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Environmental Enforcement in Dire Straits: There is no Protection for Nothing and No Data for Free. With Victor B. Flatt. 2009. Notre Dame Law Review 85(1): 55-87.
Those charged with drafting and enforcing our environmental laws have had to work with little or no information about whether or not the programs are actually working properly. There are a host of reasons for this, many of them having to do with availability of data that can be examined empirically. Using newly available data on state actions in environmental enforcement, and a new dataset of state environmental expenditures which they created, the authors of this article are able to examine for the first time the relationship between state environmental expenditures and effectiveness of state environmental enforcement for all permitted sources. They conclude that state expenditures on environmental programs are strongly associated with effective environmental compliance, which has important implications for environmental law and policy. The authors also examine the debate over the effectiveness of cooperative vs. deterrence based enforcement, relate that to findings on state expenditures, and make suggestions for improving the availability of data and environmental enforcement generally.
Counteractive Lobbying in the U.S. Supreme Court. With Lisa A. Solowiej. 2009. American Politics Research 37(4): 670-699.
Theories of counteractive lobbying assert that interest groups lobby for the purpose of neutralizing the advocacy efforts of their opponents. We examine the applicability of counteractive lobbying to explain interest group amicus curiae participation in the U.S. Supreme Court’s decisions on the merits. Testing the counteractive lobbying hypotheses from 1953 to 2001, we provide strong support for the contention that interest groups engage in counteractive lobbying in the nation’s highest court. Our findings indicate that, like the elected branches of government, the Supreme Court is properly viewed as a battleground for public policy in which organized interests clash in their attempts to etch their policy preferences into law.
Friends of the Supreme Court: Interest Groups and Judicial Decision Making. 2008. New York, NY: Oxford University Press.
The U.S. Supreme Court is a public policy battleground in which organized interests attempt to etch their economic, legal, and political preferences into law through the filing of amicus curiae ("friend of the court") briefs. In Friends of the Supreme Court: Interest Groups and Judicial Decision Making, Paul M. Collins, Jr. explores how organized interests influence the justices' decision making, including how the justices vote and whether they choose to author concurrences and dissents. Collins presents theories of judicial choice derived from disciplines as diverse as law, marketing, political science, and social psychology. This theoretically rich and empirically rigorous treatment of decision making on the nation's highest court, which represents the most comprehensive examination ever undertaken of the influence of U.S. Supreme Court amicus briefs, provides clear evidence that interest groups play a significant role in shaping the justices' choices.
International Conflicts and Decision Making on the Federal District Courts. With Daniel A. Norton, Kenneth L. Manning, and Robert A. Carp. 2008. Justice System Journal 29(2): 121-144.
The international environment influences domestic politics, particularly during times of war. The traditional governmental response to such crises is to curtail the civil rights and liberties of Americans in the name of national security. Often, challenges to these restrictive policies find their way into the federal court system. However, little is known about the systematic effects of these conflicts on the choices jurists make. To redress this deficiency, we investigate whether international conflicts influence the decision making of federal district-court judges by examining the choices those judges make during periods of both war and peace. In addition, we consider whether male and female jurists react differently to periods of international unrest. We find that female judges do respond to wars, deciding cases more liberally than in peacetime, but male judges exhibit no response. As such, our results suggest that gender is an important consideration in evaluating the judicial response to war.
The Consistency of Judicial Choice. 2008. Journal of Politics 70(3): 861-873.
Despite the fact that scholars of judicial politics 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 identifies influences on the consistency of judicial choice, which are then subjected to empirical testing. I show that the stability of judicial decision making is affected by attitudinal and strategic factors, as well as the Court’s informational environment. The result is a more fully integrated model of Supreme Court decision making.
The Solicitor General’s Amicus Curiae Strategies in the Supreme Court. With Chris Nicholson. 2008. American Politics Research 36(3): 382-415.
Scholars have devoted a great deal of research to investigating the role and influence of the U.S. solicitor general (SG) as amicus curiae in the Supreme Court. Yet, we know little about the SG’s decision to file an amicus brief and how this relates to the SG’s success on the merits. We fill this void by examining legal, political, and administrative factors that affect the SG’s decision to participate as amicus curiae. We subject our hypotheses to empirical testing using data on the 1953 to 1999 Supreme Court terms by linking the SG’s decision to file an amicus brief to the SG’s ultimate success on the merits, employing a Heckman-style selection model. We find that the SG’s decision to file an amicus brief is influenced by legal, political, and administrative considerations, suggesting that the SG is best viewed through the incorporation of a variety of theoretical perspectives.
