Has Legal Realism Damaged the Legitimacy of the U.S. Supreme Court?

Does understanding how U.S. Supreme Court justices actually decide cases undermine the institutional legitimacy of the nation's highest court? To the extent that ordinary people recognize that the justices are deciding legal disputes on the basis of their own ideological biases and preferences (legal realism and the attitudinal model), the belief that the justices merely “apply” the law (mechanical jurisprudence and the myth of legality) is difficult to sustain. Although it is easy to see how the legitimacy of the Supreme Court, the most unaccountable of all American political institutions, is nurtured by the view that judicial decisionmaking is discretionless and mechanical, the sources of institutional legitimacy under legal realism are less obvious. Here, we demonstrate, using a nationally representative sample, that the American people understand judicial decisionmaking in realistic terms, that they extend legitimacy to the Supreme Court, and they do so under the belief that judges exercise their discretion in a principled and sincere fashion. Belief in mechanical jurisprudence is therefore not a necessary underpinning of judicial legitimacy; belief in legal realism is not incompatible with legitimacy.     

Special Elections to the U.S. House of Representatives: A General Election Barometer?

Vacancies in the U.S. House of Representatives are filled using special elections. These elections occur off the usual American electoral cycle, and their results are routinely portrayed by the American mass media as indications of what to expect in the next general election. We examined the predictive power of special elections results with respect to the general election outcomes for the U.S. House of Representatives from 1900 to 2008. We found that special elections that yield a change in partisan control do have predictive power regarding general election results.     

Idea generation: the performance of U.S. States 1997–2007

Regional prosperity increasingly depends on a region’s capacity to have command over the production of ideas. Measuring the production of ideas with patents, the objective of this paper is to analyze how the number of utility patents granted to inventors in U.S. States in different technologies changed between 1997 and 2007 and how States took advantage of the new opportunities and adapted to the changing technology landscape. The paper uses shift-share analysis, traditionally used in employment studies, for analyzing change in patents by technology categories developed by the NBER. The shift-share results show that only a few states were able to take advantage of the information technology driven increases in patents. California dominates in patent production and may be providing spillover benefits to neighboring states. The shift-share decompositions are used as variables in a fixed-effect panel-regression model of state economic growth. The regression results show that the shift-share decompositions provide statistically significant information in explaining growth after accounting for a State’s stock of patents, suggesting that States should concentrate on effective ways to boost their stock of knowledge in rapidly growing technologies to improve state economic growth.     

Judgeships in the U.S. courts of appeals and in the U.S. district courts: Characteristics of democratic and republican presidential appointees from 1963–1990

The present study examined the characteristics of presidential appointees to the U.S. Courts of Appeals and the U.S. District Courts from 1963–1990. An over‐representation of white, protestant men is noted, regardless of the political party of the appointing administration. Appointees of Democratic and Republican administrations did not differ significantly in terms of law school attended, occupation at nomination or appointment, or American Bar Association rating. The conclusion calls for a more diverse judiciary.     

Extradition on the Two Sides of the Atlantic: The U.S. Model as Blueprint for the European Arrest Warrant?

This article compares the EU’s enhanced extradition model, in the form of the European Arrest Warrant, with the more mature American interstate extradition mechanism. The US Constitution’s Extradition Clause mandates interstate extradition and, after a slow start-up, has led to a smooth and obligatory procedure. In the EU, the European Arrest Warrant, based on the principle of mutual recognition, has made a number of significant changes to traditional extradition and has simplified extradition between EU member states. Yet, it does not operate without problems and the first decade has revealed what the difficulties with extradition on the basis of mutual recognition are. The comparison with the US seeks to draw lessons from the US experience. The main finding is that in a number of areas the US example can direct the EU toward further improving its extradition scheme, while at the same time it is not realistic to expect that the EU will achieve a similar degree of harmony as in the US, required for an obligatory extradition scheme. The article argues that it is important to recognise these limits in order to make the European Arrest Warrant a success.     

