Laying Down the Law

Kevin Lewis

September 07, 2009

The Constraining Capacity of Legal Doctrine on the U.S. Supreme Court

Brandon Bartels
American Political Science Review, August 2009, Pages 474-495

Does law exhibit a significant constraint on Supreme Court justices' decisions? Although proponents of the attitudinal model argue that ideology predominantly influences justices' choices, "hybrid models" posit that law and ideology exhibit discrete and concurrent effects on justices' choices. I offer a new conceptualization of legal constraint examining how legal rules permit varying degrees of ideological discretion, which establishes how strongly ideological preferences will influence justices' votes. In examining the levels-of-scrutiny legal doctrine, I posit theoretical models highlighting the differential constraining capacities of the strict scrutiny, intermediate scrutiny, and rational basis rules. I use a multilevel modeling framework to test the hypotheses within the context of the Grayned doctrine in free expression law. The results show that strict scrutiny, which Grayned applied to content-based regulations of expression, significantly constrains ideological voting, whereas intermediate scrutiny (applied to content-neutral regulations) and the low scrutiny categories each promote high levels of ideological voting.


Courting the Public: The Influence of Decision Attributes on Individuals' Views of Court Opinions

James Zink, James Spriggs & John Scott
Journal of Politics, July 2009, Pages 909-925

Scholars and judges commonly maintain that courts require institutional legitimacy in order to be an effective institution of government and that such legitimacy depends on judges making legally principled, neutral decisions. Two principal ways judges can signal the neutrality of decisions are the size of the majority coalition and the treatment of precedent: opinions with larger majorities or grounded in precedent project to the public that they were decided in accordance with the rule of law and thus based on impartial decision-making criteria. We use an experimental design to test whether these two decision attributes influence attitudes toward decisions, presenting individuals with mock newspaper articles reporting on Court decisions in which we systematically vary majority coalition size and treatment of precedent. Our data show that when the Court produces a unanimous (rather than divided) decisional coalition and when it follows (rather than overrules) precedent, individuals are more likely to agree with and accept a decision, even if they are ideologically predisposed to disagree with a given Court outcome.


A Cross-National Study of Government Social Insurance as an Alternative to Tort Liability Compensation

Dana Kerr, Yu-Luen Ma & Joan Schmit
Journal of Risk and Insurance, June 2009, Pages 367-384

Litigation rates in the United States have long been considered out of proportion with the remainder of the world, leading to a good deal of economic research trying to understand the causes. Much of that literature has focused on lawyer compensation rules and availability of general damage awards. Another possible reason for differences in national litigation rates is the relative generosity of government social programs. Using a sample of 24 countries over a 12-year period, we test the relationship between the size of government social program payments and liability costs as measured by liability insurance premiums, and find a strong negative relationship, controlling for income, accident rates, and a variety of other factors.


Law, state power, and taxation in Islamic history

Metin Coşgel, Thomas Miceli & Rasha Ahmed
Journal of Economic Behavior & Organization, September 2009, Pages 704-717

The ruler's power varied greatly in Islamic history over time and space. We explain these variations through a political economy approach to public finance, identifying factors affecting economic power and its constraints. An influential interest group capable of affecting the ruler's power was the legal community (‘ulamā'). This community could increase the ruler's ability to extract a surplus from the citizenry by conferring legitimacy, thereby lowering the cost of collecting taxes. It could also limit power through legal constraints on taxation. We show how changes in legitimacy and legal constraints affected the economic power of rulers in representative episodes of Islamic history and identify general trends and dynamic processes underlying the relationship between the state and the legal community.


Do Citizens Know Whether Their State Has Decriminalized Marijuana? Assessing the Perceptual Component of Deterrence Theory

Robert MacCoun, Rosalie Liccardo Pacula, Jamie Chriqui, Katherine Harris & Peter Reuter
Review of Law & Economics, 2009

Deterrence theory proposes that legal compliance is influenced by the anticipated risk of legal sanctions. This implies that changes in law will produce corresponding changes in behavior, but the marijuana decriminalization literature finds only fragmentary support for this prediction. But few studies have directly assessed the accuracy of citizens' perceptions of legal sanctions. The heterogeneity in state statutory penalties for marijuana possession across the United States provides an opportunity to examine this issue. Using national survey data, we find that the percentages who believe they could be jailed for marijuana possession are quite similar in both states that have removed those penalties and those that have not. Our results help to clarify why statistical studies have found inconsistent support for an effect of decriminalization on marijuana possession.


