Do Institutions Really Matter? Assessing the Impact of State Judicial Structures on Citizen Litigiousness (original) (raw)
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Assessing the Impact of State Judicial Structures on Citizen Litigiousness
Political Research Quarterly, 2009
Some researchers argue over the existence of a “litigation explosion,” while others seek to understand the causes of variation in citizen legal mobilization and rates of litigation among states. Existing studies have provided important insight into citizens’ propensity to invoke the state courts to settle disputes; however, there remain unresolved questions concerning state litigation rates. The authors argue that the structural aspects of state judicial systems, specifically the professionalism of the courts and method of judicial selection, have important implications for litigiousness. They further suggest that the effects of these institutional structural characteristics are conditioned on the political environment of the state in which they operate. The authors consider tort litigation rates in ten states over twenty years to assess the proposition that these institutional structural characteristics of state court systems affect state citizen legal mobilization, expressed as li...
LEGISLATING FROM THE STATE BENCH A Comparative Analysis of Judicial Activism
This article considers the institutional and environmental factors that influence the degree of countermajoritarian judicial activism among state supreme courts. In our analysis, we consider two indicators of such activism: the tendency of each state court to overturn acts of the legislature and the extent to which each court engages in tort innovation. We find, contrary to much conventional wisdom, that courts in states where judges are most insulated from local partisan politics are the least likely to exhibit activist behavior. Rather, the most activist courts are in states where justices reach office through district-based electoral systems. We discuss the implications of these findings for our understanding of judicial activism and judicial behavior. The past 10 years have seen a growing perception of the importance of state courts of last resort as policy institutions. This importance is reinforced when one considers current attempts by the U.S. Supreme Court to reduce the number of cases it decides, handing down fewer than 90 decisions in the 1993-1994 term. State supreme courts, then, find an expanding policy vacuum in which they have become, by design or by default, increasingly important players. As Hall and Brace (1989, 1992) and Brace and Hall (1995) demonstrate well, state supreme courts serve as the ideal laboratories for answering questions regarding the impact that institutional structures have on judicial decisions.
The Influence of Political Structures and Institutional Rules on State Supreme Courts
2010
The institutional and political context in which a court operates influences and shapes its decisions. Thus, it is possible that many of the state supreme court judges act on their sincere preferences, but the Court as an institution acts in a legal or strategic manner. This paper analyzes state supreme court decision-making within the context of the new institutionalist model, which maintains that institutional rules structure the aggregation of individual preferences with a decision-making body. (Epstein, et al. 1998). Thus, decisions are not merely the collective expression of the individual preferences of its judges, but are a function of the interaction of the individual preferences and institutional structures and rules. Institutions therefore shape the behavior or the actors in the legal system (Smith 1988). Focusing on challenges to the constitutionality of state statutes in civil cases in fifty states during 1995-1998, I evaluate the effect of institutional, ideological, an...
Bepress Legal Series, 2006
Two enormously influential perspectives on courts offer fundamentally different predictions about court outcomes and the effects of judge ideology on those outcomes. Wellknown to political scientists studying courts, the ideological voting (IV) literature argues that judge ideology is a strong predictor of court outcomes and that those outcomes should be proximate to the policy preferences of courts. Less known to political scientists but highly influential, the law and economics perspective (LE) focuses on settlement behavior of litigants who try to minimize costs and thus estimate likely outcomes in court, and settle simpler cases pre-trial. In this case selection process litigants respond to cues that signal likely outcomes with the result that only complex, less predictable cases make it to trial leading to win-rates that coalesce at fifty percent for plaintiffs or defendants. From this perspective, litigant strategies cancel out the effects of judge ideology and court outcomes do not correspond to judges' ideological preferences. We reconcile these perspectives by examining tort cases in state supreme courts from 1995 through 1998. The contrasting perspectives stem from the fundamental institutional processes upon which each perspective is based. The LE perspective dominates in states without lower appellate courts (LAC) where process of appeal in these state supreme courts is litigant-driven, with win-rates hovering at fifty percent and deviations from that norm accounted for by forces influencing litigant uncertainty. The ideological voting predicted by the IV literature occurs primarily in the context of state supreme court strategic reversals of LAC decisions---a process commensurate that operating with the U.S. Supreme Court. When it comes to judicial outcomes, institutional structure is a critical element shaping the influence of litigant strategy and judge ideology.
State High Courts: Independent or Constrained Actors?
2006
This dissertation examines the degree to which judges on state high courts are constrained in their decision-making. Specifically I focus on the relationship between institutional and environmental factors and the likelihood of retaliation for unpopular decisions. Of particular interest is how the above factors relate to both elite and mass retaliation across a variety of different areas of case law. Using several different empirical techniques I study decisions issued by all fifty state high courts from 1995 through 1997. Areas of law examined include: campaigns and elections, social issues, welfare cases, and the death penalty. Evidence suggests that the level of constraint faced by judges varies depending upon institutional structures, ideological distance, and issue salience. These findings expand upon previous research by including the preferences of both elite and mass actors and present a more complete picture of how institutional and environmental factors influence judicial ...
Ideology, Status, and the Differential Success of Direct Parties Before the Supreme Court
The American Political Science Review, 1992
A substantial literature on lower federal courts and state courts suggests that the “haves” usually come out ahead in litigation because they possess superior resources for it and they reap advantages from their repeat player status. We investigate the success of 10 categories of litigants before the Warren, Burger, and Rehnquist Courts to determine whether the resources or experience of litigants has effects on Supreme Court outcomes paralleling those found in the courts below. While different categories of litigants are found to have very different rates of success, those differences do not consistently favor litigants with greater resources. A time series analysis of the success of different categories of litigants over the 36 years studied suggests that the changing ideological complexion of the Court has a greater impact on the success of litigants than differences among litigants in resources and experience.
The Political Economy of Criminal Procedure Litigation
2010
Criminal procedure has undergone several well-documented shifts in its doctrinal foundations since the Supreme Court first began to apply the Constitution’s criminal procedure protections to the States. This Article examines the ways in which the political economy of criminal litigation – specifically, the material conditions that determine which litigants are able to raise criminal procedure claims, and which of those litigants’ cases are appealed to the United States Supreme Court – has influenced these shifts. It offers a theoretical framework for understanding how the political economy of criminal litigation shapes constitutional doctrine, according to which an increase in the number of indigent defense or-ganizations has expanded the Supreme Court’s freedom to select cases that frame constitutional issues in ways that conform to the ideological preferences of the Court’s Justices. This framework exposes a potential, but heretofore unidentified, link between the Warren Court’s d...
Keeping Litigation at Home: The Role of States in Preventing Unjust Choice of Forum
Yale Law Journal, 2020
Choice-of-forum clauses can pose a significant obstacle to individuals hoping to bring claims against corporations. By limiting claims to particular geographic locations, choice of forum is part of a larger trend of constricted access to the courts. Compared to other restrictions, however, the Supreme Court’s inconclusive stance on choice of forum means that this is one area where states have room to legislate to protect individual plaintiffs. This Note catalogs the surprising breadth of existing state anti-choice-of-forum statutes and argues that states can and should continue legislating in this area, particularly for contractual relationships most commonly defined by resource and power disparities. author. Yale Law School, J.D. expected 2020. I am thankful to Lea Brilmayer for supporting this project and providing essential feedback and guidance throughout its development. Thanks also to Simon Brewer and Peter Damrosch, as well as Briana Clark and the rest of the Yale Law Journal...