Bargaining and Opinion Assignment on the US Supreme Court

We formulate a new game-theoretic model of bargaining on theUS Supreme Court. In the model, a degree of monopoly power overpolicy endogenously accrues to the assigned writer despite an"open rule" permitting other justices to make counteroffers.We assume justices are motivated ultimately by a concern forjudicial policy, but that the policy impact of an opinion dependspartly on its persuasiveness, clarity, and craftsmanship—itslegal quality. The effort cost of producing a high-quality opinioncreates a wedge that the assignee can exploit to move an opinionfrom the median without provoking a winning counteroffer. Weuse this bargaining model as the foundation for a formal analysisof opinion assignment. Both the bargaining and opinion assignmentmodels display rich and tractable comparative statics, allowingthem to explain well-known empirical regularities, as well asto generate new propositions, all within a unified and internallyconsistent framework.     

Panel Composition and Judicial Compliance on the US Courts of Appeals

This article integrates the literatures on judicial compliance,panel decision making, and case selection in the federal judiciaryhierarchy. Many studies have speculated that "panel effects"—thephenomena under which an individual judge's vote may dependon her colleagues on a three-judge panel—can be tied toa "whistleblower effect," through which a lower court judgecan constrain a panel majority from disobeying with SupremeCourt precedent by threatening to dissent. However, no studyhas systematically found such a relationship. I present a game-theoreticmodel of circuit court-Supreme Court interaction that demonstrateshow panel composition might affect the likelihood of lower courtcompliance to Supreme Court doctrine. The model illustrateshow three-judge panels, while not inducing perfect doctrinalcontrol of lower courts by the Supreme Court, significantlyincreases the latter's ability to see its preferred doctrinecarried out by its subordinates in the judicial hierarchy.     

Comparing Presidents, Senators, and Justices: Interinstitutional Preference Estimation

A major challenge in testing spatial, interinstitutional modelsis placing different sets of actors on a common preference scale.We address this challenge by presenting a random effects, panelprobit method which we use to estimate the ideal points of presidents,senators, and Supreme Court justices on one scale. These estimatesare comparable across time and institutions. We contrast ourmethod with previously used methods and show that our methodincreases the ability to study interactions among differentinstitutions.     

Presidents, Justices, and Deference to Administrative Action

This article examines the effect of the relationship betweenthe president and Supreme Court Justices on justices' votingin administrative law cases. I evaluate Cohen and Spitzer'stheory that justices tailor the pro- or antideference signalsent to the lower courts based on their relationship with thesitting president. The results show, contrary to the theoryof Cohen and Spitzer, that justices' votes in administrativelaw cases are influenced by the ideology of the president underwhom the administrative decisions were made rather than by theideology of the president in office at the time of the Court'sdecision.     

Conservatives on the supreme court

It is shown: (a) the core conservatives justices now on the Supreme Court (identified as White, Rehnquist, O'Connor, Scalia and Kennedy) are preoccupied with the problem of the fit between their rulings and the sources of law and with the ideal of predictability; (b) a new jurisprudential approach developed by Justice Scalia is gaining acceptance amongst them; (c) Scalia's reasons for rejecting the neo-conservative doctrine that the intentions of the Constitution's Framers should be the only legitimate point of reference in constitutional cases are sound; (d) his suggestions for an alternative theory offer a defensible way forward which has advantages over competing orientations. Associate Professor, Department of Political Science, University of Melbourne, Australia. Much of the work on this paper was done while a visiting scholar at Georgetown University, Washington D.C.—The final draft of this paper was accepted in November 1991.     

Court of Public Opinion: Government Accountability and Judicial Independence

Using a simple model of policy making in a system characterizedby formal separation of powers, judicial dependence on governmentsupport, asymmetric information between voters and the government,and political accountability of the policy branch, I show conditionsunder which rational voters force the government to cede powerover legislative decisions to the courts. Specifically, thepublic uses its ability to hold the elected branches of governmentaccountable to enforce a judicial veto when judicial oppositionto legislation provides more reliable information to votersthan government support for legislation does. The model thusprovides a theoretical justification for, and suggests importantlimits to, the common assumption that disregard for judicialdecisions is politically costly for elected politicians. Themodel also demonstrates how other observed patterns in judicialpolitics—including judicial rubber-stamping of governmentdecisions and government "passing the buck" to courts—canarise as equilibria in the same simple framework.     

Sophisticated voting and gate-keeping in the supreme court

'Sophisticated voting' has a solid theoretical foundation, butscholars have raised serious questions about its empirical importancein real-world institutions. The U.S. Supreme Court is one institutionwhere sophisticated voting should be common, but, paradoxically,where scholarly consensus about its existence has yet to emerge.We develop and test a formal model of sophisticated voting onagenda setting in the Supreme Court. Using data on petitionsfor certiorari decided in October term 1982, we show that, aboveand beyond the usual forces in case selection, justices engagein sophisticated voting, defined as looking forward to the decisionon the merits and acting with that potential outcome in mind,and do so in a wide range of circumstances. In particular, wepresent strong evidence for sophisticated behavior, rangingfrom votes to deny a case one prefers to reverse to votes togrant cases one prefers to affirm. More importantly, sophisticatedvoting makes a substantial difference in the size and contentof the Court's plenary agenda.     

