argentina, Venezuela, Peru and Bolivia, but have been allowed to remain relatively independent in Uruguay, Costa Rica, and Brazil. This paper systematically describes this variation and explores a novel explanation for it.
"Presidential Crises in Contemporary Latin America" (Chapter in Brinks, Daniel M., Steven Levitsky, and Maria Murillo, eds. The Politics of Institutional Weakness in Latin America, June 2020) Strong presidents beget weak institutions. This familiar paradox runs throughout this essay: The more formal powers are allocated to president, the more incentives opponents face to ignore fixed terms and deploy constitutional mechanisms for early removal. At the most basic level, the fact that impeachment in contemporary Latin America has been at least seriously attempted in about a third of all administrations suggests that the rule of law is not operating optimally. At least some legislatures are likely over-using their powers for partisan gain; others may well be under-using it for the very same purpose. Although problems of partial observability can never be fully resolved, the political logic of selective non-compliance explored in this essay bolsters our ability to understand why, when, and where fixed presidential terms fail.
"Who Will Defend Democracy? Evaluating Tradeoffs in Candidate Support Among Partisan Donors and Voters" (Co-authored with John Carey, Katherine Clayton, Brendan Nyhan, Mitchell Sanders, and Susan Stokes, Journal of Elections, Public Opinion, and Parties, June 2020) Scholars and pundits fear that the American public’s commitment to democracy is declining and that citizens are willing to embrace candidates who would trample democratic principles. We examine whether violations of those principles generate resistance from voters and/or top campaign donors and whether such resistance extends across partisan lines. In a conjoint survey experiment, we investigate how regular Americans and donor elites trade off partisanship, policy positions, and support for democratic values when choosing between hypothetical political candidates. Our findings indicate that both citizens and donors punish candidates who endorse violations of democratic principles irrespective of the candidate’s party. However, partisans react very differently to candidates who support voter identification laws that threaten access to the franchise. This polarized response is especially strong among donors. These results suggest that the public and donors may sometimes be willing to forgive transgressions against democratic norms that align with their partisan and policy preferences.
When Strong Institutions Undermine Strong Democracies (Co-authored with Jack Paine, Memo prepared for the Columbia World Projects’ Workshop on Institutional Weakening, January 2020) Self-enforcing democracies require institutions that lower the stakes of electoral success and failure. In this vein, liberal democratic theorists have long touted the benefits of building (or at least tolerating) strong counter-majoritarian institutions (hereafter CMIs). The central question explored in this brief essay is how countermajoritarianism may instead come to unravel a constitutional democracy. The answer we develop hinges on what happens to an advanced democracy when strong CMIs become captured by one party. Applying this logic to democratic backsliding in contemporary United States, this essay thus examines the flip side of familiar arguments about developing democracies, strong institutions, and the purportedly stabilizing effects of countermajoritarianism.
"Upending Impunity: Prosecuting Presidents in Contemporary Latin America" (Co-authored with YeonKyung Jeong, Jae Eun Kim, and Seda Ozturk, working paper, August 2019) In contemporary Latin America roughly one-third of all democratically-elected leaders are prosecuted by their successors for corruption after leaving oﬃce. Drawing on a simple reciprocity game, we argue that upending impunity depends more on the predecessors’ capacity for retaliation than on conventional rule of law considerations, or on the successors’ desire to use the law opportunistically to weed out future political competitors. We then exploit an original dataset on extended post-tenure fates to show that presidential prosecutions in Latin America correlate with two types of political shocks: irregular presidential exits and the election of political outsiders. Such relationships remain robust whether the successor is from an opposition party, The courts enjoy independence or previous leaders were especially corrupt. To explore whether the correlates of selective accountability that we uncover are causal, we instrument for domestic political shocks with an index of international commodity prices and U.S. interest rates.
