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The manner in which political institutions convey their policy outcomes can have important implications for how the public views institutions’ policy decisions. This paper explores whether the way in which the U.S. Supreme Court communicates its policy decrees affects how favorably members of the public assess its decisions. Specifically, we investigate whether attributing a decision to the nation’s High Court or to an individual justice influences the public’s agreement with the Court’s rulings. Using an experimental design, we find that when a Supreme Court outcome is ascribed to the institution as a whole, rather than to a particular justice, people are more apt to agree with the policy decision. We also find that identifying the gender of the opinion author affects public agreement under certain conditions. Our findings have important implications for how public support for institutional policy-making operates, as well as the dynamics of how the Supreme Court manages to accumulate and maintain public goodwill.

When the Supreme Court takes action, it establishes national policy within an issue area. A traditional, legal view holds that the decisions of the Court settle questions of law and thereby close the door on future litigation, reducing the need for future attention to that issue. Alternatively, an emerging interest group perspective suggests the Court, in deciding cases, provides signals that encourage additional attention to particular issues. I examine these competing perspectives of what happens in the federal courts after Supreme Court decisions. My results indicate that while Supreme Court decisions generally settle areas of law in terms of overall litigation rates, they also introduce new information that leads to increases in the attention of judges and interest groups to those particular issues.

While Congress can attempt to overrule constitutional decisions of the Supreme Court by initiating the constitutional amendment process, an amendment is rarely a practicable option. Instead, Congress regularly tries to modify the impact of constitutional decisions with ordinary legislation. I analyze policy-based responses to the Supreme Court’s constitutional decisions that were initiated in Congress between 1995 and 2010. For each responsive proposal, I consider the relationship between the proposed legislation and the Court’s legal holding and the relationship between the proposal and the public policy associated with the Court’s decision. I find that Congress enjoys considerable success in reversing the policy impacts of the Court’s decisions but is limited in its ability to overcome the Court’s legal rules. When members of Congress dislike an opinion announced by the United States Supreme Court, they can express their disapproval in several ways. Congressional responses range from the nearly costless issuance of public statements voicing criticism of the Court to the daunting task of shepherding proposed constitutional amendments through Congress in the hopes of sending amendments to the states that will overcome the Court’s constitutional interpretations. Other legislative proposals may reverse statutory interpretations adopted by the Supreme Court or revise policies that have been declared unconstitutional in the hopes of satisfying judicial scrutiny. Instead of attempting to alter the policy announced by the Court, members of Congress may engage in institutional attacks 1 designed to weaken the Court. I consider the use of ordinary legislation to limit or modify the impact of constitutional decisions of the Supreme Court. I call these proposals “policy-based responses” to differentiate them from institutional attacks, which are often assumed to be Congress’s preferred or only available vehicle for responding to the Court’s constitutional decisions. I argue that policy-based responses are a regular

Are Supreme Court justices with prior experience in the executive branch more likely to defer to the president in separation of powers cases? While previous research has suggested that such background may signal judicial policy preferences but does not shape them, I argue here that institutional socialization may indeed increase future judicial deference to the president. Using an original data set of executive power cases decided between 1942 and 2007, I model justice-votes to test this hypothesis. I uncover three noteworthy findings: (1) a clear correlation between prior executive branch experience and support for the executive branch, (2) the degree of this support intensifies as executive branch tenure increases, a finding congruent with a socialization hypothesis, and (3) contrary to received wisdom, executive powers cases possess a clear ideological dimension, in line with the expectations of the attitudinal model.In 2005, on the well-respected legal blog Opinio Juris, law professor Julian Ku reflected on the likelihood that then Judge Roberts would be a strong supporter of executive power once on the Supreme Court. After noting that Roberts had clerked for former Chief Justice Rehnquist, also a supporter of a robust executive branch, Ku stated that "like Jackson, who served as Attorney- General for FDR, and Rehnquist, who served as an Assistant Attorney General for Nixon, Roberts' main government experience has been in the executive branch as associate White House Counsel and Deputy Solicitor General" (Ku 2005). The implication of this statement was clear: as a former member of the executive branch, Judge Roberts was expected to be more deferential to the president in cases involving executive power.The notion that background affects behavior might seem an obvious truth. When it comes to judicial decision-making, however, particularly for hard cases at the appellate court level, the study of social and background characteristics as systematic correlates for behavior has attenuated, thought to have fallen short on both theoretical (Sisk, Heise, and Morriss 1998) and empirical grounds (Heise 2002). The successor to the social background model has undoubtedly been the attitudinal model, which posits that such cases are mainly resolved according to the ideological policy preferences of the judges who hear them (Segal and Spaeth 1993). However, though ideological attitudes are the single best extralegal predictor of judicial decision-making, a great deal of variance remains unexplained. Moving to fill this gap, legal scholars have provided persuasive arguments as to the role that legal doctrine (Bailey and Maltzman 2008; Richards and Kritzer 2002), strategic interaction (Epstein and Knight 1998), the desire for comity (Hettinger, Lindquist, and Martinek 2007), and even the need for approval (Baum 2006) play in explaining judicial decision-making when the law is unclear.While not returning to their place of prominence, social background models remain useful, primarily in improving predictions of judicial decision-making where a reasonable connection can be drawn between the case area and the background in question. These studies have not only used better methods and reduced incomparability to uncover noteworthy correlations between social background factors and decision outcomes (Brudney, Schiavoni, and Merritt 1999; Schneider 2002; Sisk, Heise, and Morriss 1998), but have even successfully tested competing causal explanations (Boyd, Epstein, and Martin 2010).In this study, I follow this more recent vein of social background studies, contending that executive branch experience has predictive power in explaining separation of powers outcomes on the Supreme Court. Specifically, I build on work by Michael Dorf, who found that in the post-Warren Court era, Republican Supreme Court appointees with executive branch experience were more likely to be consistent conservatives than those who lacked such experience (Dorf 2007). …