最高人民法院政治任务的变化——以1950—2007年最高人民法院工作报告为中心

本文根据最高人民法院在过去57年做的39份工作报告,分析其中所蕴含的最高人民法院在不同历史时期对自身的政治任务的理解。作者认为,由于最高人民法院将其中心政治任务设定为执行不同时期的国家中心任务,因此,它在试图强化自己在国家治理中心的应有位置的同时,进一步地将自身在政治权力体系中推向边缘化;在试图建构起一体化的司法权的同时,却将自身应有的司法逻辑予以毁坏。     

论法官能动司法的功能和规制

能动司法已成为理论界和实务界讨论的热点。司法能动主义的源头在美国，与其联邦最高法院的司法实践紧密联系。在中国，能动司法是由决策者自上而下、回应社会需求而提出的，并贯彻到各级法院的司法实践活动中。从现有的理论研究成果来看，关于能动司法的概括或解释是多元化的。在我国司法大改革的背景下，法官发挥司法能动性有利于填补法律缺陷、提高司法效率、实现司法公正和树立积极主动、司法为民的基本理念。但是，也必须正视法官能动司法的两面性，可以通过完善立法、构建司法能动制度和推进法官职业化建设来规制法官能动司法的实施，以保障司法公正的最终实现。     

Economics and the Supreme Court: The Case of the Minimum Wage

In the United States, laissez-faire has been the policy advocated in good times, while social legislation has been called for during crises. One instance of this dichotomy concerns the transformation of the American understanding of minimum wage laws during the early 20^th century. During this time, the view of minimum wage laws changed from one that viewed such laws as theft, to one that saw such laws as being required for distributional justness. We examine the legal-historical debate concerning whether the Supreme Court renounced its policy of laissez-faire individualism in its 1937 ruling finding the minimum wage law constitutional, arguing that it did not. We investigate the free market standard that the Court used to find minimum wage laws unconstitutional in 1923. We demonstrate how the economic conditions of the Depression, coupled with the development of economic theory, explain how the Court eventually found the minimum wage law constitutional.     

“调判结合”的困境—以民事审判结构理论为分析框架

最高人民法院最近将“调判结合”作为民事审判工作的指导方针。根据民事审判结构理论,该政策恰当地回应了社会转型过程中和谐社会与法治社会的基本要求,而调解与判决之间的矛盾性,使得调判结合同时陷于外部合理性与内部矛盾性的困境,而这根源于更深层次上和谐社会与法治社会的同样困境,这导致了法院有意无意地倾向于强化调解。如果不对此种动向保持警惕,我们很可能重蹈覆辙。     

A Principal-Agent Theory of En Banc Review

This paper adds to the existing literature on en banc rehearingsin two ways. First, I incorporate theoretical results from theliterature on Supreme Court certiorari decisions and argue thatthe ideological direction of panel decisions should influencethe probability of en banc rehearing only in conjunction withthe panel's ideological predisposition. Second, I build uponexisting theories of en banc review by incorporating the multiplelevels of the judicial hierarchy into the context in which thecircuit decides to hear a case en banc. From these insights,I develop and test three hypotheses about the determinants ofen banc review. Specifically, I contend that the ideologicalrelationship between a three-judge panel, the full circuit,and the Supreme Court should all interact with the ideologicalorientation of the panel's decision when the circuit decideswhether or not to review the panel en banc. Original data includingall en banc rehearings between 1986 and 1996 are then used totest the theoretical predictions. The empirical analysis providesconsiderable support for the hypotheses. The findings representtwo important advances in the study of the judicial hierarchy:They highlight the strategic interaction between ideologicaldisposition and panel composition in the en banc review processand demonstrate the incentives created by the multiple levelsof the federal judiciary. More broadly, the theory and findingsdeveloped here have implications for strategic auditing in apolitical hierarchy. (JEL K40, D72)     

UMBRELLA DAMAGES: TOWARD A COHERENT ANTITRUST POLICY

Price‐fixing cartels usually do not involve all members of an industry. To the extent that the nonconspiring industry members set their prices under the price umbrella of the cartel, the customers of the nonconspiring firms suffer overcharges just like customers of the conspiring firms. Whether these so‐called umbrella plaintiffs have standing to sue for antitrust damages is an unresolved policy question, because the Supreme Court has not spoken on “umbrella damages.” In this article, we identify the judicial concerns regarding umbrella damage claims, which can be traced to Mid‐West Paper and Petroleum Products Antitrust Litigation. These decisions raise concerns that the fact of injury is conjectural and the measurement of the damages is speculative. We first review the divided judicial treatment of standing for umbrella plaintiffs. Next, we describe the economics of umbrella pricing, which reveals that umbrella claims are not inherently conjectural. We then examine the econometric analysis necessary to estimate damages, demonstrating that umbrella damage estimates are not inherently speculative. We also examine some difficulties that exist in damage estimation generally and for umbrella plaintiffs in particular. Finally, we argue that granting standing to umbrella plaintiffs is consistent with the goals of antitrust policy. (JEL L1, L4, K2)     

