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Publications (126)
This handbook is currently in development, with individual articles publishing online in advance of print publication. At this time, we cannot add information about unpublished articles in this handbook, however the table of contents will continue to grow as additional articles pass through the review process and are added to the site. Please note...
This handbook is currently in development, with individual articles publishing online in advance of print publication. At this time, we cannot add information about unpublished articles in this handbook, however the table of contents will continue to grow as additional articles pass through the review process and are added to the site. Please note...
This handbook is currently in development, with individual articles publishing online in advance of print publication. At this time, we cannot add information about unpublished articles in this handbook, however the table of contents will continue to grow as additional articles pass through the review process and are added to the site. Please note...
Judges like to claim that they are impartial decision-makers fully capable of suppressing their personal proclivities, as the rule of law requires. But a century’s worth of studies undermines that view. Going under the name ‘judicial behaviour’, this vast literature shows that many extraneous (non-legal) factors affect the choices judges make. This...
Comparing and contextualizing what judges say about the law is the job of comparative legal analysis. Studying internal and external forces that explain the judges’ choices and their societal effects is the core domain of the comparative study of judicial behavior. Although walls may seem to separate these two projects in terms of their theoretical...
The past decade has witnessed a worldwide explosion of work aimed at illuminating judicial-behavior: the choices judges make and the consequences of their choices. We focus on strategic accounts of judicial-behavior. As in other approaches to judging, preferences and institutions play a central role but strategic accounts are unique in one importan...
Driving discovery in the study of law and legal institutions often requires infrastructure in the form of databases and other tools. The challenge is how to build the infrastructure. For obvious reasons, transplanting coding rules and variables from one dataset to the next is perilous; specialized knowledge of local conditions is necessary before o...
For decades now, experiments have revealed that we humans tend to evaluate the views or activities of our own group and its members more favorably than those of outsiders. To assess convergence between experimental and observational results, we explore whether US Supreme Court justices fall prey to in-group bias in freedom-of-expression cases. A tw...
According to entrenched conventional wisdom, the president enjoys considerable advantages over other litigants in the Supreme Court. Because of the central role of the presidency in the U.S. government, and the expertise and experience of the solicitor general's office, the president usually wins. However, a new analysis of the data reveals that th...
A statistical analysis of voting by Supreme Court justices from 1937 to 2014 provides evidence of a loyalty effect-justices more frequently vote for the government when the president who appointed them is in office than when subsequent presidents lead the government. This effect exists even when subsequent presidents are of the same party as the ju...
Constitutional law casebooks, generations of constitutional lawyers, and the Justices themselves say that the Court is more likely to depart from precedent in constitutional cases than in other types. We test this assumption in cases decided by the Roberts Court and find, at odds with earlier studies, that the data provide inconclusive support for...
This Article investigates the hypothesis that the most important and, often, controversial and divisive cases-so called "big" cases-are disproportionately decided at the end of June. We define a "big case" in one of four ways: front-page coverage in the New York Times; front-page and other coverage in four national newspapers (the New York Times, L...
This paper addresses the two main criticisms made by Cass Sunstein of the ideological rankings of justices in our book on federal judicial behavior. The first was that ranking justices from different time periods is problematic because the justices faced a different mixture of cases. The second questioned our implicit assumption that cases are fung...
A statistical analysis of voting by Supreme Court justices from 1937 to 2014 provides evidence of a loyalty effect--justices more frequently vote for the government when the president who appointed them is in office than when subsequent presidents lead the government. This effect exists even when subsequent presidents are of the same party as the j...
Among political scientists, not only is it uncontroversial to say that judges seek to etch their political values into law; it would be near heresy to suggest otherwise. And yet we do just that because research conducted by scholars (mostly outside of political science) has demonstrated that the policy goal is hardly the only motivation; it may not...
When it comes to freedom of expression, there is some tension in the literature on judging. On the one hand, political scientists have long equated liberal judges with a commitment to the First Amendment guarantees of speech, press, assembly, and association. On the other hand, a growing body of descriptive literature (mainly in the law reviews) su...
Using qualitative data and historical methods, Barry Friedman asserts with confidence that “we the people” influence the decisions of the U.S. Supreme Court. Using quantitative data and statistical methods, political scientists are not so sure. Despite their best efforts to validate basic claims about the effect of public opinion on the Court, the...