This article considers several possible determinants of the transmission of legal precedent across Australian state supreme courts over the course of the twentieth century. The study finds that that the transmission of legal precedent is higher between State supreme courts that are more physically proximate and between state supreme courts in which a majority of judges in both courts are appointed by conservative governments. The study further finds that having an intermediate trial court and providing appointments to the High Court of Australia are correlated with whether a state is a source of interstate citations or a cue sender.

Does understanding how U.S. Supreme Court justices actually decide cases undermine the institutional legitimacy of the nation's highest court? To the extent that ordinary people recognize that the justices are deciding legal disputes on the basis of their own ideological biases and preferences (legal realism and the attitudinal model), the belief that the justices merely "apply" the law (mechanical jurisprudence and the myth of legality) is difficult to sustain. Although it is easy to see how the legitimacy of the Supreme Court, the most unaccountable of all American political institutions, is nurtured by the view that judicial decisionmaking is discretionless and mechanical, the sources of institutional legitimacy under legal realism are less obvious. Here, we demonstrate, using a nationally representative sample, that the American people understand judicial decisionmaking in realistic terms, that they extend legitimacy to the Supreme Court, and they do so under the belief that judges exercise their discretion in a principled and sincere fashion. Belief in mechanical jurisprudence is therefore not a necessary underpinning of judicial legitimacy; belief in legal realism is not incompatible with legitimacy. Americans today live in an era in which nearly all observers of the legal process acknowledge the key role of ideology and political values in the decisionmaking processes of U.S. Supreme Court justices. As two of the most prominent analysts of the Supreme Court observed: ''Simply put, Rehnquist votes the way he does because he is extremely conservative; Marshall voted the way he did because he was extremely liberal'' (Segal & Spaeth 2002:86).1 Even if some debate exists about the degree to which the policy choices of justices are constrained by legal and extralegal factors (e.g., Bailey & Maltzman 2008; Black & Owens 2009; Caldeira & Wright 1988; Richards & Kritzer 2002), no serious analyst would today contend that the decisions of the justices of the Supreme Court are independent of the personal ideologies of the judges. In this sense, legal realism has carried the day.2 Indeed, as Packer (2006:83) and others (e.g., Peller 1985; Singer 1988) have put it: ''We are all realists now.''3 Yet it is not uncommon to find judges who deny that their own ideological and policy preferences shape their decisions. Justice Antonin Scalia has stated, for instance, ''To hold a government Act to be unconstitutional is not to announce that we forbid it, but that the Constitution forbids it. . . . Since the Constitution does not change from year to year; since it does not conform to our decisions, but our decisions are supposed to conform to it; the notion that our interpretation of the Constitution in a particular decision could take prospective form does not make sense'' (American Trucking Assns., Inc. v. Smith 1990, 496 U.S. 167, 201; (Scalia concurrence). 4 During her confirmation hearings, Judge Sonia Sotomayor similarly described a process of judging quite at odds with the depiction of the legal realists, most likely reflecting a strategic decision by Judge Sotomayor and President Barack Obama's political advisors to advance the image of discretionless judging and judges who merely ''implement'' the law, in part in reaction to attacks on President Obama's comments about needing judges with ''empathy'' on the Supreme Court. Judge Sotomayor's description of judicial decisionmakingFin particular, her depiction of the process as one of mechanical jurisprudenceFset off some furious criticism by legal scholars (e.g., Mauro 2009). Some even accused her of lying (Dworkin 2009). Asking what can be done about judges misrepresenting their actual processes of decisionmaking, Dworkin answers: ''Nothing, I fear, until the idea that judges' personal convictions can and should play no role in their decisions loosens its grip not just on politicians but on the public at large'' (Dworkin 2009: http://www.nybooks.com/articles/archives/2009/sep/24/justicesotomayor- the-unjust-hearings/? …

This article provides an analysis of the nature of circuit court threshold decisions. Specifically, a model sensitive to the institutional context of the circuits is developed and tested across all threshold decisions in the sample and in more limited samples of proper party and proper forum votes. The results suggest that circuit court gatekeeping is a function of multiple factors, including circuit court law, litigant status, the lower court decision, and, at times, the ideological preferences of the circuit judge or that of his or her circuit.