Amici Curiae and Dissensus on the U.S. Supreme Court. 2008. Journal of Empirical Legal Studies 5(1): 143-170.
A great deal of empirical research has focused on explaining why U.S. Supreme Court Justices partake in nonconsensual opinion writing. However, little attention has been paid to the role of organized interests in contributing to a Justice’s decision to write or join a separate opinion. I argue that a Justice’s decision to engage in this behavior is a partial function of interest group amicus curiae participation in the Court. By providing the Justices with a myriad of information regarding how cases should be resolved, organized interests create ambiguity in the Justices’ already uncertain decision making, at the same time providing them with a substantial foundation for concurring or dissenting opinions. I subject this argument to empirical validation by examining the Justices’ decisions to author or join regular concurring, special concurring, and dissenting opinions during the 1946–1995 terms. The results indicate that organized interests play a considerable role in increasing dissensus on the Supreme Court.
Transforming the United States Courts of Appeals Data Bases in Stata. 2008. Law & Courts 18(1): 19-22.
Scholars studying the U.S. Courts of Appeals overwhelmingly employ one of two publicly available datasets (Kuersten and Haire 2007; Songer 2007). While these data bases contain a treasure trove of information, they are organized such that the unit of analysis is the case, which makes some research questions more easily tackled than others. This article provides easily implemented Stata codes to reliably transform the unit of analysis in these datasets from the case to the judge-vote, thus allowing scholars to investigate Court of Appeals decision making at the level of the individual judge.
Interest Group Participation, Competition, and Conflict in the U.S. Supreme Court. With Lisa A. Solowiej. 2007. Law & Social Inquiry 32(4): 955-984.
In this article, we analyze how pluralistic, competitive, and conflictual interest group amicus curiae participation is in the U.S. Supreme Court. Examining participating organizations and briefs during the 1995 term, we address three inquiries. First, we scrutinize the types of organized interests who participate as amici curiae. We find that the Court is open to a wide array of interests and that particular types of groups do not dominate amicus activity. Second, we analyze the frequency with which amici file briefs on opposing sides of dispute. We reveal few strict patterns of competition, suggesting that Supreme Court cases are salient to a diverse spectrum of interest groups, many of which are not usually thought of as being in competition with one another. Third, we investigate how often and which amici directly cite one another for purposes of invalidating each other’s argumentation. While amici have a great deal of opportunity for this form of direct conflict, it is surprisingly rare. Nonetheless, when amici engage in this express form of discord, they play a clear role in shaping the flow of information at the Court.
Towards an Integrated Model of the U.S. Supreme Court's Federalism Decision Making. 2007. Publius: The Journal of Federalism 37(4): 505-531.
Disputes involving the boundaries of state versus federal power make up a substantial portion of the U.S. Supreme Court’s docket and have undergone extensive analysis. Yet, the conventional wisdom regarding the justices’ choices in these cases is that they are highly inconsistent. I argue that this is primarily a function of the failure of scholars to develop a comprehensive model of the justices’ federalism decision making. To remedy this, I introduce an integrated model of the individual justices’ choices in these cases, which is then subjected to empirical testing in the Rehnquist Court era (1986-2004). I explore a host of determinants of the justices’ decision making, including attitudinal, institutional, legal, and personal attributes, as well as the role of organized interests in the Court. The findings reveal that the choices justices make in these cases are not as discordant as most commentators suggest. Rather, they are relatively predictable through the application of an integrated model of judicial choice.
Lobbyists before the U.S. Supreme Court: Investigating the Influence of Amicus Curiae Briefs. 2007. Political Research Quarterly 60(1): 55-70.
Despite the fact that amicus curiae participation is the most common method of interest group activity in the judicial arena, there is little consensus as to whether this means of participation influences the decision making of the U.S. Supreme Court. To redress this state of affairs, this research investigates the affect of amicus briefs on the ideological direction of the Court’s decisions, with particular attention given to theoretical and methodological issues that have gone unexplored in previous studies. Analyzing group influence during the 1946 to 1995 terms, the results provide particularly robust evidence that pressure groups are effective in shaping the Court’s policy outputs. These findings therefore indicate that elite decision makers can be influenced by persuasive argumentation presented by organized interests.
Transforming the Original U.S. Supreme Court Judicial Database: An Alternative Approach for use with Stata. 2006. Law & Courts 16(1): 22-24.
