The Quality Of Judicial Decisions In Supreme Courts: A Conceptual Definition And Index Applied To Eleven Latin American Countries

ABSTRACTThis article is the first attempt to evaluate the quality of judicial decisions of 152 Supreme Court Justices from eleven Latin American countries. Taking the essential ideas of legal argumentation theory, I define a high-quality judicial decision as one in which the judge applies the norm, interprets it in light of the case at hand, and justifies her decision with recourse to jurisprudential precedents and legal doctrine. Through expert surveys in eleven Latin American countries, the article indicates the judicial decisions of highest quality are found in judges from Costa Rica and Colombia, while those most deficient are cast by judges of Ecuador, Uruguay, and Bolivia.KEYWORDS: judicial decision quality indexSupreme CourtsLatin Americalegal argumentation theoryjudicial politics Notes1 Notable exceptions include a number of publications by Choi and Gulati (Citation2004a, Citation2004b, Citation2005).2 Posner's (Citation2000) other proxy to measure the quality of judicial decisions—the number of citations by the United States' Ninth Circuit Appellate Court—is not applicable in continental judicial systems. In Latin American countries, appellate courts and even the lower courts mandatorily have to follow only jurisprudential precedents handed down by the Supreme Court.3 Atienza (Citation1994, 62) indicates there are four types of legal problems in cases in which resolution are complex and which would thus require external justification. These legal problems are those of relevance, interpretation, proof, and classification.4 Even though in “easy” cases the identification of the applicable norm and its interpretation are sufficient for the case, this does not prevent the judge from making additional contributions of jurisprudential precedents or to legal doctrine.5 The sources of the law in the Napoleonic legal system are the norms, the jurisprudential precedents, the legal doctrine, the general principles of the law, and as a subsidiary source, custom.6 A jurisprudential precedent usually emerges when a supreme court has the same criterion about a specific judicial issue three times.7 Due to the relatively lax laws in Latin America to file an appeal, “easy” cases could reach the appellate court without problems. In most legal systems in Latin America, the mechanisms for appeal to an intermediate court do not require any foundation in order to receive a hearing.8 I include cases heard by the highest courts by the per saltum power that some Supreme Courts, such as Argentina's, possess.9 Another way to avoid equivalency bias is by recruiting international experts to give their assessment of the quality of judicial decisions in countries different from their own. Though this strategy has been used to get information on more general issues, such as corruption, a specific knowledge about the daily performance of the Supreme Court justices is necessary to assess the quality of judicial decisions, making it difficult for an expert less involved in the judicial context of each country to have a clear picture of the quality of judicial decisions.10 Another way to assess the internal reliability of the index is comparing it to an alternative measurement. Unfortunately, this kind of information is not available.11 Appendix 2 reports the cases in which the experts answered “do not know/do not answer” in some dimension.12 I am grateful to an anonymous reviewer of the Justice System Journal for the comments and suggestions to assess the index's potential methodological bias.13 An exception is the pattern of behavior in the judicial review cases in the Ecuadorian Constitutional Court between 1999 and 2007. During that period the 74.42 percent of the cases were resolved with dissenting decisions.14 Núñez resigned in December 2014.15 I am grateful to a reviewer of Justice System Journal for the suggestion related to the influence of seniority in the assessment of the quality of judicial decisions.16 In Chile, the Supreme Court makes a list of candidates for the president. For an extensive discussion about tenure and other institutional features of Latin American higher courts, see Lara-Borges et al. (Citation2012).17 Without Justices Valls, Ramírez, and Dias, the general index from Brazil, Costa Rica, and Mexico vary by only 0.29, 0.08, and 0.14 on the ten-point scale. I am grateful to an anonymous reviewer for raising the issue of a potential effect of the outliers in the aggregated index.18 Justice Argibay died in May 2014.