Beyond the Façade: Institutional Engineering and Potemkin Courts in Latin America, 1975-2009

• In Event: The Judiciary as a Political Institution in Latin America

Abstract

We argue that many of the apparent failures of formal institutions are actually instances in which designers intentionally sabotage the ostensible purpose of the institution, by including “poison pill” features in the design. The result is a “Potemkin institution,” in which the ostensible purpose is at odds with the real purpose, as revealed by its institutional design. In these cases, then, while the institution appears to be underperforming, this is due not to the failure of a formal institution, but rather to the success of the (also formal) poison pills designed into it. Furthermore, we argue that this is more likely to be true when there are external pressures to craft institutions that do not line up with domestic incentives and power relations. We make this argument in the context of the multiple reforms of high courts in Latin American over the past thirty-five years. We analyze all the changes to the high courts of the region since 1975, using a coding of the most relevant institutional features of these courts, from the region’s constitutions. Our results demonstrate that formal judicial design in the region reflects substantial and increasing evidence of judicial facades (i.e. courts that appear formally independent and strong but are institutionally crippled by one or more subtle formal rules). Courts began the period almost self-evidently weak; over time, some reforms produced sincerely strong courts, while others acquired the more visible trappings of strong courts only at the expense of poison pill provisions embedded in their design elements.

Author

• Daniel M Brinks, University of Texas/Austin