Conventional wisdom holds that the role of the U.S. federal judiciary was underspecified and undefined until the era of Chief Justice John Marshall. In contrast, I argue that prior to the Marshall era, the Supreme Court had the specific institutional role of providing an administrative remedy to aggrieved nations to deprive potentially hostile nations of any excuse for belligerence. Specifically, concern among the Framers about this nascent country's absence of dispute resolution mechanisms in the areas of trade and admiralty was critical in the institutional design of the judiciary. Original jurisdiction was designed primarily to remedy trade disputes. The independent judiciary made trade commitments more credible and self-help by the aggrieved less likely. By providing this administrative remedy and lowering the uncertainty associated with trading with revolutionaries, the Framers claimed a seat for the new country at the table of nations. Moreover, enhanced commercial credibility that the administrative avenue for redress provided was instrumental in the early economic development of the United States.

Despite the impressive body of scholarship dedicated to analyzing litigation involving the Charter of Rights and Freedoms in the Supreme Court of Canada, there remains an incomplete understanding of why these cases come to the Court. Notably absent from the literature is sustained analysis of why governments, the most frequent class of appellant, bring Charter cases to the Supreme Court. Recent work has addressed the decision to appeal by the U.S. federal government and state attorneys general and provides an excellent theoretical starting point. I use case data collected from interviews with federal government lawyers and law reports to test whether the Canadian federal government's decisions to appeal to the Supreme Court of Canada in Charter cases are also "procedurally rational." I conclude that these decisions are primarily shaped by strategic considerations related to policy costs, case importance, reviewability, and the prospect of winning on appeal, regardless of the party in power. In the process, the article further extends the application of strategic decisionmaking theory with regard to law and courts beyond judicial behavior, and beyond the U.S. context. The key insight of the institutionalist stream of rational choice theory is that institutional rules and structures provide incentives and disincentives for behavior, forming a context within which rational agents act strategically to achieve their goals as fully as possible (Hall & Taylor 1996; Immergut 1998; Tsebelis 1990). This insight has been applied fruitfully to the study of courts, as most notably exemplified by Murphy's seminal 1964 work, The Elements of Judicial Strategy, and more recently, Epstein and Knight's (1998) The Choices Justices Make and Maltzman et alia's (2000) Crafting Law on the Supreme Court.1 These works illustrate that justices of the U.S. Supreme Court pursue their policy preferences when they render decisions, but they are constrained by structural factors, including the internal rules of the Court (voting rules, for example) and the external social and political context of public opinion and the likely reaction of other state actors (Congress, the president) to judicial rulings. Applications of the strategic theory of judicial behavior have begun to emerge beyond the U.S. context: for example, Flanagan's (2002) and Manfredi's (2002) work on the relationship between an explicit legislative override provision in the Canadian Charter of Rights and Freedoms and judicial activism by the Supreme Court of Canada (SCC). As these examples suggest, strategic explanations of decision-making within the context of law and courts have been overwhelmingly concerned with explaining judicial behavior (for an exception, see Songer et al. 1995). By comparison, the behavior of the most important and frequently appearing class of "repeat player" litigants (Galanter 1974)-what Kritzer (2003) calls "the Government Gorilla"-has been largely ignored. Recently, however, this has begun to change, with studies by Waltenburg and Swinford (1999a, 1999b), Zorn (2002), and Pacelle (2003) of what motivates governments to appeal to the U.S. Supreme Court. Although Pacelle's qualitative study provides useful insights into how the U.S. solicitor general's multiple and overlapping institutional roles and responsibilities constrain that office, Waltenburg and Swinford's and, to a greater extent, Zorn's work are noteworthy for their use of multivariate quantitative analysis to test models of government litigant decisionmaking in the context of constrained judicial and governmental institutional capacity. Waltenburg and Swinford find that U.S. state governments are '"procedurally rational' when they decide to interact with the Court" (1999a:55), and that they "are more likely to engage the Court when the issue at stake is one of importance and they estimate their chances of success are relatively great" (1999a:52; emphasis in original). Similarly, Zorn's (2002) quantitative analysis of the U. …

