Ideological Competition and Conflict in the Judicial Hierarchy

Circuit splits, or conflicting rules across multiple U.S. Courts of Appeals, have important policy implications and dramatic effects on Supreme Court case selection, yet we know little about the incentives ideological lower courts face when deciding whether to initiate conflict. This article develops a formal model of a judicial hierarchy where lower court judges are subject to review by a high court with distaste for unresolved conflict, termed “split-intolerance,” and with uncertain preferences over policy. Lower courts may compete by investing costly effort in legal quality to make their rules more attractive. In equilibrium, lower courts may initiate conflict even when the odds of success before the high court are remote. Surprisingly, lower courts grow more likely to create conflict as the high court's split-intolerance increases; however, split-intolerance can also incentivize greater lower court effort. I present qualitative evidence illustrating the model's explanatory power.     

Corporations and the law: Historical lessons for contemporary practice

Abstract

This article examines the role of the courts, especially the Supreme Court, in facilitating the development of a capitalist economy and enhancing corporate power. Theoretically, I employ an approach which treats the law as a constitutive process. I first survey key legal developments in the nineteenth century through which the courts fostered and nurtured the development of a capitalist economy. Then I analyze the post‐New Deal era, examining the transformation of economic doctrines by the Supreme Court to legitimate a newly emergent corporate‐administrative state. In the last part of the article I use this historical analysis to address contemporary issues for the Left of how to bring about fundamental change in the United States. I discuss the degree to which the law can be used as a means of progressive reform and how strategic legal choices are related to the debate about social movement, discourse, class‐based, and political strategies for change.     

Reactive Responses: The Complementary Role of Federal and State Courts

The recent revival of state constitutional law has contributedsignificantly to the development of a dynamic judicial federalism.While interaction between federal and state courts is hardlynovel, acknowledgments of reciprocity have occurred more frequentlythan in the past. The Burger Courts receptivity to state judicialactivism inaugurated an era marked by creativity as well ascooperation. Thus far, major departures from established practiceshave been limited to a readily identifiable and recurring numberof state courts. All the same, the case studies included inthis article range across a variety of factual contexts andexplore an impressive array of links, both explicit and implied,between the federal and state courts. A disquieting new requirement,introduced as the result of a 1983 Supreme Court decision, exactsof state judges an unambiguous declaration of reliance on independentstate grounds as the price of ensuring federal nonintervention.Whether judicial federalism will continue to flourish withinso confining a framework remains problematic.     

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 .     

Human Rights in US Courts: Alien Tort Claims Act Litigation after Sosa v. Alvarez-Machain

In Filartiga v. Pena-Irala (1980), the Second Circuit Court of Appeals ruled that victims of human rights violations could sue their oppressors civilly in US courts under an eighteenth century law now called the Alien Tort Claims Act (ATCA). Controversy raged over the Filartiga decision and the proper interpretation of the ATCA for 24 years. Then in Sosa v. Alvarez-Machain (2004), the Supreme Court issued its first ATCA decision. This essay analyzes the effect of the Sosa decision on the development of human rights law in US courts. I find that while the federal judiciary is responding to some of the Supreme Court’s directives, lower courts still retain a great deal of discretion in handling ATCA cases.

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Macro Implementation: Testing the Causal Paths from U.S. Macro Policy to Federal Incarceration

Policy implementation is usually studied at the micro level by testing the short‐term effects of a specific policy on the behavior of government actors and policy outcomes. This study adopts an alternative approach by examining macro implementation—the cumulative effect of aggregate public policies over time. I employ a variety of methodological techniques to test the influence of macro criminal justice policy on new admissions to federal prison via three mediators: case filings by federal prosecutors, conviction rates in federal district courts, and plea bargaining behavior. I find that cumulative Supreme Court rulings influence the incarceration rate by altering conviction rates in district courts; however, I find only mixed evidence of congressional and presidential influence. The results suggest that U.S. macro policy influences bureaucratic outputs by altering the behavior of subordinate policy implementers; however, the Supreme Court may enjoy an advantage in shaping criminal justice policy.     

