Comparing Attitudinal and Strategic Accounts of Dissenting Behavior on the U.S. Courts of Appeals

Students of judicial behavior have increasingly turned to strategic accounts to understand judicial decision making. Scholarship on the Supreme Court and state high courts suggests that the decision to dissent is better understood in light of strategic considerations rather than simply reflecting ideological disagreement. We investigate whether these findings comport with behavior by judges on the U.S. Courts of Appeals. We develop a spatial model of the decision to dissent that incorporates both attitudinal and strategic elements and subject this model to empirical analysis. We find that ideological disagreement between a judge and the majority opinion writer is a more persuasive explanation of the decision to dissent than a strategic account in which a judge conditions a dissent on whether circuit intervention would obtain the judge's preferred outcome. Though we do not discount the existence of other types of strategic behavior on the Courts of Appeals, our research suggests that strategic accounts of dissenting behavior are not generalizable to all courts .     

The risky shift in policy decision making: A comparative analysis

The article explores the policy decision making relevance of the fairly well documented phenomenon that individuals tend to move towards riskier decisions after group discussions (risky shift). Four hundred and thirty two policy decision makers and managers from various parts of the world participated in the research. Somewhat contrary to the risky shift-literature, the findings show consistent moves towards greater risk-avoidance if problems are important and if decision makers are initially less cautious. The findings suggest a contingency theoretical explanation of risk-proneness and risk-avoidance in groups rather than universalist assumptions of risk behavior in groups.     

Looking Back to Move Forward: Quantifying Policy Predictions in Political Decision Making

Policy makers constantly face uncertainty, which makes achieving their goals problematic. To overcome this uncertainty, they employ tools to drive down uncertainty and make probabilistic decisions. We provide a method for scholars to assess empirically how actors make probabilistic predictions. We focus on the interactions between the executive and judicial branches, analyzing the conditions under which justices force the United States to provide them with information. Our approach generates substantive knowledge about interbranch behavior as well as a methodological innovation available to scholars who study political decision making under conditions of limited information.     

An examination of the structure of governance in California school districts before and after Proposition 13

This paper explores the structure of governance in California school districts. Two alternative models are considered, the decisive voter (benevolent dictator) model and a model that allows for rent-seeking behavior on the part of district decision makers. A formal test between these two models is proposed and implemented. The decisive voter model is found wanting as an explanation of school district decision making both before and after the passage of Proposition 13. There is, however, some evidence that the constraints imposed on some districts by Proposition 13 have forced decision makers to act in a manner more consistent with the preferences of their constituents.     

Speaking Like Statesmen or Scientists: Differentiating Congressional and Administrative Views on Data

ABSTRACT

Do legislators and executives speak of data the same way when speaking about public sector data? Public management scholarship and public performance policies often emphasize data-driven decision making as the path to making government efficient and effective. Whether the public policy makers mean the same thing when they speak about data in discussions of data-driven performance and decision making is unknown. In this article, the authors present an analysis of the language of data in conversations about government performance. Two frameworks are identified for the role of data in public performance—the statesman’s and the scientist’s. A corpus-level analysis of over 30 years of government documents is used to demonstrate the differences between these two approaches. This research builds consciously on the work of previous scholars seeking to map the nuances of data-driven performance management policies in the U.S. federal government.     

From simplicity to complexity: The development of theory in the study of judicial behavior

This article assesses the development of theories of judicial behavior in the United States in the past few decades. It is argued that the study of judicial behavior has been relatively balkanized, with some advances within particular theoretical contexts, but with little successful effort at integrating different approaches within a comprehensive theory. Although I develop no such comprehensive theory in this article, I do argue that the predominant frameworks for analyzing judicial behavior—attitude theory, fact pattern theory, role theory, small group theory, organization theory, and environmental theories—are not incompatible and can be at least partially integrated. In order to accomplish the desired integration, there are three desiderata:

• The most general and useful unit of theoretical analysis is the individual decision maker.
• Nonindividual level theories can and should be articulated to include propositions about the underlying microlevel processes.
• Comprehensive theory can best be developed through models that incorporate influences stemming from various levels (e.g., group, institution, environment) but that ultimately focus on the individual.

Thus, theories of judicial behavior must become more complex if they are to achieve a higher level of explanation and prediction.     

Who Controls the Content of Supreme Court Opinions?

Conventional arguments identify either the median justice or the opinion author as the most influential justices in shaping the content of Supreme Court opinions. We develop a model of judicial decision making that suggests that opinions are likely to reflect the views of the median justice in the majority coalition. This result derives from two features of judicial decision making that have received little attention in previous models. The first is that in deciding a case, justices must resolve a concrete dispute, and that they may have preferences over which party wins the specific case confronting them. The second is that justices who are dissatisfied with an opinion are free to write concurrences (and dissents). We demonstrate that both features undermine the bargaining power of the Court's median and shift influence towards the coalition median. An empirical analysis of concurrence behavior provides significant support for the model.     

