Showing papers by "Donald R. Songer published in 2013"

Do Judges Follow the Law When There Is No Fear of Reversal

Abstract: Some political scientists maintain that Supreme Court justices are more likely than other appellate court judges to vote their ideological preferences. It is argued that Supreme Court justices may vote their preferences without constraint from precedent because of a lack of electoral or political accountability, absence of ambition for higher office, and status as a member of a court of last resort that controls its own docket. While this expla nation of attitudinal voting is widely accepted, it has never been tested. As a first test of the asserted institutional foundations of attitudinal voting, the voting of United States Courts of Appeals judges in tort diversity cases is examined. In such cases, appeals court judges benefit from all of the institutional features thought to advance attitudinal voting, except complete docket control. Despite these benefits, the votes of the appeals court judges appear to be highly constrained by law and precedent.

Presidential Success Through Appointments to the United States District Courts

Abstract: While many of the decisions of federal district court judges involve the routine application of settled legal rules, a significant minority of decisions present judges with the opportunity for judicial policymaking. A considerable body of literature suggests that when faced with policymaking opportunities, judges' policy preferences exert a significant impact on the nature of those decisions. The present study explores the extent to which the preferences of appointing presidents are manifested in the policy-relevant decisions of district court judges. In particular, we seek to determine the success of presidents in selecting district court judges compared to recent findings on the success of presidents in selecting justices for the Supreme Court.

Reevaluating the Implications of Decision-Making Models

Abstract: Most empirical analyses of the US Supreme Court are limited to the Court’s plenary decisions. We contend that summary decisions are an important component of the total decisional output of the Court and, as such, should be included in any overall assessment of the decision making of the Court or its impact on the courts below. We analyze the universe of the Court’s summary decisions from 1995 to 2005. We assess the conventional wisdom that a conservative Court should primarily disturb liberal lower-court decisions and that, in all cases granted certiorari, the policy preferences of the justices should have a major impact on their votes. We find support for neither of these expectations.

Do Bills of Rights Matter? An Examination of Court Change, Judicial Ideology, and the Support Structure for Rights in Canada

Abstract: Competing theories regarding the development of a “rights revolution” in Canada have appeared in the judicial and constitutional literature in recent years. On the one hand, scholars argue that the profound effects often attributed to the Charter of Rights and Freedoms are substantially overstated, and conventional analyses have overlooked the more important role of changes in what is called the “support structure” for rights. Others have advanced a competing theory that the Charter created an expansion of civil liberties. We take advantage of an extensive dataset on the decisions of the Supreme Court of Canada to provide a more systematic test of these competing theories. We conclude that the adoption of the Charter had effects on both the rights agenda and the constitutional issues agenda of the Court, which were both substantively large and statistically significant. There was some indication that changes in agenda control mattered, but the effects were not consistent across our time-series models. The more limited claim that increases in the support structure are one of multiple factors that are associated with agenda change received only mixed support. In short, we found that bills of rights do matter. This article is available in Osgoode Hall Law Journal: http://digitalcommons.osgoode.yorku.ca/ohlj/vol51/iss1/8

Winners and Losers in Appellate Court Outcomes: A Comparative Perspective

Abstract: The question of who wins and loses in appellate courts may be the most important question we seek to answer as judicial scholars. In fact, "Who gets what ?" has traditionally been viewed as the central question in the study of politics generally. Therefore, understanding who wins in the courts is an essential component of a full appreciation of "the authoritative allocation of values" in society (Easton 1953). In this paper we examine the relationship between the status of litigants, especially the comparison of repeat player "haves" (RP) to one-shotters (OS) who are usually "have-nots," and their rates of success in top appellate courts in the common law world. A number of prior studies employing what is generally referred to as "party capability theory" have examined how the resources and litigation experience of litigants affect their chances for success. Using data from the highest courts of appeals across six countries we explore winners and losers in a comparative context. The results indicate that there is greater variation in who wins and who loses than party capability theory would suggest.

The Impact of Supreme Court Signals and Circuit Effects on Responses to Precedent

Abstract: An extensive literature suggests that U.S. Supreme court justices are policy entrepreneurs who are strongly concerned with the impact of their decisions. Such a concern for the policy impact of their decisions raises a number of puzzles: 1) under what conditions do Court precedents have the broadest impact on the lower courts? 2) What motivates the circuits to respond differently to Supreme Court precedent? 3) What, if any, strategies does the Court employ to influence the responses of the courts below? These queries require scholars to examine the aggregate impact of the decisions of the Court. We provide a framework for aggregate lower court responses to Court precedent. We argue that given the finite ability of the Supreme Court to review the large number of lower court decisions, justices of the Court should primarily be interested in aggregate patterns of compliance. We posit that a signal by the Supreme Court in the form of its summary decisions and a number of circuit-level influences primarily drive lower court responses to Court precedent. The empirical results provide robust support for our account.