Copyright (c) 2009 All rights reserved. http://works.bepress.com/david_law Recent documents in David S. Law en-us Thu, 27 Aug 2009 15:53:24 PDT 3600 http://works.bepress.com/david_law/17 http://works.bepress.com/david_law/17 Wed, 19 Aug 2009 21:59:37 PDT Much of the social science literature on judicial behavior has focused on the impact of ideology on how judges vote. For the most part, however, legal scholars have been reluctant to embrace empirical scholarship that fails to address the impact of legal constraints and the means by which judges reason their way to particular outcomes. This Article attempts to integrate and address the concerns of both audiences by way of an empirical examination of the Supreme Court's use of a particular interpretive technique - namely, the use of legislative history to determine the purpose and meaning of a statute. We analyzed every opinion in every Supreme Court statutory interpretation case from 1953 through 2006 that involved a frequently interpreted federal statute. We also collected original data on the characteristics of each statute, including its age, length, complexity, obscurity, and the number of times that it had been amended. We then used logit regression analysis to evaluate the impact of these characteristics, as well as the ideological tilt of the justices and their opinions, on the likelihood that a justice would cite legislative history in a given opinion. We find overall that the use of legislative history is driven by a combination of legal and ideological factors. On the whole, the legal variables have a significantly larger impact on the likelihood of legislative history usage than the ideological variables, but the impact of the ideological variables cannot be dismissed. Statutes that are longer or more complex increase the likelihood of legislative history usage, whereas frequent amendment of a statute decreases that likelihood. The age of the statute also matters, but its effect is neither linear nor monotonic: very new and very old statutes are more likely to elicit legislative history usage than statutes of intermediate age. Majority opinions are significantly more likely to cite legislative history than dissenting opinions, which are in turn more than twice as likely to cite legislative history as concurring opinions. The evidence also suggests that the use of legislative history by one justice prompts other justices to respond in kind with legislative history arguments of their own. With respect to the impact of ideological factors, liberal justices are generally more likely than conservative justices to cite legislative history. We found no support, however, for the proposition that justices use legislative history instrumentally in order to reach their ideologically preferred outcomes: legislative history usage does not affect the likelihood that a justice will arrive at his or her preferred outcome. Moreover, contrary to what some scholars have suggested, we also found no evidence that Justice Scalia has persuaded other justices to refrain from citing legislative history in their own opinions. Rather, the decline in the overall use of legislative history since the mid-1980s reflects a rightward shift in the ideological composition of the Court, as liberal justices who were inclined to cite legislative history have been replaced by conservative justices who are not inclined to do so. David S. Law Courts Judges Public Law and Legal Theory Law and Economics Legislation Administrative Law Politics http://works.bepress.com/david_law/16 http://works.bepress.com/david_law/16 Tue, 18 Aug 2009 23:08:54 PDT Much of the social science literature on judicial behavior has focused on the impact of ideology on how judges vote. For the most part, however, legal scholars have been reluctant to embrace empirical scholarship that fails to address the impact of legal constraints and the means by which judges reason their way to particular outcomes. This Article attempts to integrate and address the concerns of both audiences by way of an empirical examination of the Supreme Court's use of a particular interpretive technique - namely, the use of legislative history to determine the purpose and meaning of a statute. We analyzed every opinion in every Supreme Court statutory interpretation case from 1953 through 2006 that involved a frequently interpreted federal statute. We also collected original data on the characteristics of each statute, including its age, length, complexity, obscurity, and the number of times that it had been amended. We then used logit regression analysis to evaluate the impact of these characteristics, as well as the ideological tilt of the justices and their opinions, on the likelihood that a justice would cite legislative history in a given opinion. We find overall that the use of legislative history is driven by a combination of legal and ideological factors. On the whole, the legal variables have a significantly larger impact on the likelihood of legislative history usage than the ideological variables, but the impact of the ideological variables cannot be dismissed. Statutes that are longer or more complex increase the likelihood of legislative history usage, whereas frequent amendment of a statute decreases that likelihood. The age of the statute also matters, but its effect is neither linear nor monotonic: very new and very old statutes are more likely to elicit legislative history usage than statutes of intermediate age. Majority opinions are significantly more likely to cite legislative history than dissenting opinions, which are in turn more than twice as likely to cite legislative history as concurring opinions. The evidence also suggests that the use of legislative history by one justice prompts other justices to respond in kind with legislative history arguments of their own. With respect to the impact of ideological factors, liberal justices are generally more likely than conservative justices to cite legislative history. We