420 W 118th St. (MC 3320)
Department of Political Science
New York City, NY 10027
JRL2124 at columbia dot edu
Constraints on Legal Doctrine: How Hierarchy Shapes the Law, Journal of Politics, forthcoming (note: not final version)I argue that hierarchical politics shape legal doctrine as higher court judges attempt to assert control over lower-court decision-making. I present a case-space model of choice between determinate doctrines (rules) and more flexible doctrines (standards). The structure of doctrine affects the application of and compliance with doctrine by lower courts, and a higher court's need to rely on lower courts affects choice among doctrinal structures. The separation of rule creation and rule application creates striking incentives for strategic rule formation. Doctrinal choice, doctrinal complexity, lower court discretion, and the allocation of judicial resources all depend on hierarchical conflict, the transparency of decisions, sensitivity to case facts, judicial expertise, salience, and issue complexity. These incentives have counterintuitive effects on lower court discretion and on legal complexity, and they create odd patterns of ideological and doctrinal alignment, connecting hierarchical politics to intra-court collegial politics and the rule of law.
The Democratic Deficit in the States, American Journal of Political Science, Vol. 56(1): January 2012, with Justin Phillips, Pi Sigma Alpha Award for Best Paper at the 2010 Annual Meeting of the Midwest Political Science
Association, State Politics and Policy Quarterly Award for best paper on the U.S. states presented at a professional meeting in 2009
(includes online Supplemental Information section)
We study how well states translate public opinion into policy. Using national surveys and advances in sub-national opinion estimation, we estimate state-level support for 39 policies across 8 issue areas, including abortion, law enforcement, health care, and education. We show that policy is highly responsive to policy-specific opinion, even controlling for ideological and partisan influences. But we also uncover a striking "democratic deficit": policy is congruent with majority will only about half the time. Even supermajority support is often insufficient. We assess the influence of institutions, partisan control of government, and interest groups on the magnitude and ideological direction of this democratic deficit. The magnitude of it is most affected by legislative professionalization, term limits, and issue salience. Partisanship and interest groups affect the ideological balance of incongruence more than the aggregate degree thereof. Finally, policy is over-responsive to ideology and party---causing policy to be polarized relative to state electorates.
- The New Judicial Politics of Legal Doctrine, Annual Review of Political Science, Vol. 14: June 2011A new judicial politics of legal doctrine has the potential to resolve foundational dilemmas and reconcile longstanding and counterproductive scholarly divisions, by bringing together legal concerns and political science priorities. This doctrinal-politics approach highlights a relatively new formal apparatus known as the case-space model, and it invokes close ties between theoretical and empirical work and between the study of judicial behavior and actual legal practices and institutions. The case-space model is an adaption of standard policy-space modeling, tailored for the distinguishing features of judicial policy making. It allows for ideological differences between judges, while expressing those differences in terms of legal rules that partition fact-filled legal cases into different dispositions. I explore the intellectual origins and primary contributions of the approach, focusing on how legal policy is affected by collegiality (the multi-member nature of appellate courts) and hierarchy (the multi-level division of court systems).
- Public Opinion and Senate
Confirmation of Supreme Court Nominees, Journal of Politics,
Vol. 71(3): July 2010, with Jonathan Kastellec and Justin Phillips Does public opinion influence Supreme Court confirmation politics? We present the first direct evidence that state-level public opinion on whether a particular Supreme Court nominee should be confirmed affects the roll call votes of senators. Using national polls and applying recent advances in opinion estimation, we produce state-of-the-art estimates of public support for the confirmation of nine recent Supreme Court nominees in all 50 states. We find that greater home-state public support does significantly and strikingly increase the probability that a senator will vote to approve a nominee, even controlling for other predictors of roll call voting. These results establish a systematic and powerful link between constituency opinion and voting on Supreme Court nominees. We connect this finding to larger debates on the role of majoritarianism and representation.
- Legal Constraints on Supreme
Court Decision Making: Do Jurisprudential Regimes Exist?, Journal of Politics,
Vol. 71(2): April 2010, with Kelly Rader A new line of attack on assessing the role of law in Supreme Court decision-making involves the identification of jurisprudential regimes. The key test is whether the regime changes after a major precedent-setting decision, that is, whether the case factors that drive decisions are subsequently treated differently by the Supreme Court justices themselves. The standard test assumes votes in cases within a given term are fully independent observations. We argue that a ``randomization test'' is more appropriate and show that the standard test for regime change does not work well. There is little evidence that precedents change the behavior of sitting justices.Response by Kritzer and Richards
Rejoinder: The Three Prongs of a Jurisprudential Regimes Test
Rights in the States: Public Opinion and Policy Responsiveness, American Political
Science Review, Vol. 103(3): August 2009, with Justin Phillips (supplemental results attached) We study the effects of policy-specific public opinion on state adoption of policies affecting gays and lesbians, and the factors that condition this relationship. Using national surveys and advances in opinion estimation, we create new estimates of state-level support for eight policies including civil unions and non-discrimination laws. We differentiate between responsiveness to opinion and congruence with opinion majorities. We find a high degree of responsiveness, controlling for interest group pressure and the ideology of voters and elected officials. Policy salience increases the effects of opinion and diminishes the effects of other causal factors, particularly voter ideology. We find, however, a surprising amount of non-congruence---for some policies, even clear super-majority support seems insufficient for adoption. When non-congruent, policy tends to be more conservative than desired by voters; that is, we find little pro-gay policy bias. State political institutions do not condition policy responsiveness or congruence.
