Endogenous Jurisprudential Regimes

Abstract

Edited by R. Michael AlvarezJurisprudential regime theory is a legal explanation of decision-making on the U.S. Supreme Court that asserts that a key precedent in an area of law fundamentally restructures the relationship between case characteristics and the outcomes of future cases. In this article, we offer a multivariate multiple change-point probit model that can be used to endogenously test for the existence of jurisprudential regimes. Unlike the previously employed methods, our model does so by estimating the locations of many possible changepoints along with structural parameters. We estimate the model using Markov chain Monte Carlo methods, and use Bayesian model comparison to determine the number of change-points. Our findings are consistent with jurisprudential regimes in the Establishment Clause and administrative law contexts. We find little support for hypothesized regimes in the areas of free speech and search-and-seizure. The Bayesian multivariate change-point model we propose has broad potential applications to studying structural breaks in either regular or irregular time-series data about political institutions or processes.1 Modeling Decision-Making on the U.S. Supreme Court Supreme Court decisions do two things: they award a judgment, and they provide a rationale for that judgment in the form of a written opinion. The judgment of the case determines who wins and who loses in the legal dispute, and the terms of the victory or defeat. Opinions are important because they provide justifications for the judgment. Those who subscribe to the attitudinal model of judging (Segal and Spaeth 2002)-which asserts that the decisions the Justices reach are due solely to politics-argue that opinions are nothing more than disingenuous post hoc rationalizations of behavior that merely serve to cover up nothing more than unfettered politics.Authors' note: The authors thank Bert Kritzer, Mark Richards, and Jeff Segal for sharing replication data; Jude Hayes and Robert Walker, along with seminar participants at SLAMM 2010, NYU, and USC for helpful comments; Katie Schon, Jee Seon Jeon, and Rachael Hinkle for their research assistance; and the Filomen D'Agostino and Max E. Greenberg Research Fund at NYU School of Law, the Center for Empirical Research in the Law at Washington University, the Wang Xuelian Fund at Tsinghua University, and the National Science Foundation for supporting our research. The editor, R. Michael Alvarez, and two anonymous referees made suggestions that improved the article significantly. For replication data and code, see Pang et al. (2012). Supplementary materials for this article are available on the Political Analysis Web site.Political Analysis (2012) On the other hand, from a legal standpoint, it is hard to believe that opinions are inconsequential (Friedman 2006). To be sure, opinions are justifications, but they also provide legal rules that govern in future disputes. In our common law system, lower court judges rely on the collection of these rules-called precedents-when deciding s...

Culture and Legal Policy Punctuation in the Supreme Court's Gender Discrimination Cases

“…As such, with some adaptations, the concept is well suited to help identify potential PET cut points. In some cases, potential candidate regimes can be assessed using sophisticated statistical methods (Pang et al., ); in others, particularly when the Court's decision to enter or abdicate a policy area leads to a lack of data on one side of the cut point, agenda‐setting trends can be examined. To demonstrate the utility of this concept, I examine the candidate regime of Reed v. Reed , which upon analysis largely meets my suggested criteria.…”

“…Given this aim, their diagnostics focused on whether particular fact patterns—such as the presence of content‐based rather than content‐neutral regulations on speech—had different impacts on outcomes before and after hypothetical cut points (Kritzer & Richards, , ; Richards & Kritzer, ). Although the specific tests for regime breaks their groundbreaking studies employed have been called into question for relying on inappropriate methodological assumptions (Lax & Rader, ), the general premise has been supported by more recent and methodologically sophisticated work (Pang, Friedman, Martin, & Quinn, ).…”

Exploring the Dynamics of Latent Variable Models

“…However, estimating these types of models requires a priori attention to the number of expected change points and are commonly employed only in time-series analysis (e.g., Pang et al. 2012) but have seen some use in panel data (e.g., Joseph et al. 1997; Spirling 2007).…”

The Nature of Legal Change on the U.S. Supreme Court: Jurisprudential Regimes Theory and Its Alternatives

“…These time periods represent relatively cohesive eras in terms of the nature of policy outputs and membership turnover and replacement. Note how our approach differs from Pang et al (), who allow the data to determine where cutpoints have the highest probability of occurring. While we take no position on which is superior, we see our approach as necessary for testing the key substantive effects we have placed at the center of the analysis.…”

“…In another study, Pang et al () challenge JRT's claim of significant legal change around one point in time. They argue that regime breaks should be empirically evaluated endogenously, allowing the data to determine (1) where in time the highest probability of regime change exists and (2) whether there are multiple regime breaks.…”