Kevin L sends this syllabus for you law clones out there. Get reading! And, goodONya, K-Rad!
Legal Constraints on Supreme Court Decision Making: Do Jurisprudential
Regimes Exist?
Jeffrey Lax & Kelly Rader
Journal of Politics, April 2010, Pages 273-284
Abstract: The founding debate of judicial politics - is Supreme Court decision making driven by law or politics? - remains at center stage. One influential line of attack involves the identification of jurisprudential regimes, stable patterns of case decisions based on the influence of case factors. The key test is whether the regime changes after a major precedent-setting decision, that is, whether the case factors are subsequently treated differently by the Supreme Court justices themselves so that they vote as though constrained by precedent. We analyze whether binding jurisprudential regime change actually exists. The standard test assumes votes are independent observations, even though they are clustered by case and by term. We argue that a (nonparametric) “randomization test” is more appropriate. We find little evidence that precedents affect voting.
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Solicitor General Influence and Agenda Setting on the United States Supreme
Court
Ryan Black & Ryan Owens, Harvard Working Paper, March 2010
Abstract: Do Solicitors General influence Supreme Court justices to behave differently than they would like? If so, are there limits on such influence? Using archival data, we find strong evidence of Solicitor General influence. In a substantial number of cases at the Supreme Court's agenda-setting stage, justices follow Solicitor General recommendations even when they are completely opposed to them. At the same time, we observe that law exerts strong influence. Justices are significantly less likely to follow Solicitor General recommendations that contravene important legal factors.
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Friends of the Circuits: Interest Group Influence on Decision Making in the
U.S. Courts of Appeals
Paul Collins & Wendy Martinek, Social Science Quarterly, June 2010, Pages 397-414
Objective: Though there is an extensive literature focused on the participation and efficacy of interest group amici curiae in the U.S. Supreme Court, there is little rigorous analysis of amici curiae in the U.S. Courts of Appeals. Here, we systematically analyze the influence of amicus curiae briefs on U.S. Court of Appeals decision making to provide insights regarding both judicial decision making and the efficacy of interest groups.
Methods: We use a probit model to capture influences on appellant success in the courts of appeals from 1997-2002.
Results: We find that amicus briefs filed in support of the appellant enhance the likelihood of that litigant's probability of success, but that amicus briefs filed in support of the appellee have no effect on litigation outcomes.
Conclusion: Amici can help level the playing field between appellants and appellees by serving to counter the propensity to affirm in the U.S. Courts of Appeals.
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Congressional Constraints and Tactical Supreme Court Maneuvers: Calling for
the Views of the United States Solicitor General
Ryan Black & Ryan Owens
Harvard Working Paper, January 2010
Abstract: Do United States Supreme Court justices invoke the aid of executive branch
officials to help them overcome congressional constraints? We examine archival data collected from the private papers of former Justice Harry A. Blackmun to analyze the conditions under which Supreme Court justices force the Solicitor General to participate in cases. We find that in addition to legal considerations, justices invite the SG to participate in cases so as to gain information that will aid them in determining whether the president will use his veto to protect the Court's decision against congressional override attempts. Justices are between 44% and 56% more likely to invite the SG when they require the president's veto to protect their decisions. These results hold across a host of alternative models of legislative
decision making and other various modeling specifications.
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In Search of Judicial Activism in the Same-Sex Marriage Cases: Sorting the
Evidence from Courts, Legislatures, Initiatives and Amendments
Scott Barclay, Perspectives on Politics, March 2010, Pages 111-126
Abstract: In 2006, President Bush publicly stated that, in relation to the same-sex
marriage issue, “activist judges” were thwarting the preferred policy of the elected representatives and the expression of popular will embodied in popular initiatives and constitutional amendments. Notwithstanding the philosophical discussion of the constitutionally assigned role of courts in the political system and the idea of judicial independence, President Bush's statement raises an interesting empirical question: In the case of same-sex marriage, have state and federal courts really acted in direct opposition to the expressed policy preferences of current or recent legislative majorities or overturned popular initiatives and constitutional amendments? Using evidence from state and federal legislative and judicial action around same-sex marriage primarily from the fifteen years preceding President
Bush's 2006 statement, I argue that, with some rare exceptions, judges can not easily be identified as “activist” on the issue of same-sex marriage even if we assess their actions according to President Bush's criteria.
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A Theory of Loopholes
Leo Katz
Journal of Legal Studies, January 2010, Pages 1-31
Abstract:
Laws are known to be replete with loopholes. The reason is generally thought to lie in the divergence between the text and the purpose of a law. Practical constraints supposedly make laws unavoidably over‐ or underinclusive. Lawyers who exploit loopholes are thought to be taking advantage of that over‐ and underinclusiveness. This essay offers a different perspective. Most loopholes have nothing to do with the over‐ or underinclusiveness of rules. This is best seen by exploring a particular subset of rules that reveal most clearly what is going on: the rules of voting. Arrow’s famous theorem teaches us that all halfway decent voting rules are vulnerable to agenda manipulation. Fundamentally, it will turn out, all legal rules are analogous to voting rules and all loophole exploitation analogous to agenda manipulation. The loophole‐exploiting lawyer no more deserves to be criticized, sanctioned, or otherwise frustrated in his efforts than does the shrewd parliamentarian.
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The Separation of Powers and Supreme Court Agenda Setting
Ryan Owens, Harvard Working Paper, September 2009
Abstract:
This study employs the first systematic, empirical analysis that relies on archival data to examine whether the separation of powers influences justices' agenda votes. It spatially models how justices set the Court's agenda under a sincere approach as well as an SOP approach and compares the competing expectations derived therefrom. The results suggest that legislative and executive preferences fail to influence justices' votes. Across every model tested, the data show justices uninfluenced by the separation of powers. These results provide a strong rejoinder to SOP models, since the Court's agenda stage is the most likely stage of the decision making process to show signs of an SOP effect.
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