In political science, the well‐known “attitudinal model” of legal decision making dictates that judges' sincere policy preferences drive legal outcomes. In contrast, the celebrated “selection hypothesis” from the law and economics literature suggests that litigants carefully consider factors affecting potential case success (including judicial ideology) and accordingly choose, in the name of efficiency, to settle or not pursue cases in which legal outcomes can be readily predicted. Thus, judges end up adjudicating a nonrandom set of cases that, in the typical situation, should not lend themselves to ideological judicial decision making. From this perspective, the influence of Supreme Court justices' ideological preferences on outcomes could be obviated by the forward‐thinking decisions of mindful litigants. We are left with two dominant theories on jurisprudential outcomes that appear to be at odds with each other. We endeavor to address this situation by incorporating litigation case sorting considerations into a basic attitudinal account of Supreme Court justice decision making in environmental cases. Our primary thesis is that the influence of judicial ideology on legal outcomes is conditioned on case sorting decisions (by both litigants and justices) that precede the justices' voting decisions on the merits. We augment our assessment of this thesis by evaluating our basic model on a subset of cases involving the Court's most formidable litigator — the federal government. We find that in both scenarios, the influence of justices' attitudes on their merits voting is indeed conditioned on case sorting. We conclude that the effect of justices' attitudes on Supreme Court policy making likely works in both direct and indirect ways in that their known ideological proclivities may lead to the strategic sorting of cases for Supreme Court adjudication.
{"title":"Judicial Ideology and the Selection of Disputes for U.S. Supreme Court Adjudication","authors":"Jeff Yates, Damon M. Cann, Brent D. Boyea","doi":"10.1111/jels.12030","DOIUrl":"https://doi.org/10.1111/jels.12030","url":null,"abstract":"In political science, the well‐known “attitudinal model” of legal decision making dictates that judges' sincere policy preferences drive legal outcomes. In contrast, the celebrated “selection hypothesis” from the law and economics literature suggests that litigants carefully consider factors affecting potential case success (including judicial ideology) and accordingly choose, in the name of efficiency, to settle or not pursue cases in which legal outcomes can be readily predicted. Thus, judges end up adjudicating a nonrandom set of cases that, in the typical situation, should not lend themselves to ideological judicial decision making. From this perspective, the influence of Supreme Court justices' ideological preferences on outcomes could be obviated by the forward‐thinking decisions of mindful litigants. We are left with two dominant theories on jurisprudential outcomes that appear to be at odds with each other. We endeavor to address this situation by incorporating litigation case sorting considerations into a basic attitudinal account of Supreme Court justice decision making in environmental cases. Our primary thesis is that the influence of judicial ideology on legal outcomes is conditioned on case sorting decisions (by both litigants and justices) that precede the justices' voting decisions on the merits. We augment our assessment of this thesis by evaluating our basic model on a subset of cases involving the Court's most formidable litigator — the federal government. We find that in both scenarios, the influence of justices' attitudes on their merits voting is indeed conditioned on case sorting. We conclude that the effect of justices' attitudes on Supreme Court policy making likely works in both direct and indirect ways in that their known ideological proclivities may lead to the strategic sorting of cases for Supreme Court adjudication.","PeriodicalId":413839,"journal":{"name":"LSN: Litigants & the Judiciary (Topic)","volume":"53 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2013-12-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"118584292","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}
Unlike the English rule governing court fees and costs, under which the loser pays litigation costs, and the American rule, under which each party pays its own costs, Israel vests in judges full discretion to assess fees and costs. Given concerns about both the English and American rules, and the absence of empirical information about how either functions, an empirical study of judicial fee award practices should be of general interest. We report evidence that Israeli judges apply multiple de facto fee systems: a nearly one way fee-shifting system that dominates in tort cases, a loser pays system that operates when publicly owned corporations litigate, and a loser pays system with discretion to deny fees in other cases. Although a loser pays norm dominates in Israel, with fees awarded in 80% of cases, Israeli judges often exercised their discretion to protect losing litigants, especially individuals, by denying fees. For individual plaintiffs and defendants, the denial rate exceeded 30% for defendants who prevailed against individuals and was about one-quarter for plaintiffs who prevailed against individuals. Judges protected individual plaintiffs against fee awards more than corporations. In cases lost by individual plaintiffs, fees were denied to successful defendants 29.9% of the time compared to denials in 18.0% of cases lost by corporate plaintiffs and 16.7% of cases lost by governmental plaintiffs. In cases lost by individual defendants, fees were denied to successful plaintiffs 22.7% of the time compared to 9.8% denials in cases lost by corporate defendants and 28.6% denials in cases lost by government defendants. In addition to varying by whether plaintiffs or defendants prevailed and by party status, the fee denial pattern varied by case category and judicial district. Theorizing about optimal fee rules should account for the variety of fee outcomes observed in practice.
