A Cross-National Examination of the Strategic Defection Theory.

The last years have witnessed the development of a great body of literature about judicial independence. One of the most interesting and provocative theoretical arguments has been put forward by Helmke in the 'Strategic Defection' Theory. In a series of papers and conferences, and particularly in her influential book Courts under Constraints, Helmke develops a rational choice approach to the problem of judicial independence in unstable regimes. She theorized that Justices of the Argentinean Supreme Court shaped their decisions in cases involving the government, depending on the underlying political environment. She claimed that, under some specific conditions, justices decided against the incumbents because of constraints faced vis-à-vis the incoming government. In our paper, we seek to develop the foundations of a cross-country study of the Strategic Defection theory. After outlining the basics of Helmke's theory we examine a series of problems confronting the development of a thorough cross national test, including how to define "regime change", defection from authoritarian versus democratic regimes, problems of information and measurement, the 'inter-temporal conflict of interest', identifying the key issues for the incoming government, the problem of determining whether judges' votes express their sincere preferences rather than strategic concerns, and whether the assumption of a strong executive may be generalized to all relevant cases. We seek to test Justices' votes in National High Courts with judicial review jurisdiction in countries with a documented history of political instability. After developing an approach for a broad cross national study, we provide a preliminary analysis of decision making in the Philippines, Venezuela, South Africa, and Canada. All of these countries (except Canada) experienced some kind of regime change that has been previously documented and analyzed. Canada is included as a control to examine the level of support for the government in a stable democracy. The preliminary results provide some support for strategic defection theory in South Africa, but the case of the Philippines does not appear to be consistent with strategic defection theory. ..PAT.-Unpublished Manuscript [ABSTRACT FROM AUTHOR]