Doing the Right Thing: An Empirical Study of Attorney Negotiation Ethics

Art Hinshaw & Jess Alberts
Arizona State University Working Paper, June 2009

The code of ethical conduct for lawyers — the American Bar Association's Model Rules of Professional Conduct (the "Model Rules") — legitimizes a certain amount of dissembling and misdirection in the negotiation realm, only prohibiting legal negotiators from making fraudulent misrepresentations about material matters. To determine if attorneys are meeting this low standard, the authors surveyed practicing lawyers and asked them if they would agree to engage in a fraudulent pre-litigation settlement scheme if a client requested them to do so. Nearly one-third of the respondents indicated they would agree to the client's overtures, and only half indicated that they would refuse the client's overtures, thereby following the Model Rules. Follow-up questioning suggested several reasons for these results: there appears to be substantial misunderstanding as to what constitutes a fraudulent misrepresentation, there seems to be considerable confusion surrounding the rule's operative term "material fact," and it appears that some of the attorneys believe that other legal rules, including other portions of the Model Rules, either gave them permission or required them to engage in the fraudulent negotiation scheme. To rectify these apparent misunderstandings among practicing lawyers, the article offers three interdependent means for improving lawyer negotiation ethics — rule clarification, education, and increased rule enforcement.


Apologies and Good Lawyering

Elizabeth Nowicki
Tulane Working Paper, July 2009

In everyday life, apologies are common. For example, if one shopper bumps into another in a crowded grocery store, apologies abound. Or if a child on the playground accidentally crashes into another child, the crashing child will apologize. If the crashing child does not apologize, a teacher, playground monitor, or parent will instruct the child to apologize, because apologizing for hurting someone is the 'right' thing to do. This apology norm largely disappears if the crashing child grows up and becomes a lawyer, however. Despite empirical research showing that apologies have value in settlement, facilitate cost-effective dispute resolution, and are important to injured parties, it appears that lawyers do not regularly either suggest that a client ask for or suggest that a client offer an apology as part of a conflict resolution. Why does the instinct to facilitate dispute resolution with a sincere apology disappear when students enter law school or when law students become lawyers? Some suggest that lawyers — and consequently the clients they advise — disavow apologies as a matter of defense because apologies are viewed as costly admissions of liability. Others suggest that attorneys for injured parties have no obvious incentives to suggest apologies since quick dispute resolution results in smaller legal fees. Still others suggest that those who become lawyers tend to be logical and analytical, and tend to eschew conduct viewed as purely emotive, such as apologizing. This paper shows that a good lawyer must recognize the value of apologies in conflict resolution, litigation, and settlement, and this paper provides guidance for offering apologies.


Higher Demand, Lower Supply? A Comparative Assessment of the Legal Resource Landscape for Ordinary Americans

Gillian Hadfield
University of Southern California Working Paper, May 2009

In this paper I review the small amount of available data on the extent to which ordinary individuals in the U.S. have access to legal resources to navigate the law-thick world that Robert Kagan has famously called ‘adversarial legalism — the American way of law.' I present this data in comparative context, relating what (little) we know about the availability of law in the U.S. to what (little) we know about the availability of law in other advanced societies and in countries transitioning to legally-mediated market democracy. I review first a set of ‘legal needs' surveys that ask households about their experiences with difficult problems that are potentially subject to legal intervention or governance and their use of resources, including lawyers, to resolve those problems. The comparative analysis demonstrates that while the incidence of reported problems is relatively stable across countries (with the exception of Japan, which reports lower rates),and contact with lawyers is comparable, there are significant differences in the extent to which people in other countries are able to access other non-lawyer resources for help with a legal problem. Most strikingly, Americans appear significantly more likely to ‘lump' their problems and do nothing as compared to people in other countries with arguably more robust delivery systems to provide individuals with access to legal resolutions. I then turn to macro indicators to shed light on the extent to which a country devotes resources to delivering the legal system in practice. Here I compare data on expenditure on courts and legal aid and numbers of judges, lawyers and cases in a set of European countries to the available US data. Here too we see that other countries, including those with still emerging legal systems, appear to expend considerably more resources than the US does on a per case. Together these ‘tidbits' of data, which call for more careful empirical work, are suggestive of the conclusion that while the US system ostensibly relies heavily on law to mediate relationships among people and institutions, in practice there are few resources devoted to making law effective in practice, and apparently less so than in countries that are arguably less law-driven than our own.