found no support, however, for the proposition that justices use legislative history instrumentally in order to reach their ideologically preferred outcomes: legislative history usage does not affect the likelihood that a justice will arrive at his or her preferred outcome. Moreover, contrary to what some scholars have suggested, we also found no evidence that Justice Scalia has persuaded other justices to refrain from citing legislative history in their own opinions. Rather, the decline in the overall use of legislative history since the mid-1980s reflects a rightward shift in the ideological composition of the Court, as liberal justices who were inclined to cite legislative history have been replaced by conservative justices who are not inclined to do so. David S. Law Courts General Law Judges Public Law and Legal Theory Judicial Appointment & Behavior Judicial Politics Statutory Interpretation, Legislation http://works.bepress.com/david_law/15 http://works.bepress.com/david_law/15 Sun, 17 May 2009 15:39:18 PDT The Supreme Court of Japan is widely considered the most conservative constitutional court in the world, and for good reason: in over fifty years of operation, it has struck down only eight laws on constitutional grounds. Drawing on interviews conducted in Japan with a variety of judges, officials, and scholars-including seven current and former members of the Supreme Court itself-this Article offers a political and institutional account of why the Court has failed to take an active role in the enforcement of Japan's postwar constitution. This account of the Court's behavior also yields a number of insights into the relationship between judicial politics and electoral politics and the role of institutional design in mediating between the two.The fact that the Court is conservative is perhaps only to be expected given its longtime immersion in a conservative political environment: the Liberal Democratic Party (LDP), Japan's center-right ruling party, has held power almost without interruption for half a century. Much of the LDP's influence over the Court is disguised, however, by the institutional design of the judiciary, which appears to enjoy a considerable degree of autonomy to manage its own affairs and even to decide who will serve on the Supreme Court. What the LDP has done is, in effect, to delegate political control of the judiciary to ideologically reliable agents within the judiciary itself-namely, the enormously powerful Chief Justice and his aides in the Court's administrative arm, the General Secretariat. Like the Chief Justice, the leaders of the General Secretariat are reliably orthodox jurists who have reached positions of power via a lifelong process of ideological vetting that all career judges must undergo. This group of judicial bureaucrats performs a wide range of sensitive activities ranging from the training and screening of new judges to the selection of Supreme Court law clerks, who are themselves successful career judges and exert a decidedly conservative influence on the Court.The Japanese experience holds valuable lessons for students of judicial politics and institutional design. There is no plausible way of designing or structuring a court so as to insulate it entirely from political influence. The institutional characteristics of the court can, however, determine how responsive it will be to its political environment. An obviously relevant characteristic is the frequency with which political actors-be they elected officials, voters, or some combination of the two-have the opportunity to shape the composition of the court. A less obvious, but no less relevant, characteristic is the extent to which power within the court is centralized or diffuse. The Japanese Supreme Court illustrates the importance of these characteristics: its organization and structure render it highly unlikely to depart from the wishes of the government for any meaningful period of time. The sheer number of seats on the Court, combined with a deliberate strategy of appointing justices close to mandatory retirement age, ensure a high degree of turnover that gives the government opportunities to adjust and correct the ideological direction of the Court on an ongoing basis. Similarly, the concentration of power in the hands of a single individual who is subject to replacement at relatively frequent intervals-namely, the Chief Justice-makes unnecessary sustained and repeated efforts to influence the behavior of the Court. David S. Law Comparative Law Constitutional Law Courts Judges Public Law and Legal Theory Judicial Appointment & Behavior Judicial Politics http://works.bepress.com/david_law/14 http://works.bepress.com/david_law/14 Sat, 04 Oct 2008 04:59:29 PDT Scholars have for decades sought to measure judicial ideology and its impact on judicial behavior. They have not, however, taken care to identify the phenomenon that they are measuring in clear and convincing terms, or to evaluate different measurement approaches for their suitability to the task at hand. In this paper, we diagnose recurring weaknesses of the existing empirical literature, and we propose a measurement approach of our own that offers significant improvements over some of the most popular alternatives.First, we identify the major conceptual and methodological obstacles to the empirical measurement of judicial ideology. Foremost among the conceptual challenges to be faced are the difficulty of defining ideology and the associated challenge of disentangling ideological and nonideological preferences. The failure of empirical researchers to confront this challenge is a fatal one because it is impossible to design and select appropriate tools for the measurement of a phenomenon that has not been properly specified. At the level of methodology, empirical researchers must also contend with the fact that ideology is a psychological phenomenon or latent trait that cannot be directly observed. From this fact stems the problem of