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Full-Text Articles in Law

When Statutory Interpretation Becomes Precedent: Why Individual Rights Advocates Shouldn’T Be So Quick To Praise Bostock, Elena Schiefele Jul 2021

When Statutory Interpretation Becomes Precedent: Why Individual Rights Advocates Shouldn’T Be So Quick To Praise Bostock, Elena Schiefele

Washington and Lee Law Review

Justice Neil Gorsuch’s approach to textualism, which this Note will call “muscular textualism,” is unique. Most notably exemplified in Bostock v. Clayton County, muscular textualism is marked by its rigorous adherence to what Justice Gorsuch perceives to be the “plain language” of the text. Because Justice Gorsuch’s opinions exemplify muscular textualism in a structured and consistent manner, his appointment to the Supreme Court provides the forum from which he can influence the decision-making process of other members of the judiciary when they seek guidance from Supreme Court precedent. Accordingly, it is important for both advocates and judges to ...


“Remarkable Influence”: The Unexpected Importance Of Justice Scalia's Deceptively Unanimous And Contested Majority Opinions, Linda L. Berger, Eric C. Nystrom Feb 2021

“Remarkable Influence”: The Unexpected Importance Of Justice Scalia's Deceptively Unanimous And Contested Majority Opinions, Linda L. Berger, Eric C. Nystrom

The Journal of Appellate Practice and Process

No abstract provided.


'"Ideology" Or "Situation Sense"? An Experimental Investigation Of Motivated Reasoning And Professional Judgment, Dan M. Kahan, David Hoffman, Danieli Evans, Neal Devins, Eugene Lucci, Katherine Cheng Sep 2019

'"Ideology" Or "Situation Sense"? An Experimental Investigation Of Motivated Reasoning And Professional Judgment, Dan M. Kahan, David Hoffman, Danieli Evans, Neal Devins, Eugene Lucci, Katherine Cheng

Neal E. Devins

This Article reports the results of a study on whether political predispositions influence judicial decisionmaking. The study was designed to overcome the two principal limitations on existing empirical studies that purport to find such an influence: the use of nonexperimental methods to assess the decisions of actual judges; and the failure to use actual judges in ideologically-biased-reasoning experiments. The study involved a sample of sitting judges (n = 253), who, like members of a general public sample (n = 800), were culturally polarized on climate change, marijuana legalization and other contested issues. When the study subjects were assigned to analyze statutory interpretation ...


Judicial Peremptory Challenges As Access Enhancers, Jeffrey W. Stempel Jan 2018

Judicial Peremptory Challenges As Access Enhancers, Jeffrey W. Stempel

Scholarly Works

Discussions regarding diminishing access to justice have centered on the high disputing costs, gradual contraction of substantive rights, and increasingly defendant-friendly procedure. The importance of the ideological, experiential, and jurisprudential orientation of the judges presiding over litigation at the trial level has received much less-and insufficient-attention. Because so much focus has been on federal appellate courts, commentators have largely overlooked a potentially powerful tool for improving access and promoting a fair airing of claims at the trial level: a litigant's automatic ability to transfer a case to a different judge as a matter of right to avoid judges who ...


Nino & Sonia: The Dark Horse Heroes Of Criminal Justice On The Roberts Court, Shahrzad Daneshvar, Brooke Clason Smith Jan 2017

Nino & Sonia: The Dark Horse Heroes Of Criminal Justice On The Roberts Court, Shahrzad Daneshvar, Brooke Clason Smith

Washington University Journal of Law & Policy

This Article traces the voting records of the Supreme Court justices in criminal cases during the Roberts court to determine whether a justice’s perceived liberal or conservative ideology can help predict whether a justice’s vote would be sympathetic toward a criminal defendant. Daneshvar and Smith particularly analyzed whether the justices voted consistently with their perceived ideology, where liberal justices are believed to be more sympathetic toward criminal defendants and conservative justices more unsympathetic. By analyzing the voting patterns of the court from 2009 through the 2014 term, Daneshvar and Smith find that in criminal cases Justice Sonia Sotomayor ...


