Jay N. Krehbiel - West Virginia University - Assistant Professor of Political Science

Jay N. Krehbiel
Assistant Professor of Political Science
West Virginia University

CV

Contact Information
West Virginia University
Department of Political Science
316 Woodburn Hall
P.O. Box 6317
Morgantown, WV 26506

E-mail: jay.krehbiel@mail.wvu.edu
Phone: 304.293.9539
Office: Woodburn Hall 301G

I am an Assistant Professor of Political Science at West Virginia University. Prior to coming to WVU, I received my PhD in Political Science from Washington University in St. Louis, where I was a graduate associate for the Center for Empirical Research in the Law (CERL). In Fall 2019, I was a Fulbright Scholar at the PluriCourts Centre at the University of Oslo.

My research focuses primarily on comparative political institutions, with an emphasis on the consequences of institutions for the performance of modern liberal democracy. In particular, my work examines the relationship between courts engaged in constitutional review and the elected branches of government. Primarily examining Western judiciaries, my research investigates how potential noncompliance with judicial decisions influences the exercise of constitutional review. My main project studies how constitutional courts can ensure the implementation of decisions by strategically using their discretion over procedural and institutional tools, such as public oral hearings, to engage with the media and general public. Another major project examines how political considerations structure the behavior of the Court of Justice of the European Union. I am generally interested in comparative political institutions, including judicial, executive and legislative institutions, European and European Union politics, political economy, formal theory, and political methodology.

For more information on my work, take a look at my CV and the papers listed below.

Research

Peer-Reviewed Publications

"The Politics of Judicial Procedures: The Role of Public Oral Hearings in the German Constitutional Court''. 2016. American Journal of Political Science 60 (4): 990-1005.
Abstract
Modern liberal democracies typically depend on courts with the power of constitutional review to ensure that elected officials do not breach their constitutional obligations. The efficacy of this review, however, can depend on the public observing such breaches. One resource available to many of the world's constitutional courts to influence the public's ability to do so is public oral hearings. Drawing on the comparative judicial literature on separation of powers, public awareness, and noncompliance, I develop a formal model of public oral hearings. The model provides empirical implications for when a court will hold public oral hearings and how hearings correspond to a court's willingness to rule against elected officials. An empirical analysis of hearings at the German Constitutional Court supports the model's prediction that courts use hearings as a resource to address potential noncompliance.
BibTeX Citation
```
@article{Krehbiel_Hearings,
  title={The Politics of Judicial Procedures: The Role of Public Oral Hearings in the German Constitutional Court},
  author={Krehbiel, Jay N.},
  journal={American Journal of Political Science},
  volume={60},
  number={4},
  year={2016}
}
```

"Elections, Public Awareness and the Efficacy of Constitutional Review''. 2019. Journal of Law and Courts 7 (1):53-79.
Abstract
Scholars have long recognized the importance of timing in political decision making. In this paper, I consider the potential for the strategic timing of court decisions involving the constitutional review of statutes. As courts lack the ability to directly implement their decisions, scholars have identified an attentive public as invaluable for judicial authority. Building on this literature, I argue that the proximity of a national election increases awareness and thereby creates an environment conducive to the assertive exercise of constitutional review. I then present evidence of the electoral cycle's effect on decision making at the German Federal Constitutional Court.
BibTeX Citation
```
@article{Krehbiel_JLC_elections,
  title={Elections, Public Awareness and the Efficacy of Constitutional Review},
  author={Krehbiel, Jay N.},
  journal={Journal of Law and Courts},
  volume={7},
  number={1},
  year={2019}
}
```

Public Awareness and the Behavior of Unpopular Courts. Forthcoming. British Journal of Political Science.
Abstract
Scholars have long debated the positive and negative consequences of an aware public for the quality of governance in modern liberal democracies. This paper extends this debate to the context of constitutional review by exploring how public awareness can limit the effective exercise of review by courts lacking strong public support. Incorporating aspects of both the legitimacy and separation of powers theories on judicial power, I argue that public awareness weakens the efficacy of such unpopular courts by creating an electoral incentive for governments to defy adverse rulings, even when doing so may lead to punishment from other institutional stakeholders. In this article, I develop a simple formal model that identifies how and under what conditions public awareness can influence an unpopular court's decision making. An analysis of rulings issued by the Court of Justice of the European Union finds support for the model's empirical implications.
BibTeX Citation
```
@article{Krehbiel_unpopular_courts,
  title={Public Awareness and the Behavior of Unpopular Courts},
  author={Krehbiel, Jay N.},
  journal={British Journal of Political Science},
  year={Forthcoming}
}
```

