Over the last 30 years, a majority of US states adopted Right-to-Carry (RTC) laws at the same time that crime rates dramatically decreased. A large literature has examined whether RTC laws contributed to or slowed this decline in crime, with most studies concluding that they have no significant effect on crime. However, this research has been plagued by methodological challenges, many of which are exacerbated by the common approach of modeling the effect of RTC laws using a binary dummy variable to indicate a one-time change in policy. Recently, Donohue, Aneja and Weber (2019a) have employed a novel synthetic control approach which they suggest indicates that RTC laws significantly increase violent crime. However, we show that this analysis is highly sensitive to modeling choices, and Donohue et al. chose a specification that has been criticized by Kaul et al. (2017) as mistaken because it prevents covariates from exercising any influence on the development of predicted crime rates. Correcting this to properly incorporate covariates dramatically changes the estimated effect in many states; and comprehensive synthetic control analysis reveals no significant effect on crime. Given the methodological challenges inherent in binary approaches to modeling the effects of RTC laws, we gather data on the growth of carry permits in states over time, which allows us to investigate the phenomenon of interest - the actual ability to carry - in a manner that is theoretically more valid and econometrically more powerful. Employing two different methods for estimating missing data - modeling the growth of permits as a logistical growth process and imputing missing data using the Amelia II package - we find that the growth in carry permits has no effect on violent crime rates, homicide rates, firearm homicide rates, or non-firearm homicide rates. This study provides further, strong evidence that the dramatic growth in the ability to carry firearms for self-defense in recent decades has not exacerbated crime rates.
{"title":"The Right to Carry Has Not Increased Crime: Improving an Old Debate Through Better Data on Permit Growth Over Time","authors":"W. English","doi":"10.2139/ssrn.3887151","DOIUrl":"https://doi.org/10.2139/ssrn.3887151","url":null,"abstract":"Over the last 30 years, a majority of US states adopted Right-to-Carry (RTC) laws at the same time that crime rates dramatically decreased. A large literature has examined whether RTC laws contributed to or slowed this decline in crime, with most studies concluding that they have no significant effect on crime. However, this research has been plagued by methodological challenges, many of which are exacerbated by the common approach of modeling the effect of RTC laws using a binary dummy variable to indicate a one-time change in policy. Recently, Donohue, Aneja and Weber (2019a) have employed a novel synthetic control approach which they suggest indicates that RTC laws significantly increase violent crime. However, we show that this analysis is highly sensitive to modeling choices, and Donohue et al. chose a specification that has been criticized by Kaul et al. (2017) as mistaken because it prevents covariates from exercising any influence on the development of predicted crime rates. Correcting this to properly incorporate covariates dramatically changes the estimated effect in many states; and comprehensive synthetic control analysis reveals no significant effect on crime. Given the methodological challenges inherent in binary approaches to modeling the effects of RTC laws, we gather data on the growth of carry permits in states over time, which allows us to investigate the phenomenon of interest - the actual ability to carry - in a manner that is theoretically more valid and econometrically more powerful. Employing two different methods for estimating missing data - modeling the growth of permits as a logistical growth process and imputing missing data using the Amelia II package - we find that the growth in carry permits has no effect on violent crime rates, homicide rates, firearm homicide rates, or non-firearm homicide rates. This study provides further, strong evidence that the dramatic growth in the ability to carry firearms for self-defense in recent decades has not exacerbated crime rates.","PeriodicalId":256324,"journal":{"name":"LSN: Empirical Studies (Law & Politics) (Topic)","volume":"26 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2021-07-14","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"129184016","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
39 U.S. states authorize recall elections, but the incentives they create are not well understood. We examine how changes in the perceived threat of recall alter the behavior of one set of officials: judges. In 2016, outrage over the sentence imposed on a Stanford athlete following his sexual assault conviction sparked an ultimately successful drive to recall the presiding judge. Using data on over 22,000 sentences from six California counties and matched arrest records for a subset of more than 12,000, we examine whether critical events in the recall campaign were accompanied by corresponding changes in other judges' sentences. We find a large, discontinuous increase in punitiveness associated with the campaign's announcement, but not the recall itself -- suggesting the announcement shifted judges' beliefs about their political environment. The increase may have indirectly produced a disproportionate burden for minority defendants. Our findings are the first to document incentive effects of recall, and suggest that targeted political campaigns may have far-reaching, unintended consequences.
