Reviewed by Georg Vanberg, Department of Political Science, Florida State University.

Recent years have witnessed a renewed interest in the politics surrounding high courts in countries other than the United States.  Mary Volcansek's CONSTITUTIONAL POLITICS IN ITALY marks an important addition to this development.  The book provides a rich and fascinating analysis of the jurisprudence of the Italian Constitutional Court and the court's interactions with other branches of government.  The central conclusion is that the Italian court cannot be understood as a purely legal institution. Rather, one must understand the court as a political actor that constantly responds to other players in a dynamic environment.  This book is indispensable reading for scholars in comparative judicial politics.  At the same time, scholars of American courts who wish to get a feel for judicial politics in another context can also benefit greatly by considering

Volcansek's arguments.

Chapter 1 opens the book with a sketch of the theoretical lens through which Volcansek examines the Italian court.  The dependent variable for the analysis is "judicial policy," that is, the way in which courts "make policies through the process of rule adjudication" (p. 4).  The fundamental assumption underlying the argument is that judicial decisions are a function of judicial preferences and of perceived constraints on judicial behavior.

Making use of the literature on the U. S. Supreme Court, Volcansek considers two primary motivational assumptions.  The first, derived from the "legal" model, proposes that legal considerations are primary in determining judicial policy.  In Volcansek's terminology, judges may pursue "good law." The second possibility, derived from the "attitudinal" model, focuses on judges' policy preferences.  In Volcansek's terminology, judges may be motivated by "good policy." Volcansek does not view these two motivations as mutually exclusive. As she puts it, "the two are not discrete categories, and both motivations are likely intertwined in any given decision" (p. 5).

The second dimension of judicial decision-making concerns perceived constraints on judicial behavior.  Volcansek focuses on a number of institutional and non-institutional variables that determine what judges believe they can accomplish, including judicial independence, authority, and accountability.  Perhaps the most interesting and important consideration that Volcansek raises as a potential constraint on judicial behavior derives

 from the political environment in which a court must act.  As she concludes, "the context or environment in which a decision is made imposes a related structural determinant" (p. 9).  A prominent example of such an environmental influence (to which I return below) is the possibility that the court will be incapable of enforcing a decision.  As a

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result, anticipation of non-compliance may shape judicial decisions.

The remaining chapters of the book provide detailed case studies of five issue areas: decree laws, national-regional conflicts, impeachment, referenda, and media policy.  Each chapter consists of three parts.  An introduction reviews the relevant deliberations of the constitutional convention.  A main section analyzes the development of the court's

jurisprudence in the particular issue area.  A final section evaluates the implications of the case study for the theoretical concerns: Can the court's jurisprudence more plausibly be explained as an instance of the pursuit of good policy or of good law? Can changes in perceived constraints account for changes in the court's jurisprudence?

The main conclusion that emerges from these studies is that the Italian Constitutional Court is an eminently political actor, guided by legal and policy preferences, and sensitive to the interests of other political institutions and to the public.  An example can illustrate this.  In reviewing the court's jurisprudence on executive decree legislation,

Volcansek shows that until 1996, the court largely deferred to the executive branch.  Rather than making use of several available constitutional provisions in reviewing decrees, the court preferred to dismiss challenges on technical grounds.  In 1996, the court suddenly reversed course, applying a rigorous constitutional test to decrees by declaring the practice of reissuing decrees unconstitutional.  In explaining the court's approach, Volcansek moves strategic considerations to the fore.  Specifically, she

notes that judicial attempts to constrain governmental use of the decree might well have gone unheeded in the earlier period.  As a result, she concludes, "the court could have rightly calculated that until 1996 that its best strategy was to avoid making what might well have been no more than a useless gesture" (p. 48).  The post-1996 environment presented a very different set of incentives for the court.  Most importantly, the revolutionary transformation of the Italian political system and party system in the mid-1990's created "a type of enhanced independence, for [the judges'] appointers and their potential patrons for future political careers were largely irrelevant" (p. 49).