{"title":"When Courts Determine Fees in a System with a Loser Pays Norm: Fee Award Denials to Winning Plaintiffs and Defendants","authors":"T. Eisenberg, Talia Fisher, I. Rosen-zvi","doi":"10.2139/ssrn.2205765","DOIUrl":"https://doi.org/10.2139/ssrn.2205765","url":null,"abstract":"Unlike the English rule governing court fees and costs, under which the loser pays litigation costs, and the American rule, under which each party pays its own costs, Israel vests in judges full discretion to assess fees and costs. Given concerns about both the English and American rules, and the absence of empirical information about how either functions, an empirical study of judicial fee award practices should be of general interest. We report evidence that Israeli judges apply multiple de facto fee systems: a nearly one way fee-shifting system that dominates in tort cases, a loser pays system that operates when publicly owned corporations litigate, and a loser pays system with discretion to deny fees in other cases. Although a loser pays norm dominates in Israel, with fees awarded in 80% of cases, Israeli judges often exercised their discretion to protect losing litigants, especially individuals, by denying fees. For individual plaintiffs and defendants, the denial rate exceeded 30% for defendants who prevailed against individuals and was about one-quarter for plaintiffs who prevailed against individuals. Judges protected individual plaintiffs against fee awards more than corporations. In cases lost by individual plaintiffs, fees were denied to successful defendants 29.9% of the time compared to denials in 18.0% of cases lost by corporate plaintiffs and 16.7% of cases lost by governmental plaintiffs. In cases lost by individual defendants, fees were denied to successful plaintiffs 22.7% of the time compared to 9.8% denials in cases lost by corporate defendants and 28.6% denials in cases lost by government defendants. In addition to varying by whether plaintiffs or defendants prevailed and by party status, the fee denial pattern varied by case category and judicial district. Theorizing about optimal fee rules should account for the variety of fee outcomes observed in practice.","PeriodicalId":413839,"journal":{"name":"LSN: Litigants & the Judiciary (Topic)","volume":"1 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2013-01-30","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"130500115","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 a dispute involving multifarious points of disagreement, courts have the discretion to adjudicate issues separately in multiple, sequential proceedings or all-at-once in a single unitary proceeding. In this paper, we contrast the effects of sequential and unitary trials on parties’ decisions to litigate and parties’ expenditures in litigation, using a rent-seeking model. Contrary to the prior literature on this topic, we find that neither procedural regime is outright superior to the other and that the optimal choice of procedural regime is contingent on factors particular to each case. Furthermore, we identify which conditions cause one procedural regime to be more efficient than the other, and suggest policies to take advantage of these differences.
{"title":"Are Sequential Trials Really Better than Unitary Trials?","authors":"J. D. De Mot, Barbara Luppi, F. Parisi","doi":"10.2139/ssrn.2139787","DOIUrl":"https://doi.org/10.2139/ssrn.2139787","url":null,"abstract":"In a dispute involving multifarious points of disagreement, courts have the discretion to adjudicate issues separately in multiple, sequential proceedings or all-at-once in a single unitary proceeding. In this paper, we contrast the effects of sequential and unitary trials on parties’ decisions to litigate and parties’ expenditures in litigation, using a rent-seeking model. Contrary to the prior literature on this topic, we find that neither procedural regime is outright superior to the other and that the optimal choice of procedural regime is contingent on factors particular to each case. Furthermore, we identify which conditions cause one procedural regime to be more efficient than the other, and suggest policies to take advantage of these differences.","PeriodicalId":413839,"journal":{"name":"LSN: Litigants & the Judiciary (Topic)","volume":"51 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2012-08-31","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"133273176","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}
Pub Date : 2010-12-03DOI: 10.17159/1727-3781/2010/V13I3A2671
P. Bolton
In recent years, bidders aggrieved by municipal tender awards are increasingly resorting to Section 62 of the Local Government: Municipal Systems Act1 for relief. The application of this provision to tender processes is however strictly confined, and in most instances bidders find that they have no option but to approach the courts for the judicial review of tender awards. In this article, the application of Section 62 to a municipality’s tender processes and decisions is critically analysed in the light of recent court judgments. Attention is also given to the relation between Section 62 and dispute resolution procedures in place under the Supply Chain Regulations,2 enacted under the Local Government: Municipal Finance Management Act.3 It is argued that at present, internal appeal and dispute resolution processes do not afford unsuccessful bidders adequate protection. Keywords : Appeals; bid committee system; competitive bidding; Constitution; dispute resolution; Local Government: Municipal Systems Act; procurement; South Africa; tender.