observational equivalence: the observable behavior of judges is open to multiple interpretations and may be attributable to both ideological and nonideological motivations. Scholars must also contend with complications arising from the possibility that judicial ideology may be multidimensional, not only across areas of law but also within a given issue area.Second, we discuss the strengths and weaknesses of different measurement approaches, and their suitability to different types of research questions. The two types of approaches discussed are those involving the use of a proxy for the judge's ideology, and those that rest upon an individualized assessment of a judge's ideology based upon his or her observable behavior. We also discuss issues surrounding the coding of cases for empirical analysis, with particular attention to the choice between unidimensional, multidimensional, and agnostic coding schemes.Third, we perform a head-to-head competitive evaluation of two popular measurement approaches and a third approach of our own devising. Under our approach, we first analyze past voting behavior to arrive at an individualized estimate of each judge's ideology. We then estimate the impact of collegiality concerns and the cost of dissent on judicial voting. Finally, we use our estimates of both judicial ideology and the impact of collegiality to predict how each judge on a given panel will vote.We test the predictive power of our approach against that of two popular proxy measures of judicial ideology-namely, party of appointing president and judicial "common space scores." For testing purposes, we use a data set that we coded consisting of approximately 1,900 asylum cases decided by the Ninth Circuit over a ten-year period. We find that common space scores perform only slightly better than party of appointing president at predicting actual judicial voting. Moreover, both proxy measures yield almost identical estimates of the impact of ideology on actual judicial voting. By contrast, our approach boasts greater predictive power than either of the proxy measures, and it further reveals that ideology has a much greater impact on judicial voting than can be discovered using either of the usual proxy-based measures. David S. Law Courts Judges Judicial Appointment & Behavior http://works.bepress.com/david_law/13 http://works.bepress.com/david_law/13 Mon, 24 Mar 2008 03:02:40 PDT Judicial review has long been characterized by constitutional scholars as countermajoritarian and antidemocratic. This Article employs insights from political science and game theory to argue that precisely the opposite is true: the relationship between judicial power and popular rule is not antagonistic, but symbiotic. Constitutional courts with the power of judicial review perform monitoring and coordination functions that are crucial to the maintenance of popular sovereignty. By conveying relevant information about government misconduct in a highly public fashion, constitutional courts enable the people to exercise control over the government in an informed and coordinated manner. The fact that constitutional courts perform monitoring and coordinating functions helps, in turn, to solve the puzzle of why governments obey them. Their ability to mobilize the people against the government means that government disobedience of the courts carries potentially severe consequences.Judicial review supports popular sovereignty by mitigating the principal-agent problem that lies at the heart of democratic government. In a system of constitutional government premised upon popular sovereignty, the people institute and delegate power to a government and may impose terms and conditions in the form of a constitution. The government, as the agent of the people, is supposed to exercise its power consistent with those terms and conditions. But the interests of principal and agent may diverge: those entrusted with public power may seek to seize more power than has been given them, or to turn the power they have been given against the people themselves. The people, as collective principal, thus face the challenge of asserting effective control over a potentially treacherous government. A constitution ordinarily sets forth mechanisms by which they may exercise such control peacefully, but these are not immune to sabotage and failure. In extreme cases of constitutional failure, the people may band together to overthrow a government that has blocked the ordinary mechanisms of popular control. There are, however, significant potential obstacles to any effective exercise of popular power over the government. First is an information problem: the people cannot respond to bad behavior by the government if they remain unaware of that behavior. Second is a coordination problem: even if the people acting together are capable of replacing the government, such action may require widespread coordination that can be difficult to achieve. Constitutional courts facilitate the exercise of popular control over the government in two ways. First, they provide reliable, low-cost information about the constitutionality of government conduct. A court engaged in judicial review performs the function of a whistleblower or fire alarm: it warns the people whether their government has overstepped the bounds of its delegated power. Second, courts can coordinate popular action against usurping governments. People are unlikely to act openly against a tyrannical government unless they believe that others will act as well. What they need, therefore, is a signal that it is time to act. A court can provide such a signal by ruling publicly against the government. This theoretical account has important empirical implications that directly contradict the conventional wisdom about the purported relationship between judicial legitimacy and judicial power. It is commonly thought that courts jeopardize their legitimacy, and thus their power, by rendering unpopular decisions. This Article argues that the