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Why Supreme Court Justices Cite Legislative History: An Empirical Investigation, David S. Law, David Zaring
Why Supreme Court Justices Cite Legislative History: An Empirical Investigation, David S. Law, David Zaring
David S. Law
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 …
Judicial Selection, Appointments Gridlock, And The Nuclear Option, David S. Law, Lawrence B. Solum
Judicial Selection, Appointments Gridlock, And The Nuclear Option, David S. Law, Lawrence B. Solum
David S. Law
In this paper, we employ simple formal models drawn from political science to explain the occurrence of gridlock in the federal judicial selection process, and to explore the implications of the nuclear option, by which a bare majority of senators employs parliamentary tactics to abolish the filibuster with respect to judicial nominations. Our application of a pivotal politics model leads us to reject the notion that appointments gridlock is a straightforward consequence of divided government. Instead, meaningful changes to the ideological balance of the federal bench require a more demanding ideological alignment of multiple veto players relative to the status …
Appointing Federal Judges: The President, The Senate, And The Prisoner's Dilemma, David S. Law
Appointing Federal Judges: The President, The Senate, And The Prisoner's Dilemma, David S. Law
David S. Law
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 …