Strategic Delay and the Use of Incompatibility Rulings at the German Constitutional Court. Forthcoming. Journal of Politics.
Abstract
Constitutional review has become a hallmark of modern liberal democracy. The efficacy of this review, however, is far from guaranteed. In this paper, I argue that courts promote compliance by using their discretion over the temporal effect of decisions invalidating legislation. Building on the comparative judicial politics literature on the separation of powers and strategic judicial behavior, I develop a theoretical account of how courts strategically delay the implementation of their decisions through the declaration of a statute's incompatibility with the constitution. The accompanying theoretical model's main prediction is that courts use this tactic when the incumbent government is electorally weak, as delaying compliance raises the probability of a new government taking office and subsequently implementing the decision. An empirical analysis of incompatibility rulings by the German Federal Constitutional Court supports the model’s predictions.
BibTeX Citation
```
@article{Krehbiel_delay,
  title={Strategic Delay and the Use of Incompatibility Rulings at the German Constitutional Court},
  author={Krehbiel, Jay N.},
  journal={Journal of Politics},
  year={Forthcoming.}
}
```

Working Papers

Do Voters Punish Noncompliance with High Court Rulings? A Cross-National Analysis, Revise and Resubmit.
Abstract
Understanding how high courts successfully constrain the state poses a puzzle central to the study of constitutional review. An increasingly popular answer to this puzzle is that voters electorally punish governments for noncompliance with judicial decisions. This paper conducts a cross-national analysis of the relationship between noncompliance and an incumbent government's electoral success. Using data from the Varieties of Democracy Project on noncompliance with the national high courts of 74 countries from 2007 to 2017, I examine whether voters systematically punish or reward noncompliance. The analysis reveals that noncompliance decreases an incumbent government's vote share in contexts with a strong pre-existing norm of compliance.
BibTeX Citation
@article{Krehbiel_noncompliance, title={Do Voters Punish Noncompliance with High Court Rulings? A Cross-National Analysis}, author={Krehbiel, Jay N.}, journal={Unpublished Manuscript, West Virginia University}, year={2020} }

The Politics of Panel Systems: Political Insurance and the Organization of High Courts, Revise and Resubmit.
Abstract
A long tradition in political science holds that political institutions are designed for the benefit of the politicians who create them. Prominent among explanations for the creation and maintenance of effective judiciaries is the political insurance theory, which predicts higher levels of judicial independence where there is robust political competition. In this article, I consider the implications of political insurance theory for one of the most consequential organizational decisions for courts, the provision of panels or subsets of judges for rendering decisions. Identifying the ability of panels to provide political insurance, I contend that higher levels of political competition motivate the creation of panel systems in national high courts. An empirical analysis using an original dataset on the organic statutes of 106 high courts reveals a positive relationship between political competition and the use of panel systems, while further analysis shows that this relationship is limited to democracies.
BibTeX Citation
@article{Krehbiel_VDEM, title={The Politics of Panel Systems: Political Insurance and the Organization of High Courts}, author={Krehbiel, Jay N.}, journal={Unpublished Manuscript, West Virginia University}, year={2020} }

Can International Courts Enhance Domestic Judicial Review?Separation of Powers and the European Court of Justice. With Sivaram Cheruvu. Under Review.
Abstract
How courts ensure the efficacy of their decisions poses one of the central challenges to the quality of modern liberal democracy. In this article, we consider how the ability of domestic courts to engage with their international counterparts through preliminary reference procedures can further this goal. Arguing that domestic courts use preliminary reference procedures to affect the probability their governments comply with adverse judicial decisions, we construct a formal model of the reference procedure and test a series of empirical implications with a novel dataset of domestic court cases involving the European Union's preliminary reference procedure. We find that courts are more likely to refer cases as the risk of noncompliance increases and that this relationship is conditioned by the level of public trust in the Court of Justice of the European Union and the position of a court in the domestic judicial hierarchy.
BibTeX Citation
@article{Krehbiel_Cheruvu_CJEU_References, title={Can International Courts Enhance Domestic Judicial Review?Separation of Powers and the European Court of Justice}, author={Krehbiel, Jay N. and Sivaram Cheruvu}, journal={Unpublished Manuscript}, year={2020} }