Former Roberts Court Clerks’ Success Litigating Before The Supreme Court, Adam Feldman Jan 2017

Former Roberts Court Clerks’ Success Litigating Before The Supreme Court, Adam Feldman

Washington University Journal of Law & Policy

This Article examines whether former Roberts Court clerks have a litigating advantage before their former bosses. Feldman’s findings suggest these clerks do have an advantage, but only under certain circumstances. The Article finds that former Roberts Court clerks have about an even chance of receiving votes from the Justices for or against the positions they argue. Feldman concludes it is when these former clerks argue positions ideologically aligned with their former Justices, they enhance their chance of success above this fifty percent threshold.


Judges’ Varied Views On Textualism: The Roberts-Alito Schism And The Similar District Judge Divergence That Undercuts The Widely Assumed Textualism-Ideology Correlation, Scott A. Moss Jan 2017

Judges’ Varied Views On Textualism: The Roberts-Alito Schism And The Similar District Judge Divergence That Undercuts The Widely Assumed Textualism-Ideology Correlation, Scott A. Moss

Articles

No abstract provided.


'"Ideology" Or "Situation Sense"? An Experimental Investigation Of Motivated Reasoning And Professional Judgment, Dan M. Kahan, David Hoffman, Danieli Evans, Neal Devins, Eugene Lucci, Katherine Cheng Jan 2016

'"Ideology" Or "Situation Sense"? An Experimental Investigation Of Motivated Reasoning And Professional Judgment, Dan M. Kahan, David Hoffman, Danieli Evans, Neal Devins, Eugene Lucci, Katherine Cheng

Faculty Publications

This Article reports the results of a study on whether political predispositions influence judicial decisionmaking. The study was designed to overcome the two principal limitations on existing empirical studies that purport to find such an influence: the use of nonexperimental methods to assess the decisions of actual judges; and the failure to use actual judges in ideologically-biased-reasoning experiments. The study involved a sample of sitting judges (n = 253), who, like members of a general public sample (n = 800), were culturally polarized on climate change, marijuana legalization and other contested issues. When the study subjects were assigned to analyze statutory interpretation ...


Preemption In The Rehnquist And Roberts Courts: An Empirical Analysis, Michael Greve, Jonathan Klick, Michael A. Petrino, J. P. Sevilla Jan 2016

Preemption In The Rehnquist And Roberts Courts: An Empirical Analysis, Michael Greve, Jonathan Klick, Michael A. Petrino, J. P. Sevilla

Faculty Scholarship at Penn Law

This article presents an empirical analysis of the Rehnquist Court’s and the Roberts Court’s decisions on the federal (statutory) preemption of state law. In addition to raw outcomes for or against preemption, we examine cases by subject-matter, level of judicial consensus, tort versus regulatory preemption, party constellation, and origin in state or federal court. We present additional data and analysis on the role of state amici and of the U.S. Solicitor General in preemption cases, and we examine individual justices’ voting records. Among our findings, one stands out: over time and especially under the Roberts Court, lawyerly ...


Standing The Test Of Time: The Breadth Of Majority Coalitions And The Fate Of U.S. Supreme Court Precedents, Stuart Benjamin, Bruce Desmarais Dec 2015

Standing The Test Of Time: The Breadth Of Majority Coalitions And The Fate Of U.S. Supreme Court Precedents, Stuart Benjamin, Bruce Desmarais

Bruce A. Desmarais

Should a strategic Justice assemble a broader coalition for the majority opinion than is necessary, even if that means accommodating changes that move the opinion away from the author’s ideal holding? If the author’s objective is to durably move the law to his or her ideal holding, the conventional answer is no, because there is a cost and no corresponding benefit. We consider whether attracting a broad majority coalition can placate future courts. Controlling for the size of the coalition, we find that cases with ideologically narrow coalitions are more likely to be treated negatively by later courts ...


The Second Dimension Of The Supreme Court, Joshua B. Fischman, Tonja Jacobi Aug 2015

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 ...


Ideology 'All The Way Down'? An Empirical Study Of Establishment Clause Decisions In The Federal Courts, Gregory Sisk, Michael Heise Feb 2015

Ideology 'All The Way Down'? An Empirical Study Of Establishment Clause Decisions In The Federal Courts, Gregory Sisk, Michael Heise

Michael Heise

As part of our ongoing empirical examination of religious liberty decisions in the lower federal courts, we studied Establishment Clause rulings by federal court of appeals and district court judges from 1996 through 2005. The powerful role of political factors in Establishment Clause decisions appears undeniable and substantial, whether celebrated as the proper integration of political and moral reasoning into constitutional judging, shrugged off as mere realism about judges being motivated to promote their political attitudes, or deprecated as a troubling departure from the aspirational ideal of neutral and impartial judging. In the context of Church and State cases in ...


