Model Of Judicial Decision-making Research Articles

The Importance of Being Political: How to Understand the US Supreme Court's Approach to Affirmative Action in Education

This article examines the evolving jurisprudence of the US Supreme Court’s decisions on the constitutionality of affirmative action with specific focus on education. Traversing the Court’s affirmative action decisions from the 1970s to 2013, the author argues that the best, and possibly only, way to understand the evolution of this politically contentious doctrine is to focus on politics. This requires paying attention to political commitments of the justices, the role of interest groups, the voter alignments of the Democratic and Republican parties and white elite and public opinion. The author uses leading social science approaches to present three models of judicial decision-making: the attitudinal model, the strategic actor model, and the institutional/public opinion model. The article underlines the need to locate the Court within the political and cultural context in which it operates.

The Future Matters: Judicial Preferences Over Legal Rules and Decision-Making on Collegial Courts

AbstractHigh courts such as the US Supreme Court announce legal rules that guide subsequent decisions by lower courts and other actors. Because legal rules are forward-looking in this sense, judges’ expectations about the distribution of future cases are critical. Focusing on this fact, we provide microfoundations for judicial preferences over legal rules by deriving them directly from expectations about the distribution of future cases. Doing so has important consequences: in contrast to standard assumptions in models of judicial decision-making, preferences over legal rules are asymmetric rather than symmetric. We demonstrate that this has significant implications for judicial decision-making on collegial courts. Finally, we show that changes in the case distribution—for example, as a result of technological change—can lead to significant legal change, even in the absence of ideological or doctrinal change on the court.

Self-Selection and the Judiciary: The Case of the Netherlands

This paper offers a model to explain how self-selection can lead to the situation where a meritocratic judiciary has a median political preference that is different from the median of the electorate. The model is then applied to the case of the Netherlands, where the median political preferences of the judiciary is left of center whereas the median political preference of the electorate is right of center. In doing so, the paper offers an indirect test of the attitudinal model of judicial decision-making that does not rely on the comparison between judicial ideology and judicial decisions. The paper further shows that a meritocratic and independent judiciary can nonetheless be biased. The paper concludes by offering a solution to those who consider this to be a problem.

Properties in Constitutional Systems

Adrian Vermeule’s The System of the Constitution provides the first thoroughgoing application of insights from the burgeoning study of complex systems to core problems in constitutional theory. Complex systems are characterized by system effects — properties of the system that are not properties of any individual system component, as liquidity may be a property of a volume of water while no individual H2O molecule is itself liquid. System effects arise from the complex interactions of system components with each other and exogenous factors. Vermeule maintains that a constitutional order can be described as a complex “system of systems,” with individual agents aggregated into institutions, which are in turn aggregated into the larger system. I argue that this new account advances constitutional theory by suggesting needed analytic connections between individual-level accounts such as attitudinal models of judicial decision-making and institution-level claims about dynamics like the political safeguards of federalism; and by reshaping the research program by motivating new, more nuanced descriptive constitutional theory work that accounts for system effects and their implications. Finally, I explore the exciting possibility that a systems theory account of law may provide new approaches to some of the most basic questions in general jurisprudence — it suggests, among other things, that some legal norms themselves may arise as system effects.

Lobbying Judges Motivated by Countermajoritarian Concerns

The present paper develops a dynamic model of judicial decision-making where judges are assumed to be influenced by counter-majoritarian concerns. The analysis yielded two important insights. First, insofar as the policy standard can be interpreted as a constitutional standard, our analysis suggests that original constitutional intent is unlikely to be important in the long-run. Second, the present paper suggests an important distinction between judicial deference and judicial diversity not made in the existing separation-of-powers literature. In particular, where the judiciary becomes less deferential to the statutory interpretations of other institutions, we find that elected political actors respond, strategically, by announcing policy platforms designed to curb the lesser judicial deference; that is, politicians announce policy platforms that perfectly offset the lesser judicial deference. Increased judicial diversity is different. It has a real impact on the steady-state policy standard that operates through judicial lobbying. A more diverse judiciary leads to more lobbying, which, in turn, impacts the evolution of the prevailing policy standard over time. Although the increased effort exerted on judicial lobbying reduces resources available for valued consumption and increases uncertainty with respect to judicial outcomes, as the foregoing analysis will reveal, it also has the potential to act as a social-welfare-increasing constraint on a suboptimally-biased political process.

Following Precedent to Signal Ideological Neutrality

I analyze a game-theoretic model of judicial decisionmaking in which judges are concerned both about promoting substantive policy outcomes and developing a reputation for being ideologically neutral. I argue that judges may be motivated to develop such a reputation either because they are concerned about promoting the institutional legitimacy of their court or because being perceived as too ideological may hamper a judge's promotion prospects. I characterize conditions under which such reputational concerns lead judges to follow precedent in order to signal their ideological neutrality.