Richard Posner’s version of judicial self-restraint implies that individual Justices who embrace restraint would tend to uphold the constitutionality of a law even if it went against their preferences or ideology. Judge Posner suggests that this form of restraint once existed but no longer does. Using a dataset of cases that considered the constitu...
This chapter explores the role of ideology in the study of judicial behavior. From the antecedents of the attitudinal model to newer strategic accounts, ideology plays a key role in political science explanations of judging. Measuring ideology in this context is quite difficult. This chapter describes the strengths and weaknesses of various strateg...
Is the Roberts Court especially activist or, depending on your preference, especially lacking in judicial self-restraint? If we define judicial self-restraint as a reluctance to declare legislative action unconstitutional and confine the analysis to the 1969–2009 Terms,2 the answer is no. The Roberts Justices, just as their immediate predecessors,...
The fact that a substantial percentage of Supreme Court decisions are unanimous is often used to undermine the theory that the Court's decisions are ideologically driven. We argue that if the ideological stakes in a case are small, even slight dissent aversion is likely to produce a unanimous decision. The data support this interpretation but also...
http://deepblue.lib.umich.edu/bitstream/2027.42/116253/1/IdPsychLaw.pdf
Since the 1990s, there has been an explosion of empirical and theoretical work dedicated to advancing strategic accounts of law and legal institutions. Reviewing this extensive literature could be accomplished in multiple ways. We chose an approach that underscores a major contribution of strategic accounts: that they have forced scholars to think...
Why do lower courts treat Supreme Court precedents favorably or unfavorably? To address this question, we formulate a theoretical framework based on current principal-agent models of the judiciary. We use the framework to structure an empirical analysis of a random sample of 500 Supreme Court cases, yielding over 10,000 subsequent treatments in the...
We explore the role of sex in judging by addressing two questions of long-standing interest to political scientists: whether and in what ways male and female judges decide cases distinctly—“individual effects”—and whether and in what ways serving with a female judge causes males to behave differently—“panel effects.” While we attend to the dominant...
This paper develops and tests a model of self-interested judicial behavior to explore the phenomenon of judicial dissents,
and in particular what we call “dissent aversion,” which sometimes causes a judge not to dissent even when he disagrees with
the majority opinion. We examine dissent aversion using data from both the federal courts of appeals a...
In this symposium essay, we investigate the effect of economic conditions on the voting behavior of U.S. Supreme Court Justices. We theorize that Justices are akin to voters in political elections; specifically, we posit that the Justices will view short-term and relatively minor economic downturns - recessions - as attributable to the failures of...
It is no longer a secret that a lawyer arguing a case before the Supreme Court is more likely to lose if he is asked more questions than his opponent during oral arguments. This paper rigorously tests that hypothesis and the related hypothesis that a lawyer is more likely to lose if he is asked longer questions (measured by words per question) than...
For the first time in American history, all nine Justices of the U.S. Supreme Court came to their positions directly from U.S. courts of appeals. As new vacancies arise in the coming years, should the President continue to look to the circuits for Supreme Court nominees? Commentators disagree on the answer. Those who support the current practice cl...
The Supreme Court’s recent decisions on pleading have created a firestorm of confusion in both legal scholarship and lower court opinions. In this Article, the authors argue that the “new” Supreme Court standard is, in reality, nothing more than what the so-called “notice pleading standard” was always intended to be. Notice pleading was never desig...
Will the Roberts Court produce decisions of consequence in the foreseeable future? Or will its contributions be more modest? We address these questions not by reviewing the doctrine developed by the Court but rather by considering its capacity to generate important precedents.
That consideration centers on an account we have previously called “ideo...
It is not surprising that virtually all analyses of the Supreme Court stress the crucial role played by the swing, pivotal, or median Justice: in theory, the median should be quite powerful. In practice, however, some are far stronger than others. Just as there are “super precedents” and “super statutes” - those that are weightier or more entrenche...
http://deepblue.lib.umich.edu/bitstream/2027.42/116213/1/tulsa08.pdf
An Overview of Questions, Theories, and MethodologyJudicial Selection and RetentionAccess to CourtsLimitations on Judicial PowerJudicial Decision MakingDiscussionReferencesFurther Reading
Although the term empirical research has become commonplace in legal scholarship over the past two decades, law professors have, in fact, been conducting research that is empirical - that is, learning about the world using quantitative data or qualitative information - for almost as long as they have been conducting research. For just as long, howe...