A Typology Of Judging Styles, Corey Rayburn Yung Jan 2015

A Typology Of Judging Styles, Corey Rayburn Yung

Northwestern University Law Review

This Article calls into question the fundamental premises of models of judicial decisionmaking utilized by legal and political science scholars. In the place of the predominant theories, I offer a new approach to understanding judicial behavior which recognizes judicial heterogeneity, multidimensional behavior, and interconnectedness among judges at different levels within the judiciary. The study utilizes a unique dataset of over 30,000 judicial votes from eleven courts of appeals in 2008, yielding statistically independent measures for judicial activism, ideology, independence, and partisanship. Based upon those four metrics, statistical cluster analysis is used to identify nine statistically distinct judging styles: Trailblazing ...


Revisiting The Influence Of Law Clerks On The U.S. Supreme Court's Agenda-Setting Process, Ryan C. Black, Christina L. Boyd, Amanda C. Bryan Oct 2014

Revisiting The Influence Of Law Clerks On The U.S. Supreme Court's Agenda-Setting Process, Ryan C. Black, Christina L. Boyd, Amanda C. Bryan

Marquette Law Review

Do law clerks influence U.S. Supreme Court Justices’ decisions in the Court’s agenda-setting stage? For those Justices responding to their own law clerks’ cert recommendations, we expect a high degree of agreement between Justice and clerk. For non-employing Justices, however, we anticipate that the likelihood of agreement between clerk and Justice will vary greatly based on the interplay among the ideological compatibility between a Justice and the clerk, the underlying certworthiness of the petition for review, and the clerk’s final recommendation. Relying on a newly collected dataset of petitions making the Court’s discuss list over the ...


Bonus Babies Escape Golden Handcuffs: How Money And Politics Has Transformed The Career Paths Of Supreme Court Law Clerks, Artemus Ward, Christina Dwyer, Kiranjit Gill Oct 2014

Bonus Babies Escape Golden Handcuffs: How Money And Politics Has Transformed The Career Paths Of Supreme Court Law Clerks, Artemus Ward, Christina Dwyer, Kiranjit Gill

Marquette Law Review

Job prospects for former Supreme Court law clerks have radically changed in recent years. Beginning in 1986, skyrocketing law firm signing bonuses caused a transformation from the natural sorting system, where clerks chose among private practice, government, academic, and public interest positions, to a Bonus Baby Regime where former clerks almost always choose to work in private firms after they leave the Court. This development is a result of both financial and ideological factors. While the more conservative clerking corps of recent years has been increasingly drawn to private practice, the firms themselves hire along ideological lines. Still, while former ...


Hiring Supreme Court Law Clerks: Probing The Ideological Linkage Between Judges And Justices, Lawrence Baum Oct 2014

Hiring Supreme Court Law Clerks: Probing The Ideological Linkage Between Judges And Justices, Lawrence Baum

Marquette Law Review

Since the 1970s, the overwhelming majority of Supreme Court law clerks have had prior experience clerking in lower courts, primarily the federal courts of appeals. Throughout that period, there has been a tendency for Justices to take clerks from lower court judges who share the Justices’ ideological tendencies, in what can be called an ideological linkage between judges and Justices in the selection of law clerks. However, that tendency became considerably stronger between the 1970s and 1990s, and it has remained very strong since the 1990s.

This Article probes the sources of that alteration in the Justices’ selection of law ...


A Winner’S Curse?: Promotions From The Lower Federal Courts, Stephen J. Choi, Mitu Gulati, Eric A. Posner Jan 2014

A Winner’S Curse?: Promotions From The Lower Federal Courts, Stephen J. Choi, Mitu Gulati, Eric A. Posner

Faculty Scholarship

The standard model of judicial behavior suggests that judges primarily care about deciding cases in ways that further their political ideologies. But judicial behavior seems much more complex. Politicians who nominate people for judgeships do not typically tout their ideology (except sometimes using vague code words), but they always claim that the nominees will be competent judges. Moreover, it stands to reason that voters would support politicians who appoint competent as well as ideologically compatible judges. We test this hypothesis using a dataset consisting of promotions to the federal circuit courts. We find, using a set of objective measures of ...


