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

Many claims that institutions in the developing world don’t work implicitly assume that certain institutions were meant to achieve particular goals, and then infer institutional weakness from the failure to achieve those goals. We begin by questioning the implicit premise of this claim, by identifying some formal institutional features of constitutional courts that seem expressly designed to undermine the ostensible purpose of the institution – “poison pills” that turn a court into a “Potemkin institution.” Our analysis suggests we need to pay much more attention to the question of exactly how an institution is intended to work, and what goals it was meant to achieve, before concluding that an institution is not producing the desired effect. This is especially true where institutions reflect the complex, overlapping, and sometimes-competing goals of the political actors who design them. In the empirical section we inductively develop a framework to organize the constellation of rules that make up the formal institutional design of courts, one that highlights several distinct potential vulnerabilities to political pressure that can be hardwired in and then exploited by political leaders. We apply the framework to reforms to high courts in Latin America over the past thirty-five years. Our results demonstrate that the formal judicial designs that emerge in the region reflect substantial and increasing evidence of judicial façades (i.e., courts that appear formally independent and strong but are institutionally crippled by one or more subtle formal rules), and provide an explanation for the frequently bemoaned failure of institutional reforms in the region.