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Latin American Courts Going Public: Institutional Innovations for Social Participation in the Judicial Decision-Making Process

Since two decades, constitutional and supreme courts in Latin America increasingly have been engaging with the public: for instance, they include the perspectives of civil society through public hearings or extensively use social media to inform about their work. This new court behavior stands in stark contrast to the traditional image of the judges as distant from the people and it could potentially have strong effects on the role of courts in the political system and the quality of democracy. This project is the first to investigate this phenomenon in a comparative perspective for all democratic Latin American countries.
DFG, 2018-2021

Research Questions

- What are the social participation mechanisms that Latin America’s highest courts choose to connect with the public?*
- Under which circumstances do courts decide to go public with social participation mechanisms?
- What factors explain the different intensity with which courts pursue institutional innovations?
- What explains the variation in the practical use of these mechanisms among courts?
- Which are the effects of the implementation of these institutional innovations on the courts´ public standing, the compliance with their decisions, and their relation with the elected branches of government?

Contribution to International Research

In recent years Latin American constitutional and supreme courts have engaged in institutional innovations that promote the inclusion of civil society, broad interest groups, or other stakeholders in their decision-making processes. On the one hand, these institutional arrangements seek the active integration of third parties into judicial decision-making through different mechanisms, such as public hearings, monitoring commissions, or amicus curiae. On the other hand, courts promote the creation of official websites and radio and television channels, as well as the use of social media with the explicit goal of improving public knowledge, enabling debate about their work, and broadening the audiences of judicial processes. What are the motivations and circumstances that have led courts to adopt these social participation mechanisms? Our research will provide the first comprehensive dataset covering all social participation mechanisms implemented by Latin American constitutional and supreme courts. We aim to comparatively assess the scope and intensity with which Latin American highest courts with constitutional review powers go public with social participation mechanisms and to develop regional explanations of the causes and implementation of such mechanisms that may be applied and tested later in other regional contexts. Further, we want to provide a basis for future research on the effects of these mechanisms on court behavior, the relationship between courts and civil society, and the role of courts in the political system. We hope that our research will serve as a point of departure for future works focusing on the consequences of such court activities for the democratic quality of court behavior and the role of courts in democratic regimes

Research Design and Methods

Our research will be carried out in three phases. The first phase of the work program is devoted to the construction of a dataset of existing social participation mechanisms as used by the highest Latin American courts responsible for constitutional review. In the second phase of our project, we want to investigate the factors that explain different types of court behavior. We suppose that different characteristics of the sociopolitical regime as well as of the judges sitting at the bench result in varying levels of court engagement in such institutional innovations as well as in the implementation of different sets of mechanisms. In the third phase, we will evaluate the effects of the implementation of social participation mechanisms. We will gather information on these aspects, among others, through a survey among experts in the region. With all democratic Latin American countries (N=18) as cases, we pursue a medium-N approach. Our research falls into the category of [comparative area studies](/en/comparative-area-studies), with an intra-regional comparison.

Preliminary Findings

Assessment of formal regulations of participation mechanisms:
We undertook an assessment of the regulation and implementation of mechanisms of social participation since the last three decades for ten Latin American countries. This assessment indicates a group of pioneering countries that triggered the implementation of mechanisms of active and passive social participation, comprised by the larger countries of the region: Colombia, Brazil and Argentina had been the first countries that formalized such mechanisms, tightly followed by Mexico and Chile.

Study on the use of social media by highest courts
- We analyzed the use of social media by the highest courts with constitutional review powers from 17 Latin American countries.
- Several Latin American courts are very active on social networks, also when compared to some of the most recognized courts in the world.
- However, our results have shown that there is no single form of activism in social media by Latin American courts, the expressions of hyper-transparency or media populism that the literature associates with the cases in the region they must be nuanced. The most cited courts are the most influential, but not the most active. These courts make a differentiated or strategic use of social media, knowing that some allow them to communicate more successfully with their audiences than others.
- Further, our preliminary results stressed the role of institutional legitimacy as a potential driver for higher intensity of use of social media by courts.



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