- Legal Doctrine on
Collegial Courts, Journal of Politics, Vol. 71(3): July 2009, with Dimitri Landa
(includes web appendix) Appellate courts, which have the most control over legal doctrine, tend to operate through collegial (multi-member) decision-making. How does this collegiality affect their choice of legal doctrine? Can decisions by appellate courts be expected to result in a meaningful collegial rule? How do such collegial rules differ from the rules of individual judges? We show that collegiality has important implications for the structure and content of legal rules, as well as for the coherence, determinacy, and complexity of legal doctrine.
Should We Estimate Public Opinion in the States?, American Journal of Political
Science, Vol. 53(1): January 2009, with Justin Phillips We compare two approaches for estimating state-level public opinion: disaggregation by state of national surveys and a simulation approach using multilevel modeling of individual opinion and poststratification by population share. We present the first systematic assessment of the predictive accuracy of each and give practical advice about when and how each method should be used. This greatly expands the scope of issues for which researchers can study sub-national opinion directly or as an influence on policymaking.
Selection and the Study of Judicial Politics, The Journal of Empirical Legal
Studies, Vol. 5(3): September 2008, with Jonathan Kastellec
We study how case selection might affect our inferences within judicial politics, including those about decision making in the Supreme Court itself (such as whether law constrains the justices) and throughout the judicial hierarchy (such as whether lower courts comply with Supreme Court doctrine). We show that the inferential problems raised by the Court's case selection range from moderate to severe. At stake are substantive conclusions within some of the most important and controversial debates in judicial politics.
- Disagreements on
Collegial Courts: A Case-Space Approach, The Journal of Constitutional Law,
Vol. 10(2): January 2008, with Dimitri Landa
How do disagreements between judges on collegial (multi-member) courts affect legal policy? We develop an account of the nature of judicial disagreements in the case-space model of judicial choice. We distinguish between different types of disagreement and argue that attempts to develop collegial legal policy against the background of such disagreements pose distinct challenges with respect to policy interpretation and implementation.
Legal Rules on Appellate Courts, American Political Science Review, Vol
101(3): August 2007 Courts make policy, not only by hearing cases themselves, but by establishing legal rules for the disposition of future cases. The problem is that such courts are generally multi-member, or "collegial," courts. If different judges prefer different rules, can a collegial court establish meaningful legal rules? I use a "case-space" model to show that there will exist a collegial rule that captures majoritarian preferences, and that there will exist a median rule even if there is no single median judge. I show how collegial rules can differ from the rules of individual judges and how judicial institutions affect the stability and enforceability of legal rules.
- Bargaining and
Opinion Assignment on the U.S. Supreme Court, The Journal of Law, Economics,
and Organization, Vol. 23(2): Summer 2007, with Charles M. Cameron We formulate a model of bargaining on the U.S. Supreme Court, in which a degree of monopoly power over policy endogenously accrues to the assigned writer despite an "open rule" for the other justices. We assume justices are motivated ultimately by a concern for judicial policy, but that the policy impact of an opinion depends partly on its persuasiveness, clarity, and craftsmanship---its legal quality. The effort-cost of producing a high quality opinion creates a wedge that the assignee can exploit. We use this model for a formal analysis of opinion assignment. Both the models display rich and tractable comparative statics, explaining well-known empirical regularities and generating new propositions.
- Courts, Congress, and
Public Policy, Part I: The FDA, the Courts, and the Regulation of Tobacco, The
Journal of Contemporary Legal Issues, Vol. 15(1): 2006, with Mathew D. McCubbins
We test the public policy impact of court decisions relative to Congress and the executive by examining the FDA's proposals to regulate tobacco products. To measure impact we utilize an event study methodology that measures how a court decision affects the returns of selected publicly traded firms.