One of the most commonly employed datasets on the U.S. Supreme Court is ALLCOURT, the Original United States Supreme Court Judicial Database. Yet, the structure of ALLCOURT is set up such that the case is the unit of analysis, which makes certain types of research questions more easily broached than others. This article provides an easily implemented code for Stata that allows users to reliably transform the unit of analysis in ALLCOURT from the case to the justice-vote.
Friends of the Court: Examining the Influence of Amicus Curiae Participation in U.S. Supreme Court Litigation. 2004. Law & Society Review 38(4): 807-32.
Amicus curiae participation is a staple of interest group activity in the U.S. Supreme Court. While a reasonably large body of scholarship has accumulated regarding the effectiveness of this method of participation, little attention has been paid to examining the reasons why amicus participation might increase litigation success. In this article I test two separate, but not mutually exclusive, theories as to why amicus briefs may be effective. The first, the affected groups hypothesis, suggests amicus briefs are influential because they signal to the Court how many groups and individuals will be potentially affected by the decision. The second, the information hypothesis, proposes that amicus briefs are effective because they provide the Court with added information that buttresses the arguments of the direct parties. When subjected to empirical verification the results indicate that, not only does amicus participation increase litigation success, but also that this influence may be best explained by the information hypothesis.
Variable Voting Behavior on the Supreme Court: A Preliminary Analysis and Research Framework. 2004. Justice System Journal 25(1): 57-74.
Though the Supreme Court rarely overrules itself, when it does,
justices who vote to overrule violate both a legal norm and, for a nontrivial
number of justices, an empirical regularity. First, in voting to overrule,
justices defy the doctrine of stare decisis, their duty to follow the
Court’s precedents. Second, in almost 30 percent of such rulings, justices who
voted to establish precedents subsequently vote to overrule the very precedents
they helped establish, thus breaking from the expectations of the attitudinal
model. In this note, I describe the justices’ behavior in precedent-overruling
cases during the Warren, Burger, and Rehnquist Courts. In addition, I develop a
research framework to aid in understanding this variable behavior on the part of
the justices. A number of relevant research questions are considered. Does
ideology affect the decision to support a precedent and subsequently vote to
overrule it? Are majority opinion authors less likely to exhibit such variable
behavior than other members of the majority coalition? Is the decision to concur
evidence of weak preferences for precedents? Are freshman justices more likely
to exhibit unstable voting behavior in precedential cases as compared to their
more senior counterparts? I address these questions as I examine the unique
circumstances in which justices who participated in precedent-setting cases had
the opportunity to reconsider their votes in precedent-overruling
cases.
Amicus Participation in the U.S. Courts of Appeals. With Wendy L. Martinek. Paper Presented at the 81st Annual Meeting of the Southern Political Science Association, Atlanta, Georgia, January 7-9, 2010.
Though we know a great deal about amici curiae in the U.S. Supreme Court – who participates, why they participate, the nature of their arguments, and if their participation matters for case outcomes – we know very little about amici curiae in the U.S. courts of appeals. In this paper, we investigate the nature of group participation in court of appeals cases using data from the Update to the U.S. Courts of Appeals Database (1997-2002), supplemented with extensive original data collection. We pay particular attention to the types of groups that participate, allowing us to shed new light on the plural versus elite nature of interest group participation in these courts. Our results indicate that a diverse assortment of interest groups utilize the amicus curiae brief in pursuit of their legal and political goals in the courts of appeals, indicating that organizational participation in these significant policymaking venues is most consistent with pluralist perspectives on organizational activity.
Lower Court Influence on U.S. Supreme Court Opinion Content. With Bryan Calvin and Pamela C. Corley. Paper Presented at the 67th Annual Meeting of the Midwest Political Science Association, Chicago, Illinois, April 2-5, 2009.
Despite the importance of Supreme Court opinions for the American polity, scholars have dedicated little systematic research to investigating the factors that contribute to the content of the Court’s opinions. In this paper, we examine the ability of lower federal courts to shape the content of Supreme Court opinions. We argue that lower court opinions will influence the content of the Court’s opinions based on a number of factors, including the prestige of the lower court opinion author, the published or unpublished nature of the lower court opinion, the ideological compatibility of the lower court opinion vis-a-vis the Supreme Court’s decision, the type of lower court opinion, and the lower court from which the opinion emanated. Utilizing plagiarism detection software to compare lower federal court opinions with the majority opinions of the Supreme Court during the 2002-2004 terms, we uncover support for our hypotheses, indicating that the Supreme Court systematically incorporates language from the lower federal courts into its majority opinions.