Is American democracy under threat? The question is more prominent in political debate now than at any time in recent memory. Yet there is also widespread recognition that democracy is multifaceted and that backsliding, when it occurs, tends to be piecemeal. We provide original data from surveys of political science experts and of the general public, conducted during the first year of the Trump presidency, on democratic priorities and on assessments of democratic performance. We draw on a theory of how politicians may transgress limits on their authority, and under what conditions constraints are self-enforcing. We connect the theory to our survey data in an effort to identify potential areas of agreement on democratic principles and whether they have been violated. We find that there is substantial agreement about democratic priorities, but that polarization between Trump supporters and opponents presents a serious obstacle to any social consensus regarding violations.
Institutional instability pervades the developing world. Examining contemporary Latin America, Institutions on the Edge develops and tests a novel argument to explain why institutional crises emerge, spread, and repeat in some countries, but no in others. The book draws on formal bargaining theories developed in the conflict literature to offer the first unified micro-level account of inter-branch crises. In so doing, I show that concentrating power in the executive branch not only fuels presidential crises under divided government, but also triggers broader constitutional crises that cascade on to the legislature and the judiciary. Along the way, the book highlights the importance of public opinion and mass protests, and elucidates the conditions under which divided government matters for institutional instability.
"From Power Gaps to Instability Traps: Reflections on Institutional Instability in Latin America" (Working Paper 2016) Latin America and political instability have long been synonymous. The main ambitions of this essay are to 1) define and delimit the concept of inter-branch crises as a particular form of institutional instability, 2) elucidate the normative and theoretical problems and puzzles that inter-branch crises raise for democracy, 3) offer a novel micro-level theory of inter-branch crises, which highlights how increasing the stakes of presidential power is destabilizing, 4) connect the "shadow" of presidential instability to instability across other branches of the government and, finally, 5) show how my theoretical framework generates insights into the broader problem of instability traps.
"The Origins of Institutional Crises in Latin America" (AJPS 2010) Institutional instability and interbranch crises pose a fundamental challenge to democracies in Latin America and the developing world more generally. Combining a standard game theoretic model of crisis bargaining with a unique dataset on courts, executives, and legislatures for 18 Latin American countries between 1985 and 2008, the article develops a strategic account of how interbranch crises emerge and evolve. In addition to providing the first systematic picture of the frequency, type, and location of interbranch crises for the region, the article demonstrates that the decision to initiate an interbranch crisis is influenced by the allocation of institutional powers, public support for the targeted branch, and the expectations of success based on recent experiences. Building on these results, thearticleidentifiesseveralnoveldirectionsforfutureresearch on institutional instability.
"Public Support and Judicial Crises in Latin America" (JCL 2010) How do courts establish their power? What conditions undermine it? These are the core questions taken up in Barry Friedman's recent book, The Will of the People. As his title and the quote above suggest, the answer hinges on how aligned judges are with public opinion. Drawing on the history of the United States Supreme Court, Friedman argues that judicial power waxes when judges are able to discern and willing to match the larger trends in the public mood, and wanes otherwise. To the extent that courts are able to build a supportive constituency, they will be able to deflect potential challenges to their power, Here, I begin to explore how well Friedman's thesis travels to a part of the world where courts are widely considered to be weak and unstable: contemporary Latin America.
"The Economic Effects of Executive Instability in Latin America" (with Michael Gibilisco, Working Paper 2013) We investigate the relationship between political instability and economic performance in 18 Latin American Countries between 1985-2008. We use the increasingly common legislative attacks on chief executives as a specific measure of political instability and find that presidential attacks decrease economic growth up to 4%. The measure allows us to test mechanisms such as the partisan business cycles and executive uncertainty that could potentially relate attacks to economic performance. Our findings suggest that attacks against left president almost entirely drive the negative relationship between the two processes. This result remains even if we consider unsuccessful attacks. In addition, we find moderate evidence that the propensity for future attacks hinders current growth.
