Attitudinal Model Research Articles

A Strategic Model of Judicial Behavior in the Lower Federal Courts

Although judges may be primarily motivated by their policy preferences, their pursuit of those preferences is often constrained by institutional roles and norms both internal and external to the federal judicial system that require judges to act strategically to translate those preferences into decision outcomes. This research combined endogenous constraints to the court in the interactions amongst justices with exogenous constraints to the court present in the relationships between the judicial, executive and legislative branches into strategic models for U.S. district court and court of appeals judges. Results suggest that the strategic model does explain judicial behavior that may not otherwise be understood as driven solely by attitudinal concerns. In both district court and court of appeals judges’ opinions, the strategic model correctly predicted more decisions than the attitudinal model. A judges’ ideological conflict with the preferences of their colleagues on appellate panels, the Supreme Court, Congress and the President were found to have a significant relationship with judges’ decisions to varying degrees. This research provides empirical support for the strategic model of judicial behavior and contributes to building this relatively new theory for use in understanding the behavior of lower federal court judges.

Disagreement on the Australian High Court: Reconsidering the Legalist Model

Traditionally, the Australian High Court has relied heavily on the legalist model of decision making in order to protect its legitimacy. Because of the unique debate between the Labor and Liberal parties about the basic institutions of Australian government, the High Court has found it particularly expedient to use the legalist model to convince the legal community of its complete impartiality. Recently, however, Australian legal scholars have begun to cast doubt upon the appropriateness of the legalist model, hypothesizing instead that an attitudinal model might more closely represent the decision making processes of the High Court. This hypothesis is tested using both a probit model and an ordered probit model of dissenting votes. The results show support for the idea that judicial attitudes do, in fact, influence decision making on the High Court.

Constructing the State Action Doctrine, 1940–1990

According to the state action doctrine, the Constitution restricts the activities of governmental but not private entities. Despite this rule's apparent simplicity, the Supreme Court has been clearly uncomfortable with precedents like Shelley v. Kraemer (1948) and has varied considerably in its receptiveness to state action claims from 1940 to 1990. The attitudinal model provides barely a beginning in accounting for both Shelley and changes in state action limitations. While liberal justices did initially relax state action requirements and conservative justices subsequently tightened them, that explanation ignores changes in the NAACP's litigation strategy, the Court's creation of doctrinal alternatives, and powerful civil rights legislation that together produced a sharp decline in state action claims involving race after 1970. These nonattitudinal “regime politics” factors enable a more complete and nuanced understanding of the state action field and help us to see the Court as collaborative rather than independent, dependent, or countermajoritarian.

Has Legal Realism Damaged the Legitimacy of the U.S. Supreme Court?

Does understanding how U.S. Supreme Court justices actually decide cases undermine the institutional legitimacy of the nation’s highest court? To the extent that ordinary people recognize that the justices are deciding legal disputes on the basis of their own ideological biases and preferences – a tenet of Legal Realism and the Attitudinal Model – the belief that the justices merely “apply” the law – Mechanical Jurisprudence – is difficult to sustain. Although it is easy to see how the legitimacy of the Supreme Court – the most unaccountable of all American political institutions – is nurtured by the view that judicial decision making is discretionless, mechanical, and technical, the sources of institutional legitimacy under Legal Realism are less obvious. Here we posit – and demonstrate, using a nationally representative sample – that the American people understand judicial decision making in realistic terms, that they extend legitimacy to the Supreme Court, and they do so under the belief that judges exercise their discretion in a principled and sincere fashion. Belief in Mechanical Jurisprudence is not a necessary underpinning of judicial legitimacy; belief in legal realism is not incompatible with legitimacy.

Does Judicial Philosophy Matter? A Case Study

A leading theory in the study of judicial behavior is the attitudinal model. This theory maintains that a judge’s political ideology can be used to predict how a judge will decide certain cases, and other factors, such as the judge’s judicial philosophy, tend to be unimportant. Under this theory, the two judges with the same political ideology, but different judicial philosophies, should virtually always vote the same way in cases with predicted ideological outcomes. This manuscript tests the attitudinal model by examining opinions by two federal courts of appeals judges with very similar political ideologies, but different judicial philosophies: J. Michael Luttig and J. Harvie Wilkinson III of the U.S. Court of Appeals for the Fourth Circuit. After defining the judges’ political ideologies and judicial philosophies, this study examines “political” cases in which one of these judges wrote the majority opinion and the other dissented. The result of the study is that when these judges came to different conclusions in these ideological cases, it is likely they did so on the basis of their judicial philosophies. In short, contra the attitudinal model, at least in some cases, judicial philosophy does matter.