Courting the President: How Circuit Court Judges Alter Their Behavior for Promotion to the Supreme Court

We examine whether circuit court judges sacrifice policy purity for career goals. We compare the behavior of contender judges–those most likely to be elevated to the Supreme Court–during vacancy periods with their behavior outside vacancy periods. We also examine the behavior of noncontender judges during those same times. The data show that during vacancy periods, contender judges are more likely to vote consistently with the president's preferences, to rule in favor of the United States, and to write dissenting opinions. Noncontender judges fail to evidence such behavior. These findings provide empirical support for the argument that federal judges adapt their behavior to specific audiences, and provide new avenues for research into judges' goals and the role of audiences in judicial decision making.     

When Does Transparency Generate Legitimacy? Experimenting on a Context‐Bound Relationship

We analyze the main rationale for public administrations and political institutions for supplying transparency, namely, that it generates legitimacy for these institutions. First, we discuss different theories of decision making from which plausible causal mechanisms that may drive a link between transparency and legitimacy may be derived. We find that the common notion of a straightforward positive correlation is naïve and that transparency reforms are rather unpredictable phenomena. Second, we test the effect of transparency on procedure acceptance using vignette experiments of representative decision making in schools. We find that transparency can indeed generate legitimacy. Interestingly, however, the form need not be “fishbowl transparency,” with full openness of the decision‐making process. Decision makers may improve their legitimacy simply by justifying carefully afterward the decisions taken behind closed doors. Only when behavior close to a deliberative democratic ideal was displayed did openness of the process generate more legitimacy than closed‐door decision making with postdecisional justifications.     

On the reputation of state supreme courts

A state supreme court, in making and justifying choices, uses a variety of sources of information and authority—its own precedents, scholarly commentaries, articles in law reviews, encyclopedias, restatements, and so forth. Quite often a state supreme court appeals to the wisdom or rejects the lack of it in the decision of a sister court in order to arrive at or buttress reasoning in a particularly problematic case. These citations—construed as derogation or deference—yield very handy and nonreactive indicators of hierarchies of prestige between and among the highest appellate courts of the several states. In this paper, I develop a simple and general measure of judicial reputation, present evidence on the hierarchy of state supreme courts as of 1975, show how this ranking has changed in the last 50 years, and examine competing and sometimes complementary explanations of judicial prestige. Taken together, social diversity, judicial professionalism, political ideology, and the size of case load provide an impressive explanation of the reputation of state supreme courts.     

Policy makers,policy choices,and policy outcomes: The political economy of reform in developing countries

This article presents an analytic model for understanding the role of decision makers in bringing about significant policy and institutional changes and in understanding how processes of agenda setting, decision making, and implementation shape the content, timing, and sustainability of reform initiatives. Central to the model is the assertion that policy elites and the policy making process are important determinants of reform. The framework indicates that circumstances surrounding issue formation, the criteria that decision makers use to select among options, and the characteristics of specific policies are analytic categories that explain a considerable amount about reform outcomes. The model is based on cases developed by participants in twelve initiatives to bring about policy and institutional change in a variety of developing countries.     

Bridging the Gap between Evidence and Policy Makers: A Case Study of the Pew‐MacArthur Results First Initiative

Developing ways to bridge the long‐recognized gap between researchers and policy makers is increasingly important in this age of constrained public resources. As noted by recent scholarship, progress toward evidence‐informed policy making requires both improving the supply of research that is reliable, timely, and relevant to the policy process and promoting demand and support for this information among decision makers. This article presents a case study of the Pew‐MacArthur Results First Initiative, which is working in a growing number of state and local governments to build systems that bring rigorous evidence on “what works” into their budget processes and to support its use in resource allocation decisions. The initiative's experience to date is promising, although creating lasting and dynamic evidence‐based policy‐making systems requires a long‐term commitment by both researchers and policy makers.     

Policy innovation in local jurisdictions: Testing for neighborhood influence in school choice policies

Before making difficult decisions, individuals tend to collect information on decision makers in reference groups. With respect to policy innovations in a decentralized public sector, this may give rise to positive neighborhood influence on adoption decisions. In this paper, U.S. school district data are used to show that decision makers indeed are heavily affected by decision makers in reference groups. The policy innovation under consideration is inter-district public school choice. The results suggest that if a given district's neighbors' expected benefits from adopting school choice policies increase, this substantially increases the original district's probability of adoption. The paper thus supports the view that the diffusion of policy innovations is stimulated by horizontal interaction among local governments.     

Constitutional Review and the Selective Promotion of Case Results

A significant majority of the world's constitutional courts publicize their decisions through direct contact with the national media. This interest in public information is puzzling in so far as constitutional judges are not directly accountable to voters. I argue that the promotion of case results is consistent with a theory of judicial behavior in which public support for courts can undermine incentives for insincere decision making. In this article, I develop a simple game theory model that identifies how case promotion is linked to judicial choice. Results of a simultaneous equations model estimating the Mexican Supreme Court's merits decisions and its choices to publicize those decisions by issuing press releases to national media outlets support an account of constitutional review in which judges believe they can influence their authority through case promotion.     