On the Relationship between Public Opinion and Decision Making in the U.S. Courts of Appeals. With Bryan Calvin and Matthew Eshbaugh-Soha. Paper Presented at the 80th Annual Meeting of the Southern Political Science Association, New Orleans, Louisiana, January 8-10, 2009.
The potentially undemocratic nature of the federal courts has longed flamed the fires of the debate regarding the proper role of the judiciary in American politics. Extant scholarship concerning the influence of public opinion on judicial decision making focuses almost myopically on the U.S. Supreme Court, neglecting other significant judicial actors. We explore the extent to which the federal courts act as countermajoritarian institutions by investigating the impact of public preferences on decision making in the U.S. Courts of Appeals. Using data from 1961-2002, we examine whether the courts of appeals are influenced by public mood, both indirectly through the federal judicial selection process and directly via responsiveness to changes in circuit and national mood. Our results indicate that public opinion affects courts of appeals decision making indirectly by way of judicial replacements, but we fail to uncover evidence that courts of appeals judges respond directly to changes in public opinion at either the regional or national levels. We conclude that, absent membership turnover, the courts of appeals are not responsive to the will of the public.
Friends of the Circuits: Interest Group Influence on the U.S. Courts of Appeals. With Wendy L. Martinek. 2008. Paper Presented at the 104th Annual Meeting of the American Political Science Association, Boston, Massachusetts, August 28-31.
Though there is an extensive literature focused on the participation and efficacy of amici curiae in the U.S. Supreme Court, there is exceedingly little rigorous analysis of amici curiae in the U.S. Courts of Appeals. This deficit is troubling in several regards, including the fact that much more amicus activity occurs in the latter than in the former. In this paper, we contribute to the amelioration of this deficiency by systematically analyzing the influence of amicus curiae briefs on U.S. Court of Appeals decision making using Kuersten and Haire’s (2007) Update to the Appeals Court Data Base (1997-2002) in conjunction with data gathered from Westlaw and PACER. Our empirical analysis reveals that amicus briefs filed in support of the appellant enhance the likelihood of that litigant’s probability of success but that amicus briefs filed in support of the appellee have no effect on litigation outcomes. We conclude that amici can help level the playing field between appellants and appellees by serving to counter the propensity to affirm in the U.S. Courts of Appeals.
Cognitive Dissonance on the U.S. Supreme Court. 2008. Paper Presented at the 66th Annual Meeting of the Midwest Political Science Association, Chicago, Illinois, April 3-6.
This research examines the applicability of cognitive dissonance theory to explain a judge’s decision to author or join a separate opinion. I propose that, following a counter-attitudinal vote, a judge will endeavor to reduce the aversive consequences of being viewed as an inconsistent decision maker by justifying his or her attitudinally incongruent vote choice to the public in a separate opinion. I test this possibility by examining U.S. Supreme Court justices’ decisions to author or join concurring and dissenting opinions during the 1946-2001 terms. The empirical results provide qualified support for the use of separate opinions as dissonance reduction mechanisms, suggesting that dissonance theory is both applicable to the actions of elite decision makers and enjoys validity outside of a laboratory setting.
Counteractive Lobbying in the U.S. Supreme Court. With Lisa A. Solowiej. 2008. Paper Presented at the 79th Annual Meeting of the Southern Political Science Association, New Orleans, Louisiana, January 10-12.
Theories of counteractive lobbying assert that interest groups lobby for the purpose of neutralizing the advocacy efforts of their opponents. We examine the applicability of counteractive lobbying to explain interest group amicus curiae participation in the U.S. Supreme Court’s decisions on the merits. Testing the counteractive lobbying hypotheses from 1953-2001, we provide strong support for the contention that interest groups engage in counteractive lobbying in the nation’s highest court. Our findings indicate that, like the elected branches of government, the Supreme Court is properly viewed as a battleground for public policy in which organized interests clash in their attempts to etch their policy preferences into law.
Selecting Influence? The Solicitor General and the Supreme Court. With Chris Nicholson. 2007. Paper Presented at the 65th Annual Meeting of the Midwest Political Science Association, Chicago, Illinois, April 12-15.
