Legal Theory Blog

Baye & Wright on Antitrust Complexity & Generalist Judges

Michael R. Baye and Joshua D. Wright (Indiana University Bloomington - Department of Business Economics & Public Policy and George Mason University - School of Law) have posted Is Antitrust Too Complicated for Generalist Judges? The Impact of Economic Complexity & Judicial Training on Appeals on SSRN.  Here is the abstract:

Modern antitrust litigation sometimes involves complex expert economic and econometric analysis. While this boom in the demand for economic analysis and expert testimony has clearly improved the welfare of economists-and schools offering basic economic training to judges-little is known about the empirical effects of economic complexity or judges' economic training on decision-making in antitrust litigation. We use a unique data set on antitrust litigation in district courts during 1996-2006 to examine whether economic complexity impacts decisions in antitrust cases, and thereby provide a novel test of the frequently asserted hypothesis that antitrust analysis has become too complex for generalist judges. We also examine the impact of one institutional response to economic complexity: basic economic training by judges. We find that decisions involving the evaluation of complex economic evidence are significantly more likely to be appealed, and decisions of judges trained in basic economics are significantly less likely to be appealed than are decisions by their untrained counterparts. Our results are robust to a variety of controls, including the type of case, circuit, and the political party of the judge. Our tentative conclusion, based on a revealed preference argument that views a party's appeal decision as an indication that the district court got the economics wrong, is that there is support for the hypothesis that some antitrust cases are too complicated for generalist judges.

Adler on Chemerinsky on the Roberts Court

Jonathan H. Adler (Case Western Reserve University - School of Law) has posted Getting the Roberts Court Right: A Response to Chemerinsky (Wayne Law Review, Forthcoming) on SSRN.  Here is the abstract:

In "The Roberts Court at Age Three," Dean Erwin Chemerinsky offers a preliminary assessment of the Roberts Court. Among other things, Dean Chemerinsky reviews the effect of the Court's shrunken docket and the role of Justice Anthony Kennedy as the Court's median justice. Reviewing the Court's decisions over the past three years, Dean Chemerinsky concludes that the Roberts Court is the "the most conservative Court since the mid-1930s." This is a substantial overstatement. The Roberts Court appears moderately more "conservative" than its predecessors in some contexts, but is also quite "liberal" in others. Its decisions on enemy combatants, capital punishment, and standing, among other issues, could hardly be characterized as "conservative," however this term is defined. Furthermore, any assessment of the Roberts Court at this point is necessarily tentative. The current roster of justices have sat together for less than three full terms, and the small size of the docket means any single term provides an unrepresentative picture of the Court's jurisprudence. While the Roberts Court may eventually show itself to be a conservative court, there is no basis at present to claim the Court is the "most conservative" in over seventy years.

Rozzi & Peretti on Departures from the Supreme Court

Alan Rozzi and Terri L. Peretti (Santa Clara University - College of Arts and Sciences and Santa Clara University) have posted Modern Departures from the Supreme Court: Party, Pensions, or Power on SSRN.  Here is the abstract:

If the Supreme Court often serves the interests of the dominant governing coalition, does such regime assistance extend to partisan departures? Do the Justices time their exit from the bench to enable party allies to appoint loyal and like-minded successors? The answer to this question is not as clear and settled as conventional wisdom and anecdotal evidence indicate, with empirical studies sharply divided over the existence of strategic retirement. We offer new evidence regarding the influence of personal and political factors on the probabilities of Supreme Court retirements over the last fifty years. We find limited support for the view that, in deciding whether to stay or go, Justices respond to exogenous political factors like partisan control of the White House. Instead, an important consideration is their role and influence on the Court, suggesting that, at least when it comes to retirement decisions, Supreme Court justices care more about power than party and policy. Helping their party by strategically retiring comes at too high a price: losing their institutional position and influence.

Interesting!