Advocates of federalism, both in the United States and elsewhere, often cite the potential for enhanced protection of individual civil liberties as an emerging rationale for a federal system dividing governmental responsibilities between central and regional governments and central and regional judiciaries. Echoing this, some judicial officials and scholars, confronting an increasingly conservative U.S. Supreme Court, have called for state supreme courts to use the state constitutional grounds to preserve and increase the protections of the Bill of Rights. Using event count analysis, we examine state search-and-seizure cases for 1981 to 1993 to ascertain under what circumstances state courts would use this opportunity to eliminate Supreme Court review. We find that the relative ideological position of the state supreme courts and the U.S. Supreme Court often prevents, or does away with the need for, liberal courts to use the adequate and independent state grounds doctrine to expand the rights of criminal defendants and that state supreme court justices react more predictably in the assertion of constitutional protection law than the general consensus suggests. (ProQuest Information and Learning: ... denotes formulae omitted.) For a decade now, I have felt certain that the Court's contraction of federal rights and remedies on grounds of federalism should be interpreted as a plain invitation to state courts to step into the breach ... the diminution of federal scrutiny and protection out of purported deference to the states mandates the assumption of a more responsible state court role ... The Fourth Amendment has been most clearly targeted for attack .... (Justice William Brennan, James Madison Lecture on Constitutional Law at New York University School of Law, November 18, 1986) Advocates of federalism, both in the United States and elsewhere, often cite the potential for enhanced protection of individual civil liberties as an emerging rationale for a federal system dividing governmental responsibilities between central and regional governments and central and regional judiciaries (Katz & Tarr 1996). One scholar argues that the European community's increasing federalism has led to greater individual rights (Lenaerts 1996:139), while another argues that the Canadian Charter of Rights and Freedoms judicialized civil rights protection, which has led to greater security of individual rights (Coder 1996). Of course, this idea of greater protection runs counter to accepted justifications for federalism, which is often viewed as an instrument of group or state's rights (Katz & Tarr 1996). However, regional courts relying on regional constitutions can offer enhanced protection for civil liberties beyond the baselines established by a federal constitution and a national court (see Linde 1984). It is that possibility for increased protection that led Justice William Brennan, confronting an increasingly conservative U.S.Supreme Court (USSC), to encourage state courts to rely on state constitutional grounds as a strategy to increase and insulate the protections of the Bill of Rights. A state high court's (or SCOLR, for State Court of Last Resort) role as final arbiter of its own state constitution provides a useful, albeit limited, tool through which courts can accomplish this goal. During the last few decades, some judicial scholars and officials have viewed this position as an opportunity to enhance civil liberties. Given this impetus and some subsequent liberal state court rulings, many have asserted that an era of "new judicial federalism" was at hand (see Solimine 2002; Pulliam 1999). However, subsequent research has produced little evidence that such a revolution has occurred in the United States (Rosenfeld 1988; Cauthen 2000). Undoubtedly this is because the use of regional constitutional protection is not as straightforward as advocates of federalism would suggest. In the United States, success depends on the actions of others to whom state court justices are accountable both within and outside their respective states. …

In this research note, we apply the construct of jurisprudential regimes as described in our recent article in American Political Science Review to the area of Establishment Clause jurisprudence. We hypothesize that Lemon v. Kurtzman represented a jurisprudential regime in the Supreme Court's decisionmaking in this area of law. Our analysis shows that the predictors of the Court's decisions in the two periods differed in ways that are very consistent with the types of changes one would expect the hypothesized regime shift to produce. Introduction In a recent article (Richards & Kritzer 2002), we proposed a new way of conceptualizing the role of law for use in modeling Supreme Court decisionmaking. We suggested that it is incorrect to think of law at the Supreme Court level as operating through the traditional mechanisms of plain meaning, precedent, or intent of the drafters. Given the Court's discretionary docket, the cases decided by the Court are precisely those that cannot be decided through the relatively mechanistic processes that Segal and Spaeth (1993, 2002) label the "legal model." We posit that the influence of law is to be found in what we label "jurisprudential regimes," which we define as "a key precedent, or a set of related precedents, that structures the way in which the Supreme Court justices evaluate key elements of cases in arriving at decisions in a particular legal area" (Richards & Kritzer 2002:308). The manifestation of jurisprudential regimes appears in the way that specific variables influence the justices' decisions. We propose that the way to test for the presence of regimes is to look for changes in how variables influence justices in a particular jurisprudential area. In our earlier article, we tested this theory by examining Supreme Court decisions in the area of free expression. We hypothesized that the 1972 companion cases Chicago Police Department v. Mosley (408 U.S. 92) and Grayned v. Rockford (408 U.S. 104) demarcated a regime change that is reflected in a central distinction between regulation that is content-neutral and regulation that is content-based. Our statistical analysis provided strong support for our theory as applied in this area of Supreme Court jurisprudence. A central question we left for future research is whether the pattern we found for free expression cases can be found for other jurisprudential areas. In this research note, we extend our analysis to the Supreme Court's decisionmaking concerning the Establishment Clause. Establishment Clause Jurisprudence Modern Establishment Clause jurisprudence dates from Everson v. Board of Education (330 U.S. 1, 1947) when the Supreme Court, in a case involving reimbursing parents of schoolchildren for the costs of transportation to school even if the school involved was a parochial school, extended, by incorporation through the Fourteenth Amendment, the Establishment Clause strictures on Congress to the states. In Everson, Justice Black, even while upholding the aid involved in the case using a "child benefit" argument, enunciated what became known as the "no aid" test reflecting a "wall of separation between Church and State" (Levy 1994:152-54). Over the next fifteen years, the Court decided two Establishment Clause cases dealing with voluntary religious instruction during school hours, first striking down programs held in public school buildings (McCollum v. Board of Education, 333 U.S. 203, 1948) and then upholding off-premises programs using so-called released time arrangements (Zorach v. Clauson, 343 U.S. 306, 1952). In a set of three cases (McGowan v. Maryland, 366 U.S. 420, 1961; Two Guys v. McGinley, 366 U.S. 582, 1961; and Gallagher v. Crown Kosher Supermarket, 366 U.S. 617, 1961), the Court dealt with state laws forbidding various kinds of commercial activities on Sunday (so-called blue laws), with the Court rejecting the challenges to these laws in all the three cases. The school prayer cases in 1962 (Engel v. …