法官异地交流与司法效率-来自高院院长的经验证据

在理论上,法官异地交流是把"双刃剑",它对司法效率的提高同时具有促增和抑制两种效应,因而,定量识别法官异地交流对司法效率的净影响就具有重要意义。本文以2008年中国各省高级人民法院院长异地交流轮岗活动为样本,采用双重差分法系统评估了法官异地交流对司法效率的净影响。研究发现,中国的法官异地交流显著地提高了以结案率来度量的司法效率,由异地交流来的法官任院长的地区,当地的结案率在平均意义上要比其他地区的结案率高出2个百分点左右;但是,法官异地交流对司法效率的正向影响存在1年左右的政策时滞。除此之外,法官的籍贯、学历、年龄、任期等个人特征也显著地影响了当地的司法效率。     

An economic rationale for dismissing low‐quality experts in trial

The history of the admissibility standard for expert testimony in American courtrooms reveals that the standard has gradually increased to a high level following a series of important decisions by the Supreme Court. Whether such a stringent standard for expert testimony is beneficial or detrimental to the American justice system is still under fierce debate, but there has been scant economic analysis of this issue. This paper attempts to fill the gap by presenting a game‐theoretic argument showing that a stringent admissibility standard operates to increase the accuracy of judicial decision‐making in certain situations. More precisely, when the judge faces uncertainty regarding an expert's quality, the admissibility standard may provide the judge with information about the quality of expert testimony, thereby increasing the accuracy of judicial decision‐making by mitigating the judge's inference problem. I show the ways in which this effect dominates at trial and discuss related issues.     

SOFT MONEY AND CAMPAIGN FINANCE REFORM

We analyze special interest influence on policy when political contributions are capped but the regulation contains soft‐money loopholes. The politician chooses between two policy options. We define special interest influence as the probability the politician chooses the policy he would not have chosen in the absence of contributions. Any binding cap reduces special interest influence but the effect may be nonmonotonic. A ban on contributions can result in greater special interest influence than a binding but nonzero cap. The results may also have implications for the policy response to the 2010 Supreme Court ruling on Citizens United v. FEC.     

Judges and Taxes: Judicial Review,Judicial Independence and the Size of Government

The study investigates how judicial review of policy and judicial independence affect the relative size of government. Judicial oversight of policy is the authority of courts to check the legality of policy measures and annul measures which are incompatible with the constitution or are enacted without following the procedures laid down by the law. Using a model of constitutional political economy, where policy making is subject to judicial oversight, it is predicted that the relative size of the public sector decreases as judicial review and judicial independence increase. The theoretical predictions are tested in an international cross section sample of 52 countries. Controlling for the effects of real income, age dependency, openness of the economy, the legal origins of a country and other socio-political variables the results show that the checks and balances provided by the judiciary lead to a smaller relative size of taxes in the economy.JEL Classifications: D70, D72, D74, D78, H30, K41.     

Legislative output and the Constitutional Court in Italy

This paper considers the impact of the Constitutional Court on legislative output in Italy. Following Tsebelis’ ((2002) Veto Players: Foundations of Institutional Analysis. Princeton: Princeton University Press) veto players model and the stylised facts as regards the Italian Constitutional Court’s activity, this paper presents a multi-stage game in the spirit of Gely and Spiller ((1990). A rational choice theory of supreme court statutory decisions with applications to the state farm and grove city cases. Journal of Law, Economics, and Organization 6, 263–300). In the first stage, the legislative veto players, namely the parties in government, choose whether to change or not the policy status quo by enacting new legislation. In the second stage, the Court makes a constitutional interpretation: it decides whether to alter or not the outcome of the first stage through a sentence of constitutional illegitimacy. The Court has both the power of annulling laws and a limited power of creating new legally binding norms. Moreover, in the third stage, a constitutional law voted by a parliamentary qualified majority can overturn the Court’s decisions. The model predicts that the presence of the Court lowers legislative policy change and tests this prediction with 1956–2001 annual time series data for Italy.

The sensitivity of poverty rates to macro-level changes in the European Union

The authors use the European Union-wide tax–benefit model,EUROMOD, to establish baseline rates of relative poverty in1998 for each of the Member States and then explore their sensitivityto (a) an increase in unemployment, (b) real income growth and(c) an increase in earnings inequality. They find that povertyrates are sensitive to such ‘macro-level’ changesbut that the size—and in some cases the direction—ofthe effect varies across countries. If such indicators are tobe used in judging the effectiveness of social policies, itis important that differences in responsiveness are fully understood.