Delegation, Compliance, and Judicial Decision-making in Comparative Context. With Sivaram Cheruvu.
Abstract
Courts regularly delegate tasks to individual or small subsets of judges. While a substantial literature addresses delegation in the context of American courts, less is known about why and how courts delegate from a comparative perspective. With many of the world's high courts using chamber systems by which the court delegates cases to subsets of judges, this limitation of the extant literature leaves a number of empirical and theoretical questions unanswered. We argue that the threat of noncompliance presents one factor influencing the use chambers. From our expectation that cases with a greater risk for noncompliance will not be sent to chambers, we then derive empirical implications for case disposition and the willingness of a court to rule contrary to the legal merits in a case. An empirical analysis of chamber usage in preliminary reference cases at the Court of Justice of the European Union provides evidence supporting our account.
BibTeX Citation
@article{Krehbiel_Cheruvu_CJEU_Chambers, title={Delegation, Compliance, and Judicial Decision-making in Comparative Context}, author={Sivaram Cheruvu and Jay N. Krehbiel}, journal={Unpublished Manuscript}, year={2020} }

Strong Governments, Weak Courts: An Informational Account of Constitutional Review with Evidence from the Slovak Constitutional Court
Abstract
The effective exercise of constitutional review is widely viewed as an integral component of a properly functioning modern liberal democracy. For constitutional courts lacking the trust of the voting public, however, successfully carrying out this task is far from straightforward. Such institutionally weak courts must be sensitive to the preferences of the government officials they are supposed to oversee and constrain or else risk finding their decisions ignored or otherwise defied. Excessive deference to government preferences, however, can undermine a court’s efforts de- velop public support by giving the court the appearance on lacking independence. In this paper, I argue that the efficacy of constitutional review by courts lacking public support rests in part on a court’s ability to leverage the informational benefit of constitutional review. I contend that a weak court can effectively strike down statutes when a government values this benefit over the cost of losing the political support of constituents adversely affected by the decision. A counterintuitive im- plication of this argument is that in informationally productive cases, a weak court is more likely to nullify legislation when a government has a high level of support and thus can afford the loss of support. An analysis of constitutional review cases from the Slovak Constitutional Court from 2001 to 2017 finds support for these expectations.
BibTeX Citation
@article{Krehbiel_weak_courts, title={Strong Governments, Weak Courts: An Informational Account of Constitutional Review with Evidence from the Slovak Constitutional Court}, author={Krehbiel, Jay N.}, journal={Unpublished Manuscript, West Virginia University}, year={2019} }

A Survey of the Comparative Judicial Politics Literature: What Have We Learned in the Past Twenty Years? With William Bradley Bilsback.
Abstract
In 1998, Gibson, Caldeira and Baird lamented the lack of comparative schol- arship on law and courts. Noting that political science at the time knew precious little about the judicial and legal systems in countries outside the United States, they called for comparativists to engage in a concerted effort to study and better understand the world’s judiciaries. In this paper, we assess whether, and if so to what degree and in what manner, comparativists have answered this call. To this end, we conduct a survey of comparative judicial politics articles published in major political science and law and politics journals from 1999 to 2018. The survey, totaling 209 articles from 12 political science journals, reveals a number of trends in the comparative judicial politics literature. This analysis provides scholars of comparative judicial politics valuable insight into where the literature has been and what questions remain to be answered.
BibTeX Citation
@article{Krehbiel_cjpsurvey, title={A Survey of the Comparative Judicial Politics Literature: What Have We Learned in the Past Twenty Years?}, author={Krehbiel, Jay N. and William Bradley Bilsback}, journal={Unpublished Manuscript, West Virginia University}, year={2019} }