Courts and the Rule of Law
"The Puzzle of Purges: Presidential Instability and Judicial Manipulation in Latin America"(Working Paper 2018) This paper develops a new strategic theory of judicial manipulation. In contrast to standard insulation accounts, I argue that uncertainty about remaining in power leads politicians to violate judicial independence, not shore it up. Following this survivalist logic, the paper proposes and tests three hypotheses using a novel dataset on judicial crises across eighteen Latin American countries between 1985 and 2008. I show that variation in judicial crises is systematically related to the president’s risk of instability as captured by presidential powers, timing within the presidential term, and the history of past presidential instability. The conclusion explores the broader implications of my argument for institutional instability and democratic backsliding. Courts in Latin America (co-edited with Julio Rios-Figueroa, Cambridge University Press 2011) To what extent do courts in Latin America protect individual rights and limit governments? This book answers these fundamental questions by bringing together today's leading scholars of judicial politics. Drawing on examples from Argentina, Brazil, Chile, Mexico, Colombia, Costa Rica, and Bolivia, the authors demonstrate that there is widespread variation in the performance of Latin America's constitutional courts. In accounting for this variation, the contributors push forward ongoing debates about what motivates judges; whether institutions, partisan politics, and public support shape inter-branch relations; and the importance of judicial attitudes and legal culture. The authors deploy a range of methods, including qualitative case studies, paired country comparisons, statistical analysis, and game theory.
Courts Under Constraints: Judges, Generals, and Presidents in Argentina (Cambridge University Press 2005) 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.
“The Logic of Strategic Defection: Court-Executive Relations in Argentina under Dictatorship and Democracy” (APSR 2002) Building on the separation-of-powers approach in American politics, this article develops a new micro-level account of judicial decision-making in contexts where judges face institutional insecurity. Against conventional wisdom, I argue that under certain conditions the lack of judicial independence motivates judges to “strategically defect” against the government once it begins losing power. The result is a reverse legal–political cycle in which antigovernment decisions cluster at the end of weak governments. Original data on more than 7,500 individual decisions by Argentine Supreme Court justices (1976–1995) are used to test hypotheses about why, when, and in which types of cases judges are likely to engage in strategic defection. Consistent with the theory’s predictions, the results of the analysis show a significant increase in antigovernment decisions occurring at the end of weak dictatorships and weak democratic governments. Examining subsets of decisions and controlling for several additional variables further corroborate the strategic account.
"Regimes and the Rule of Law: Judicial Independence in Comparative Perspective" (with Frances Rosenbluth, ARPS 2009) According to popular wisdom, judicial independence and the rule of law are essential features of modern democracy. Drawing on the growing comparative literature on courts, we unpack this claim by focusing on two broad questions: How does the type of political regime affect judicial independence? Are independent courts, in fact, always essential for establishing the rule of law? In highlighting the role of institutional fragmentation and public opinion, we explain why democracies are indeed more likely than dictatorships to produce both independent courts and the rule of law. Yet, by also considering the puzzle of institutional instability that marks courts in much of the developing world, we identify several reasons why democracy may not always prove sufficient for constructing either. Finally, we argue that independent courts are not always necessary for the rule of law, particularly where support for individual rights is relatively widespread.
"Modeling Motivations: A Method for Inferring Judicial Goals from Behavior" (with Mitchell Sanders, JOP 2006) The consensus among most scholars of American politics is that judges are policy seekers. Yet we know very little about what motivates judges in other parts of the world. To begin to address this gap, we develop a systematic method for inferring goals from behavior. Using a simple game-theoretic framework, we generate a series of testable propositions linking behavioral outcomes to goals for four ideal types of judges: loyalists, policy seekers, institutionalists, and careerists. We illustrate the power of our method with original data on individual and collective judicial decision making on the Argentine Supreme Court (1976–2000).