The Effect of Litigation on Venture Capitalist Reputation

Vladimir Atanasov, Vladimir Ivanov & Kate Litvak
University of Kansas Working Paper, December 2008

A large literature examines how contractual terms protect VCs against misbehavior by entrepreneurs. But what constrains misbehavior by VCs? We provide the first systematic analysis of how alleged VC misconduct affects VC reputation using a hand-collected sample of 296 lawsuits involving 221 venture capitalists during the period 1975-2007. We first estimate an empirical model of the propensity of VCs to get involved in litigation. We find that older VCs and VCs with more deal flow and larger funds under management are more likely to litigate; however, the effect is concave. In addition, early-stage VCs and VCs with past litigation history are more likely to participate in litigation. We then analyze the relationship between litigation and VC fundraising, deal flow and network centrality. We find that litigation does not go unnoticed: in subsequent years, VCs involved in litigation as defendants raise significantly less capital than their peers (matched on age, size and performance), invest in fewer and lower quality deals, and syndicate with fewer VC firms. The biggest losers are VCs who participate as defendants in multiple lawsuits.


Campaign Support, Conflicts of Interest, and Judicial Impartiality: Can the Legitimacy of Courts Be Rescued by Recusals?

James Gibson & Gregory Caldeira
Washington University Working Paper, July 2009

Many legal scholars and observers perceive elected state courts in the U.S. as under siege by the politicization of judicial elections — by candidates for judicial office making policy pronouncements and promises, using ads attacking their opponents (often scurrilously), and, most important, by accepting campaign contributions and support from organizations litigating before the very judges these groups helped elect. Since no form of political capital is more valuable to courts than institutional legitimacy, the hypothesis that campaign activities undermine judicial legitimacy must be taken quite seriously. Our purpose in this paper is to investigate citizen perceptions of the impartiality and legitimacy of courts. We focus on the residents of West Virginia, because that state has recently been a battleground for intense conflict over campaign support and perceived conflicts of interest and loss of impartiality. We employ an experimental vignette embedded within a representative sample of West Virginians to test hypotheses about several factors that might affect perceived judicial impartiality: (1) campaign contributions and support; (2) the size of such support; (3) whether the judge accused of holding a conflict of interest withdraws from the case; and (4A) if not, whether that judge's vote was crucial to the outcome, and (4B) if so, whether the party providing the campaign support wins or loses the lawsuit. Our theoretical objectives in this paper are to assess the determinants of citizens' views of judicial impartiality, following earlier research on how campaigning affects such perceptions. More practically, we test the hypothesis that recusals can rehabilitate a judge and/or court from perceptions of a conflict of interest. In almost every respect, our findings are not as expected. Perhaps most important, contributions offered but rejected by the candidate have similar effects to contributions offered and accepted. And, although recusal can rehabilitate a court/judge to some degree, the effect of recusal is far from the complete restoration of the impartiality and legitimacy of the institution. We are also surprised that about one-third of the respondents are unfazed by the most conflicted circumstance our vignette imagines. We attribute that finding to the "reservoir of goodwill" enjoyed by courts and to the framing effects flowing from pre-existing loyalty to the judiciary. The processes by which citizens form and update their opinions of judges and courts are certainly complicated, but seem at least to involve pre-existing attitudes, expectations of judges, and perceptions of contextual factors, as our analysis of conditional influences demonstrates. Finally, our findings indicate that several of the assumptions of the majority in the recently decided Caperton v. Massey are empirically inaccurate, at least from the viewpoint of the citizens of West Virginia.

to your National Affairs subscriber account.

Already a subscriber? Activate your account.


Unlimited access to intelligent essays on the nation’s affairs.

Subscribe to National Affairs.