Case Promotion and the Pursuit of Judicial Legitimacy: Evidence from the Court of Justice of the European Union.
Abstract
Legitimacy is typically viewed as critical for the efficacy of judicial institutions. As such, much attention has been devoted to how a court can gain a high level of public support. The received wisdom from this literature is that carefully increas- ing public exposure to judicial activities will engender positive perceptions of the judiciary that in turn can translate into institutional legitimacy. It is not immedi- ately clear, however, whether or not courts lacking strong public support actively attempt to affect public attention in order to build legitimacy. Moreover, it is fur- ther unclear what implications such a strategy would have for judicial behavior. I argue that legitimacy-seeking courts use public relations, specifically press releases, to gain support by considering the potential support gained from the relevant con- stituency in a case, the perceived procedural fairness of the process, and the risk of noncompliance. Using data on the press activities of the Court of Justice of the European Union (CJEU), I show that the court is more likely to promote cases when public trust in the CJEU is low in the defendant EU member state, the court had held a public oral hearing, and the risk of noncompliance is low.
BibTeX Citation
@article{Krehbiel_CJEU_PR, title={Case Promotion and the Pursuit of Judicial Legitimacy: Evidence from the Court of Justice of the European Union}, author={Krehbiel, Jay N.}, journal={Unpublished Manuscript, West Virginia University}, year={2018} }

Selected Work in Progress

"Institutional Responses to Noncompliance: The Ortstafelstreit and the Creation of the Austrian Constitutional Court's Mediensprecher.''
Abstract
An independent judiciary capable of effectively exercising constitutional review has increasingly become a hallmark of modern liberal democracy. Tasked with ensuring that the actions of government officials do not exceed constitutional bounds, constitutional courts serve to protect citizens from the state and uphold the constitutional order. The ability of courts to do so, however, is inherently constrained by their lacking power over the sword or the purse. In this paper, I argue that courts around the globe have responded to this fundamental challenge by establishing media relations offices designed to improve a court's relationship with the public. Building on the comparative politics literature on the role of public support, public awareness, and press relations for the efficacy of constitutional review, I argue that courts can create media relations offices in response to damaging cases of noncompliance by government officials. Without press relations, a court has limited tools available for responding to political attacks and criticisms of its decisions that can undermine the court's public image. By allowing a court to directly influence media coverage, and thereby public perception, of its decisions, media relations provide a solution to this problem. To develop and illustrate my argument, I examine the case of the Austrian Constitutional Court and the creation of its media spokesman, the Mediensprecher, as a response to the Court's long-running conflict with the state government of Carinthia known as the Ortstafelstreit.

"Judicial Legitimacy and the Use of Foreign Precedents''.
Abstract
Abstract coming soon!

"Are Foreign-Appointed Judges More Independent? Evidence from the Andorran Constitutional Court.''
Abstract
Does delegating the appointment of constitutional court judges to foreigners en- sure judicial independence? While adopted by only a small number of countries, the idea has grown in popularity among both legal scholars and policy experts as a selection method because it creates a judiciary unbound by domestic political in- terests. It remains an open empirical question, however, whether foreign-appointed judges are indeed more independent than domestically-appointed judges. I contend that the independence of foreign-appointed judges is weakened by their lacking the legitimacy conveyed through appointment by domestic political institutions. An analysis of judicial behavior at the Andorran Constitutional Court finds that foreign-appointed judges are responsive to political conditions, specifically the na- tional electoral cycle, while judges appointed by the domestic legislature are not. This responsiveness, however, manifests only in the admission of cases, not case disposition.

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Book Chapters

"The European Court of Justice." In Routledge Handbook of Judicial Behavior . Robert M. Howard and Kirk A. Randazzo (eds) Routledge Press (2018). With Matthew Gabel and Clifford Carrubba.

Teaching

Undergraduate Courses

Introduction to Comparative Politics

Syllabus

Comparative Law and Politics

Syllabus

Western Democratic Governments

Syllabus

Graduate Courses

Formal Models

Syllabus

Comparative Judicial Politics and Institutions

Syllabus

Comparative Politics

Syllabus