We consider the contributions made by Robert H. Bork's Coercing Virtue (2003) and Anne-Marie Slaughter's A New World Order (2004) to the ongoing debate over the citation of foreign law in United States courts. While empirically minded sociolegal scholars might be tempted to dismiss these books as mere op-eds, that would be a mistake. Taken with the...
To say that positive political theory (PPT) scholarship on the hierarchy of justice is theory rich and data poor is to make a rather uncontroversial claim. For over a decade now, scholars have offered intriguing theoretical accounts aimed at understanding why lower courts defy (comply with) higher courts. But only rarely do they subject the account...
Theories of statutory interpretation abound. Scholars, judges and commentators have long puzzled over the best method to locate the meaning of a statute and to this end have proposed a range of approaches that rely on various forms of evidence, including statutory text, legislative intent, agency interpretations, cultural norms, and judicial preced...
One of the most enduring divides that scholars have uncovered between decision making in different areas of the law is the role of politics, whether in the form of partisanship or ideology. Study after study confirms a strong correlation between judges' political preferences and their behavior in civil rights/liberties-type cases, but researchers h...
While law professors are increasingly making use of data in their scholarship and while the data work housed in their studies is (generally) of a high quality, they have been less effective at communicating the products of their labor. A strong devotion to tabular, rather than graphical, displays, and claims about "statistical significance" rather...
We enter the debate over the role of sex in judging by addressing the two predominant empirical questions it raises: whether male and female judges decide cases distinctly (individual effects) and whether the presence of a female judge on a panel causes her male colleagues to behave differently (panel effects). We do not, however, rely exclusively...
http://deepblue.lib.umich.edu/bitstream/2027.42/116221/1/vanderbilt06.pdf
Why do lower courts defy (comply with) higher courts? To address this question, we assess two distinct and, to some extent, competing theoretical accounts. The first, suggested by prominent law professors, is a model based on the theory of teams, which assumes a shared conception of the judicial role. The other is a principal-agent model that assum...
A near-universal consensus exists that the nomination of Robert Bork in 1987 triggered a new regime in the Senate's voting over presidential nominees—a regime that deemphasizes ethics, competence, and integrity and stresses instead politics, philosophy, and ideology. Nonetheless, this conventional wisdom remains largely untested.
In this paper we e...
For over 3 decades, those engaged in the battle over the Equal Rights Amendment (ERA), along with many scholarly commentators, have argued that ratification of the amendment will lead U.S. courts (1) to elevate the standard of law they now use to adjudicate claims of sex discrimination, which, in turn, could lead them (2) to find in favor of partie...
The primary goal of this Essay is to assess whether the relationship between the ideology of Supreme Court Justices and their support for the First Amendment guarantees of speech, press, assembly, and association has declined, such that left-of-center Justices no longer consistently support those guarantees, and right-of-center Justices no longer c...
http://deepblue.lib.umich.edu/bitstream/2027.42/116226/1/unc05.pdf
Does the U.S. Supreme Court curtail rights and liberties when the nation’s security is under threat? In hundreds of articles and books, and with renewed fervor since September 11, 2001, members of the legal community have warred over this question. Yet, not a single large-scale, quantitative study exists on the subject. Using the best data availabl...
http://deepblue.lib.umich.edu/bitstream/2027.42/116264/1/si05.pdf
Webegi n by acknowledging the debt that weFindeed, all members of the Law & Society AssociationFowe to Lauren Edelman. Her effort to build bridges between law and society and law and economics is, at bottom, an effort to inject greater diversity into our research programs. As supporters of diversity on a number of groundsFnot the least of which is...
For over three decades, those engaged in the battle over the Equal Rights Amendment (ERA), along with many scholarly commentators, have argued that ratification of the Amendment will force U.S. courts (1) to elevate the standard of law they now use to adjudicate claims of sex discrimination, which, in turn, will lead them (2) to reach many more dec...
