Debates over prison privatization neglect to consider differences in legal access across private and public prisons. I argue that private prisons experience lower filing rates than public prisons, and that cases brought against publicly traded private prison companies are less likely to be dismissed and more likely to succeed than similar cases against public prisons. I find evidence consistent with these claims, a result that is not driven by other explanations of judicial decision-making. This paper has implications for skepticism of private interests in public policymaking, and encourages investigation of access to justice for inmates in public and private custody.
{"title":"Inmate Litigation, Legal Access, and Prison Privatization","authors":"Anna Gunderson","doi":"10.1017/jlc.2022.12","DOIUrl":"https://doi.org/10.1017/jlc.2022.12","url":null,"abstract":"\u0000 Debates over prison privatization neglect to consider differences in legal access across private and public prisons. I argue that private prisons experience lower filing rates than public prisons, and that cases brought against publicly traded private prison companies are less likely to be dismissed and more likely to succeed than similar cases against public prisons. I find evidence consistent with these claims, a result that is not driven by other explanations of judicial decision-making. This paper has implications for skepticism of private interests in public policymaking, and encourages investigation of access to justice for inmates in public and private custody.","PeriodicalId":44478,"journal":{"name":"Journal of Law and Courts","volume":null,"pages":null},"PeriodicalIF":1.4,"publicationDate":"2022-12-27","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"42915838","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 test the political capital hypothesis that Supreme Court decisions simultaneously legitimate policy and harm support for the Court, at least under certain conditions. Our data suggest that the Court’s “legitimacy-conferring” capacity is weak. Learning that the Supreme Court upheld an affirmative action policy increased public support for the constitutionality and desirability of that policy, but only among Democrats pre-disposed towards that reaction. Furthermore, Democrats did not develop more favorable views of the Court. Consistent with the political capital hypothesis, Republicans developed more negative views of the Court when the Court associated itself with affirmative action policy.
{"title":"The Costs of Policy Legitimation: A Test of the Political Capital Hypothesis","authors":"D. Fontana, Christopher N. Krewson","doi":"10.1017/jlc.2022.13","DOIUrl":"https://doi.org/10.1017/jlc.2022.13","url":null,"abstract":"\u0000 We test the political capital hypothesis that Supreme Court decisions simultaneously legitimate policy and harm support for the Court, at least under certain conditions. Our data suggest that the Court’s “legitimacy-conferring” capacity is weak. Learning that the Supreme Court upheld an affirmative action policy increased public support for the constitutionality and desirability of that policy, but only among Democrats pre-disposed towards that reaction. Furthermore, Democrats did not develop more favorable views of the Court. Consistent with the political capital hypothesis, Republicans developed more negative views of the Court when the Court associated itself with affirmative action policy.","PeriodicalId":44478,"journal":{"name":"Journal of Law and Courts","volume":null,"pages":null},"PeriodicalIF":1.4,"publicationDate":"2022-12-27","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"45613273","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}
Nathaniel T. W. Carrington, Thomas M. Keck, Claire Sigsworth
This paper draws on new data regarding judicial decisions involving religious and anti-religious expression to map the political beneficiaries of judicial empowerment. In particular, the paper assesses the extent to which free-expression decisions issued by the U.S. Supreme Court and European Court of Human Rights have favored claimants who are religious majorities, religious minorities, or secular elites. We find the U.S. doctrine relatively more libertarian and the European Court of Human Rights doctrine relatively more secularist, but both bodies of case law extend regular and substantial rights protection to religious minorities.