opposite may be true. When a court renders an unpopular decision that nevertheless receives widespread compliance, it generates and reinforces strategic expectations about its efficacy in future cases. These expectations are self-fulfilling and increase in strength over time: to the extent that one expects others to comply with the court's decisions, one will conclude that it is in one's own best to comply as well, and the result of such strategic calculations, multiplied over the entire populace, is an equilibrium of mass compliance. Thus, the successful exercise of judicial power in the face of opposition or criticism merely begets even more judicial power. The overall theory also helps to explain both judicial independence and public support for the courts. Because constitutional courts perform a watchdog function, the people have reason to support their independence even if particular decisions happen to strike an unpopular note. This prediction is consistent with the fact that popular support for the Supreme Court has remained high in the face of discontent with particular decisions.The Article concludes by offering a range of practical advice for those in the world of government, together with a call for reform of the scholarly agenda. For those on the bench, the Article offers suggestions as to how courts can best protect and expand their own power. For those who dream of becoming despots, it offers advice on how best to design a toothless judiciary without being too obvious about it. For those faced with the task of framing working constitutional arrangements for a liberal democracy, it makes a modest case for popular participation in the selection of judges. And for those who produce (or publish) legal scholarship, it argues for the reinvention of constitutional theory along post-countermajoritarian lines and attempts to envisage what questions might more fruitfully occupy the attention of constitutional scholars in this reimagined world. David S. Law Comparative Law Constitutional Law Courts Judges Public Law and Legal Theory http://works.bepress.com/david_law/12 http://works.bepress.com/david_law/12 Fri, 23 Mar 2007 02:49:11 PDT Globalization - the drastic reduction of barriers to transborder movement and exchange - is a phenomenon of obvious practical significance that has received little attention from American constitutional scholars. To the extent that it has attracted interest from the legal academy, that interest has been largely confined to a few minor symptoms that have manifested themselves in the behavior of judges: these symptoms include the growth of transnational judicial dialogue and the citation of foreign law in recent Supreme Court decisions. Yet the potential impact of globalization is not limited to its effect on the travel and citation habits of judges. On a larger scale, globalization entails intensifying international competition for investment capital and human talent that may have much greater implications for the worldwide development of constitutional law. This article aims to place globalization on the agenda of constitutional scholarship by proposing a provocative hypothesis about the impact of global investment and migration patterns on the extent to which countries uphold basic rights. One way in which countries can and do compete for financial capital and human talent is by offering bundles of rights and freedoms that are attractive to investors and elite workers. This article argues that such competition has the potential to result in a "race to the top" in the areas of civil liberties and property rights. It draws upon scholarship and data from a range of disciplines - but most heavily political science and economics - to show that this "race to the top" hypothesis is both logically and empirically plausible. Part II of the article sets the conceptual stage by articulating the relevance of globalization to constitutional law. Part III sets forth five competing hypotheses as to the likely impact of globalization on domestic law and policy. Part IV draws upon various sources of data to offer a brief snapshot of worldwide levels of globalization and protection for property rights and civil liberties, for the purpose of illustrating that some form of a "race to the top" hypothesis is empirically plausible. Part V sets forth the logic of the argument that competition for investment capital encourages countries to offer attractive bundles of both property rights and human rights. Part VI considers the potentially positive impact of competition for skilled labor on worldwide levels of human rights. It introduces the concept of a world market in human rights, in which states bid for elite workers by offering both monetary and nonmonetary inducements that include more or less generous bundles of rights and freedoms. Countries that do not boast an attractive bundle of this kind must compensate by offering what this article calls a "freedom premium," which amounts to a pure competitive disadvantage. The article concludes by identifying avenues for further research, and by offering a modest critique of excessively restrictive immigration policies that prevent the United States from fully exploiting its competitive advantages in the global market for human talent. David S. Law Comparative Law Constitutional Law International Law Law and Society Public Law and Legal Theory Globalization http://works.bepress.com/david_law/11 http://works.bepress.com/david_law/11 Tue, 31 Oct 2006 20:07:05 PST Previous empirical research has demonstrated that, in a number of contexts, federal appeals court judges divide along ideological lines when deciding cases upon the merits. To date, however, scholars have failed to find evidence that circuit judges take advantage of selective publication rules to further their ideological preferences - for example, by voting more ideologically in published cases that have precedential effect than in unpublished cases that lack binding effect upon future