Questions regarding Brown v. Board of Education's short-term effect remain unanswered, particularly its comparative impact on federal district courts and state supreme courts. We test this through an analysis of racial discrimination cases in those venues in the twenty-year period bifurcated by the decision in May 1954. Our findings suggest that while federal district courts and state courts were similarly unresponsive to discrimination claims before that date, Brown exerted a significant impact on district court decisions but had little influence at the state level. Furthermore, a third pattern was found in federal appellate courts, where discrimination claims had a high likelihood of pro-minority decisions even before the Supreme Court directive.

The Immigration Battle in American Courts. By Anna O. Law. New York: Cambridge University Press, 2010. 266 pp. $90.00 cloth. In The Immigration Battle in American Courts, Anna O. Law uses immigration law as a case study to provide a compelling analysis of the different developmental paths of the two highest U.S. federal courtsFthe Courts of Appeals (the Third, Fifth, and Ninth Circuits) and the Supreme Court, for an impressive array of years: 1881 to 2002. Law, interested in institutional changes that occurred in these courts, utilizes a mixed-method analysis that yields three core arguments. First, the Supreme Court and Courts of Appeals operate in different institutional contexts; each court's unique context acts as a filtering mechanism that shapes the judges' perception of what they should be doing and how they should be doing it. Second, the contexts of both courts have slowly changed over time; as such, neither the Supreme Court nor the Courts of Appeals have played a static role in the federal judicial system. Third, the changing institutional settings of the courts have consequences for the courts themselves, for the occupants of those institutions, and in the case of immigration law, for the immigrants who appear before the courts. While the overarching theme of this study is institutional change, the book presents a strong and nuanced analysis of the institutional context for the creation of immigration law. Chapter 2 examines the immigration bureaucracy, from the Board of Immigration Appeals to the federal courts. Law analyzes the anti-immigrant reputation of the Supreme Court, arguing that it has gained this reputation largely because it has ceded power over immigration to Congress and the executive branch. Because the Supreme Court has the power to control its own docket, it is able to decide which immigration cases to review; at the same time, the Courts of Appeals must adjudicate all of the immigration cases that are appealed to them. The number of these cases, as Chapter 3 shows, has increased significantly, and, as Law convincingly argues, ''the confluence of congressional legislation first creating the structures and rules of the federal judicial system, the decision of immigrants to defend challenges to their immigration status, and the rise of immigration enforcement beginning in 1986 had the combined effect of further distancing and distinguishing the U.S. Supreme Court and the U.S. Courts of Appeals in their functions'' (p. 83). Because the Supreme Court grants certiorari to so few cases, the Courts of Appeals have taken on the brunt of immigration cases. Law quantifies this: Between 1881 and 2002, the Supreme Court decided 200 immigration cases, whereas the 11 Courts of Appeals decided 12,371 immigration cases combined (pp. 114, 115). The fact that the Courts of Appeals are more likely to be the last decision making body to address immigration cases suggests, as Law shows in Chapter 4, that these judges' preferred interpretations of statutes will stand (p. …