State Sovereignty and the Eleventh Amendment in the U.S. Supreme Court: The 1988 Term

During its 1988 term, the U.S. Supreme Court addressed two importantaspects of the Eleventh Amendment, which generally protectsstates from being sued in federal courts. First, the Court heldthat the Congress has power to abrogate states' immunity fromsuit—to subject states to suits in federal courts fordamages—under Congress' expansive commerce-clause power.Second, the Court made clear that such abrogation would be foundonly where the text of the statute itself, as distinct fromits legislative history, clearly and specifically so provided.This article describes these decisions, and analyzes some oftheir implications for judicial federalism.     

The Federal Judiciary and Northern School Desegregation: Law, Politics, and Judicial Management

Using a three-tier analysis, this article examines how the interplayof political and legal factors has influenced the developmentof school desegregation policy in Michigan and Ohio. The authorconcludes, among other things, that the district courts, theSixth Circuit Court of Appeals, and the U.S. Supreme Court aresensitive to the influences of politics and legalism, but thatthe responses of the three kinds of federal courts are different.Recognizing a constitutional imperative to eradicate segregation,district courts have emphasized the participation of electedofficials and affected community groups in the remedial process.Because of isolation and low visibility, the Sixth Circuit hastended to pursue a more tenacious policy course than eitherthe district court or the Supreme Court. Meanwhile, the U.S.Supreme Court has generally championed the cause of local officialsby attempting to balance the interest of eliminating segregationwith that of protecting the integrity of state and local decisionmakers.     

Judges as agents of social change: Can the courts break the affordable housing deadlock in metropolitan areas?

Abstract

Nowhere is the chasm between the races more apparent than in the physical division of metropolitan areas between inner‐city poverty and suburban affluence. Thus far, public policy efforts to introduce metropolitan perspectives into local land use regulations have been unsuccessful. The series of New Jersey Mount Laurel decisions lays out a possible path for introducing comprehensive regional planning by deploying the constitutional power of state courts. Relying on the allied professions of economics and city planning, the New Jersey Supreme Court eliminated the legal barriers to affordable housing in the suburbs.

Questions have been raised over courts’ ability to reform local government powers, but many traditional objections to the effectiveness of judicial reform seem to have been overcome in the New Jersey litigations and legislations. State courts can play an indispensable role in solving regional land use problems if they secure the support of community leadership groups.     

Models of Post-Incorporation Judicial Review: 1985 Survey of State Constitutional Individual Rights Decisions

In 1985 state supreme courts issued the largest number of decisionsto date in which protections of individual rights were basedupon provisions of state constitutions. With increasing frequency,state high courts have held that certain constitutional minimumsof rights protection set by U.S. Supreme Court interpretationsof the U.S. Constitution do not satisfy more demanding preceptsof state constitutional law. Although much of this activityremains reactive rather than systematic, there has been a slightmove toward greater systematic analysis. Furthermore, statecourt decisionmaking can be understood in terms of five modelsthat reflect judicial perceptions of varying degrees of equivalenceor nonequivalence between rights provisions in the U.S. Constitutionand state constitutions. At the same time, however, the U.S.Supreme Court has clearly indicated an interest in monitoringthe individual rights decisions of state high courts, whilelower federal courts have begun to place greater reliance onstate constitutional law to preclude U.S. Supreme Court review.     

Locating Supreme Court Opinions in Doctrine Space

We develop a scaling model to estimate U.S. Supreme Court opinion locations and justice ideal points along a common spatial dimension using data derived from the citations between opinions. Citations from new opinions to precedent opinions usually apply and endorse the doctrine of the precedent opinion; however, sometimes they implicitly or explicitly dispute the precedent opinion. We collect original datasets classifying citations from search and seizure and freedom of religion opinions written between 1953 and 2006 into these different types and develop a model relating the similarity of the doctrine embodied in the citing and cited opinions to the relative probability of these different types of citations. The resulting spatial estimates of opinion location are used to evaluate theories of Supreme Court bargaining and opinion writing. We find empirical support for theoretical models that predict the majority opinion will fall at the ideal point of the median member of the majority coalition. Given the centrality of theories of judicial policymaking to various substantive problems in political science, the method of scaling opinions developed in this article can facilitate a range of future research.     