panels. This article evaluates the possibility that judges engage in strategic judicial lawmaking by voting more ideologically in published cases than in unpublished cases. To test this hypothesis, all asylum cases decided by the Ninth Circuit over a ten-year period were coded for analysis, and Markov Chain-Monte Carlo methods were used to estimate the extent to which publication increased the likelihood that each judge in the data set would vote in favor of asylum. A number of Democratic appointees proved significantly more likely to vote in favor of asylum in published cases. No such pattern emerged with respect to Republican appointees. This study also confirms earlier findings that Democratic and Republican appointees divide along ideological lines to a significant extent in both published and unpublished cases. The extent of the ideological voting behavior observed in unpublished cases calls into question the validity of much research on judicial behavior, insofar as such research continues to rely exclusively upon the analysis of published opinions and ignores unpublished opinions for reasons of convenience. David S. Law Courts Judges Law and Society Judicial Appointment & Behavior http://works.bepress.com/david_law/10 http://works.bepress.com/david_law/10 Tue, 31 Oct 2006 20:02:18 PST Sovereigns, like individuals, must sometimes make commitments that limit their freedom of action in order to accomplish their goals. Scholars have observed that constitutional arrangements can, by restricting a sovereign's power, enable the sovereign to make such commitments. The opposite, however, can also be true: constitutional arrangements can and do impede sovereign commitment by entrenching inalienable governmental powers and immunities. This Article explores the nature and origins of the commitment problems that sovereigns face, and the role of courts in solving such problems. It begins by setting forth an analytical distinction between effective and persuasive commitments. Effective commitments are made for the purpose of imposing actual restraint upon the commitment-maker; persuasive commitments, by contrast, are intended not to bind the commitment-maker, but rather to induce some third party to behave a particular way. Each type of commitment, in turn, poses a specific set of challenges for the sovereign or other actor that wishes to commit itself. Of particular relevance to sovereigns are the matching problems of what might be called undercommitment, on the one hand, and overcommitment, on the other. The problem of undercommitment is an acute one for sovereigns: the more powerful the sovereign, the more difficult it may be for the sovereign to make commitments that other actors find credible. At the same time, however, any solution to the problem of undercommitment runs the risk of overcommitment: no sovereign wishes to incapacitate itself to an unforeseen or undesirable extent. Courts, it is argued, have the capacity to assist the sovereign in making commitments that are credible yet do not hobble the sovereign. In doing so, however, courts risk damage to the basis of their own power - namely, their own reputation for rendering fair and efficacious judgments. The Article concludes by suggesting that our Constitution can itself be understood as a form of sovereign commitment - one that is intended both to restrict the sovereign and to persuade the people of the sovereign's legitimacy - and that the doctrine of sovereign immunity compromises both of these goals. David S. Law Comparative Law Constitutional Law Courts Jurisprudence Law and Society Public Law and Legal Theory http://works.bepress.com/david_law/9 http://works.bepress.com/david_law/9 Tue, 31 Oct 2006 19:46:53 PST This article argues that the expansion of the White House's role in judicial appointments since the late 1970s, at the expense of the Senate, has contributed to heightened levels of ideological conflict and gridlock over the appointment of federal appeals court judges, by making a cooperative equilibrium difficult to sustain. Presidents have greater electoral incentive to behave ideologically, and less incentive to cooperate with other players in the appointments process, than do senators, who are disciplined to a greater extent in their dealings with each other by the prospect of retaliation over repeat play. The possibility of divided government exacerbates the difficulty of achieving cooperative equilibrium by making both the benefits of cooperative behavior and the costs of retaliation highly uncertain. David S. Law Courts Judges Law and Society Judicial Appointment & Behavior http://works.bepress.com/david_law/8 http://works.bepress.com/david_law/8 Tue, 31 Oct 2006 19:42:10 PST What do nuclear competition and federal judicial selection share in common? Both involve strategic interactions that lend themselves to analysis from the perspective of game theory. From such a perspective, we offer an explanation of why partisan conflict and gridlock over appointments to the federal bench is likely to remain intractable.Game theory teaches us that, whether the game is one of nuclear disarmament or judicial selection, the prospects for long-term cooperation depend upon the ability of the players to detect uncooperative behavior and to retaliate promptly. To an unusual degree, the process by which federal judges are appointed is characterized by obstacles to effective retaliation that make enduring cooperation difficult to achieve. As a result, agreements between Republicans and Democrats over the treatment of judicial nominees may be even harder to enforce than agreements between competing superpowers to reduce their nuclear stockpiles.We conclude by discussing the conditions under which strategically minded political actors might choose to pursue the "nuclear option," by which a simple majority vote of the Senate would end the use of filibusters against judicial nominees. David S. Law Courts Judges Law and Society Judicial Appointment & Behavior