Cameron & Kornhauser on Modeling Collegial Courts

Charles M. Cameron and Lewis A. Kornhauser (Princeton University - Woodrow Wilson School of Public and International Affairs and Department of Politics and New York University - School of Law) have posted Modeling Collegial Courts (3): Judicial Objectives, Opinion Content, Voting and Adjudication Equilibria on SSRN.  Here is the abstract:

We present a formal game theoretic model of adjudication by a collegial court. Distinctively, the model incorporates dispute resolution as well as judicial policy making and indicates the relationship between the two. It explicitly addresses joins, concurrences and dissents, and assumes judicial rather than legislative or electoral objectives by the actors. The model makes clear predictions about the plurality opinion's location in policy space; the case's disposition; and the size and composition of the disposition-coalition, the join-coalition, and the concurrence-coalition. These elements of adjudication equilibrium vary with the identity of the opinion writer and with the location of the case. In general, the opinion is not located at the ideal policy of the median judge. The model suggests new directions for empirical work on judicial politics.

And from the paper:

We have highlighted three features of adjudication in particular:

• First, adjudication jointly determines a case disposition and “policy” or opinion content. Although case dispositions must be compatible with opinion content, the linkage between the two is complex. For example, a majority, indeed a unanimous, view on case disposition does not imply majority (or unanimous) agreement on policy. In fact, in the United States, adjudicatory institutions do not require that any opinion receive majority support. Moreover, the joint production of case dispositions and policy outcomes may present a judge with difficult tradeoffs between the better case disposition and the best rule on offer.

• Second, the rules used to choose policies are radically different from those used in legislatures or elections. There is no amendment agenda. There is no paired comparison of alternatives. There is no vote pitting alternatives against the status quo. There is no run‐off between tied alternatives. There is free entry of opinions. Voters may abstain from endorsing any opinion, and doing so is consequential for the clarity of the Court’s voice.

• Third, in light of the procedures employed to determine outcomes, judicial motivations are apt to be critical in determining case dispositions and policy. Doing the right thing, announcing the best rule, and achieving clarity in the law may be as or more important than triumphing over competitors.

We have taken some tentative steps towards incorporating these features in a formal, game theoretic model of adjudication. First, the model incorporates joint production of case dispositions and policy outcomes and links the two. Second, the model incorporates some of the distinctive procedures used to choose policy. For example, we model joins, dissents, and concurrences. Third, we posit distinctively judicial preferences, including preferences for case dispositions and preferences for policy, and desires by opinion writers to achieve clarity in the law. We have not considered free entry of opinions nor competition between potential majority opinions, though we believe the model can be extended to address them. We believe most of the reported results will remain.

The model predicts behavior that is clearly at odds with the median justice model and the “median of the majority” model. For many parameter values, the location of an opinion depends critically on the entire distribution of ideal points, not simply on the location of the median justice. Dense clusters of ideal points tend to exert a “gravitational pull” on opinions. In courts with a strong center, outcomes may resemble median outcomes. In general, though, the model is an “author influence” model and for some parameter values is a “monopoly author” model. As such, the model suggests the importance of opinion assignment and strategic calculations by the Chief Justice. Other critical parameters affecting opinion locations and join decisions include the costs of writing separately and judicial valuations of a correct disposition and legal “

Highly recommended.

Farnsworth on Dissents

Ward Farnsworth (Boston University School of Law) has posted Dissents Against Type (Minnesota Law Review, Forthcoming) on SSRN.  Here is the abstract:

Legal realists and various others believe that judges in close case - and thus Supreme Court justices in most cases - vote according to their policy preferences, private empirical views about the world, and other considerations that have little to do with the legal materials bearing on a dispute. For those who think this way, a judge who dissents in an unexpected ideological direction is a surprise and a challenge; in a case where that happens, the arguments in favor of the judge's usual position not only were available but were strong enough to convince at least five colleagues, yet he rejected them. This paper examines such dissents against type in criminal cases at the Supreme Court, distinguishes between real and apparent examples of them, and considers whether and how they can be integrated into a realist view of judging.