In trying to disentangle the relative importance of various judicial motivations and of constraints on judicial behavior for judicial policy- making, Volcansek confronts a formidable empirical challenge.  Most critically, the analysis must overcome significant data limitations. European high courts, including the Italian Constitutional Court, typically do not provide the voting record of individual justices.  All justices involved in a decision are required to sign a single, collegial opinion.  In most cases, not even the numerical vote split is revealed.  Some courts do allow dissenting opinions, but these tend to be rare and reveal the vote split in only a handful of cases.  As a result, attempts to conduct individual-level studies of judicial behavior are confronted with serious

difficulties.  Specifically, it is generally impossible to "export" the familiar statistical models that have been developed in the US context and which focus on the voting records of individual justices to European courts.

As a result of this data limitation (which she confronts explicitly), the case Volcansek builds in trying to tease out the relative impact of different judicial motivations and of constraints on judicial behavior is largely "circumstantial."  For each issue area, she provides a detailed, dynamic account of the court's

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jurisprudence over time.  She then assesses how plausible legal and policy preferences are as motivations that explain the court's decisions. Similarly, she asks whether changes in the court's environment, that is, in the constraints confronting the court, can account for the court's jurisprudence.  Sudden changes in the court's jurisprudence constitute the

proverbial "smoking gun" that can indicate that judicial motivations or constraints may have shifted (p. 143).  This strategy of accumulating "circumstantial evidence" is a natural "second-best" alternative in responding to the data-limitations Volcansek has to contend with.  It is also largely successful.  Volcansek's analysis is nuanced and careful, and the case she builds is compelling.

Despite Volcansek's efforts, the case-study method imposes some limitations on the analysis.  Most importantly, the approach does not explicitly eliminate plausible rival hypotheses.  A prominent example from the book can serve as an illustration.  Generally, even "legal" -- as opposed to "policy" -- considerations will not provide a unique solution to a dispute.  As a result, (as long as genuine disagreements about the implications of legal criteria can exist), a court's jurisprudence may change over time as the composition of the court changes, even if all judges are purely motivated by legal considerations and the court's environment remains constant.  Given the data limitations outlined above, this alternative hypothesis is difficult to assess because we cannot follow the voting patterns of individual justices.  Nevertheless, given the prominence attached to changes in the court's jurisprudence as an indication that legal considerations cannot account for the court's jurisprudence (e.g., p. 143), Volcansek's argument would be even more convincing if some evidence could be presented to suggest that compositional changes can not account for the patterns she documents.  A rough aggregate measure of the court's ideological composition, measured, for example, in terms of the partisan affiliations of judges might be a useful first cut.  (However, for some courts even such a rough measure is uninformative because the ideological composition of the court does not change perceptibly.  In Germany, for example, the major parties have allocated "property rights" over seats on the court which assures that a partisan balance is preserved.)

One useful standard for judging the significance of a work are its contributions to a larger scholarly dialogue.  In my view, CONSTITUTIONAL POLITICS IN ITALY makes at least three such contributions.  At the most basic level, the book provides a rich and detailed account of the institutional structure of the Italian court and its jurisprudence.  As efforts to construct more general, overarching approaches to judicial politics get

underway, such basic data is a key ingredient.  Volcansek has filled an important gap by making this information more widely available to scholars. The second contribution of the book is methodological.  Although research method does not constitute a focus of the book, Volcansek demonstrates that important insights about judicial behavior can be obtained despite limitations on the kind of data that are available in the European context.

Finally, and I think most importantly, the book raises a number of important and fascinating theoretical questions that invite additional research.  What would a more general, explicit theory about the reciprocal influences between the political environment and judicial behavior look like?  Which factors in a court's environment will be influential for judicial decision-making, and under what circumstances?  How do different

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institutional arrangements impact judicial decision-making?  Such questions, which emerge directly from Volcansek's provocative work, provide an open invitation to follow her lead in addressing the vital issues to which she has called attention.

Copyright 2000 by the author, Georg Vanberg.