Strategic judicial lawmaking: An empirical investigation of ideology and publication on the United States Court of Appeals for the Ninth Circuit. Appointing federal judges: The President, the Senate, and the prisoner's dilemma. Generic constitutional law.

摘要

The first essay tests the hypothesis that federal appeals court judges engage in strategic judicial lawmaking by voting more ideologically in published cases than in unpublished cases. To test this hypothesis, all asylum cases decided by the Ninth Circuit over a ten-year period were coded for analysis, and Markov Chain-Monte Carlo methods were used to estimate the extent to which publication increased the likelihood that each judge in the data set would vote in favor of asylum. A number of Democratic appointees proved significantly more likely to vote in favor of asylum in published cases.; The second essay argues that the expansion of the White House's role in judicial appointments since the late 1970s, at the expense of the Senate, has contributed to heightened levels of ideological conflict and gridlock over the appointment of federal appeals court judges, by making a cooperative equilibrium difficult to sustain. Presidents have greater electoral incentive to behave ideologically, and less incentive to cooperate with other players in the appointments process, than do senators, who are disciplined to a greater extent in their dealings with each other by the prospect of retaliation over repeat play. The possibility of divided government exacerbates the difficulty of achieving cooperative equilibrium by making both the benefits of cooperative behavior and the costs of retaliation highly uncertain.; The third essay suggests the emergence of a body of generic constitutional law here and in other countries, for a variety of reasons. First, constitutional courts experience a common need to justify judicial review. This concern, and the stock responses that courts have developed, amount to a body of generic constitutional theory. Second, courts employ common problem-solving skills in constitutional cases. The use of these skills constitutes what might be called generic constitutional analysis. Third, courts face overlapping influences, largely not of their own making, that encourage the adoption of similar legal rules. These similarities make up a body of generic constitutional doctrine. In conclusion, the essay discusses why the idea of generic constitutional law should matter to academics, and whether judges can or should resist its development.