{"title":"Minority Rights, Governing Regimes, or Secular Elites: Who Benefits from the Protection of Religious and Anti-Religious Speech by the U.S. Supreme Court and European Court of Human Rights?","authors":"Nathaniel T. W. Carrington, Thomas M. Keck, Claire Sigsworth","doi":"10.1017/jlc.2022.11","DOIUrl":"https://doi.org/10.1017/jlc.2022.11","url":null,"abstract":"\u0000 This paper draws on new data regarding judicial decisions involving religious and anti-religious expression to map the political beneficiaries of judicial empowerment. In particular, the paper assesses the extent to which free-expression decisions issued by the U.S. Supreme Court and European Court of Human Rights have favored claimants who are religious majorities, religious minorities, or secular elites. We find the U.S. doctrine relatively more libertarian and the European Court of Human Rights doctrine relatively more secularist, but both bodies of case law extend regular and substantial rights protection to religious minorities.","PeriodicalId":44478,"journal":{"name":"Journal of Law and Courts","volume":null,"pages":null},"PeriodicalIF":1.4,"publicationDate":"2022-12-13","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"48481981","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}
How do ideological factors explain the citation patterns of federal courts? Current literature uses citation data in myriad ways but leaves open the question of how ideological factors may influence citation from each level of the judicial hierarchy differently. Combining original data on citations to Supreme Court opinions by district courts from 1969 to 2005 with existing data on citations by the courts of appeals and Supreme Court, I present a more complete portrait of the scope of a precedent across the federal judiciary. I find that ideological factors are associated with differences in citing behavior on the federal courts. Both the appellate and district courts are responsive to Supreme Court precedent, but district courts are not equally responsive to liberal and conservative updates to doctrine. Further, as the Supreme Court ideology changes from the time of setting precedent, appellate courts are less likely to cite the precedent, but district courts cite it more. These results suggest that the relationship between ideology and precedent adherence is complicated by the distinct institutional features of the Supreme Court, courts of appeals, and district courts.
{"title":"Ideological Determinants of Citations to Supreme Court Precedent Across the Federal Judiciary","authors":"Amna Salam","doi":"10.1017/jlc.2022.5","DOIUrl":"https://doi.org/10.1017/jlc.2022.5","url":null,"abstract":"\u0000 How do ideological factors explain the citation patterns of federal courts? Current literature uses citation data in myriad ways but leaves open the question of how ideological factors may influence citation from each level of the judicial hierarchy differently. Combining original data on citations to Supreme Court opinions by district courts from 1969 to 2005 with existing data on citations by the courts of appeals and Supreme Court, I present a more complete portrait of the scope of a precedent across the federal judiciary. I find that ideological factors are associated with differences in citing behavior on the federal courts. Both the appellate and district courts are responsive to Supreme Court precedent, but district courts are not equally responsive to liberal and conservative updates to doctrine. Further, as the Supreme Court ideology changes from the time of setting precedent, appellate courts are less likely to cite the precedent, but district courts cite it more. These results suggest that the relationship between ideology and precedent adherence is complicated by the distinct institutional features of the Supreme Court, courts of appeals, and district courts.","PeriodicalId":44478,"journal":{"name":"Journal of Law and Courts","volume":null,"pages":null},"PeriodicalIF":1.4,"publicationDate":"2022-12-13","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"45395925","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 paper, I create a simulation model that predicts the portfolio of judges the president chooses to fill vacancies in the judiciary. I find that the president’s strategy in terms of appointments depends on constraint from the Senate, the talent pool of possible judges to appoint, the ideology of the courts in the judiciary, and the number of vacancies to be filled. The model is successful in replicating results that have been found in previous research, while also generating new hypotheses about previously unexplored aspects of the appointment process.
{"title":"Binders Full of Judges: A Model of the Interdependency of Appointments to the United States Federal Judiciary","authors":"A. Uribe-McGuire","doi":"10.1017/jlc.2022.9","DOIUrl":"https://doi.org/10.1017/jlc.2022.9","url":null,"abstract":"\u0000 In this paper, I create a simulation model that predicts the portfolio of judges the president chooses to fill vacancies in the judiciary. I find that the president’s strategy in terms of appointments depends on constraint from the Senate, the talent pool of possible judges to appoint, the ideology of the courts in the judiciary, and the number of vacancies to be filled. The model is successful in replicating results that have been found in previous research, while also generating new hypotheses about previously unexplored aspects of the appointment process.","PeriodicalId":44478,"journal":{"name":"Journal of Law and Courts","volume":null,"pages":null},"PeriodicalIF":1.4,"publicationDate":"2022-12-12","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"42742622","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}
A longstanding debate in American judicial politics concerns whether the US Supreme Court anticipates or responds to the possibility that Congress will override its decisions. A recent theory proposes that opinions that are relatively hard to read are more costly for Congress to review, and that as a result, the Court can decrease the likelihood of override from a hostile Congress by obfuscating its opinions (i.e., writing opinions that are less readable when congressional review is a threat). I derive a straightforward but novel empirical implication of this theory; I then show that the implication does not in fact hold. This casts serious doubt on the claim that justices strategically obfuscate opinion language to avoid congressional override. I also discuss sentence tokenization as a source of measurement error in readability statistics for judicial opinions.