{"title":"A Silent Corrupting Force? Criminal Sentencing and the Threat of Recall","authors":"S. Gordon, Sidak Yntiso","doi":"10.2139/ssrn.3619554","DOIUrl":"https://doi.org/10.2139/ssrn.3619554","url":null,"abstract":"39 U.S. states authorize recall elections, but the incentives they create are not well understood. We examine how changes in the perceived threat of recall alter the behavior of one set of officials: judges. In 2016, outrage over the sentence imposed on a Stanford athlete following his sexual assault conviction sparked an ultimately successful drive to recall the presiding judge. Using data on over 22,000 sentences from six California counties and matched arrest records for a subset of more than 12,000, we examine whether critical events in the recall campaign were accompanied by corresponding changes in other judges' sentences. We find a large, discontinuous increase in punitiveness associated with the campaign's announcement, but not the recall itself -- suggesting the announcement shifted judges' beliefs about their political environment. The increase may have indirectly produced a disproportionate burden for minority defendants. Our findings are the first to document incentive effects of recall, and suggest that targeted political campaigns may have far-reaching, unintended consequences.","PeriodicalId":256324,"journal":{"name":"LSN: Empirical Studies (Law & Politics) (Topic)","volume":"96 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2020-06-04","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"123507690","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
This paper investigates the value to foreign firms of contributing to US political campaigns. Using a comprehensive database of US campaign contributions by employees of US subsidiaries of foreign firms, we find that foreign firms contributing to US political campaigns have higher profits than a country-industry-size matched sample of foreign firms that do not contribute. In particular, foreign firms facing greater information asymmetry have greater benefits from contributions. Exploiting the Bipartisan Campaign Reform Act (BCRA) as an exogenous shock to campaign contributions, we find that foreign contributing firms not only receive more government contracts than non-contributing foreign and domestic firms, but also benefit disproportionately more than domestic contributing firms. Our results highlight the limited effectiveness of campaign contribution laws and the cost to US firms of foreign political contributions.
{"title":"Political Ties across Country Borders","authors":"M. Ayyagari, April M. Knill, K. Syvrud","doi":"10.2139/ssrn.3461819","DOIUrl":"https://doi.org/10.2139/ssrn.3461819","url":null,"abstract":"This paper investigates the value to foreign firms of contributing to US political campaigns. Using a comprehensive database of US campaign contributions by employees of US subsidiaries of foreign firms, we find that foreign firms contributing to US political campaigns have higher profits than a country-industry-size matched sample of foreign firms that do not contribute. In particular, foreign firms facing greater information asymmetry have greater benefits from contributions. Exploiting the Bipartisan Campaign Reform Act (BCRA) as an exogenous shock to campaign contributions, we find that foreign contributing firms not only receive more government contracts than non-contributing foreign and domestic firms, but also benefit disproportionately more than domestic contributing firms. Our results highlight the limited effectiveness of campaign contribution laws and the cost to US firms of foreign political contributions.","PeriodicalId":256324,"journal":{"name":"LSN: Empirical Studies (Law & Politics) (Topic)","volume":"77 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2019-09-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"127812971","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Despite infrastructure's importance to the US economy, evidence on its cost trajectory over time is sparse. We document real spending per new mile over the history of the Interstate Highway System. We find that spending per mile increased more than threefold from the 1960s to the 1980s. This increase persists even conditional on pre-existing observable geographic cost determinants. We then provide suggestive evidence on why. Input prices explain little of the increase. Statistically, changes in income and housing prices explain about half of the increase. We find suggestive evidence that the rise of “citizen voice” in government decision-making increased spending per mile. (JEL D72, H54, N42, N72, R31, R42)