Congress, and Public Policy, Part II: The Impact of the Reapportionment Revolution on Urban
and Rural Interests, The Journal of Contemporary Legal Issues, Vol. 15(1):
2006, with Mathew D. McCubbins In Baker v. Carr, a majority of justices declared for the first time that courts could indeed address disparities in the population of legislative districts. We evaluate the impact of these decisions on legislative politics and policymaking, using three indicators of change. In the first, we test the impact of two key reapportionment cases, Reynolds v. Sims and Wesberry v. Sanders, on policies favoring rural and urban interests (using event study methodology), showing that these decisions shifted the benefits of public policy toward urban interests and away from rural interests. The second indicator is the relationship of Southern Democrats to the rest of the Democratic Party in the U.S. House of Representatives and in the U.S. Senate. The third indicator captures the political changes wrought by a similar set of cases affecting the California legislature.
and Compliance in the Judicial Hierarchy: Discretion, Reputation, and the Rule of Four,
Journal of Theoretical Politics, Vol. 15(1): 2003 (Printing
Errors) I develop a formal model of the interaction between auditing by the Supreme Court (certiorari) and compliance by the lower courts. I show that the Rule of Four, the Court's rule for taking cases to review, said to limit majoritarian dominance, actually increases majority power by increasing lower court compliance. I show separately that, while sincere behavior is often taken for granted at the Supreme Court level, potential non-compliance creates heretofore unrecognized incentives for the justices to conceal their true preferences, so as to induce greater compliance.
Division: A Format for the Debate on the Format of Debates, PS: Political Science
and Politics, Vol. 32(1): March 1999
Unpublications (a.k.a. Works in Progress)
Opinion Assignment and Voting in the Supreme Court, Winner: American Judicature Society Award for best paper on Law and Courts presented at a presented at a professional meeting in 2007, with Kelly Rader The latest version of this project is the following paper:
Bargaining Power in the Supreme Court, with Kelly T. Rader
How can we figure out relative bargaining power within the Supreme Court? We argue that fluidity, the switching of votes by a justice between the initial internal conference vote and the final reported vote in a case, can reveal the likely location of the majority opinion---because all else equal justices should be less likely to switch the happier they are with the majority opinion. Different theories make various predictions for opinion location. We draw out the implications for how happy a particular choice of assignee should make each justice in the majority. This in turn should correlate to the probability of vote switching. We then compare the predictions of each model to observed vote switching. We make use of multilevel probit regression and roughly 40 years of Supreme Court vote data. Among the theories we consider, we find that the evidence from fluidity supports the conclusion that authorship does matter. In particular, the evidence is compatible with the bargaining and opinion assignment model in Lax and Cameron (2007), suggesting that power within the Court does lie partially in the hands of opinion authors and thus of the Chief Justices who pick them, as constrained by the need to maintain a majority coalition.
- Distorting the Electoral Connection?
Partisan Representation in Supreme Court Confirmation Politics, with Jonathan Kastellec, Michael Malecki, and Justin
Do senators respond to the preferences of their state's median voter or only to the preferences of their co-partisans? We study responsiveness using roll call votes on ten recent Supreme Court nominations. We build on recent advances in multilevel modeling to develop a method for estimating state-level public opinion broken down by partisanship. We find that senators respond more powerfully to their partisan base when casting such roll call votes. Indeed, when their state median voter and party median voter disagree, senators strongly favor the latter. This has significant implications for the study of legislative responsiveness, the role of public opinion in shaping the personnel of the nation's highest court, and the degree to which we should expect the Supreme Court to be counter-majoritarian. The methodological approach we present here can be applied elsewhere to estimate opinion by state and partisan group, or by many other typologies, so as to study other important questions of democratic responsiveness and performance.
- How Should we Estimate Sub-National Opinion with MRP?, with Justin
Over the past few years, multilevel regression and poststratification (MRP) has become an increasingly trusted tool for estimating public opinion in sub-national units from national surveys. Especially given the proliferation of this technique, more eval- uation is needed to determine the conditions under which MRP performs best and to establish benchmarks for expectations of performance. Using data from common content of the Cooperative Congressional Election Study, we evaluate the accuracy of MRP across a wide range of survey questions. In doing so, we consider varying degrees of model complexity and identify the measures of model fit and performance that best correlate to the accuracy of MRP estimates. The totality of our results will enable us to develop a set of guidelines for implementing MRP properly as well as a set of diagnostics for identifying instances where MRP is appropriate and instances where its use may be problematic.
- Gay Rights in Congress: Public Opinion and (Mis)Representation, with Kate Krimmel and Justin
Public majorities have supported several gay rights policies for some time, yet Congress has responded slowly if at all. We address this puzzle through dyadic analysis of the opinion-vote relationship on 23 roll-call votes between 1993 and 2010, matching members of Congress to policy-specific opinion in their state or district. We also extend the MRP opinion estimation technique so that it can be used more often for district-level analysis. While policy-specific opinion is a very strong determinant of roll-call voting, we find large gaps in responsiveness and biases in policymaking. Though opinion strongly influences white male Democrats, black lawmakers and white female Democratic lawmakers generally support gay rights and Republicans consistently oppose them, regardless of constituent preferences. We also unpack polarization over time, showing Democrats moving into and Republicans out of sync with their constituents. This yields a broader, deeper picture of the opinion-vote relationship.
- Judicial Politics (Graduate)
- American Politics (Graduate), with Robert Erikson
- Dissertation Workshop, with Melissa Schwartzberg
- Judicial Politics (Undergraduate)
- Logic of Collective Choice (Social Choice Theory, Undergraduate)