"Checks and Balance by Other Means: Strategic Defection and the 'Re-Reelection' Controversy in Argentina" (CP 2003) This article extends the theory of strategic defection to examine judicial decision making in the context of democratic consolidation. Notwithstanding formal constitutional provisions guaranteeing life tenure, Argentina's supreme court has long been a textbook example of insecure tenure. However, during the late 1990s democratic institutions were deepened on several dimensions. In particular, the emergence of the Alliance opposition as a viable electoral alternative in 1997 created a new institutional context, altering in substantial ways the threat judges faced. The increasing use of formal sanctions through impeachment, which requires the approval of multiple political actors, has reduced the scope of the court's defection but has not eliminated it.
"Inducing Independence: A Strategic Model of World Bank Assistance and Legal Reform" (with Elena McLean, CMPS 2014) Legal reforms matter for economic growth and democratic consolidation. As part of the “second-generation reforms”, international financial institutions have sought to build the rule of law by funding a vast array of legal and judicial reform projects throughout the developing world. Yet aside from scattered anecdotal evidence, the general effects of international assistance on legal reform and the rule of law remain poorly understood. This article addresses this gap by developing a theoretical framework that explores the strategic interaction among international financial institutions, national governments and non-governmental actors. Using original data on World Bank legal and judicial reform projects, we show that World Bank assistance can in fact encourage some types of incumbent governments to promote reforms that increase judicial independence
Comparative Law Project
One of the biggest constraints in the burgeoning comparative law literature is the absence of a broad, cross-national searchable database of constitutional review decisions comparable to the Supreme Court Database in the United States. In collaboration with Cliff Carrubba, Matthew Gabel, Andrew Martin, and Jeffery Staton, we have sought to fill this gap by developing a large-scale data collection and database management system. With NSF support (“Collaborative Research: A Cross National-Study of Judicial Institutionalization and Influence.” April 2008 – April 2010, #SES0751340), this pilot project codes the judicial decisions of high courts in over 60 countries for the year 2003. Currently, the dataset has uploaded over 10,000 decisions, over 3000 of these decisions have been coded using case-level, policy-level, and constitutional question variables.
"When Parchment Barriers Matter: De Jure Judicial Independence and the Concentration of Power" (with Cliff Carrubba, Matthew Gabel, Andrew Martin, and Jeffery Staton) Formal institutions that insulate judges from political pressures are core pieces of constitutional reforms aimed at ensuring limited government. These institutions are supposed to mute judicial incentives to defer to governments for reasons unrelated to the legal questions they are asked to resolve. Yet empirical research on formal judicial institutions has generated considerable skepticism about the possibility of designing judicial independence. Instead scholars argue that concentrated political power is what matters, and that formal institutions of judicial independence are mere "parchment barriers." We argue that judicial institutions interact with the fragmentation of political power, specially the fragmentation of political power. Drawing on a new cross-national database of high court constitutional review decisions (CompLaw), we demonstrate that formal institutional protections designed to ensure judicial independence are important, but only when elected officials are sufficiently unified and thus pose a material threat to judicial posts.
Informal Institutions and Democracy: Lessons from Latin America (co-edited with Steven Levitsky, Johns Hopkins University Press 2006) This volume analyzes the function of informal institutions in Latin America and how they support or weaken democratic governance. Drawing from a wide range of examples―including the Mexican dedazo, clientelism in Brazil, legislative "ghost coalitions" in Ecuador, and elite power-sharing in Chile―the contributors examine how informal rules shape the performance of state and democratic institutions, offering fresh and timely insights into contemporary problems of governability, "unrule of law," and the absence of effective representation, participation, and accountability in Latin America. The editors present this analysis within a fourfold conceptual framework: complementary institutions, which fill gaps in formal rules or enhance their efficacy; accommodative informal institutions, which blunt the effects of dysfunctional formal institutions; competing informal institutions, which directly subvert the formal rules; and substitutive informal institutions, which replace ineffective formal institutions.
