Is Certiorari Contingent on Litigant Behavior? Petitioners' Role in Strategic Auditing

Mak, Maxwell; Sidman, Andrew H.; Sommer, Udi

doi:10.1111/jels.12002

Cited by 17 publications

(14 citation statements)

References 57 publications

(102 reference statements)

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“…For the 515 total cases we identified in our search, which is described in the Data and Methods section, for which we could measure judicial preferences, 74.6 percent of the panels were mixed, meaning they included two judges appointed by a president from one party and one judge appointed by a president from the other party. This proportion is not significantly different from the proportion of mixed panels in data used in Sunstein et al (; 71.9 percent, p = 0.11) or in Mak et al (; 73.7 percent, p = 0.37). It is significantly greater than the proportion of mixed panels deciding civil rights and liberties cases in the U.S. Courts of Appeals Database (Songer ), including cases through 2002 (Kuersten & Haire ; 70.4 percent, p = 0.02).…”

contrasting

confidence: 53%

“…The presence of a dissent has long been thought to be a factor in decisions on certiorari (Tanenhaus et al ; Ulmer et al ). Supporting this view and regardless of the content of the opinion itself, the mere presence of a dissenting opinion can encourage losing litigants to petition the Court (Mak et al ) and bring the justices’ attention to a particular case (Perry ). As a result, review becomes more likely in the face of dissents through an increase in the likelihood of certiorari being granted (e.g., Black & Owens ; Caldeira et al ) or the initiation of en banc review (e.g., Beim & Kastellec ).…”

Section: Separate Opinion Writing In the Federal Courtsmentioning

confidence: 99%

“…Thus, we predict:

Greater ideological distance between the majority opinion writer and a judge will increase the likelihood the judge will write a separate opinion .Beyond the temporary nature of these panels, we expect that the mandatory appellate jurisdiction of the Supreme Court over decisions of these panels makes judges highly sensitive to the Court's preferences. Beyond serving as a signal to the Supreme Court of the cert‐worthiness of a case, dissenting opinions are found to increase the likelihood of an appeal by losing litigants (Mak et al ). Given this relationship between dissents and appeals, we argue that judges on these panels pay more attention to Supreme Court preferences than do circuit court judges typically.…”

Section: Expectations For Separate Opinion Writing On Three‐judgementioning

confidence: 99%

“…Circuit court judges have similar incentives in their relationships with the district courts below them. Also, circuit court decisions with dissenting opinions are more likely to be appealed by losing litigants (Mak et al 2013). Moreover, well-crafted lower court opinions can affect the content and substance (Corley et al 2011) and the "vitality" of Supreme Court decisions (Hansford & Spriggs 2006).…”

Section: Separate Opinion Writing In the Federal Courtsmentioning

confidence: 99%

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Separate Opinion Writing Under Mandatory Appellate Jurisdiction: Three‐Judge District Court Panels and the Voting Rights Act

Mak¹,

Sidman²

2020

J Empirical Legal Studies

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Most of the empirical work on separate opinion writing by lower federal court judges examines the U.S. Courts of Appeals. Given the Supreme Court's discretionary jurisdiction, it is argued that dissenting opinions operate as a cue signaling that a case is worthy of review. Concurrences, on the other hand, allow judges to join dispositional majorities while still expressing differences in legal reasoning from the majority. Likely in an effort to minimize dissent, the behavior of circuit court judges is found to be less influenced by ideology when potential dissenters serve with them. Despite the specter of Supreme Court review, these works generally find that the motivation to write separately is based largely in ideologically differences among panelists and less so on preferences of the Supreme Court. What, however, does separate opinion writing look like when the Court's jurisdiction is mandatory, as it is over three‐judge district court panels? Among other uses required by law, these district court panels are used to adjudicate cases arising under the Voting Rights Act of 1965. These panels also differ from the traditional judicial structure by placing district court judges, who traditionally decide cases individually, in a multimember setting with another district court judge and a circuit court judge. Examining separate opinion writing on these panels, we find that ideological distance from the majority opinion writer is still an important factor. This, however, is conditioned by the preferences of the Supreme Court, which exert a much stronger influence over behavior than they do in the traditional appellate court setting.