{"title":"Infrastructure Costs","authors":"L. Brooks, Zachary D. Liscow","doi":"10.2139/ssrn.3428675","DOIUrl":"https://doi.org/10.2139/ssrn.3428675","url":null,"abstract":"Despite infrastructure's importance to the US economy, evidence on its cost trajectory over time is sparse. We document real spending per new mile over the history of the Interstate Highway System. We find that spending per mile increased more than threefold from the 1960s to the 1980s. This increase persists even conditional on pre-existing observable geographic cost determinants. We then provide suggestive evidence on why. Input prices explain little of the increase. Statistically, changes in income and housing prices explain about half of the increase. We find suggestive evidence that the rise of “citizen voice” in government decision-making increased spending per mile. (JEL D72, H54, N42, N72, R31, R42)","PeriodicalId":256324,"journal":{"name":"LSN: Empirical Studies (Law & Politics) (Topic)","volume":"21 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2019-07-31","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"114324466","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Whether and why the Supreme Court agrees to hear cases is among the most important—and well studied—topics in American politics. However, existing theories have overlooked a key player: the advocates. We develop and test a new theory that explicitly incorporates advocates in explaining which cases the Supreme Court is likely to accept. Specifically, we theorize that cert petitions are most likely to be successful when (1) there is great ideological distance between the opposing advocates and (2) the lower-court panel is closest ideologically to the advocate who won at the lower-court level. In these cases, as we explain, the advocate petitioning the Supreme Court to intervene becomes the “Odd Party Out,” a cue that conveys important information about the probability of bias as well as the political importance of the case. We test this theory using a new dataset on the identities and ideologies of advocates and judges. We find strong support for our theory: cert petitions are significantly more likely to be granted when the advocate appealing to the Court is an ideological outlier—that is, when the petitioner is in opposition to an ideologically aligned respondent and lower-court panel.
{"title":"The 'Odd Party Out' Theory of Certiorari","authors":"Adam Bonica, Adam Chilton, M. Sen","doi":"10.2139/ssrn.3537876","DOIUrl":"https://doi.org/10.2139/ssrn.3537876","url":null,"abstract":"Whether and why the Supreme Court agrees to hear cases is among the most important—and well studied—topics in American politics. However, existing theories have overlooked a key player: the advocates. We develop and test a new theory that explicitly incorporates advocates in explaining which cases the Supreme Court is likely to accept. Specifically, we theorize that cert petitions are most likely to be successful when (1) there is great ideological distance between the opposing advocates and (2) the lower-court panel is closest ideologically to the advocate who won at the lower-court level. In these cases, as we explain, the advocate petitioning the Supreme Court to intervene becomes the “Odd Party Out,” a cue that conveys important information about the probability of bias as well as the political importance of the case. We test this theory using a new dataset on the identities and ideologies of advocates and judges. We find strong support for our theory: cert petitions are significantly more likely to be granted when the advocate appealing to the Court is an ideological outlier—that is, when the petitioner is in opposition to an ideologically aligned respondent and lower-court panel.","PeriodicalId":256324,"journal":{"name":"LSN: Empirical Studies (Law & Politics) (Topic)","volume":"21 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2018-06-29","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"123530979","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
In two investigations White conservative women and African American conservative women were surveyed with regard to perceived discrimination toward each of their multiple minority categories. Both studies yielded the same results: (1) White women rated perceived discrimination toward their conservative political viewpoint significantly higher than that toward their gender; (2) Among African American conservative women the perceived discrimination toward their race was rated higher than that toward either their political viewpoint or their gender, which did not differ significantly from each other; (3) perceived discrimination on any dimension was not related to whether one was currently in college (or very recently graduated) versus whether one had graduated between 1 and 10 years earlier (Study 1) or between 5 and 10 years earlier (Study 2).
