Law Commons^™

The Second Dimension Of The Supreme Court, Joshua B. Fischman, Tonja Jacobi

Tonja Jacobi

Describing the justices of the Supreme Court as ‘liberals’ and ‘conservatives’ has become so standard—and the left-right division on the Court is considered so entrenched—that any deviation from that pattern is treated with surprise. Attentive Court watchers know that the justices are not just politicians in robes, deciding each case on a purely ideological basis. Yet the increasingly influential empirical legal studies literature assumes just that—that a left-right ideological dimension fully describes the Supreme Court. We show that there is a second, more legally-focused dimension of judicial decision-making. A continuum between legalism and pragmatism also divides the justices, in ways …

Criminal Innovation And The Warrant Requirement: Reconsidering The Rights-Police Efficiency Trade-Off, Tonja Jacobi, Jonah Kind

Tonja Jacobi

It is routinely assumed that there is a trade-off between police efficiency and the warrant requirement. But existing analysis ignores the interaction between police investigative practices and criminal innovation. Narrowing the definition of a search or otherwise limiting the requirement for a warrant gives criminals greater incentive to innovate to avoid detection. With limited police resources to develop countermeasures, police will often be just as effective at capturing criminals when facing higher Fourth Amendment hurdles. We provide a game theoretic model that shows that when police investigation and criminal innovation are considered in a dynamic context, the police efficiency rationale …

Strategy And Tactics In Nfib V. Sebelius, Tonja Jacobi

Tonja Jacobi

This Article provides an in depth examination of the strategic judicial maneuvering witnessed in the Supreme Court’s healthcare decision. Through that lens, it is possible to gain a detailed understanding of the doctrinal groundwork that Chief Justice Roberts was laying for future conservative revolutions in the Commerce Clause Power, the Necessary and Proper Clause, and the Taxing and Spending Power. The reason Roberts was able to dramatically read down Congress’s main avenues of regulatory power was not despite the liberal outcome of the case, but because of it. Roberts’s strategic sacrifice in NFIB v. Sebelius suggests an obvious analogy to …

A Positive Political Theory Of Rules And Standards, Tonja Jacobi, Frank Cross, Emerson Tiller

Tonja Jacobi

How judges choose between rules and standards fundamentally shapes case outcomes and the development of broader doctrine. While the literature has much to say about the relative merits of rules versus standards, it has largely failed to produce a comprehensive explanation of how judges make that choice. This Article takes a novel approach, using Positive Political Theory to examine the incentives of higher court judges and the information available to them about how lower court judges will be likely to use those doctrinal tools. By taking seriously both how substantive and ideological judicial preferences shape the choice over doctrinal form …

How The Dissent Becomes The Majority: Using Federalism To Transform Coalitions In The U.S. Supreme Court, Tonja Jacobi, Vanessa Baird

Tonja Jacobi

This Article proposes that dissenting Supreme Court Justices provide cues in their written opinions about how future litigants can reframe case facts and legal arguments in similar future cases to garner majority support. Questions of federal-state power cut across most other substantive legal issues, and this can provide a mechanism of splitting existing majorities in future cases. Dissenting Justices can ‘signal’ to future litigants when this potential exists, to transform a dissent into a majority in similar future cases.

We undertake an empirical investigation of dissenting opinions where the dissenting Justice suggests that future cases ought to be framed in …

Taking The Measure Of Ideology: Empirically Measuring Supreme Court Cases, Tonja Jacobi, Matthew Sag

Tonja Jacobi

Empirical legal studies have become increasingly popular and influential, but empirical analysis is only as good as its tools. Until recently, no sophisticated measure of case outcomes existed. Jacobi (2009) developed three possible measures of case outcomes, based on three common theories of how Justices balance the trade-off between outcome optimization and coalition maximization. This Article extends Jacobi’s earlier theoretical work by empirically testing those competing measures of case outcomes.

The competing measures are initially assessed against a dataset of over 8000 Supreme Court cases decided between 1953 and 2006. The measures are also assessed in a more targeted fashion …