All this makes judges highly dependent upon other institutions to put theirdecisions into eVect. The various conditions for policy eYcacy combine with the
absence of enforcement power to require judges to rely in a special way upon other
governmental actors to carry out their wishes. In order to cultivate their support,
judges must take care to develop a solid legal foundation for any serious form of
legal change, lest they lose the valuable political capital upon which they rely for
their legitimacy.
There seems little doubt that these constraints genuinely operate on the courts.
The limited eVectiveness of legal reform that is frequently seen can be traced, in one
way or another, to a failure to meet the problematic conditions for eYcacy. Across
diVerent courts, diVerent countries, and diVerent policy domains, judges discover
that they frequently face disregard for their judgments.
It is tempting to interpret such resistance as a sign of judicial impotence. One
must bear in mind, however, that to a great degree interinstitutional resistance is
endemic to any system of divided authority. Governments that adhere more
strongly to notions of separation of powers, however, are more likely to generate
friction between the branches. Courts may, perhaps, enjoy less eVectiveness in their
policy-making, but this is really a diVerence of degree rather than kind. After all,
presidents, prime ministers, and other executives are unable to guarantee consist-
ent support for their agendas. Likewise, legislative decision-makers routinely
demonstrate greater attentiveness to the needs of advantaged interests whose
resources have always helped to ensure greater access. The limitations of policy-
making are scarcely unique to the judiciary.
In addition, the limitations that judges face as they make decisions should not be
overstated. Despite their constraints, courts can still monitor the development of
the law over a series of cases; they often have access to a good deal of policy
information; and even policies that produce discord inside and outside of govern-
ment can enjoy a high degree of respect. Indeed, recent evidence suggest that the
role of courts around the world is actually expanding, with judges assuming an ever
increasing scope of inXuence (see, e.g., Stone Sweet 2000 ; Tate and Vallinder 1995 ).
The future holds remarkable promise for our understanding of judges and
judicial policy-making. As courts continue to expand their inXuence in individual
countries, scholars will need to focus more attention on law and courts. Moreover,
the increased importance of the expanding European Union will necessarily mean
that transnational courts, such as the European Court of Justice and the European
Court of Human Rights, will become increasingly involved in managing the
domestic and foreign policies of member nations. At the same time, students of
the courts will need to think with particular care about the best methods for
studying judicial policy-making. For courts that have only recently begun to
take on greater visibility, quantitatively-oriented scholars may be hampered by a
relatively small number of observations. More traditional scholars will face
diYculties in deWning important concepts, such as judicial independence, that
550 kevin t. mcguire