{"title":"Discrimination Directed Toward Conservative Women","authors":"H. Arkes, G. Dent","doi":"10.2139/ssrn.3127004","DOIUrl":"https://doi.org/10.2139/ssrn.3127004","url":null,"abstract":"In two investigations White conservative women and African American conservative women were surveyed with regard to perceived discrimination toward each of their multiple minority categories. Both studies yielded the same results: (1) White women rated perceived discrimination toward their conservative political viewpoint significantly higher than that toward their gender; (2) Among African American conservative women the perceived discrimination toward their race was rated higher than that toward either their political viewpoint or their gender, which did not differ significantly from each other; (3) perceived discrimination on any dimension was not related to whether one was currently in college (or very recently graduated) versus whether one had graduated between 1 and 10 years earlier (Study 1) or between 5 and 10 years earlier (Study 2).","PeriodicalId":256324,"journal":{"name":"LSN: Empirical Studies (Law & Politics) (Topic)","volume":"2 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2018-02-20","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"122265876","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
We investigate judicial election's impact on criminal case handling. Data from appeals of felony convictions in New York state are used to measure the accuracy of lower court outcomes. We also account for judicial election pressures and career paths. A theoretical model is developed where to guide the empirical analysis judges face a trade-off between exerting time and effort in criminal and civil cases. We show that during a re-election campaign, when the importance of good decision making in both types of cases is heightened, if the civil case outcomes are sufficiently more important, then error rates in criminal cases can increase. This effect is reversed for those who have a greater intrinsic interest in criminal justice. Results from the empirical analysis conform to the hypotheses derived from the theoretical model. Convictions that occur during the judge's re-election campaign are less likely to be upheld if appealed. The effect is concentrated in those who did not previously work in a prosecutor's office. In fact, judges who are former prosecutors experience higher affirmation rates with an additional escalation in success when up for re-election. We also differentiate judges who handle more civil cases and show that re-election distortions are greater. Finally, we also consider those who receive greater campaign support from special interest groups. Those who receive financial support have reduced accuracy. These additional results are consistent with the theory that it is the trade-off between criminal and civil cases that is driving decision making. Our results suggest that the criminal justice system is impacted by the interaction between a judge's characteristics and re-election incentives.
{"title":"Using Appellate Decisions to Evaluate the Impact of Judicial Elections","authors":"Gregory J. DeAngelo, Bryan C. McCannon","doi":"10.2139/ssrn.2973369","DOIUrl":"https://doi.org/10.2139/ssrn.2973369","url":null,"abstract":"We investigate judicial election's impact on criminal case handling. Data from appeals of felony convictions in New York state are used to measure the accuracy of lower court outcomes. We also account for judicial election pressures and career paths. A theoretical model is developed where to guide the empirical analysis judges face a trade-off between exerting time and effort in criminal and civil cases. We show that during a re-election campaign, when the importance of good decision making in both types of cases is heightened, if the civil case outcomes are sufficiently more important, then error rates in criminal cases can increase. This effect is reversed for those who have a greater intrinsic interest in criminal justice. Results from the empirical analysis conform to the hypotheses derived from the theoretical model. Convictions that occur during the judge's re-election campaign are less likely to be upheld if appealed. The effect is concentrated in those who did not previously work in a prosecutor's office. In fact, judges who are former prosecutors experience higher affirmation rates with an additional escalation in success when up for re-election. We also differentiate judges who handle more civil cases and show that re-election distortions are greater. Finally, we also consider those who receive greater campaign support from special interest groups. Those who receive financial support have reduced accuracy. These additional results are consistent with the theory that it is the trade-off between criminal and civil cases that is driving decision making. Our results suggest that the criminal justice system is impacted by the interaction between a judge's characteristics and re-election incentives.","PeriodicalId":256324,"journal":{"name":"LSN: Empirical Studies (Law & Politics) (Topic)","volume":"273 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2017-05-17","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"124414227","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
While a number of scholars have evaluated the strategies driving congressional decisions to delegate regulatory authority to administrative agencies, the literature has been largely restricted to evaluating the relationship between Congress and its administrative agent. I argue that this presents an incomplete picture of implementation given that it is typically carried out by multiple administrative actors that interact in multiple contexts and that share political principals. Such arrangements for overlapping jurisdiction and interagency organizations provide opportunities for agencies to learn from one another about the constraints of the political environment within which they are operating. This paper provides a preliminary examination of the extent to which administrative agencies can learn from other agencies the preferences of shared political principals and use that information to reshape their regulatory strategies. Using original data on Court of Appeals litigation directed at administrative agencies from the 93rd to the 113th Congress, as well as congressional delegation to administrative agencies within the text of the Statutes at Large, I provide preliminary evidence that when an agency observes a closely-linked agency facing legal constraints, it reshapes its own regulatory strategy so as to provoke less costly litigation. The results pave the way toward further, more in-depth examination of the spillover effects of bureaucratic punishment and the ways in which this inter-agency learning takes place over time.