This article evaluates two basic issues about dockets and case outcomes in American appellate courts. First, what determines the extent to which a court devotes its docket to civil cases involving asymmetrical power relationships between litigants? Second, in civil cases in which the "have-nots" are pitted against the "haves," which forces determine the extent to which courts favor the less privileged? To answer these questions, we identify power asymmetric civil cases and the size of each court's docket by examining all 6,750 cases decided in state supreme courts in 1996. Results reveal that contextual factors are formidable in shaping both agenda space and win rates in civil disputes involving conflicts between advantaged and disadvantaged litigants. Institutional features of supreme courts and state court systems, the supply of legal resources, and public preferences all emerge as critical influences on the willingness of the states' highest courts to decide have/have not conflicts and on the ultimate disposition of these cases. In sum, a comprehensive understanding of the ways in which courts treat cases involving the disadvantaged and, more broadly, function as agents of redistributive change cannot be achieved without focusing beyond the ideological preferences of judges and the skill of the litigants. In this article, we ask two basic questions about court dockets and case outcomes. First, we ask which forces influence how much of court dockets involve asymmetrical power relationships between litigants. Second, in civil cases where the "have-nots" are pitted against the "haves," what forces shape the extent to which courts favor the less privileged? The context within which we examine these important questions is state supreme courts. Basically, we argue that some of the confusion among scholars about the ability of courts to serve as agents of redistributive change is the direct result of the case study approach dominating the literature. As it stands, and though there are obvious exceptions, much of the existing work focuses upon single institutions, an approach that precludes a direct systematic evaluation of the effects of institutional arrangements and other contextual forces on agenda-setting and decisionmaking in courts. A comparative cross-sectional research design based in the American states overcomes these limitations. Generally, and consistently with previous research, we posit that the most fundamental functions of courts are structured by the circumstances under which the courts operate, in addition to the preferences of the judges deciding the cases and the law governing the disputes. If we identify these forces and provide a strategy for testing their effects in comprehensive models, we will be able to reconcile previous contradictory findings and construct more satisfactory theories of judicial politics. In this particular case, we can improve our understanding of the ways in which courts allocate space on their dockets among competing groups and allocate resources through their decisions, producing a more refined understanding of the essential role of courts in the political marketplace. In this endeavor, we assume that the factors determining the proportion of cases on dockets involving power asymmetries also determine win rates for the disadvantaged in these cases. This assumption is well grounded in the literature. Both scholars and sitting judges have observed the close connection between deciding to decide and final outcomes. For example, Justice William Brennan (1983: 177) described the agenda-setting process and decision process as "inseparable" and "inextricably linked." Similarly, scholars have noted that "the factors that govern the selection of cases and the construction of the annual agenda are closely tied to the factors that explain the justices' decisions on the merits of the cases" (Pacelle 1995: 251). Thus, in our discussion, we consider both the agenda stage and decision stage of the judicial process, examining the effects of the same set of independent variables at both stages. …

Since 1980, District Court Judges, designated pursuant to federal statute, have helped decide over 75,000 court of appeals cases-nearly one of every five merits decisions. Although scholars and judges have warned that the presence of these visitors on appellate panels may undermine consistency, legitimacy, or collegiality, little empirical evidence exists related to such concerns. Working with an especially complete data set of labor law opinions, the authors found that district court visitors perform in a much more diffident fashion than their appellate colleagues. They contribute notably fewer majority opinions and dissents. In addition, their participations do not reflect their professional or personal backgrounds to nearly the same degree as their appellate colleagues do when voting on labor law matters. The authors' findings and analyses regarding the behavior of designated district judges should be of interest to appellate courts considering the challenges of caseload management and to scholars studying processes and outcomes in the courts of appeal. Over the past two decades, district court judges-designated pursuant to federal statute (28 U.S.C. 292 [1994] )-have participated in nearly one out of every five cases decided on the merits by the United States Courts of Appeals. The circuits invite such participation principally because there are not nearly enough active and senior appellate judges to meet the demands of a burgeoning appeals court docket (Baker 1994, McKenna 1993). Responding to this imperative, designated trial court visitors have helped decide more than 75,000 court of appeals cases since 1980. Scholars in law and political science have on occasion questioned the role played by these judicial invitees. Some have contended that the pre-judicial backgrounds and trial-oriented experiences of district judges differ in material respects from those of "regular" appellate judges (Saphire & Solimine 1995; Slotnick 1983; Carrington 1969). Others have worried that district judge visitors may jeopardize the consistency-of-law values that inform the circuit courts' role in creating and clarifying legal precedent, or that participation by these same judges may compromise the collegiality and vitality of appellate court deliberations (Green & Atkins 1978; Saphire & Solimine 1995; Wasby 1981). It also has been suggested that district judge participation may undermine perceptions of legitimacy, as the appellate courts' presumptively neutral function of declaring the law shades into more prescriptive policymaking (Alexander 1965; Green & Atkins 1978; Note 1963). Surprisingly, little empirical analysis exists regarding how these trial court visitors behave in their secondary appellate role. There is a dearth of information as to whether designated judges participate or vote distinctively from their appellate brethren on substantive law matters. It also is unclear whether district judges bring their individual values and experiences to bear on the judicial enterprise to the same extent as their panel colleagues, or whether they reflect those values and experiences in the same way as they do when serving on the trial bench. This study provides insights into the role of district court judges in appellate decisionmaking. We examine district judge participations in more than 1,100 published and unpublished court of appeals cases reviewing decisions by one federal agency-the National Labor Relations Board (NLRB) -during a recent seven-year period. Our database encompasses all appellate cases decided between October 1986 and November 1993 that resolve unfair labor practice claims under the National Labor Relations Act (NLRA [1994]).1 We have identified the 223 appellate judges and 105 district judges who participated on the court of appeals panels, and how they voted on more than 2,000 substantive labor law issues as to which appellate courts either affirmed or reversed the Board. …