“Tell It Like It Is”: Decision Making,Groupthink, and Decisiveness among U.S. Federal Subcabinet Executives

In addition to difficulties gathering and evaluating complete information, cognitive limitations and biases preclude individuals from making fully value‐maximizing choices when making decisions. It has been suggested that, done properly, involving advisors can compensate for individual‐level limitations. However, the “groupthink” tradition has highlighted ways group‐aided decision making can fail to live up to its potential. Out of this literature has emerged a paradigm Janis calls “vigilant problem‐solving.” For this article, we interviewed 20 heads of subcabinet‐level organizations in the U.S. federal government, asking questions about how they made important decisions. Ten were nominated by “good‐government” experts, 10 chosen at random. We wanted to see whether there were differences in how members of those two groups made decisions, specifically, to what extent executives in the two categories used a “vigilant” process. We found, however, that similarities between the two groups overwhelmed differences: As best as we were able to measure, decision making by U.S. subcabinet executives tracks vigilant decision making recommendations fairly closely. The similarity reflects a common style of senior‐level decision making, which we theorize grows out of government bureaucracy's methodical culture. We did, however, develop evidence for a difference between outstanding executives and others on another dimension of decision making style. Outstanding executives valued decision making decisiveness—“bias for action”—more than the comparison group. Perhaps, then, what distinguishes outstanding executives from others is not vigilance but decisiveness. Contrary to the implications of the groupthink literature, the danger in government may be “paralysis by analysis” as much or more than groupthink.     

A Methodology for Improving the Investment Portfolio Management Process for the Homeland Security Department using Quality Function Deployment

In this paper, we describe a methodology for improving homeland security investment decisions. The objective is to evaluate multitechnology, multiyear investment choices and the associated development and deployment risks associated with new technologies. The budgeting process in the Homeland Security Department is a complex multicriteria decision problem involving a distributed network of decision makers with diverse areas of expertise. The decision problem in Homeland Security involves game‐theoretic aspects as the terrorists are likely to alter their strategies depending on the defensive counter measures selected in the budget. We propose a two‐phased systems approach. The first phase employs a visualization tool based on Quality Function Deployment to develop an initial budget allocation. The second phase involves an iterative approach to project selection that dynamically adjusts the investment portfolio based on anticipated reactions taken by the terrorists. This paper is based on a study done as part of a research project for the Department of Homeland Security (DHS). We present a high‐level view of the methodology and illustrate it with examples.     

THE CONSUMER INFORMATION OVERLOAD CONTROVERSY AND PUBLIC POLICY

It is widely believed that providing consumers with more product information produces "overload" and leads to confusion and poorer quality consumer decisions. The existence of a consumer information overload phenomenon has been used by marketers and others to argue against regulations and legislation mandating additional consumer information provision. The belief that a consumer information overload phenomenon exists is based largely on misinterpretations of research findings. The present paper reviews the consumer information overload research literature and concludes that existing research data support the contention that provision of more information, rather than producing overload, actually improves consumer decision making. Implications of the information overload research controversy for consumer policy makers are discussed.     

The decision process of a professionalized legislature: A cognitive anthropology approach

Political science research indicates that some state legislatures have become more professionalized, i.e., taken on many of the characteristics of Congress such as yearround sessions, professional staffs, and formalized bill processes. But is professionalization a factor in legislators' decision making? Triangulated analysis—consensus, cluster, and multidimensional scaling—of two paired comparisons that were administered to a stratified random sample of a professionalized legislature suggests that some of the professionalized characteristics do affect legislators' perception of their decision making on one area of policy, the regulation of and resource allocation to public universities. The analysis also shows that influences on legislators' decision process fluctuate according to issue.     

Teaching Judicial Politics Through a Supreme Court Simulation

Abstract

This article describes various iterations of a Supreme Court simulation that we developed for undergraduate political science classes. We address when simulations should be used to introduce a topic to students, and when simulations should be used to develop students’ understanding of a topic after introducing it. In the simulations, we played the role of attorneys delivering oral arguments before the Supreme Court, while students played the role of Supreme Court justices. Students questioned attorneys, deliberated in groups, voted on the merits of the case, and explained their decisions. We varied when the simulation was conducted, with one class doing the simulation before a lesson on judicial decision making and two classes doing the simulation following a lesson on judicial decision making. We evaluate the simulation by using results from student questionnaires that assessed the students' interest in judicial politics, their knowledge of the Supreme Court, and their understanding of judicial decision making. We find that the simulation most effectively accomplished the intended learning outcomes when the simulation was conducted after a lesson on decision making in the Supreme Court, rather than before the lesson. In addition, our results demonstrate that the simulation increased students’ interest in the Supreme Court and their desire to learn more about the institution. Our results have implications for political scientists aiming to enhance student learning through simulations.     

Social backgrounds,social motives and participation on the U.S. Supreme Court

This study explores the utility of psychological content analysis in studying judicial behavior. Justices' testimony before the Senate Judiciary Committee was scored for power, achievement, and affiliation imagery using content analysis techniques developed by Winter (1982a). The results suggest that motivational content analysis may provide a more direct means of assessing the relationship between judges' psychological disposition and their decision making behavior. Combinations of motive imagery variables and social background variables explained between 64% and 83% of the variation in writing opinions and in casting concurring and dissenting votes among U.S. Supreme Court justices.