The Constraining Capacity of Legal Doctrine on the U.S. Supreme Court

Does law exhibit a significant constraint on Supreme Court justices' decisions? Although proponents of the attitudinal model argue that ideology predominantly influences justices' choices, “hybrid models” posit that law and ideology exhibit discrete and concurrent effects on justices' choices. I offer a new conceptualization of legal constraint examining how legal rules permit varying degrees of ideological discretion, which establishes how strongly ideological preferences will influence justices' votes. In examining the levels-of-scrutiny legal doctrine, I posit theoretical models highlighting the differential constraining capacities of the strict scrutiny, intermediate scrutiny, and rational basis rules. I use a multilevel modeling framework to test the hypotheses within the context of theGrayneddoctrine in free expression law. The results show that strict scrutiny, whichGraynedapplied to content-based regulations of expression, significantly constrains ideological voting, whereas intermediate scrutiny (applied to content-neutral regulations) and the low scrutiny categories each promote high levels of ideological voting.

Explaining Decision-Making by Supreme Court Justices in Cases Involving International Law

The attitudinal model has been the dominant explanation for judicial behavior for the last twenty years. However, political scientists have found that the attitudinal model is not adequate to explain the outcomes in cases involving foreign policy. Instead, it appears that other considerations, such as the interests of the United States, weigh more heavily on judges.Legal scholars have anecdotally noted a similar trend in cases involving international law. This paper, part of a doctoral dissertation, wishes to put these anecdotal observations to the test. Utilizing a dataset of international law cases before the U.S. Supreme Court and the Courts of Appeals, it examines whether the attitudinal model holds sway in these cases.It is my theory that the interests of the United States as expressed by the political branches, particularly the Executive branch, will prove to be the significant factor in explaining judicial decision-making in this area. Only in cases where the political branches have failed to state a preference will the attitudinal model prevail.Using a logit analysis of case outcomes, I examine the decisions made by courts in cases involving international law. The presence of the United States as either a party or through filings of amicus briefs will be used to determine if the United States has an interest and what that interest is. I find that cases in which the government participates are decided in line with those expressed preferences. Where, however, the government takes no position, the attitudinal model prevails.

The U.S. Supreme Court and the judicial review of Congress: two hundred years in the exercise of the Court's most potent power

This book examines, from a behavioral perspective, the U.S. Supreme Court's exercise of the power of judicial review over Congress across two hundred years of the Court's history, testing the major competing theories in political science - the attitudinal model and the strategic approach - through systematic empirical analysis. Exploring the major trends in the Court's use of this power over time, the book examines a broad range of questions concerning the countermajoritarian nature of this power, and provides an analysis of each of the individual justices' behavior along several dimensions of the power, such as the use of judicial review to protect minority rights against majority intrusion. The book concludes that the Court has shown a high level of deference to Congress, with notable historic highs and lows, and generally that the exercise of the power has been less countermajoritarian than is usually assumed. Its analyses find the strongest level of support for the attitudinal approach to judicial decision making, but also concludes that strategic concerns cannot be dismissed, especially for the more recent Courts.

The Unanimous Decisions of the Supreme Court of Canada as a Test of the Attitudinal Model