The paper's principal conclusions are, first, that true dissents against type rarely occur. Apparent cases of them often involve underlying facts that make the vote ideologically unsurprising after all. Thus William Rehnquist almost always voted for the government in criminal cases - and when he dissented in favor of defendants, they invariably had been accused of white collar crimes or firearms offenses. In other cases, dissents against type usefully clarify what a justice's type is. Being conservative, for example, does not necessarily mean preferring the government's position across the board in criminal cases; sometimes it means a commitment to more particular values, such as a preference for finality over accuracy, that are often associated with the government's position but not always. True dissents against type, where a justice is bound by methodological principle to vote against his usual politics, are scarce but not unheard of.

Cox & Miles on Judicial Ideology & Voting Rights Jurisprudence

Adam B. Cox & Thomas J. Miles (University of Chicago - Law School) have posted Judicial Ideology and the Transformation of Voting Rights Jurisprudence (University of Chicago Law Review, Vol. 75, 2008) on SSRN. Here is the abstract:

For two decades, the doctrinal test laid out in Thornburg v. Gingles has been the centerpiece of vote dilution litigation in the United States. Gingles defined a sequential, two-part framework combining a set of rule-like preconditions to liability with a standard-like inquiry into the totality of the circumstances. Despite this elaborate framework, emerging empirical work shows that political ideology connects closely with how judges have decided vote dilution cases; Democratic appointees have proven much more likely than Republican appointees to favor liability under Section 2 of the Voting Rights Act. This work raises the question of what role the Gingles framework really plays in voting rights litigation. More basically, it raises the fundamental question of whether legal doctrine actually constrains judicial decisionmaking. Using a dataset of every Section 2 decision issued since Gingles, this Article explores these twin puzzles. It finds substantial evidence that legal rules are indeed more ideologically constraining than standards. Ideological divisions are much more pronounced in the standard-like second step of Gingles than under the more rule-like preconditions. Moreover, the Article shows that the doctrinal dynamics of vote dilution litigation have changed dramatically over the past two decades. As the representational and political implications of vote dilution claims have shifted, the Gingles factors that both judges and scholars claim are central to the liability inquiry have become far less important. Courts' sharp movement away from the centrality of the Gingles factors amounts to a largely unrecognized second transformation of voting rights litigation.

And from the paper:

Our findings provide support for two of the central theoretical intuitions about rules and standards. First, they indicate that rules indeed may, to a greater extent than standards, limit discretion and suppress ideological disagreements among judges. Second, they suggest that the flexibility preserved by standards may make it easier for adjudicators to respond to changing circumstances over time.

These findings have important implications for the long‐standing debate about whether (and how) legal rules actually constrain judges. But our results also lead to a number of specific insights about the operation of the Voting Rights Act and the protection of minority voting rights. The doctrinal structure that Justice Brennan created in Gingles may well have been intended to encourage judicial intervention in the wake of Congress’s amendments to Section 2. By establishing a set of relatively objective preconditions to liability, Brennan gave lower courts a steadier foothold for liability findings. Nonetheless, as these preconditions over time became a potential threat to substantive minority representation and the Democratic party, Brennan’s two‐stage analytic framework became more meaningful as a safety valve against liability than a spur to it. This safety valve may have allowed courts to respond more easily to changing social conditions and political consequences. But the cost has been the growing irrelevance of the Gingles preconditions themselves. Today the preconditions are surprisingly disconnected from the liability determination. Liability follows from a finding that the preconditions are satisfied only slightly more often than it would follow from a coin flip.

All this suggests that the Supreme Court’s effort to provide an objective test for identifying minority vote dilution has been largely unsuccessful.115 The lack of success is important for ongoing debates about the structure of the Voting Rights Act. Recently, both Congress and the Supreme Court have confronted legal issues relating to how rule‐like the Act should be. In 2006, Congress amended Section 5 of the Act to make more rigid the test for measuring minority political opportunity. 116 Similar changes may soon follow for Section 2. A case currently pending before the Supreme Court raises the question of whether prong 1 of the Gingles preconditions (which requires minority voters be “sufficiently numerous” in the area where they claim a violation) should be made even more rule‐like—by requiring minority voters to constitute at least 50 percent of the voting age population of the district whose creation they seek under Section 2.117 Our results show that these changes might help suppress ideological disagreements among judges, even if these disagreements continue to beset the public conversation about voting rights. But to the extent changes to Section 2 or Section 5 do cabin ideological disagreements, they may also make it more difficult for lower courts to adjust the Act to changing social conditions.