{"title":"Municipal Tender Awards and Internal Appeals by Unsuccessful Bidders","authors":"P. Bolton","doi":"10.17159/1727-3781/2010/V13I3A2671","DOIUrl":"https://doi.org/10.17159/1727-3781/2010/V13I3A2671","url":null,"abstract":"In recent years, bidders aggrieved by municipal tender awards are increasingly resorting to Section 62 of the Local Government: Municipal Systems Act1 for relief. The application of this provision to tender processes is however strictly confined, and in most instances bidders find that they have no option but to approach the courts for the judicial review of tender awards. In this article, the application of Section 62 to a municipality’s tender processes and decisions is critically analysed in the light of recent court judgments. Attention is also given to the relation between Section 62 and dispute resolution procedures in place under the Supply Chain Regulations,2 enacted under the Local Government: Municipal Finance Management Act.3 It is argued that at present, internal appeal and dispute resolution processes do not afford unsuccessful bidders adequate protection. Keywords : Appeals; bid committee system; competitive bidding; Constitution; dispute resolution; Local Government: Municipal Systems Act; procurement; South Africa; tender.","PeriodicalId":413839,"journal":{"name":"LSN: Litigants & the Judiciary (Topic)","volume":"64 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2010-12-03","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"116635520","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}
Pub Date : 2009-03-25DOI: 10.1017/9781108770804.022
M. Fletcher
The Supreme Court's certiorari process is a barrier to justice for parties like Indian tribes and individual Indians. Statistically, there is a near zero chance the Supreme Court will grant a certiorari petition filed by tribal interests. At the same time, the Court grants certiorari in more than a quarter of petitions filed by the traditional opponents to tribal sovereignty, states. Why?The Supreme Court has long maintained that the certiorari process is a neutral and objective means of eliminating patently frivolous petitions from consideration. This empirical study of preliminary memoranda drafted by the Supreme Court law clerk pool demonstrates the likelihood that the Court's certiorari process is neither objective nor neutral. Cert pool clerks overstate the relative merits and importance of petitions filed by states against tribal interests, while understating the merits and importance of tribal petitions.In this study of more than 162 certiorari petitions filed between 1986 and 1994, a majority of petitions brought by state and local governments received favorable treatment from the cert pool while recommending denial in all but a single tribal petition, often labeling them "factbound" and "splitless." The impact of this weighted review of cert petitions is that a disproportionate number of state government petitions are granted while very few tribal petitions are granted.
{"title":"Factbound and Splitless: The Certiorari Process as a Barrier to Justice for Indian Tribes","authors":"M. Fletcher","doi":"10.1017/9781108770804.022","DOIUrl":"https://doi.org/10.1017/9781108770804.022","url":null,"abstract":"The Supreme Court's certiorari process is a barrier to justice for parties like Indian tribes and individual Indians. Statistically, there is a near zero chance the Supreme Court will grant a certiorari petition filed by tribal interests. At the same time, the Court grants certiorari in more than a quarter of petitions filed by the traditional opponents to tribal sovereignty, states. Why?The Supreme Court has long maintained that the certiorari process is a neutral and objective means of eliminating patently frivolous petitions from consideration. This empirical study of preliminary memoranda drafted by the Supreme Court law clerk pool demonstrates the likelihood that the Court's certiorari process is neither objective nor neutral. Cert pool clerks overstate the relative merits and importance of petitions filed by states against tribal interests, while understating the merits and importance of tribal petitions.In this study of more than 162 certiorari petitions filed between 1986 and 1994, a majority of petitions brought by state and local governments received favorable treatment from the cert pool while recommending denial in all but a single tribal petition, often labeling them \"factbound\" and \"splitless.\" The impact of this weighted review of cert petitions is that a disproportionate number of state government petitions are granted while very few tribal petitions are granted.","PeriodicalId":413839,"journal":{"name":"LSN: Litigants & the Judiciary (Topic)","volume":"8 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2009-03-25","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"128080614","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 this article, the author explores Federal Rule of Civil Procedure 52(a) and standard of review choice to determine whether appellate judges can exploit its terms to pursue ideological goals. The author examines the operative terms of Rule 52(a), viz., findings of fact, clear error, and documentary evidence, and concludes that they are so malleable as to give appellate judges wide discretion in deciding whether clear error, de novo, or some other standard of review is to be applied. The article then goes on to identify fact typologies appellate courts invoke (historical, ultimate, constitutional, legislative, sociological, scientific, political, economic, jurisdictional), some which also enables them to circumvent Rule 52(a) and engage in de novo review of a trial court's factual findings The article concludes that standard of review choices can serve as a prism through which to view a judge's ideological predisposition, especially when those choices are made in an undisciplined, unprincipled manner. The author argues that appellate courts' treatment of Rule 52(a) and fact typology can impair decisional legitimacy, administrative efficiency, and comity between the trial and appellate courts. As Rule 52(a)'s malleable character and fact typology serve important jurisprudential functions, the author makes several recommendations to clarify decisional rules as they apply to standard of review, and to mitigate unwarranted perception of ideological bias in making judgments about the applicable standard of review.