{"title":"Inter-Agency Learning in United States Regulatory Policymaking","authors":"Miranda Yaver","doi":"10.2139/ssrn.2838457","DOIUrl":"https://doi.org/10.2139/ssrn.2838457","url":null,"abstract":"While a number of scholars have evaluated the strategies driving congressional decisions to delegate regulatory authority to administrative agencies, the literature has been largely restricted to evaluating the relationship between Congress and its administrative agent. I argue that this presents an incomplete picture of implementation given that it is typically carried out by multiple administrative actors that interact in multiple contexts and that share political principals. Such arrangements for overlapping jurisdiction and interagency organizations provide opportunities for agencies to learn from one another about the constraints of the political environment within which they are operating. This paper provides a preliminary examination of the extent to which administrative agencies can learn from other agencies the preferences of shared political principals and use that information to reshape their regulatory strategies. Using original data on Court of Appeals litigation directed at administrative agencies from the 93rd to the 113th Congress, as well as congressional delegation to administrative agencies within the text of the Statutes at Large, I provide preliminary evidence that when an agency observes a closely-linked agency facing legal constraints, it reshapes its own regulatory strategy so as to provoke less costly litigation. The results pave the way toward further, more in-depth examination of the spillover effects of bureaucratic punishment and the ways in which this inter-agency learning takes place over time.","PeriodicalId":256324,"journal":{"name":"LSN: Empirical Studies (Law & Politics) (Topic)","volume":"34 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2016-09-13","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"131537393","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
In the median-voter model of redistributive voting, an increase in the skewness of the income distribution will lead to more redistribution. Skewness is almost always assumed to be identical to inequality. But this will only be true under specific assumptions, and it is possible for an increase in inequality to be associated with a decrease in skewness. In general then, the relationship between inequality and skewness -- and therefore redistribution -- is ambiguous. This paper resolves this indeterminacy by introducing labor market frictions and labor market institutions into a redistributive voting framework. Under specific conditions, labor market institutions will lower inequality, but increase skewness -- and therefore redistribution. This novel result resolves a "paradox" of redistribution, challenges the prevailing interpretation of the median-voter model, and reconciles the empirical data with the basic logic of that model.
{"title":"Labor Market Institutions and Redistributive Voting","authors":"M. Dimick","doi":"10.2139/ssrn.2596826","DOIUrl":"https://doi.org/10.2139/ssrn.2596826","url":null,"abstract":"In the median-voter model of redistributive voting, an increase in the skewness of the income distribution will lead to more redistribution. Skewness is almost always assumed to be identical to inequality. But this will only be true under specific assumptions, and it is possible for an increase in inequality to be associated with a decrease in skewness. In general then, the relationship between inequality and skewness -- and therefore redistribution -- is ambiguous. This paper resolves this indeterminacy by introducing labor market frictions and labor market institutions into a redistributive voting framework. Under specific conditions, labor market institutions will lower inequality, but increase skewness -- and therefore redistribution. This novel result resolves a \"paradox\" of redistribution, challenges the prevailing interpretation of the median-voter model, and reconciles the empirical data with the basic logic of that model.","PeriodicalId":256324,"journal":{"name":"LSN: Empirical Studies (Law & Politics) (Topic)","volume":"76 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2015-11-09","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"123131235","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
By global standards, the U.S. Supreme Court is unusual in a number of respects, but one of its most distinctive characteristics is its reluctance to engage in comparative constitutional analysis. Much has been said on the normative question of whether and in what ways the Court ought to make use of foreign constitutional jurisprudence. Rarely, however, do scholars broach the underlying empirical question of why some constitutional courts make greater use of foreign law than others. To identify the reasons for which courts engage in comparativism, a behind-the-scenes investigation was conducted of four leading courts in East Asia – the Japanese Supreme Court, the Korean Constitutional Court, the Taiwanese Constitutional Court, and the Hong Kong Court of Final Appeal. The results of this investigation highlight the crucial role of institutional and resource constraints in shaping judicial behavior but also pose an unexpected challenge to traditional conceptions of the role and function