Judicial reform in Latin America: Market economies, political insurance, and judicial power (Argentina, Peru, Mexico)

Judicial reform, defined here as institutional changes affecting the power of the judicial branch, swept Latin America during the last decade. While the institutional reforms were similar throughout the region, the resulting level of judicial independence and authority has varied considerably across countries. Why have some post-reform judiciaries been able to exercise new powers while others have not? This dissertation addresses this question by examining the 1990s judicial reforms in Argentina, Peru and Mexico.; One theory to explain the widespread occurrence of judicial reform in Latin America holds that the consolidation of Latin America's new private-sector-led economic model requires the existence of independent judiciaries to uphold property rights and foster investor confidence. I demonstrate that the transition to a market economy is important for understanding the timing and similarity of these reforms. However, the fact that judicial reform has produced different results, despite similar economic motivations across borders, demonstrates that an economic argument alone cannot explain the resulting variation in institutional power in post-reform judiciaries.; A purely economic argument fails because it overlooks the political consequences of judicial reform. In particular, institutional reforms increasing judicial independence imply severe potential costs—the possibility of judicial interference with a ruling party's ability to achieve its preferred policies. Judicial reform, however, is a two-stage process of initiation followed by implementation and the costs only take effect at the second stage. Thus, while many Latin American ruling parties were induced to initiate judicial reforms in the 1990s (to enact constitutional changes that formally increase judicial independence), in most cases they were not persuaded to then implement these positive constitutional changes (to enact the congressional legislation required to carry them out).; In some instances however, even given its costs, judicial reform was seriously implemented. I argue that this is more likely to occur where a ruling party's chances of retaining control of government are low. In such a situation, judicial reform may serve the ruling party as an “insurance policy” because a stronger judicial branch reduces the risks the ruling party faces should it become the opposition. An independent judiciary may check the capacity of incoming politicians to change the rules of the game in ways that would prevent the outgoing ruling party from returning to power. Judicial reform in Argentina, Peru, and Mexico was only implemented once the ruling party believed it was unlikely to maintain its position of political dominance. My research suggests that the likelihood of effective judicial reform increases as the ruling party's probability of reelection declines. Furthermore, as the probability of losing control of political power increases, motivation for implementing judicial reform should increase.