Abstract. Most of the empirical work on the decision making of justices on the Supreme Court of Canada has taken as its exclusive focus the divided decisions of the Court. In contrast to this extensive body of research on divided decision, the much more limited knowledge of unanimous decisions is troubling because such decisions constitute nearly three-quarters of all of the formal decisions of the Court. The analysis reported below provides a first step towards understanding the neglected nature of unanimous decisions. This investigation of the nature and causes of unanimity in the Supreme Court of Canada explores two competing explanations: one drawn from the most widely accepted general explanation of judicial voting (that is, the attitudinal model) and the other from the perspectives of the justices themselves. To determine that perspective, the author interviewed ten of the current or recent justices on the Court. After describing these two alternative accounts of unanimity, empirical tests are conducted of the implications of each view. We find substantially more support for the perspectives of the justices than for the perspective derived from the attitudinal model on unanimity.Résumé. La majeure partie du travail de recherche empirique portant sur la manière dont les juges de la Cour suprême du Canada prennent leurs décisions se concentre exclusivement sur les décisions divisées de cette institution. En contraste avec cette foison d'études sur les décisions divisées, le corpus beaucoup plus limité de connaissances sur les décisions unanimes pose un problème important, car celles-ci représentent presque les trois quarts de la totalité des décisions formelles de la Cour suprême. L'analyse présentée ci-dessous se veut un premier pas vers une meilleure connaissance de la nature, trop négligée jusqu'à présent, de ces décisions unanimes. Cette investigation sur la nature et les causes de l'unanimité dans les décisions de la Cour suprême du Canada explore deux voies se trouvant en compétition : l'une qui résulte de l'explication la plus largement acceptée du vote judiciaire (soit le modèle attitudinal), et l'autre qui découle de la perspective personnelle des juges. Pour élucider cette perspective propre des juges, les auteurs ont interviewé dix juges actuels et récents de la Cour suprême du Canada. Après avoir décrit ces deux explications alternatives de l'unanimité, ils effectuent des tests empiriques sur les implications respectives du modèle attitudinal et des perspectives propres des juges. L'étude révèle que les perspectives propres des juges ont beaucoup plus de poids que la perspective dérivée du modèle attitudinal en ce qui concerne l'unanimité.

The Tactical Use of Mobile Marketing: How Adolescents' Social Networking Can Best Shape Brand Extensions

<h3>ABSTRACT</h3> The accelerating growth in mobile internet communications is giving rise to a new form of interactive marketing. This research identifies the factors that affect youth consumer participation in a mobile-based word-of-mouth (WOM) campaign. The study used a “real” brand promotion—a new men9s hairstyling wax launched in the adolescent market—to stimulate interest and participation. Specifically, consumers were encouraged to spread the information via WOM and participate in a hairstyle photo contest. A core attitudinal model consisted of interpersonal connectivity, self-identification with the mobile device, affective commitment to the promoted brand, attitude toward the campaign, and willingness to make referrals. The data—based on the responses from 1,705 teenagers between the ages of 13 and 18 years—fit the model well and provided empirical support for all the hypothesized relationships. The model was further analyzed in terms of latent mean structures, which revealed that face-to-face WOM elicited stronger affective brand commitment and attitude toward the campaign than mobile-based WOM. This pattern is reversed, however, in the willingness to make referrals, suggesting that mobil-based WOM may be persuasive even when adolescents are less interested in the campaign content.

An Analysis of Ideological Effects in Published Versus Unpublished Judicial Opinions

Almost without exception, scholars have tested theories of judicial behavior by relying on published case decisions. Though understandable given the inaccessibility of unpublished cases, this focus means that scholars may be drawing conclusions regarding judicial behavior that do not accurately describe the motivational forces behind all judicial decisions. This study employed the attitudinal model of judicial behavior to empirically test whether published judicial opinions are representative of all opinions in litigation challenging the U.S. Forest Service. Results indicate that the effects of ideological preferences are different in published and unpublished opinions issued by appellate judges: judges' decisions followed their ideological preferences in published opinions, but they did not in unpublished opinions. At the district court level, judges did not follow their ideological preferences in either published or unpublished opinions and there was no difference between judges' decisions in published and unpublished opinions. This research supports the contention that the process of judicial decision making in the courts of appeals differs between published and unpublished opinions and that scholars should use caution in drawing conclusions from examinations of published opinions alone.

Judging Under Political Pressure: An Empirical Analysis of Constitutional Review Voting in the Spanish Constitutional Court

In this paper we study the extent to which decisions by the Spanish Constitutional Court are explained by political variables. Our theory proposes that party alignment should play an important role in explaining the behavior of the Spanish constitutional judges, but with some limitations given the institutional constraints faced by the court. Therefore, we do not propose pure party alignment but a more sophisticated strategy approach based on the interaction between the advancement of ideological goals with the limitations imposed essentially by the civil law tradition of consensual courts. Using a unique dataset of abstract review cases in 1980-2006, we conclude that the patterns of political influence in the Spanish Constitutional Court are complex and cannot be easily framed merely as the pure reflection of the attitudinal model, and of left/right alignment.