Claiming Neutrality And Confessing Subjectivity In Supreme Court Confirmation Hearings, Carolyn Shapiro Dec 2012

Claiming Neutrality And Confessing Subjectivity In Supreme Court Confirmation Hearings, Carolyn Shapiro

All Faculty Scholarship

Supreme Court confirmation hearings provide a rare opportunity for the American people to hear what (would-be) justices think about the nature of judging and the role of the Supreme Court. In recent years, nominees have been quick to talk about judging in terms of neutrality and objectivity, most famously with Chief Justice Roberts’ invocation of the “neutral umpire,” and they have emphasized their reliance on legal texts and sources as if those sources can provide answers in difficult cases. Many of the cases heard by the Supreme Court, however, do not have objectively correct answers that can be deduced from ...


Ideology 'All The Way Down'? An Empirical Study Of Establishment Clause Decisions In The Federal Courts, Gregory C. Sisk, Michael Heise May 2012

Ideology 'All The Way Down'? An Empirical Study Of Establishment Clause Decisions In The Federal Courts, Gregory C. Sisk, Michael Heise

Michigan Law Review

As part of our ongoing empirical examination of religious liberty decisions in the lower federal courts, we studied Establishment Clause rulings by federal court of appeals and district court judges from 1996 through 2005. The powerful role of political factors in Establishment Clause decisions appears undeniable and substantial, whether celebrated as the proper integration of political and moral reasoning into constitutional judging, shrugged off as mere realism about judges being motivated to promote their political attitudes, or deprecated as a troubling departure from the aspirational ideal of neutral and impartial judging. In the context of Church and State cases in ...


Standing The Test Of Time: The Breadth Of Majority Coalitions And The Fate Of U.S. Supreme Court Precedents, Stuart M. Benjamin, Bruce A. Desmarais Jan 2012

Standing The Test Of Time: The Breadth Of Majority Coalitions And The Fate Of U.S. Supreme Court Precedents, Stuart M. Benjamin, Bruce A. Desmarais

Faculty Scholarship

Should a strategic Justice assemble a broader coalition for the majority opinion than is necessary, even if that means accommodating changes that move the opinion away from the author’s ideal holding? If the author’s objective is to durably move the law to his or her ideal holding, the conventional answer is no, because there is a cost and no corresponding benefit. We consider whether attracting a broad majority coalition can placate future courts. Controlling for the size of the coalition, we find that cases with ideologically narrow coalitions are more likely to be treated negatively by later courts ...


Wilderness, The Courts And The Effect Of Politics On Judicial Decisionmaking, Peter A. Appel Jan 2011

Wilderness, The Courts And The Effect Of Politics On Judicial Decisionmaking, Peter A. Appel

Scholarly Works

Empirical analyses of cases from federal courts have attempted to determine the effect of judges’ political ideology on their decisions. This question holds interest for scholars from many disciplines. Investigating judicial review of the actions of administrative agencies should provide strong evidence on the question of political influence because applicable rules of judicial deference to administrative decisions ought to lead judges to reach politically neutral results. Yet several studies have found a strong correlation between results in these cases and proxies for political ideology. Cases involving the interpretation of environmental law have been of particular interest as a subset of ...


Does Judicial Philosophy Matter?: A Case Study, Francisco J. Benzoni, Christopher S. Dodrill Jan 2011

Does Judicial Philosophy Matter?: A Case Study, Francisco J. Benzoni, Christopher S. Dodrill

West Virginia Law Review

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; other factors, such as the judge's judicial philosophy, tend to be unimportant. Under this theory, 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 judges with very similar political ideologies but different judicial philosophies: Judge Michael Luttig ...