"Informal Institutions and Comparative Politics: A Research Agenda" (with Steven Levitsky, POP 2004) Mainstream comparative research on political institutions focuses primarily on formal rules. Yet in many contexts, informal institutions, ranging from bureaucratic and legislative norms to clientelism and patrimonialism, shape even more strongly political behavior and outcomes. Scholars who fail to consider these informal rules of the game risk missing many of the most important incentives and constraints that underlie political behavior. In this article we develop a framework for studying informal institutions and integrating them into comparative institutional analysis. The framework is based on a typology of four patterns of formalinformal institutional interaction: complementary, accommodating, competing, and substitutive. We then explore two issues largely ignored in the literature on this subject: the reasons and mechanisms behind the emergence of informal institutions, and the nature of their stability and change. Finally, we consider challenges in research on informal institutions, including issues of identification, measurement, and comparison.
Voting and Electoral Institutions
"Inequality under Democracy: Explaining the Left Decade in Latin America" (with Alexandre Debs, QJPS 2010) Awarded the Best Paper in Comparative Politics, 2009, MPSA, Chicago (2010) Inequality is generally thought to affect the electoral fortunes of the left, yet the theory and evidence on the question are unclear. This is the case even in Latin America, a region marked by enormous inequalities and by the stunning return of the left over the last decade. We address this shortcoming. Our game-theoretic model reveals that the probability that the left candidate is elected follows an inverted U-shaped relationship. At low levels of inequality, the rich do not bribe any voters and poor voters are increasingly likely to vote for the left candidate based on redistributive concerns. At high levels of inequality, the rich want to avoid redistribution and bribe poor voters, causing the left candidate to be elected with decreasing probability. We find support for our hypothesis, using 110 elections in 18 Latin American countries from 1978 to 2008.
"Endogenous Institutions: The Origins of Compulsory Voting Laws" (with Bonnie M. Meguid, Working Paper 2010) Link here for CNN commentary. Between 1862 and 1998, 18 democracies adopted compulsory voting laws, the majority in Western Europe and Latin America. Although there is a broad literature on the effects of compulsory voting on voter turnout, far less is known about when and why compulsory voting has been adopted. Using an original cross-national dataset on compulsory voting laws, we find evidence that strategic considerations – whether governing parties believe they will benefit or be harmed electorally under compulsory voting rules – shape the decisions to adopt such laws. More generally, our paper aims to contribute to the emerging literature on the adoption of electoral systems by examining the degree to which electoral institutions are the result of party strategy and, thus, are endogenous to party competition. "Ticket Splitting as Electoral Insurance? The Mexico 2000 Elections" (ES 2009) This article provides a novel explanation for ticket splitting rooted in the literature on voter uncertainty. The argument is that in contexts marked by asymmetrical competition, such as single party autocracies, ticket splitting can provide voters with a kind of electoral insurance policy. By simultaneously voting for challengers in one race and incumbents in another, voters act to minimize the risks associated with electing a relatively unknown opposition party. Drawing on survey data for one of Latin America's most important elections, the 2000 Mexican presidential race, I evaluate empirically whether voters behave in ways consistent with the logic of ticket splitting as electoral insurance.
"The Comparative Study of Split-Ticket Voting" (with Barry Burden, ES 2009) In modern democracy, voting is the primary means by which citizens participate in politics. However, despite the enormous increase in the number of democracies around the world, sophisticated analyses of voting behavior have remained largely confined to politics in the United States and a limited number of other advanced industrialized nations. While much is known about voters in stable, two-party, presidential systems, we are only just beginning to understand how citizens express their preferences through the ballot box across a variety of institutional contexts. This Special Symposium issue of Electoral Studies seeks to increase our knowledge of voting by bringing together political scientists from American and comparative politics whose work centers specifically on understanding why, when, and how often voters in different regions of the world engage in split-ticket voting.
"Venezuela: What Everyone Needs to Know" (Book Review Foreign Affairs 2015) Book review here.
Spare Parts: Four Undocumented Teenagers, One Ugly Robot, and the Battle for the American Dream (Book Review Foreign Affairs 2015) Book review here.
Cuba: A New Start (Book Review Foreign Affairs 2015) Book review here.