Judicial Review and the Supreme Court of Washington, 1890-1986

The literature on judicial review by state supreme courts suggeststhat from the beginnings of the republic until today, statejudicial review has shifted generally from what can be calleda restraintist departmentalism to an activist "new federalism."Since statehood in 1889, the Supreme Court of Washington hasreacted to constitutional challenges in much the same manneras the high courts of other states. Recently, however, Washington'sjurists have forged an independent course by applying the morerestrictive aspects of the state constitution to private andgovernmental intrusions into personal lives rather than relyingon the guidelines provided by the federal Constitution and theU.S. Supreme Court. The nature of this second "Golden Age" ofstate judicial review, because of its effect on federalism ratherthan the separation of powers, requires appraisal from a newperspective.     

Unanimous decision making on the U.S. Supreme Court: Case stimuli and judicial attitudes

Although behavioral scholars have devoted much time and energy to attempting to explain decision making on the U.S. Supreme Court, they have virtually ignored the unanimous decision. We investigated the Vinson, Warren, and Burger Courts and discovered that the liberal outcome was more successful in the unanimous cases whether those cases involve civil liberties or economic liberalism and whether they were decisions to reverse or decisions to affirm. We also ascertained that the ideological position that tended to win in the unanimous reverse cases was related to the ideological position that tended to win in the nonunanimous reverse cases, but that no such relationship was present in the two kinds of affirm cases. These two findings are in conformity with a psychometric model, which posits that the relative position of judicial attitudes and case stimuli determines the vote on the U.S. Supreme Court.     

Congress,the Supreme Court,and Judicial Review: Testing a Constitutional Separation of Powers Model

Recent scholarship suggests that the U.S. Supreme Court might be constrained by Congress in constitutional cases. We suggest two potential paths to Congressional influence on the Court's constitutional decisions: a rational‐anticipation model, in which the Court moves away from its preferences in order to avoid being overruled, and an institutional‐maintenance model, in which the Court protects itself against Congressional attacks to its institutional prerogatives by scaling back its striking of laws when the distance between the Court and Congress increases. We test these models by using Common Space scores and the original roll‐call votes to estimate support in the current Congress for the original legislation and the Court's preferences over that legislation. We find that the Court does not appear to consider the likelihood of override in constitutional cases, but it does back away from striking laws when it is ideologically distant from Congress.     

FCC v. The States: Who Shall Regulate Intrastate Telecommunications?

The 1934 Communications Act established a dual system of federaland State telecommunications regulation. The act gave the FederalCommunications Commission (FCC) authority to regulate interstateand foreign telecommunications but not intrastate communications,a market reserved for the states. As part of its move to deregulatethe telecommunications market in the 1970s, the FCC sought toextend its jurisdiction by preempting state regulatory authorityover telecommunications activities traditionally consideredintrastate. In 1986, however, the U.S. Supreme Court, in itsdecision in Louisiana Public Service, restricted federal preemptionof state laws and reinforced the dual regulatory system. Withthe break-up of AT&T, the FCC has renewed its preemptionactivities, claiming that the preemption is necessary in orderto foster an efficient nationwide telecommunications system.Several cases now pending in federal courts will test the breadthand depth of the Supreme Court's holding in Louisiana PublicService, and thereby, the future of the dual regulatory system.     