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contrasting

confidence: 53%

Section: Separate Opinion Writing In the Federal Courtsmentioning

confidence: 99%

“…Thus, we predict:

Section: Expectations For Separate Opinion Writing On Three‐judgementioning

confidence: 99%

Section: Separate Opinion Writing In the Federal Courtsmentioning

confidence: 99%

See 2 more Smart Citations

Separate Opinion Writing Under Mandatory Appellate Jurisdiction: Three‐Judge District Court Panels and the Voting Rights Act

Mak¹,

Sidman²

2020

J Empirical Legal Studies

Self Cite

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“…Indeed, in a recent study, Mak et al. make a compelling empirical argument that the Court's decision to review a case is not independent, but is closely linked to the behavior of litigants who bring the case to the Supreme Court (:72). Disputes presented to the Court for potential adjudication represent only a sample of lower court cases that are appropriate for review—and they are a nonrandom sample chosen by the parties rather than by the justices.…”

Section: Background and Related Literaturementioning

confidence: 99%

Judicial Ideology and the Selection of Disputes for U.S. Supreme Court Adjudication

Yates

Cann

Boyea

2013

J Empirical Legal Studies

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In political science, the well‐known “attitudinal model” of legal decision making dictates that judges' sincere policy preferences drive legal outcomes. In contrast, the celebrated “selection hypothesis” from the law and economics literature suggests that litigants carefully consider factors affecting potential case success (including judicial ideology) and accordingly choose, in the name of efficiency, to settle or not pursue cases in which legal outcomes can be readily predicted. Thus, judges end up adjudicating a nonrandom set of cases that, in the typical situation, should not lend themselves to ideological judicial decision making. From this perspective, the influence of Supreme Court justices' ideological preferences on outcomes could be obviated by the forward‐thinking decisions of mindful litigants. We are left with two dominant theories on jurisprudential outcomes that appear to be at odds with each other. We endeavor to address this situation by incorporating litigation case sorting considerations into a basic attitudinal account of Supreme Court justice decision making in environmental cases. Our primary thesis is that the influence of judicial ideology on legal outcomes is conditioned on case sorting decisions (by both litigants and justices) that precede the justices' voting decisions on the merits. We augment our assessment of this thesis by evaluating our basic model on a subset of cases involving the Court's most formidable litigator—the federal government. We find that in both scenarios, the influence of justices' attitudes on their merits voting is indeed conditioned on case sorting. We conclude that the effect of justices' attitudes on Supreme Court policy making likely works in both direct and indirect ways in that their known ideological proclivities may lead to the strategic sorting of cases for Supreme Court adjudication.

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Pursuing Change or Pursuing Credit? Litigation and Credit Claiming on Social Media

Gunderson

Widner²,

Macdonald³

2023

J. law courts

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Interest groups often post about their judicial advocacy on social media. We argue that they do so for two main reasons. First, providing information about the courts on social media builds the group’s credibility as a source of information with policymakers, media and the public. Second, social media provides a way to claim credit for litigation activity and outcomes, which can increase membership and aid in fundraising. Using original datasets of millions of tweets and Facebook posts by interest groups, we provide evidence that interest groups use social media for public education and to credit claim for their litigation activity.

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Is Certiorari Contingent on Litigant Behavior? Petitioners' Role in Strategic Auditing

Cited by 17 publications

References 57 publications

Separate Opinion Writing Under Mandatory Appellate Jurisdiction: Three‐Judge District Court Panels and the Voting Rights Act

Separate Opinion Writing Under Mandatory Appellate Jurisdiction: Three‐Judge District Court Panels and the Voting Rights Act

Judicial Ideology and the Selection of Disputes for U.S. Supreme Court Adjudication

Pursuing Change or Pursuing Credit? Litigation and Credit Claiming on Social Media

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