{"title":"On Separation of Powers and Obfuscation in US Supreme Court Opinions","authors":"D. Lempert","doi":"10.1017/jlc.2022.7","DOIUrl":"https://doi.org/10.1017/jlc.2022.7","url":null,"abstract":"\u0000 A longstanding debate in American judicial politics concerns whether the US Supreme Court anticipates or responds to the possibility that Congress will override its decisions. A recent theory proposes that opinions that are relatively hard to read are more costly for Congress to review, and that as a result, the Court can decrease the likelihood of override from a hostile Congress by obfuscating its opinions (i.e., writing opinions that are less readable when congressional review is a threat). I derive a straightforward but novel empirical implication of this theory; I then show that the implication does not in fact hold. This casts serious doubt on the claim that justices strategically obfuscate opinion language to avoid congressional override. I also discuss sentence tokenization as a source of measurement error in readability statistics for judicial opinions.","PeriodicalId":44478,"journal":{"name":"Journal of Law and Courts","volume":null,"pages":null},"PeriodicalIF":1.4,"publicationDate":"2022-12-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"41626786","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 study investigates how citizens assess the credibility of constitutional experts on matters of government authority. Analyses of data from two similarly designed experiments, conducted with national samples, reveal that partisanship, race, and level of education are significant predictors of survey respondents’ willingness to extend credibility to constitutional experts. The compatibility of the views expressed by experts with respondents’ own policy views on issues that are the subject of proposed government action is also important. Evidence shows that this consistency is more important in the decision that experts are credible than in decisions that they are not credible, suggesting that esteem motives are relevant in the decision to credit experts who express views congenial to our own that are distinct from social-identity motives scholars have theorized to be important in partisan resistance to expertise. The implications of findings for holding government officials accountable to constitutional limits on government authority are considered.
{"title":"Assessing the Credibility of Constitutional Experts","authors":"Eileen Braman","doi":"10.1017/jlc.2022.4","DOIUrl":"https://doi.org/10.1017/jlc.2022.4","url":null,"abstract":"\u0000 This study investigates how citizens assess the credibility of constitutional experts on matters of government authority. Analyses of data from two similarly designed experiments, conducted with national samples, reveal that partisanship, race, and level of education are significant predictors of survey respondents’ willingness to extend credibility to constitutional experts. The compatibility of the views expressed by experts with respondents’ own policy views on issues that are the subject of proposed government action is also important. Evidence shows that this consistency is more important in the decision that experts are credible than in decisions that they are not credible, suggesting that esteem motives are relevant in the decision to credit experts who express views congenial to our own that are distinct from social-identity motives scholars have theorized to be important in partisan resistance to expertise. The implications of findings for holding government officials accountable to constitutional limits on government authority are considered.","PeriodicalId":44478,"journal":{"name":"Journal of Law and Courts","volume":null,"pages":null},"PeriodicalIF":1.4,"publicationDate":"2022-12-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"56922553","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}
Research on judicial behavior has yet to systematically examine the extent to which ideology affects voting behavior outside of rights-based issues. This study explores the predictive effect of judicial ideology on judicial votes in a country without a bill of rights: Australia. We develop an ex ante measure of judicial ideology and use original data on every Australian High Court decision between 1995 and 2019 to test whether, and in which types of cases, votes of Australia’s justices align with their ideology. The results show that ex ante ideology is predictive of voting behavior, regardless of policy area.