Racial Diversity and Judicial Influence on Appellate Courts

This article evaluates the substantive consequences of judicial diversity on the U.S. Courts of Appeals. Due to the small percentage of racial minorities on the federal bench, the key question in evaluating these consequences is not whether minority judges vote differently from nonminority judges, but whether their presence on appellate courts influences their colleagues and affects case outcomes. Using matching methods, I show that black judges are significantly more likely than nonblack judges to support affirmative action programs. This individual‐level difference translates into a substantial causal effect of adding a black judge to an otherwise all‐nonblack panel. Randomly assigning a black counterjudge—a black judge sitting with two nonblack judges—to a three‐judge panel of the Courts of Appeals nearly ensures that the panel will vote in favor of an affirmative action program. These results have important implications for assessing the relationship between diversity and representation on federal courts.     

The Legal Order and the Administration of Federal and State Courts

The Nigerian Constitution of 1989 establishes a system of federaland state courts, but within a structure of unified federal-statejurisdiction from the federal and state high courts, to thefederal Court of Appeal, and to the national Supreme Court.Thus, both sets of courts exercise jurisdiction with respectto federal and state laws. Although this system mitigates certainfederal-state jurisdictional conflicts, it does not eliminatesuch conflicts. At the same time, however, the Constitutionalso provides for Sharia courts of appeal under Moslem law andfor customary-law courts of appeal, thus establishing a tripartitesystem of justice. Although this system seeks to accommodateNigeria's ethnic and religious diversity, it does raise problemsfor national unity, judicial uniformity, and equity in the administrationof civil and criminal justice.     

On the Ideological Foundations of Supreme Court Legitimacy in the American Public

Conventional wisdom says that individuals’ ideological preferences do not influence Supreme Court legitimacy orientations. Most work is based on the assumption that the contemporary Court is objectively conservative in its policymaking, meaning that ideological disagreement should come from liberals and agreement from conservatives. Our nuanced look at the Court's policymaking suggests rational bases for perceiving the Court's contemporary policymaking as conservative, moderate, and even liberal. We argue that subjective ideological disagreement—incongruence between one's ideological preferences and one's perception of the Court's ideological tenor—must be accounted for when explaining legitimacy. Analysis of a national survey shows that subjective ideological disagreement exhibits a potent, deleterious impact on legitimacy. Ideology exhibits sensible connections to legitimacy depending on how people perceive the Court's ideological tenor. Results from a survey experiment support our posited mechanism. Our work has implications for the public's view of the Court as a “political” institution.     

The European Court's political power

The European Court has emerged as one of the most powerful political institutions in the European Union and the most influential international court in existence. National courts are the linchpins of the European legal system, making European Court decisions enforceable and creating an independent power base for the European Court. This article examines why national courts agreed to take on a role enforcing European law supremacy against their own governments and why national politicians did not stop an institutional transformation of the European legal system which greatly compromised national sovereignty. Competition between lower and higher national courts, each trying to enhance their influence and authority vis‐à‐vis each other, explains how national legal interpretive barriers and high‐court ambivalence regarding the European Court's declaration of European Law Supremacy was overcome. Politicians proved unable to reverse national court acceptance of European law supremacy, and institutional rules kept politicians from sanctioning either national courts or the European Court for judicial activism. Legal doctrine became a form of institution‐building, and a mechanism to make international law enforceable was created, giving the European Court the ability to make unpopular decisions and to compel compliance with European law.     

Who Consents? Competing Pivots in Federal Judicial Selection

The salience of judicial appointments in contemporary American politics has precipitated a surge of scholarly interest in the dynamics of advice and consent in the U.S. Senate. In this article, we compare alternative pivotal politics models of the judicial nominations process, each capturing a different set of potential veto players in the Senate. We use these spatial models to guide empirical analysis of rejection patterns in confirmation contests for the lower federal courts. Using data on the outcomes of all nominations to the U.S. Courts of Appeals and the U.S. District Courts between 1975 and 2006, we show that models incorporating the preferences of the majority party median and the filibuster pivots best account for confirmation patterns we observe at the appellate and trial court levels, while advice and consent for trial courts has more recently been influenced by home-state senators.