AIDS, Law, and the Rhetoric of Sexuality

Models of judicial decisionmaking have traditionally relied on legal, political, and contextual variables, emphasizing judges' background, litigants' rights claims, and the relative social status of the parties involved. A recent scholarly expansion has brought cultural variables into the equation, indicating that judicial scholarship might usefully include narrative and rhetoric as measures of legal consciousness. This project examines AIDS-related litigation from the U.S. Circuit Courts of Appeals between 1983 and 1995, emphasizing the social construction of sexuality. It uses content-based coding and stepwise probit analysis to evaluate the importance of controlling for language that depicts AIDS as a “gay disease” and its association with death and plague metaphors.

CONGRESS AT COURT: MEMBERS OF CONGRESS AS AMICUS CURIAE

Acts of Congress often contain provisions that are ambiguous, complex and/or contradictory, and it is often left to the courts to discern the meaning of the language. This paper examines the potential influence of one method of inter‐branch communication—an amicus curiae brief filed by members of Congress in Supreme Court cases. Several characteristics of the briefs filed by members of Congress during the 1990s are coded and it is found that unlike the solicitor general, members of Congress have little impact on the decisions of the High Court. There is communication between members of Congress and the Court. Thus, this investigation provides no support for the rational actor model of judicial decision‐making; however, the communication seems to serve the re‐election goals of legislators.

Federalism Outcomes and Ideological Preferences: The U.S. Supreme Court and Preemption Cases

The record of the U.S. Supreme Court in decisions affecting federal-state relations has been one of inconsistency between states'rights and national supremacy. This inconsistency has perplexed both legal and political science scholars who have had great difficulty placing decision-making regardingfederalism outcomes by the Court in any sort of theoretical context. Contrary to much conventional wisdom, ideological preferences do not automatically translate into federalism outcomes. We extend models ofjudicial decisionmaking in political environments by including state policy. State policy outcomes may be either more liberal or more conservative than the policy would be underfederal control. Thus, the ideological preferences of the justices may contradict their preferences toward nationalism or states' rights. Testing the model using 94 preemption cases, we find that individual justices and most Courts are willing to sacrifice their federalism values in the pursuit of some other policy goal. This finding has implications for both the federalism literature and strategic models of Court behavior, as well as for cases the Court is currently reviewing.

Transformations in Supreme Court thought: The irresistible force (Federal Indian law & policy) meets the movable object (American Indian tribal status)

This article is a content analysis examination of 107 federal court cases involving American Indian tribal sovereignty and federal pleary power rendered between 1870 and 1921. Our focus, however, is the U.S. Supreme Court's Indian Law jurisprudence; thus ninety of the cases analyzed were Supreme Court opinions. The cases seemingly entail two separate braces of opinions. One brace included decisions which affirmed tribal sovereignty. The other brace entailed cases which negatively affected tribal sovereignty. These negative decisions generally relied on doctrines such as plenary power, the political question doctrine, or the so- called “guardian-ward” relationship. We argue that the Supreme Court, as a partner in the ruling national alliance, generally deferred to the legislative branches during this critical historical era, Indian treaties and extra- constitutional rights notwithstanding. In seeking to explain the two separate, though not unrelated sets of opinions, we focus on the Court's role in formulating public policy towards American Indian tribes in four major issue areas: congressional power, criminal law, allotment and membership, and natural resources. And we attempt to explain how and why the Court's perception of these issues were transformed over time and how these changes affected tribal sovereign rights. Finally, we develop a synthetic, abstract model of judicial decision-making which provides some explanatory power regarding why the Court decides Indian related issues the way it does.

Police civil liability for failure to arrest intoxicated drivers

The article analyzes recent state court decisions in the United States on police liability for failure to restrain drunk drivers. It focuses on jurisdictions that either reject the public duty doctrine or have reinterpreted the special relationship/discretionary function doctrine to allow the filing of lawsuits and ultimately a finding of police liability. The legal theories used by the courts to establish a cause of action and the types of police conduct in drunk-driving situations that lead to police liability are also considered, focusing on cases in which innocent third parties have been injured by intoxicated drivers. The elements of negligence provide the framework for legal analysis. The public duty doctrine, with its exceptions, is studied and analyzed. Based on an analysis of decided cases, a model of judicial decisionmaking is developed. The article concludes with a restatement of contemporary legal principles on police liability for failure to arrest intoxicated drivers.