{"title":"Judicial Ideology in the Absence of Rights","authors":"Zoe Robinson, P. Leslie, Jill Sheppard","doi":"10.1086/716187","DOIUrl":"https://doi.org/10.1086/716187","url":null,"abstract":"Research on judicial behavior has yet to systematically examine the extent to which ideology affects voting behavior outside of rights-based issues. This study explores the predictive effect of judicial ideology on judicial votes in a country without a bill of rights: Australia. We develop an ex ante measure of judicial ideology and use original data on every Australian High Court decision between 1995 and 2019 to test whether, and in which types of cases, votes of Australia’s justices align with their ideology. The results show that ex ante ideology is predictive of voting behavior, regardless of policy area.","PeriodicalId":44478,"journal":{"name":"Journal of Law and Courts","volume":null,"pages":null},"PeriodicalIF":1.4,"publicationDate":"2022-09-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"44887466","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}
Presidents may react to Supreme Court decisions by supporting or opposing them in their public rhetoric and by calling on Congress to take action to alter or implement the Court’s decisions. We investigate this unique form of lawmaking using an original database of presidential calls to Congress and congressional reactions. We find that presidents call for congressional action to pursue their policy goals and enhance the power of the presidency; we also find that Congress reacts when it is asked to do so by both the Court and the president, as well as when presidents support the implementation of the Court’s decisions.
{"title":"The Supreme Court, the President, and Congress","authors":"P. Collins, Matthew Eshbaugh-Soha","doi":"10.1086/715694","DOIUrl":"https://doi.org/10.1086/715694","url":null,"abstract":"Presidents may react to Supreme Court decisions by supporting or opposing them in their public rhetoric and by calling on Congress to take action to alter or implement the Court’s decisions. We investigate this unique form of lawmaking using an original database of presidential calls to Congress and congressional reactions. We find that presidents call for congressional action to pursue their policy goals and enhance the power of the presidency; we also find that Congress reacts when it is asked to do so by both the Court and the president, as well as when presidents support the implementation of the Court’s decisions.","PeriodicalId":44478,"journal":{"name":"Journal of Law and Courts","volume":null,"pages":null},"PeriodicalIF":1.4,"publicationDate":"2022-07-28","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"47452616","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}
Courts regularly delegate tasks to individual or small subsets of judges. While a substantial literature addresses delegation in the context of American courts, less is known about why and how courts delegate from a comparative perspective. With many of the world’s high courts using panel systems (also known as “chambers”) by which the court delegates cases to subsets of judges, this limitation of the extant literature leaves a number of empirical and theoretical questions unanswered. We argue that the threat of noncompliance presents one factor influencing a court’s delegation of cases to panels. From our expectation that a court will not delegate cases with a greater risk for noncompliance to panels, we then derive empirical implications for case disposition and a court’s willingness to rule contrary to the legal merits in a case. We analyze panel usage at the Court of Justice of the European Union to support our account.
法院经常将任务委托给个别或少数法官。虽然有大量的文献在美国法院的背景下讨论授权，但从比较的角度来看，法院为什么以及如何授权却鲜为人知。由于世界上许多高等法院使用小组制度(也称为“分庭”)，法院将案件委托给法官的子集，现有文献的这种限制使许多经验和理论问题没有得到解答。我们认为，不遵守的威胁是影响法院将案件委托给专家组的一个因素。根据我们的预期，法院不会将有更大不合规风险的案件委托给专家组，然后我们得出了案件处理和法院愿意在案件中做出与法律是非曲性相反的裁决的经验意义。我们分析了欧盟法院(Court of Justice of European Union)的陪审团使用情况，以支持我们的说法。
{"title":"Delegation, Compliance, and Judicial Decision Making in the Court of Justice of the European Union","authors":"Sivaram Cheruvu, Jay N. Krehbiel","doi":"10.1086/718496","DOIUrl":"https://doi.org/10.1086/718496","url":null,"abstract":"Courts regularly delegate tasks to individual or small subsets of judges. While a substantial literature addresses delegation in the context of American courts, less is known about why and how courts delegate from a comparative perspective. With many of the world’s high courts using panel systems (also known as “chambers”) by which the court delegates cases to subsets of judges, this limitation of the extant literature leaves a number of empirical and theoretical questions unanswered. We argue that the threat of noncompliance presents one factor influencing a court’s delegation of cases to panels. From our expectation that a court will not delegate cases with a greater risk for noncompliance to panels, we then derive empirical implications for case disposition and a court’s willingness to rule contrary to the legal merits in a case. We analyze panel usage at the Court of Justice of the European Union to support our account.","PeriodicalId":44478,"journal":{"name":"Journal of Law and Courts","volume":null,"pages":null},"PeriodicalIF":1.4,"publicationDate":"2022-02-16","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"44503463","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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