More than Politics: Ability and Ideology in the British Appellate Committee (original) (raw)
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Journal of Law, Economics & Organization, 2016
We argue that a model of judicial behavior that accounts for differences in justices’ ability and ideology provides a fruitful alternative for the empirical analysis of judicial decision-making around the world, and illustrate this by focusing on the case of the United Kingdom. We show that the model explains the decisions of the Lords of Appeal remarkably well, and improves the fit of a purely ideological model. We use our estimates to tackle previously unaddressed questions about the relative role of justices’ preferences and ability in the Appellate Committee. ( JEL C11, C13, D71, K40.)
Ideological Voting on Federal Courts of Appeals: A Preliminary Investigation
Virginia Law Review, 2004
For many decades, the United States has been conducting an extraordinary natural experiment: Randomly assigned three-judge panels on courts of appeals produce extensive evidence of the effect of judicial ideology on judges' votes. If the political party of the appointing president is treated as a rough proxy for ideology, then it becomes possible to test three hypotheses: (a) a judge's votes, in ideologically contested areas, can be predicted by the party of the appointing president; (b) a judge's ideological tendency, in such areas, will be amplified if the panel has two other judges appointed by an appointing president of the same political party; and (c) a judge's ideological tendency, in such areas, will be dampened if the panel has no other judge appointed by an appointing president of the same political party. All three hypotheses are confirmed in many areas, including affirmative action, campaign finance, sex discrimination, sexual harassment, piercing the corporate veil, disability discrimination, race discrimination, and review of environmental regulations. An important implication is that panel composition has a strong effect on likely outcomes, thus creating extremely serious problems for the rule of law. Taken as a whole, the evidence suggests that judges frequently issue collegial concurrences, that is, concurrences produced by the unanimous views of the other judges on the panel, and that judges are subject to group polarization, by which groups of like-minded people go to extremes. Notably, all three hypotheses are rejected in the areas of federalism, criminal appeals, and takings of private property, because Republican and Democratic appointees vote essentially alike. In the areas of abortion and capital punishment, the first hypothesis is confirmed, but the second and third are rejected, because judges vote their convictions, and are not affected by the composition of the panel. Disaggregating the data by circuit allows courts of appeals to be ranked along an ideological spectrum; it also shows striking differences between Republican appointees and Democratic appointees on different circuits. Normative implications are briefly explored.
Legal Ideology, Legal Doctrine and the UK's Top Judges
Public Law, 2016
Most work on the UK's judiciary reflects the assumption that the institutional issues raised by attitudinal studies of the US Supreme Court are irrelevant to the UK because the UK's judiciary is not political. This article challenges those assumptions. We present an empirical and theoretical analysis of the 'doctrinal model' of judicial decision-making in the upper judiciary of the UK, that is to say, of the position that judges decide cases on the basis of doctrinal positions rather than political views, and argue that it has far more in common with the attitudinal model than is conventionally assumed. We elaborate upon this through an empirical analysis of decisions of the Law Lords on challenges to state bodies over a twenty-five year period, which estimates judges' ideological positions on a scale derived from doctrine. We find that (a) there are meaningful and measurable differences in judicial positions in key doctrinal controversies (b) these differences h...
Judicial Selection: Ideology versus Character
SSRN Electronic Journal, 2004
and Dean David Burcham for support for prior research used in this paper. Kyron Huigens, Dawn Johnsen, and Keith Whittington provided helpful comments on an earlier draft of this essay.
Decision Making in High Courts: The Dynamic Comparative Attitudinal Measure
We posit a dynamic response model to investigate attitudinal behavior in different national courts. The model allows levels of attitudinal decision making to vary with the voting patterns of individual justices and the nature of the cases they decide. The scores are estimated based on a probability model, which formulizes a basic assumption according to which judicial decisions consist of ideological, strategic and jurisprudential components. We employ Markov Chain Monte Carlo simulations to fit our Bayesian model of Supreme Court decision making. This allows for two levels of measurement; at the institutional level, the Dynamic Comparative Attitudinal Measure (DCAM) estimates the overall level to which attitudes influence decision making in each court. At the individual justice level, for each justice we estimate a value pertaining to her Ideological Ideal Point Preference (IIPP). We test the measurements by comparing attitudinal decision making in the Supreme Courts of the United ...
