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Matthew C. Stephenson, Court of Public Opinion: Government Accountability and Judicial Independence, 20 J.L. Econ. & Org. 379 (2004).

Abstract: This paper contributes judicial politics literature by analyzing the conditions under which the public's ability to hold the elected government accountable might enable courts to exercise independent authority over policy. Using a model of policy-making in a system characterized by formal separation of powers, judicial dependence on government support, asymmetric information between the voters and the government, and political accountability of the policy branch, I show the conditions under which the public will force the government to cede power to the courts. This formal analysis makes three contributions to the literature. First, the model provides a theoretical justification for, and suggests limits to, the common assumption that disregard for judicial decisions is politically costly for the elected branches. Second, the model suggests a systematic account for a number of empirical observations about judicial politics. Third, the model demonstrates how systems of unified or separated powers can emerge endogenously.