Partisanship Suppressed: Judicial Decision-Making in Ralph Nader's 2004 Ballot Access Litigation

IN 1993, JEFFREY Segal and Harold Spaeth published The Supreme Court and the Attitudinal Model. Within this text the authors made the following prediction: “if a case on the outcome of a presidential election should reach the Supreme Court . . . the Court’s decision might well turn on the personal preferences of the justices” (Segal and Spaeth 1993, 70; 2002, 1). Seven years later, such a scenario presented itself in Bush v. Gore, 531 U.S. 98 (2000). The Supreme Court’s 5–4 decision to halt Florida recounts was controversial for a number of reasons. Most notably, this decision was the equivalent of declaring George W. Bush presidentelect, and the majority consisted of the Court’s most conservative members—all of whom were appointed by Republican presidents. The two justices appointed by a Democratic president, Ruth Bader Ginsburg and Stephen Breyer, did not favor this remedy and would have allowed more time for recounts.1 As one federal judge noted, the outcome in Bush “just seemed so politically partisan” (Greenhouse 2000, A32). Some legal scholars, too, recognized the partisan nature of the Court’s decision and chastised the majority for indulging in the “low” politics of partisan favoritism (Balkin 2001, 1408; Balkin and Levinson 2001, 1061; Gillman 2001a, 7; Levinson 2001, 8). And one political scientist claims that three forces motivated the majority’s decision—“partisanship, partisanship, and partisanship . . . ” (Geer 2002, 85). Strangely, issues relating to election law and partisanship receive relatively little attention in the judicial behavior literature. As Bush v. Gore clearly demonstrated, courts have the ability to influence the outcome of a presidential election. If the courts can influence a presidential election then, to use the cliche, nothing is sacred. Courts throughout the country regularly decide a plethora of election-related legal issues. The issues judges confront vary in complexity. Some election law issues are rather simple, such as determining whether a polling location should be open past the mandated closing time. Other issues are more complex, such as determining which candidates appear on the ballot for a given election. This study considers the latter. When a potential candidate wishes to run for elected office, he must file candidate petitions with the state (or county) election authority (e.g., secretary of state or the board of elections).2 The election authority then determines

Reality Check: On the Uses of Empiricism

This Critical Notice deals with two recent books that report the findings of statistical analyses of Supreme Court of Canada judgments over extensive periods of time. The authors of both studies argue that empirical analysis can make significant contributions to theories of law and the understanding of what high court judges do, and in fact, that theoretical approaches on their own are necessarily inadequate to this task. The review questions whether the studies succeed in meeting the ambitions set for them. In Attitudinal Decision-making in the Supreme Court of Canada, Ostberg and Wetstein fail to establish that the attitudinal model of jurisprudence developed by American political science provides a strong explanation of the performance of the Supreme Court of Canada. In The Empirical Gap in Jurisprudence, Daved Muttart employs such broadly stated measures of judicial reasoning that his conclusions about the Court’s performance remain general in nature and do not pose serious challenges to the major, competing schools of jurisprudential thought he seeks to examine. Both studies fall back on unconvincing arguments about the prevalence of judicial activism in Supreme Court decision-making in the absence of stronger findings on their principal themes.

Developmental Gender Differentiation

SUMMARY The authors review their Developmental Pathway Models that characterize normative gender differentiation during childhood. Particular attention is paid to the attitudinal pathway model that describes the routes by which children's gender attitudes guide the selection and impact of gender-related experiences for the self. The personal pathway model describes the ways in which children's own interests and skills may affect their gender-related attitudes about others. The authors identify opportunities for the emergence of various kinds of gender nonconformity in relation to the constructs and mechanisms in these models.