Scholars have devoted a great deal of research to investigating the role and influence of the U.S. Solicitor General (SG) as amicus curiae in the Supreme Court. Yet, we know little about the SG’s decision to file an amicus brief and how this relates to the SG’s success on the merits. We fill this void by examining legal, political, and administrative factors that affect the SG’s decision to participate as amicus curiae. We subject our hypotheses to empirical testing utilizing data on the 1953-1999 Supreme Court terms by linking the SG’s decision to file an amicus brief to the SG’s ultimate success on the merits, employing a Heckman-style selection model. We find that the SG’s decision to file an amicus brief, and the SG’s success on the merits, is influenced by legal, political, and administrative considerations, suggesting that the SG is best viewed through the incorporation of a variety of theoretical perspectives.
The Small Group Context: Designated District Court Judges in the United States Courts of Appeals. With Wendy L. Martinek. 2007. Paper Presented at the 78th Annual Meeting of the Southern Political Science Association, New Orleans, Louisiana, January 3-6.
Decision making in the United States Courts of Appeals occurs primarily in three-judge panels with rotating membership. A substantial proportion of court of appeals cases is decided by panels that include a judge who is not a regular court of appeals jurist but is, instead, a district court judge serving temporarily on the court of appeals bench. Taken together, these two traits mean that court of appeals decision making is often a function of small groups with temporary members. In this paper, we set out to examine whether designated district court judges behave differently than their court of appeals colleagues with whom they render decisions. And, in doing so, we suggest a profitable direction for theory building vis-à-vis judicial behavior. Our analysis of data contained in the United States Courts of Appeals Database indicates that the votes of judges on three-judge panels are influenced by the preferences of their fellow panelists and that variance in the ideological direction of votes cast is not systematically related to status as a designated district court judge, with such judges manifesting greater variance in their ideological decision making.
Towards an Integrated Model of the Supreme Court’s Federalism Decision Making. 2006. Paper Presented at the 102nd Annual Meeting of the American Political Science Association, Philadelphia, Pennsylvania, August 31-September 3.
Disputes involving the boundaries of state versus federal power make up a substantial portion of the Supreme Court’s docket and have undergone extensive analysis. Yet, the conventional wisdom regarding the justices’ choices in these cases is that they are highly inconsistent. I argue that this is primarily a function of the failure of scholars to develop a comprehensive model of the justices’ federalism decision making. To remedy this, I introduce an integrated model of the individual justices’ choices in these cases, which is then subjected to empirical testing in the Rehnquist Court era (1986-2004). I explore a host of determinants of the justices’ decision making, including attitudinal, institutional, legal, and personal attributes, as well as the role of organized interests in the Court. The findings reveal that the choices justices make in these cases are not as discordant as most commentators suggest. Rather, they are relatively predictable through the application of an integrated model of judicial choice.
Interest Group Influence on the Supreme Court: Theoretical and Methodological Considerations. 2006. Paper Presented at the 77th Annual Meeting of the Southern Political Science Association, Atlanta, Georgia, January 5-7.
Despite that fact that amicus curiae participation is the most common method of interest group activity in the judicial arena, there is little consensus as to whether this means of participation influences the decision making of the U.S. Supreme Court. To redress this state of affairs, this research investigates the affect of amicus briefs on the ideological direction of the Court’s decisions, with particular attention given to theoretical and methodological issues that have gone unexplored in previous studies. Analyzing group influence during the 1946-1995 terms, the results provide particularly robust evidence that pressure groups are effective in shaping the Court’s policy outputs. These findings therefore indicate that elite decision makers can be influenced by persuasive argumentation presented by organized interests.
The Consistency of Judicial Choice. 2005. Paper Presented at the 101st Annual Meeting of the American Political Science Association, Washington, D.C., September 1-4.
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.
Mobilizing Dissensus on the U.S. Supreme Court. 2005. Paper Presented at the 59th Annual Meeting of the New York State Political Science Association, Niagara, New York, April 15-16.
Prior to the 1940s, U.S. Supreme Court justices rarely exhibited nonconsensual behavior. However, over the last 60 years, the number of dissenting and concurring opinions has risen dramatically. While a great deal of empirical research has focused on explaining this phenomenon, little attention has been paid to the role of organized interests in contributing to a justice’s decision to write separately. I argue that a justice’s decision to write or join a separate opinion is a partial function of interest group amicus curiae participation in the Court. By providing the justices with a myriad of information regarding how cases should be resolved, organized interests create ambiguity with regard to the correct application of the law in a case, at the same time providing the justices with a substantial foundation for a concurring or dissenting opinion. I subject this argument to empirical validation by examining the justices’ decisions to author or join regular concurring, special concurring, and dissenting opinions during the 1946-2000 terms. The results indicate that organized interests play a significant role in mobilizing dissensus on the Supreme Court.