of constitutional courts. Evidence from interviews conducted with numerous justices, clerks, and senior administrators suggests that a combination of mutually reinforcing structural factors create the conditions necessary for comparativism to thrive. The first factor is institutional capacity. A court that lacks any institutional mechanisms for learning about foreign law, such as the recruitment of law clerks with foreign legal expertise or the use of researchers who specialize in foreign law, is unlikely to make more than sporadic use of foreign law. The second factor is a supportive system of legal education. Even the most elaborate of institutional mechanisms for facilitating comparativism is unlikely to be effective unless it is backed by a system of legal education that produces an adequate supply of lawyers with both an aptitude and appetite for comparativism. Investigation of the reasons for which courts engage in comparativism also reveals a hidden underlying phenomenon of judicial diplomacy. Unlike other judicial practices such as textualism or originalism, comparativism is not merely a means by which judges perform legal and adjudicative functions; it can also be a form of diplomatic activity. When constitutional courts demonstrate mastery of foreign law or host foreign judges, their goals may not consist exclusively, or even primarily, of writing stronger opinions or winning over domestic audiences. They may also be competing with one another for international influence or pursuing foreign policy objectives, such as promotion of the rule of law and judicial independence in other countries. The concept of judicial diplomacy helps to explain why constitutional courts engage in a number of practices that are only tenuously related to the act of adjudication. Although the U.S. Supreme Court rarely practices constitutional comparativism, it is an active practitioner of judicial diplomacy in other forms.
{"title":"Judicial Comparativism and Judicial Diplomacy","authors":"David S. Law","doi":"10.2139/SSRN.2410074","DOIUrl":"https://doi.org/10.2139/SSRN.2410074","url":null,"abstract":"By global standards, the U.S. Supreme Court is unusual in a number of respects, but one of its most distinctive characteristics is its reluctance to engage in comparative constitutional analysis. Much has been said on the normative question of whether and in what ways the Court ought to make use of foreign constitutional jurisprudence. Rarely, however, do scholars broach the underlying empirical question of why some constitutional courts make greater use of foreign law than others. To identify the reasons for which courts engage in comparativism, a behind-the-scenes investigation was conducted of four leading courts in East Asia – the Japanese Supreme Court, the Korean Constitutional Court, the Taiwanese Constitutional Court, and the Hong Kong Court of Final Appeal. The results of this investigation highlight the crucial role of institutional and resource constraints in shaping judicial behavior but also pose an unexpected challenge to traditional conceptions of the role and function of constitutional courts. Evidence from interviews conducted with numerous justices, clerks, and senior administrators suggests that a combination of mutually reinforcing structural factors create the conditions necessary for comparativism to thrive. The first factor is institutional capacity. A court that lacks any institutional mechanisms for learning about foreign law, such as the recruitment of law clerks with foreign legal expertise or the use of researchers who specialize in foreign law, is unlikely to make more than sporadic use of foreign law. The second factor is a supportive system of legal education. Even the most elaborate of institutional mechanisms for facilitating comparativism is unlikely to be effective unless it is backed by a system of legal education that produces an adequate supply of lawyers with both an aptitude and appetite for comparativism. Investigation of the reasons for which courts engage in comparativism also reveals a hidden underlying phenomenon of judicial diplomacy. Unlike other judicial practices such as textualism or originalism, comparativism is not merely a means by which judges perform legal and adjudicative functions; it can also be a form of diplomatic activity. When constitutional courts demonstrate mastery of foreign law or host foreign judges, their goals may not consist exclusively, or even primarily, of writing stronger opinions or winning over domestic audiences. They may also be competing with one another for international influence or pursuing foreign policy objectives, such as promotion of the rule of law and judicial independence in other countries. The concept of judicial diplomacy helps to explain why constitutional courts engage in a number of practices that are only tenuously related to the act of adjudication. Although the U.S. Supreme Court rarely practices constitutional comparativism, it is an active practitioner of judicial diplomacy in other forms.","PeriodicalId":256324,"journal":{"name":"LSN: Empirical Studies (Law & Politics) (Topic)","volume":"48 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2015-05-06","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"122620991","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
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