Federal Circuit Patent Precedent: An Empirical Study Of Institutional Authority And Ip Ideology, David Pekarek-Krohn, Emerson H. Tiller Jan 2010

Federal Circuit Patent Precedent: An Empirical Study Of Institutional Authority And Ip Ideology, David Pekarek-Krohn, Emerson H. Tiller

Faculty Working Papers

In this paper, we aim to better understand the institutional authority of the Federal Circuit as a source of law as well as the influence of pro-patent and anti-patent ideological forces at play between the Supreme Court, Federal Circuit, and the district courts. Our specific focus is on the district courts and how they cite Federal Circuit precedent relative to Supreme Court precedent to support their decisions, whether they be pro-patent or anti-patent. Using a variety of citation approaches and statistical tests, we find that federal district courts treat the Federal Circuit as more authoritative (compared to the Supreme Court ...


All Rise! Standing In Judge Betty Fletcher’S Court, Thomas D. Rowe Jr. Jan 2010

All Rise! Standing In Judge Betty Fletcher’S Court, Thomas D. Rowe Jr.

Faculty Scholarship

In this essay, based on a talk given at the Washington Law Review’s March 2009 symposium in honor of Senior Ninth Circuit Judge Betty Binns Fletcher and her three decades of service on that court, I selectively survey her opinions on justiciability issues: standing, ripeness, mootness, and political questions. A significant starting point for this survey is Professor Richard Pierce’s 1999 law review article, Is Standing Law or Politics?, arguing that many Supreme Court votes in standing cases generally, and appellate judges’ votes in environmental-standing cases specifically, can be explained better on the basis of politics than by ...


Taking The Measure Of Ideology: Empirically Measuring Supreme Court Cases Dec 2008

Taking The Measure Of Ideology: Empirically Measuring Supreme Court Cases

Matthew Sag

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 ...


Taking The Measure Of Ideology: Empirically Measuring Supreme Court Cases Dec 2008

Taking The Measure Of Ideology: Empirically Measuring Supreme Court Cases

Matthew Sag

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 ...


Dear President Bush: Leaving A Legacy On The Federal Bench, Carl Tobias May 2008

Dear President Bush: Leaving A Legacy On The Federal Bench, Carl Tobias

University of Richmond Law Review

No abstract provided.


Decline Of Title Vii Disparate Impact: The Role Of The 1991 Civil Rights Act And The Ideologies Of Federal Judges, Michael J. Songer Jan 2005

Decline Of Title Vii Disparate Impact: The Role Of The 1991 Civil Rights Act And The Ideologies Of Federal Judges, Michael J. Songer

Michigan Journal of Race and Law

This study employs various statistical techniques to test the efficacy of the 1991 Civil Rights Act in moderating the highly restrictive disparate impact regime imposed by Wards Cove, and to evaluate the hypothesis that political ideology should be a more powerful predictor of case outcomes following the 1991 Act. Part I of the paper describes the evolution of disparate impact doctrine from 1971 to the present. Part II analyzes data from randomly selected disparate impact cases brought by African American plaintiffs and finds that the current disparate impact doctrine emanating from the 1991 Civil Rights Act dramatically decreases the likelihood ...


Disarming The Confirmation Process, Michael M. Gallagher Jan 2003

Disarming The Confirmation Process, Michael M. Gallagher

Cleveland State Law Review

To improve the current process and eliminate the bitter nature of confirmation hearings, Senators should not consider a nominee's ideology in determining whether to vote for that nominee. Ideological scrutiny lacks historical and constitutional support; it has led to repeated, prolonged battles that threaten to draw the confirmation process into a dangerous stalemate. Removing ideology from judicial nominations would return the confirmation process to its original understanding, one in which the President enjoys the dominant role. Those who argue that allowing the President, not the Senate, to consider a nominee's ideology would harm the federal judiciary and ignore ...


Local Control Of The Bureaucracy: Federal Appeals Courts, Ideology, And The Internal Revenue Service, Robert M. Howard, David C. Nixon Jan 2003

Local Control Of The Bureaucracy: Federal Appeals Courts, Ideology, And The Internal Revenue Service, Robert M. Howard, David C. Nixon

Washington University Journal of Law & Policy

Recent studies show that the IRS is subject to some political control in shifting its policy between competing ideological or partisan concerns. We extend these studies to examine regional court influence over IRS audit policy within the separation of powers (“SOP”) framework. Examining cross-sectional time series data from 1960 until 1988, we found that the IRS shifts the number of audits it conducts of businesses versus individuals in response to the prevailing median ideology of the federal courts of appeals, and in response to the prevailing ideological framework of the President and Congress. As the median federal court of appeals ...