Is Timing Everything? Retirement and Seat Maintenance in the U.S. House of Representatives

Literature on open‐seat elections has focused on the individual attributes of a candidate and/or institutional arrangements. When a seat becomes an open contest could be a significant indicator as to how likely the incumbent party is able to maintain the seat. Examining data on open U.S. House seats from 1996 to 2008, we use OLS regression and logistic regression analysis, finding that time is a significant predictor for incumbent party fund‐raising and seat maintenance. We conclude that political parties have an interest in encouraging members of Congress to announce their retirement early in the election cycle.     

Doctors in the executive suite: should the U.S. and U.K. be putting M.D. licensure at risk for shortfalls in institutional quality of care?

As our healthcare system becomes further managed, delivery organizations are reincreasingly relying upon physician executives to administer the delivery of care by other individual providers. In both the United States and the United Kingdom, this has led to instances in which physician disciplinary procedures have been invoked with respect to physicians who are perceived to be responsible for institutional defiiciencies. The author examines and analyzes the contrasting approaches taken in the two countries, and recommends an activist approach for disciplinary agencies faced with these circumstances.     

Climate change and the credibility of international commitments: What is necessary for the U.S. to deliver on such commitments?

The engagement of the United States is critical to the success of any international effort against global climate change. Although international climate efforts require long-lasting, credible commitments by participating countries, risk of failure to deliver on such commitments rises with the degree of gap that the domestic institutions permit between the executive and the legislature. The U.S. withdrawal from the Kyoto Protocol indicated that the Clinton administration’s effort to bring international solutions into the domestic arena before domestic consensus was obtained was counterproductive. The congressional politics over budgetary allocation regarding the Bush administration’s technology policies showed that general preference to a technology-oriented approach to climate change alone did not ensure the credibility of international commitments. These cases revealed that the U.S. climate diplomacy was lacking in domestic institutional mechanisms that bring the executive branch’s deal at international negotiations, and the legislators’ preferences at home, closer together. For the U.S. to take leadership in international climate cooperation, domestic institutional frameworks which reconcile the interests of the two branches are necessary. This paper suggests that such domestic institutional frameworks feature two components: regular channels of communication between the two political branches; and, incentive mechanisms for the two branches to swiftly come to terms with each other.

Constancy and change in the U.S. age distribution of crime: A test of the “invariance hypothesis”

The recent controversy over the age relationship with criminal behavior can be traced to Hirschi and Gottfredson's (Am. J. Sociol. 89, 552–584, 1983) failure to define invariance. In this paper, I distinguish two types of invariance—parametric andmathematical form— that explains both the pattern of stability claimed by Hirschi and Gottfredson and the pattern of variability observed in more recent research. I then directly test for each type of invariance using age-specific arrest data for index offenses in the United States from 1952 to 1987. The results are largely consistent with recent research showing variability in the characteristics (i.e., parameters) of the age distribution of crime, but at the same time, the results provide evidence for a persistent, underlying mathematical form to the age distribution of crime, regardless of year or offense type.     

Why So Few (Republican) Women? Explaining the Partisan Imbalance of Women in the U.S. Congress

This article examines why the percentage of Democratic women in Congress has increased dramatically since the 1980s while the percentage of Republican women has barely grown. The central claim is that ideological conformity with the party influences the decision to run for office, and I suggest that partisan polarization has discouraged ideological moderates in the pipeline from pursuing a congressional career. The findings have gendered implications because, first, Republican women in the pipeline have historically been to the left of their male counterparts, and second, there is a dearth of conservative women in the pipeline.     

A War on Cops? The Effects of Ferguson on the Number of U.S. Police Officers Murdered in the Line of Duty

Police agencies in the U.S. are currently facing a major legitimacy crisis resulting from a spate of high-profile use of force incidents, many involving minority citizens. Recent headlines emphasize that there is now a “war on cops” and that police officers are facing increasing levels of hostility and violence fueled by a growing anti-police sentiment. In the aftermath of events in Ferguson, Missouri in August 2014, some commentators claim that the number of police officers feloniously assaulted and killed in the line of duty has increased sharply. Using time series analysis of data from the Officer Down Memorial Page, we test whether events in Ferguson were associated with an increase in the number of police officers murdered in the line of duty. Our results provide no evidence for a “Ferguson Effect” on the number of U.S. police officers murdered in the line of duty as of March 2016.