This article examines the impact of state-level school finance litigation conducted in the wake of San Antonio Independent School District v. Rodriguez. State supreme courts have handed down decisions in 36 states since the Rodriguez decision in 1973. The article looks at how these decisions have affected the distribution of educational resources in eight states-five states in which school finance activists have won and three in which they lost. The author shows that state supreme courts can have a significant impact on both the equity of school finance systems and their adequacy. This finding rebuts scholars who have recently argued that courts, acting alone, cannot achieve significant social or political change in the face of public opposition. The article also explores why some state supreme courts are more successful than others, putting forward a policy-centered model of judicial efficacy that takes into account the peculiarities of school finance as a policy issue. Nineteen ninety-eight marks the 25th anniversary of a U.S. Supreme Court decision that helped spark a revolution of sorts. San Antonio Independent School District v. Rodriguez (1973) declared that severe financing inequalities among school districts in Texas did not violate the equal protection clause of the 14th Amendment of the U.S. Constitution. These inequalities stemmed primarily from large property value differences among school districts. The differences meant that property-rich districts could generate significant revenues for education (at relatively low tax rates), while property-poor districts could produce only very small amounts of revenue (while taxing themselves at comparatively high rates). Perhaps the key jurisprudential conclusions of the Rodriguez decision were that wealth was not a suspect classification for purposes of the equal protection jurisprudence and that education was not a fundamental right under the U.S. Constitution. Part of the Supreme Court's expressed rationale for the decision stemmed from its unwillingness to intrude massively on local educational policies-which would surely occur if it decided in favor of the plaintiffs.l Striving to maintain an "appropriate" balance to federalism, the Supreme Court self-consciously distanced itself in Rodriguez from property tax and educational funding issues-historically local concerns. The irony of this decision is that the U.S. Supreme Court's exercise in judicial restraint at the national level has translated into an expanded judicial agenda for supreme courts at the state level. After Rodriguez, school financing equity activists, realizing that federal courts held little promise for their claims, began to litigate the matter under provisions of state constitutions. Relying on arguments rooted in both state equal protection provisions and on language in state education clauses,2 litigators have pursued these claims to state supreme courts in 36 states.3 One dimension of a broader movement commonly dubbed the "new judicial federalism,"4 this constitutional litigation campaign over school financing has enjoyed mixed success in state supreme courts, winning in 20 of the 36 states where decisions have been handed down by state high courts. These legal victories often have particularly high profiles and sharply focus state legislators' attention on class disparities among school districts. In the wake of these decisions, state legislators have enacted reforms that promise greater educational resources and opportunities to poor school districts in their states.5 The question remains, however, whether these reforms have actually produced the changes sought by equity activists and demanded by state supreme courts.6 This article attempts to answer this question. Despite nearly 25 years of state supreme court rulings on school finance, neither scholars nor school finance activists have a fully developed understanding of the impact of these rulings. Not only is our picture of the relative changes in school finance after state supreme court rulings underdeveloped, but we also have no clear account of how state supreme courts differ in their capacity to restructure educational financing. …

