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Vol 23 No 3 March/April 2018

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Scamell and Gasztowicz on Land Covenants

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Courts under Constraints: Judges, Generals, and Presidents in Argentina

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Gretchen HelmkeUniversity of Notre Dame

ISBN13: 9780521820592
ISBN: 0521820596
Published: October 2005
Publisher: Cambridge University Press
Country of Publication: UK
Format: Hardback
Price: £62.00

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This study offers a new 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 the longstanding assumption 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 new 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 new set of connections among diverse bodies of scholarship, including US judicial politics, comparative institutional analysis, positive political theory, and Latin American politics.

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Other Jurisdictions , Latin America
Part I. Ruling Against the Rules:
1. Introduction
2. Actors, institutions, and mechanisms
3. Design and overview of the argument
Part II. The Logic of Strategic Defection:
4. The standard strategic account
5. A new pattern of inter-branch relations
6. Modifying the separations-of-powers approach
7. Judicial motivations
8. Problems of information
9. Conclusion
Part III. A Theory of Court-Executive Relations: Insecure Tenure, Incomplete Information, and Strategic Behavior:
10. Politics and uncertainty
11. The model
12. Discussion
13. Conclusion: testable hypotheses
Part IV. Judges, Generals, and Presidents: Institutional Insecurity on the Argentine Supreme court, 1976-1999:
14. The gap between formal and informal institutions
15. Judges under bayonets: the military 'Proceso', 1976-1983
16. Judges under the Alfosin government
17. Judges under the (first) Menem government: the difficulty of democratic consolidation, 1989-1995
18. Judges under the (Second) Menem government: the path toward democratic consolidation?
19. Conclusion: an analytic narrative of institutional insecurity
Part V. The Reverse Legal-Political Cycle: An Analysis of Decision-Making on the Argentine Supreme Court:
20. Data and methodology
21. Timing
22. Importance
23. Participation
24. Target of the threat
25. Rival hypotheses: composition, legality, and the mix of cases
26. Conclusion
Part VI. The Dynamics of Defection: Human Rights, Civil Liberties, and Presidential Power:
27. The military court and human rights
28. The Alfonsin Court and human and civil rights
29. The Menem-era court and presidential power
30. Conclusion: did defection work?
31. Epilogue: the court and the collapse of Argentina
Part VII. Conclusion: Broader Lessons and Future Directions:
32. Strategic defection and the reverse-legal-political cycle
33. Strategic defection in comparative perspective
34. Further implications, Future directions.