This paper is important on its narrow topic, but even more significant for its attempt to integrate theoretical constructs derived from general jurisprudence into the judicial behavior literature.  Highly recommended!  Download it while its hot!

Sunstein on Judicial Minimalism

Cass R. Sunstein (Harvard University - Harvard Law School) has posted Beyond Judicial Minimalism on SSRN. Here is the abstract:

Many judges are minimalists. They favor rulings that are narrow, in the sense that they govern only the circumstances of the particular case, and also shallow, in the sense that they do not accept a deep theory of the legal provision at issue. In law, narrow and shallow decisions have real advantages insofar as they reduce both decision costs and error costs; make space for democratic engagement on fundamental questions; and reflect a norm of civic respect. In many cases, however, minimalism is hard to justify in these ways. Sometimes small steps increase the aggregate costs of decisions; sometimes they produce large errors, especially when they export decision-making burdens to fallible people. Predictability is an important variable, and minimalist decisions can compromise predictability. Sometimes large, nonminalist steps serve democratic values and do not compromise the norm of civic respect. It follows that the justifications for minimalism are unconvincing in many contexts. The debate between minimalists and their adversaries is closely related to the debate between those who prefer standards and those who prefer rules, though there are some important differences.

I would have provided excerpts and commentary, but this is an image file.  (And I'll never get anything else done if I start retyping papers into Legal Theory Blog!) 

This is an important extension of Sunstein's theory of judicial minimalism--essential reading for anyone interested in general jurisprudence.  Highly recommended.  Download it while its hot.

Jordan on Irregular Panels of Appellate Court Judges

Samuel P. Jordan (Saint Louis University - School of Law) has posted Irregular Panels (Alabama Law Review, Vol. 60, No. 3, 2008) on SSRN.  Here is the abstract:

This article explores a common but essentially unexplored feature of appellate decision-making: decisions by irregular panels. Decisions in the federal courts of appeals are usually reached by panels of three statutorily authorized judges. But appellate panels are often irregular in practice, either because an authorized judge becomes unavailable or because an unauthorized judge is assigned as a panel member. The traditional approach, supported by both statute and case law, has been to accept the former while rejecting the latter. When considered functionally, however, decisions by quorum are at least as problematic as those by panels with unauthorized members. The absence of a third judge deprives a panel of important contributions that potentially affect the direction, content, or legitimacy of the final product. These contributions come at a cost, but not one as substantial as might be imagined. Moreover, the actual cost is likely to be smaller than the perceived cost to the other panel members, while the potential benefits are likely to be greater. For these reasons, the current approach of allowing panel members to decide when to proceed by quorum produces undesirable results. In its place, a firm requirement of regularity - that is, decision by three authorized judges - should be implemented.

Roosevelt on Stare Decisis & Non-Article III Actors

Kermit Roosevelt III (University of Pennsylvania Law School) has posted Polyphonic Stare Decisis: Listening to Non-Article III Actors (Notre Dame Law Review, Vol. 83, 2008) on SSRN. Here is the abstract:

This article explores the input that non-Article III actors can and should have in the Supreme Court's decision to reconsider a prior constitutional decision. It employs a model of constitutional decision-making that distinguishes between the articulation of constitutional meaning and the construction of constitutional doctrine to identify several different stages at which a court can adhere to or depart from precedent and examines the persuasive power of non-Article III input at each stage.