Scholars from across disciplinary lines are interested in understanding legal development. One impediment to the quest for a systematic explanation has been measures of legal change. Indicators like whether a court overturns an earlier ruling capture one facet of legal change but fail to capture the full range of courts' actions to develop legal doctrine. I introduce an alternative measure of legal change here-one based on Levi's (1949) focus on whether factual circumstances are or are not encompassed by the law. I use the U.S. Courts of Appeals decisions on the federal common law of public nuisance to illustrate this measure. Utilizing a multinomial logit model to explore the appellate judiciary's decisions to develop this legal doctrine, I find that the judges' decisions to develop the federal common law are explained by the judges' policy preferences; the litigation environment consisting of party resources, attorney experience, and amicus support; as well as the broader political context of public opinion and Supreme Court rulings. Judicial scholars have not often systematically examined changes in the courts' policy product-legal rules (Epstein & Kobylka 1992; Walbeck 1997). While Spaeth (1965) and others (Peltason 1955; Schubert 1965) state their preference for moving away from doctrinal analysis, imbued as it often is in normative issues, the policy significance of legal rules adopted by courts has not been ignored. Indeed, Segal and Spaeth (1993:261) recognize that the Supreme Court's opinion "constitutes the core of the Court's policy-making process." This is because court opinions affect more than the parties to the current litigation. The rules articulated bv courts, like other institutions, guide behavior by providing information about mutual expectations and providing sanctions for noncompliance (Knight 1992). Hurst (1956), in discussing the development of law governing the institution of private property, maintained that "legal procedures and tools and legal compulsions. . . create a framework of reasonable expectations within which rational decisions could be taken for the future" (pp. 10-11). As Justice Holmes put it, a person's compliance with his or her legal duty is based on "a prophecy that if [that person] does certain things he will be subjected to disagreeable consequences by way of imprisonment or compulsory payment of money" (1897:461). In this respect, court decisions derive significance from the impact of their rules on expected patterns of behavior and their sanctions for violations of those patterns. If the policy significance of court decisions lies in the legal rules they contain, it is important to understand what influences the law's development. Although there are numerous accounts of events surrounding important court decisions (see, e.g., Faux 1988; Friendly 1981; Kluger 1975; Lewis 1964), few systematic attempts have been made to examine legal development. Some scholars have studied the Supreme Court's decision to overturn past decisions (Brenner & Spaeth 1992; Kemper 1997; Spriggs & Hansford 1998). These studies examine explanations for whether the Court overturns a particular decision. Epstein and Kobylka (1992) examine doctrinal change in the Supreme Court's abortion and capital punishment decisions, exploring the influence of the Court's composition, the political environment, and the arguments presented to the Court by the litigants and amici. I have developed a measure of legal change and applied it to the Supreme Court's search and seizure decisions to test the influence of judicial preferences, the litigation environment, and the political environment (Wahlbeck 1997). These studies all investigate legal development in the Supreme Court but overlook the substantial role played by lower federal courts in the formation of legal doctrines. As reflected in the judicial impact literature, much of legal development occurs in the lower courts. The judicial impact literature reveals that lower courts often have substantial authority to modify the law (Mather 1995; Murphy 1959). …

Empirical research demonstrates that jurors have difficulty understanding and following traditional instructions about the law. The social science literature recommends several procedural reforms, including giving important instructions at the start of the trial and providing jurors with written instructions. This article examines changes in the law following the p!ublication of this social science research, omrparing courts, legislatures and rule-making ornommisions. Analysis reveals that although all three institutions are dominated by lawyers, they have acted differently. Commisrsions have made substantial changes in the law consistent with the recommendations of social scientists, legislatures have made few changes, and courts have changed case law in the opposite direction, suggesting support for a theory of institutional context.

American scholarship has lavished most of its attention on appellate courts, paying little attention to courts on the bottom rungs of the ladder. This is true of studies of both past and present courts.1 But the trial court is the court with the most direct contact with the man in the street, for both civil and criminal matters. Here he meets the law face-to-face. And, although federal courts are certainly important, state trial courts handle by far the larger volume of work. This paper reports on a study of the civil load of two trial courts in California between 1890 and 1970. One court sits in an urban county, the other in a rural county. We tried to measure how the work of these courts changed over time. We expected to find that trial courts have come to do less and less work in settling disputes and that most of their labor is now routine, administrative, cut-and-dried. This hypothesis was confirmed. We also expected to find major differences between the rural and the urban court. But here, it turned out, we were surprised. A common fate overtook both courts; and essentially, our data tell a single story, which holds for city and country alike.

AUTHOR'S NOTE: I wish to express my deep appreciation to the members of the Rhode Island Supreme Court: Chief Justice Thomas Roberts, and Associate Justices Thomas Paolino, William Powers (since retired), Alfred Joslin and Thomas Kelleher. This study could not have been conducted without their active and generous co-operation. The Justices were promised anonymity and that promise has been respected throughout this article. Quotations for which sources are not provided may be taken to be the language of an individual Rhode Island Justice, as best as I was able to reproduce it. I have allowed myself the luxury of minor editorial license inside quotation marks only insofar as was necessary to produce grammatical sentences.

ANY RELATIVELY STABLE POLITY must possess means for converting many, if not most, demands made on political authorities into satisfying outputs, whether material or symbolic. Failure to cope with pressing demands might lead to a severely dysfunctional loss of public support for particular officials as well as for the regime itself. On the other hand, efforts to meet demands through blatant violations of accepted rules can also cause great loss in public support.'

decisions. Because of its direct relationship and administrative responsibilities, the Supreme Court can exercise a closer supervisory control over the lower federal courts than it can over state courts. But many controversial Supreme Court policies of the last couple of decades have involved issues coming from the state courts, e.g., obscenity prosecutions, right to counsel, desegregation, exclusion of illegally seized evidence, police interrogation practices, etc. Considering the origin and structure of our federal system, a natural antagonism exists between the Supreme Court and state courts- particularly the states' highest appellate courts. While this was perhaps most dramatically illustrated in the early classic struggles between John Marshall and Spencer Roane, the mistrust and resistance is ever-present. It attained unusual visibility in 1958 when the Council of State Chief Justices in a 36-8 vote adopted a resolution criticizing the U.S. Supreme Court Justices for promoting "an accelerating trend towards increasing power of the national government and correspondingly contracted power of the state governments" and charging that judicial federalism was endangered by "the extent of the control over the action of the states which the