,Direct correspondence to Lee Epstein, Edward Mallinckrodt Distinguished University Professor of Political Science and Professor of Law, Washington University, Campus Box 1063, St. Louis, MO 63130 hepstein@artsci. wustl. edui. Andrew D. Martin is Assistant Professor of Political Science at Washington University in St. Louis. We thank Robert Carp, K...
Positive analyses aimed at answering the question of why judges interpret statutes the way they do abound. Some authors suggest the primary determinant centers on the political ideology of the judges, others argue that jurists interpret statutes in a strategic fashion vis-a-vis the relevant actors in the playing field, and still others maintain tha...
http://deepblue.lib.umich.edu/bitstream/2027.42/116266/1/makingpolicy.pdf
http://deepblue.lib.umich.edu/bitstream/2027.42/116265/1/cv04.pdf
Nearly thirty years have elapsed since the U.S. Supreme Court decided Craig v. Boren, a landmark case in the Court’s constitutional sex discrimination jurisprudence. In Craig, the justices pronounced that they would apply neither the lowest level of scrutiny—rational basis—nor the highest level—strict scrutiny—to evaluate claims of sex discriminati...
Government Version of Record
For at least three decades now, those charged with nominating and confirming Justices to the U.S. Supreme Court seem to be following a norm of prior judicial experience-one that makes previous service on the (federal) bench a near prerequisite for office. Largely as a result of this norm, today's Court, while growing more and more diverse on some d...
http://deepblue.lib.umich.edu/bitstream/2027.42/116237/1/slu03.pdf
Can an apparent loser snatch victory out of the jaws of defeat? This question occupied the attention of the late William H. Riker during the last ten years of his career, and it is one that he answered in the af®rmative: By constructing choice situations in order to manipulate outcomes, losers can become winners, and vice versa. Riker even coined a...
For four decades scholars have sought to explain the rise of dissensus on the U.S. Supreme Court. While the specific explanations they offer vary, virtually all rest on a common story: during the nineteenth (and into the twentieth) century, the Supreme Court followed a norm of consensus. That is, the justices may have privately disagreed over the o...
http://deepblue.lib.umich.edu/bitstream/2027.42/116241/1/elj01.pdf
What role do courts play in the establishment and maintenance of constitutional democracies? To address this question, we elaborate a model that draws on existing substantive literature and on theories that assume strategic behavior on the part of judges, executives, and legislatures. This model, in turn, leads to several behavioral predictions abo...
As papers presented at recent disciplinary conferences and articles published in major political science journals reveal, the field of judicial politics is undergoing a sea change. Variants of the social-psychological paradigm, which have long dominated thinking about law and courts, are giving way to approaches grounded in assumptions in rationali...
The concept of issue salience has figured prominently in many studies of American political life. Long lines of research have taught us that both citizens and political elites may respond differently to issues that are salient to them than to those that are not. Yet analysts making such claims elite actors face a fundamental problem that their coun...
Do the political preferences of U.S. Supreme Court justices change over time? Judicial specialists are virtually unanimous in their response: The occasional anomaly notwithstanding, most jurists evince consistent voting behavior over the course of their careers. Still, for all the research that presupposes the consistency of preferences, it is star...
We argue that a variant of the sua sponte doctrine, namely, the practice disfavoring the creation of issues not raised in the legal record, is a norm with substantial consequences for the U.S. Supreme Court. Without it, justices would act considerably more like legislators, who are free to engage in "issue creation," and less like jurists, who must...
Theory: Precedent might affect Supreme Court decision making in a number of ways. One conception, the conventional view scrutinized by Segal and Spaeth, sees precedent as the primary reason why justices make the decisions that they do. A second regards precedent as a normative constraint on justices acting on their personal preferences. On this acc...
Given that democratization is an ongoing, dynamic process, what explains the emergence and maintenance of some types of political institutions and the decline of others? The answer, we argue, lies not in the intentional design of long-run constitutional principles but rather in the short-run strategic choices of political actors. While many would a...
Segal and Cover (1989) analyzed the content of newspaper editorials to devise measures of the ideological values of the justices of the U.S. Supreme Court. Because their measures came from sources independent of the judicial vote, scholars have widely adopted them. This note updates, backdates, and extends the Segal and Cover research by adding the...