Keepers of the Covenant or Platonic Guardians? Decision Making on the U.S. Supreme Court

How do the justices of the Supreme Court make their decisions? How does the Supreme Court of the United States make its decisions? The answer to these questions may not be the same. In studying judicial decision making, there has been a disconnection between individual and institutional levels of analysis. Lifetime tenure insulates individual justices and permits them to act on their substantive preferences. At the same time, the Court lacks the “sword and purse” and must rely on the other branches to fund or implement its directives. This study develops an integrative model to explain Supreme Court decision making. Using constitutional civil liberties and civil rights cases in the 1953 to 2000 period, conditions favorable to the attitudinal model, we find that institutional decision making is a function of attitudinal, strategic, and legal factors.

Courts and Federalism: Judicial Doctrine in the United States, Australia, and Canada, by Gerald Baier

This is an impressive book. In a brief 162 pages of text the author presents a systematic analysis of judicial doctrines of federalism in three countries, the U.S., Australia, and Canada. If for nothing else federalism scholars should read this book for concise and insightful accounts of recent federalism jurisprudence in these countries. The writing is crisp, the discussion succinct, and the analysis of various currents and shifts over time convincing. In this regard the book is superb. However, the author also sets out another ambitious theoretical agenda. At the outset, he attacks the attitudinal model in American public law scholarship, and proposes instead to show that “doctrine matters” by anchoring his discussion in postpositivist analysis of the new institutionalism. Thus, the book promises to make a contribution both to the comparative analysis of federalism jurisprudence, as well as to the theory of judicial decision making. In short, it promises a lot.

Translation, Cross-Cultural Adaptation and Validation of an HIV/AIDS Knowledge and Attitudinal Instrument

An instrument developed in the United States by the Centers for Disease Control and Prevention to assess HIV/AIDS knowledge and four attitudinal dimensions (Peer Pressure, Abstinence, Drug Use, and Threat of HIV Infection) and an instrument developed by Basen-Engquist et al. (1999) to measure abstinence and condom use were translated, cross-culturally adapted, and validated for use with Spanish-speaking high school students in El Salvador. A back-translation of the English version was cross-culturally adapted using two different review panels and pilot-tested with Salvadorian students. An expert panel established content validity, and confirmatory factor analysis provided support for construct validity. Results indicated that the methodology was successful in cross-culturally adapting the instrument developed by the Centers for Disease Control and Prevention and the instrument developed by Basen-Engquist et al. The psychometric properties of the knowledge section were acceptable and there was partial support for the four-factor attitudinal model underlying the CDC instrument and the two-factor model underlying the Basen-Engquist et al. instrument. Additional studies with Spanish-speaking populations (either in the United States or Latin America) are needed to evaluate the generalizability of the present results.

Law, Ideology, and Strategy in Judicial Decision Making: Evidence from Securities Fraud Actions

Legal academics and political scientists continue to debate whether the legal, attitudinal, or strategic model best explains judicial decision making. One limitation in this debate is the high‐court bias found in most studies. This article, by contrast, examines federal district court decisions, specifically interpretations of the Private Securities Litigation Reform Act of 1995. Initial interpretations of the Act articulated distinct liberal and conservative positions. The data compiled here support the hypothesis that the later emergence of an intermediate interpretation was the result of strategic statutory interpretation rather than simply judges acting consistently with their ideological preferences, although there is some evidence that judges adopting the most conservative interpretation of the Act were acting consistently with the attitudinal model. There is weaker evidence to support the legal model, an unsurprising result given the severe test the study design creates for that model.

Judges, Litigants and the Design of Courts

Two important perspectives on courts highlight fundamentally different elements of the process of adjudication and yield distinct predictions about judicial outcomes. The Attitudinal Model of judicial voting (AM) posits judge ideology as a strong predictor of court outcomes. Alternatively, the Law and Economics perspective (LE) focuses on the settlement behavior of litigants and reasons that while judges may vote ideologically, litigants adapt to these ideological proclivities, nullifying the effect of judge ideology. This analysis focuses on reconciling expectations about the effects of judge ideology and litigant strategies by examining their contingent nature and the conditioning effects of institutional design. The analysis examines state supreme courts from 1995 through 1998 to identify strong empirical evidence supporting both perspectives. While some state supreme courts have discretionary dockets allowing judges to select cases they want to decide, others lack discretionary control, making outcomes largely litigant driven. The empirical support for each perspective largely hinges on this fundamental feature of institutional design.