Rational Judicial Behavior: A Statistical Study
SSRN Electronic Journal, 2009
This paper analyzes the connection between ideology and voting of judges using a large sample of court of appeals cases decided since 1925 and Supreme Court cases decided since 1937. The ideological classifications of votes (e.g., liberal or conservative) are dependent variables in our empirical analysis and the independent variables include the party of the appointing President, the relative number of Republican and Democratic Senators at the time of the judge's confirmation, the appointment year, characteristics of the judge (e.g., gender, race and prior experience), and the ideological make-up of the judges on the court in which the judge sits as measured by the relative number of judges appointed by Republican and Democratic Presidents. We have a number of interesting results, including how a judge's voting's is affected by the voting of the other judges he serves with. We find a political-polarization effect among Justices appointed by Democratic but not by Republican Presidents; that is, the fewer the judges appointed by Democratic Presidents, the more liberally they vote. With regard to court of appeals judges, we find a conformity effect: if the number of judges appointed by Republican Presidents increases (decreases) relative to the number appointed by Democratic Presidents, all judges in the circuit tend to vote more conservatively (more liberally).
Constraint at the Ideological Extremes: Judicial Voting and Legal Regimes
A detailed body of literature has challenged the model of Supreme Court justice voting as ideologically sincere, arguing that legal regimes exert independent effects on merits voting and restrain ideological discretion. This study hypothesizes that this proposition should manifest itself most clearly in the voting behavior of justices on the ideological extremes, the justices whose votes are most reliable. We find evidence that although legal rules do correlate with restrictions on ideological voting, we find that there is little evidence that this behavior is externally imposed by a legal regime. Rather, we find that evidence that the changes in ideological voting patterns are attributable to common consensus to abide by new legal frameworks.
The Consistency of Judicial Choice
The Journal of Politics, 2008
Despite the fact that judicial scholars have developed reasonably well-specified models of the voting behavior of U.S. Supreme Court justices, little attention has been paid to influences on the consistency of the choices justices make. Aside from the methodological problems associated with failure to account for heteroskedasticity with regard to the justices' voting behavior, I argue that variance in judicial choice is also of theoretical import. Simply put, by uncovering influences on the stability of judicial choice, a more complete understanding of judicial decision making is provided. I explore this possibility by developing a theoretical framework that uncovers influences on the consistency of judicial choice which are then subjected to empirical validation. I show that the stability of judicial decision making is affected by attitudinal and strategic factors, as well as the Court's informational environment.
Judicial Ideology and the Selection of Disputes for U.S. Supreme Court Adjudication
Journal of Empirical Legal Studies, 2013
In political science, the well-known "attitudinal model" of legal decision making dictates that judges' sincere policy preferences drive legal outcomes. In contrast, the celebrated "selection hypothesis" from the law and economics literature suggests that litigants carefully consider factors affecting potential case success (including judicial ideology) and accordingly choose, in the name of efficiency, to settle or not pursue cases in which legal outcomes can be readily predicted. Thus, judges end up adjudicating a nonrandom set of cases that, in the typical situation, should not lend themselves to ideological judicial decision making. From this perspective, the influence of Supreme Court justices' ideological preferences on outcomes could be obviated by the forward-thinking decisions of mindful litigants. We are left with two dominant theories on jurisprudential outcomes that appear to be at odds with each other. We endeavor to address this situation by incorporating litigation case sorting considerations into a basic attitudinal account of Supreme Court justice decision making in environmental cases. Our primary thesis is that the influence of judicial ideology on legal outcomes is conditioned on case sorting decisions (by both litigants and justices) that precede the justices' voting decisions on the merits. We augment our assessment of this thesis by evaluating our basic model on a subset of cases involving the Court's most formidable litigator-the federal government. We find that in both scenarios, the influence of justices' attitudes on their merits voting is indeed conditioned on case sorting. We conclude that the effect of justices' attitudes on Supreme Court policy making likely works in both direct and indirect ways in that their known ideological proclivities may lead to the strategic sorting of cases for Supreme Court adjudication.