ABSTRACT
Literature on courts and judicial decision making in developing democracies demonstrates that courts and judges are strategic in the manner in which they make decisions. That courts are strategic is not a conclusion that is unique for courts in developing democracies. As Epstein and Knight (Chapter 3, this volume) point out, courts in developed democracies also exhibit strategic behavior in their relations with other spheres of societal power, such as branches of government, the business class, or civil society. Nonetheless, the strategic behavior of courts in developed democracies is different than the strategic behavior of courts in developing democracies. Courts in developed democracies have the capacity to draw on higher levels of both judicial independence and institutional legitimacy. Lacking these two attributes, courts and judges in developing democracies must act strategically with the additional goal of building institutional capacity. Consequently, courts in developing democracies must improve both the independence and the legitimacy of the judiciary as an institution. Accordingly, scholarship that addresses the strategic behavior of courts in developing democracies must account for the courts’ relative level of legitimacy to understand more completely the judicial decision-making environment.