And from the text:

One answer might be that the Constitution does in fact require some form of stare decisis (which would imply the unconstitutionality of legislation abrogating stare decisis, though not that of legislation prescribing some particular form). Paulsen rejects this view on the ground that the Constitution says nothing about the practice and the Court’s frequent observations that stare decisis is “not an inexorable command” “illustrate the sub-constitutional, policy-based nature of the doctrine.”23 But to say that courts are not always required to adhere to precedent (“stare decisis is not an inexorable command”) is not to say that they can do without stare decisis entirely. The possibility remains that the Constitution requires some form of respect for precedent, although that form does not require adherence in every case. To put the assertion in constitutional language, it may be in the nature of the “judicial power” (and one of the things that distinguishes it from the legislative) that departures from precedent require some justification. On this view, precedent must have some force.

Indeed, if one looks at what the Supreme Court has said about precedent, there are many statements to this effect. Perhaps the best evidence comes from the Court’s struggles with the question of retroactivity: what to do when a judicial decision changes the law. At one point, the Court adopted a solution whereby it would announce a new rule in one case but then not apply that rule to cases pending on direct review in which the relevant events (typically a state-court conviction) occurred before the law-changing decision.24 But in Harper v. Virginia Department of Taxation,25 the Court pronounced this “selective prospectivity” unconstitutional, stating that “the nature of judicial review” barred the Court from holding that its decision in one case should have no effect on other similarly situated cases.

Highly recommended.

Choi, Gulati, and Posner Rank State Courts

Stephen J. Choi , G. Mitu Gulati and Eric A. Posner (New York University - School of Law , Duke University - School of Law and University of Chicago - Law School) have posted Which States Have the Best (and Worst) High Courts? on SSRN. Here is the abstract:

This paper ranks the high courts of the fifty states, based on their performance during the years 1998-2000, along three dimensions: opinion quality (or influence as measured by out-of-state citations), independence (or non-partisanship), and productivity (opinions written). We also discuss ways of aggregating these measures. California and Delaware had the most influential courts; Georgia and Mississippi had the most productive courts; and Rhode Island and New York had the most independent courts. If equal weight is given to each measure, then the top five states were: California, Arkansas, North Dakota, Montana, and Ohio. We compare our approach and results with those of other scholars and the U.S. Chamber of Commerce, whose influential rankings are based on surveys of lawyers at big corporations.

A bit more from the paper:

In earlier work, we showed that the relationship between institutional design and judicial quality is complex, and does not lend much support to the conventional wisdom. Appointed judges write more frequently-cited opinions than elected judges do, but elected judges are more productive, while there seems to be no difference between their levels of independence.18 Judicial pay has little effect on judicial quality, except among elected judges, who are more productive when paid more.19 It is not the purpose of this Article to review or reproduce these findings. Our goal instead is to generate a ranking of the state high courts on the basis of the data that we collected for the earlier studies. We will argue that our ranking overcomes many of the defects of the U.S. Chamber of Commerce study, as well as those of earlier academic work.

Rankings make people uneasy. They seem to trivialize activities that are of public importance, and they may stimulate the ranked agents or institutions to engage in destructive competition or demoralize those that have no ability to escape from the bottom. The most serious objection to rankings is that they unavoidably rely on measures that neglect hard-toobserve but important aspects of performance. If nonetheless those who achieve a high ranking are rewarded with resources or public esteem, institutions will distort their missions so as to do well on whatever measures are used.20

We address this objection by making our rankings as transparent and flexible as possible. Readers might disagree about how to weight the different measures that we use, and we show how such disagreements may lead to different rankings of the state courts. The alternative to rankings is, as a practical matter, virtually no information, and public institutions that are not carefully monitored and evaluated will rarely have strong incentives to perform well. Rankings, however imperfect, serve an important information-forcing function.21 Institutions that do poorly on rankings should have the burden of coming forth with an explanation for their performance; but if the explanation is plausible, then the ranking should be discounted. Better still, if the stakes are high enough – and the amounts of money spent by institutions like the U.S. Chamber of Commerce on commissioning rankings suggest there are22 – competitor rankings should emerge that improve upon the prior ones.

A must read.  And even if these rankings are imperfect, they are certainly a huge improvement over the status quo.  Bravo!