{"title":"Federal Rule of Civil Procedure 52(A) as an Ideological Weapon?","authors":"B. Adamson","doi":"10.2139/SSRN.1128324","DOIUrl":"https://doi.org/10.2139/SSRN.1128324","url":null,"abstract":"In this article, the author explores Federal Rule of Civil Procedure 52(a) and standard of review choice to determine whether appellate judges can exploit its terms to pursue ideological goals. The author examines the operative terms of Rule 52(a), viz., findings of fact, clear error, and documentary evidence, and concludes that they are so malleable as to give appellate judges wide discretion in deciding whether clear error, de novo, or some other standard of review is to be applied. The article then goes on to identify fact typologies appellate courts invoke (historical, ultimate, constitutional, legislative, sociological, scientific, political, economic, jurisdictional), some which also enables them to circumvent Rule 52(a) and engage in de novo review of a trial court's factual findings The article concludes that standard of review choices can serve as a prism through which to view a judge's ideological predisposition, especially when those choices are made in an undisciplined, unprincipled manner. The author argues that appellate courts' treatment of Rule 52(a) and fact typology can impair decisional legitimacy, administrative efficiency, and comity between the trial and appellate courts. As Rule 52(a)'s malleable character and fact typology serve important jurisprudential functions, the author makes several recommendations to clarify decisional rules as they apply to standard of review, and to mitigate unwarranted perception of ideological bias in making judgments about the applicable standard of review.","PeriodicalId":413839,"journal":{"name":"LSN: Litigants & the Judiciary (Topic)","volume":"11 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2008-05-24","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"114930449","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 is a compilation of case descriptions and citations to law review articles that complements the contents of the 2014 Pocket Parts to volumes 14B and C of the Wright & Miller treatise on Federal Practice and Procedure. It was put together by the author of those Pocket Parts. The cases described here either are not included at all in the 2014 volume 14B and C Pocket Parts or are cited there for different propositions than are reflected in this electronic publication. The cases that are included in this electronic compilation came to my attention between mid-October, 2012, and mid-October, 2013. This electronic compilation was prompted by the publisher’s decision to make the treatise more selective in describing new case developments, as the number of cases in this and many other areas of federal practice and procedure exploded.
{"title":"Removal and Remand -- Beyond the Supplements","authors":"Joan E. Steinman","doi":"10.2139/SSRN.2401049","DOIUrl":"https://doi.org/10.2139/SSRN.2401049","url":null,"abstract":"This is a compilation of case descriptions and citations to law review articles that complements the contents of the 2014 Pocket Parts to volumes 14B and C of the Wright & Miller treatise on Federal Practice and Procedure. It was put together by the author of those Pocket Parts. The cases described here either are not included at all in the 2014 volume 14B and C Pocket Parts or are cited there for different propositions than are reflected in this electronic publication. The cases that are included in this electronic compilation came to my attention between mid-October, 2012, and mid-October, 2013. This electronic compilation was prompted by the publisher’s decision to make the treatise more selective in describing new case developments, as the number of cases in this and many other areas of federal practice and procedure exploded.","PeriodicalId":413839,"journal":{"name":"LSN: Litigants & the Judiciary (Topic)","volume":"6 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"1900-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"123706532","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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