Congressional Control of the Courts: A Theoretical and Empirical Analysis of Expansion of the Federal Judiciary

Congress has many available tools to influence the federal judiciary. In this article, we consider Congress\u27 ability to balance, or stack, the courts through the creation of federal judgeships. While caseload pressure often produces the need for more judgeships, we demonstrate that political party alignment between Congress and the president often determines the timing of the judicial expansion. The net effect of expanding during political alignment is to speed up changes in the political balance of the judiciary in favor of the current Congress. We also examine the determinants of expansion size and show that both political alignment and caseload pressure influence Congress\u27 decision regarding how many judgeships to add

The Structure and Conduct of Corporate Lobbying: How Firms Lobby the Federal Communications Commission

lobbying (internal organization vs. trade association) by firms in administrative agencies. It explores the power and limitations of the collective action theories and transaction cost theories in explaining lobbying. It introduces a dataset of over 900 lobbying contacts cover 101 issues at the Federal Communications Commission (FCC) in early 1998. We find that the structure and conduct of large firm lobbying at the FCC is consistent with the predictions of theories of transaction costs and the main results of theories of collective action. However, large firms do not change their behavior drastically as structures arise to remedy the free rider problem. Small firms show no sensitivity to collective action issues or transaction cost issues in the organization or amount of their lobbying, but they do lobby less when having to reveal proprietary information. In sum, large firms behave largely consistent with theoretical predictions, while small firms do not.

Judicial Citation to Legislative History: Contextual Theory and Empirical Analysis

Judge Leventhal famously described the invocation of legislative history as the equivalent of entering a crowded cocktail party and looking over the heads of the guests for one\u27s friends. The volume of legislative history is so great and varied, some contend, that judges cite it selectively to advance their policy agendas. In this article, we employ positive political and contextual theories of judicial behavior to examine how judges use legislative history. We consider whether opinion-writing judges, as Judge Leventhal might suggest, cite legislative history from legislators who share the same political-ideological perspective as the opinion-writing judge? Or do judges make such choices in a broader context than Judge Levanthal\u27s statement suggests. We posit that an opinion writing judge would cite legislative statements supporting an outcome preferred by the opinion-writing judge, when such statements come from legislators who share the same political-ideological perspective as the opinion-writing judge\u27s colleagues or superiors. This should be so regardless of whether the cited legislator shares the broader perspectives of the opinion-writing judge himself. Put in Leventhal\u27s terms, instead of looking for their own ideological friends, judges look over the heads of the guests for the legislative friends of the judge\u27s colleagues on the bench (or superiors on higher benches). We test this approach with court opinion data gathered from LEXIS and find evidence of hierarchy (high court oversight) and panel (co-members on a court) effects in citation to legislative history, effects that appear related to the political-ideological identification of judges who review or are co-members on a panel of the authoring judge. Specifically, we find that the higher the proportion of Republicans in the reviewing court or sitting on the same three-judge panel, the higher the proportion of legislative history cites that will be to Republican legislators, independent of the political orientation of the authoring judge

Judicial Citation to Legislative History: Contextual Theory and Empirical Analysis

Judge Leventhal famously described the invocation of legislative history as the equivalent of entering a crowded cocktail party and looking over the heads of the guests for one\u27s friends. The volume of legislative history is so great and varied, some contend, that judges cite it selectively to advance their policy agendas. In this article, we employ positive political and contextual theories of judicial behavior to examine how judges use legislative history. We consider whether opinion-writing judges, as Judge Leventhal might suggest, cite legislative history from legislators who share the same political-ideological perspective as the opinion-writing judge? Or do judges make such choices in a broader context than Judge Levanthal\u27s statement suggests. We posit that an opinion writing judge would cite legislative statements supporting an outcome preferred by the opinion-writing judge, when such statements come from legislators who share the same political-ideological perspective as the opinion-writing judge\u27s colleagues or superiors. This should be so regardless of whether the cited legislator shares the broader perspectives of the opinion-writing judge himself. Put in Leventhal\u27s terms, instead of looking for their own ideological friends, judges look over the heads of the guests for the legislative friends of the judge\u27s colleagues on the bench (or superiors on higher benches). We test this approach with court opinion data gathered from LEXIS and find evidence of hierarchy (high court oversight) and panel (co-members on a court) effects in citation to legislative history, effects that appear related to the political-ideological identification of judges who review or are co-members on a panel of the authoring judge. Specifically, we find that the higher the proportion of Republicans in the reviewing court or sitting on the same three-judge panel, the higher the proportion of legislative history cites that will be to Republican legislators, independent of the political orientation of the authoring judge

Federal Circuit Patent Precedent: An Empirical Study of Institutional Authority and IP Ideology

In this paper, we aim to better understand the institutional authority of the Federal Circuit as a source of law as well as the influence of pro-patent and anti-patent ideological forces at play between the Supreme Court, Federal Circuit, and the district courts. Our specific focus is on the district courts and how they cite Federal Circuit precedent relative to Supreme Court precedent to support their decisions, whether they be pro-patent or anti-patent. Using a variety of citation approaches and statistical tests, we find that federal district courts treat the Federal Circuit as more authoritative (compared to the Supreme Court) on patent law, than they treat the regional circuits (compared to the Supreme Court) on copyright law. Second, the Federal Circuit\u27s precedent tends to be relied on more in pro-patent opinions than in anti-patent opinions. In addition, both of these effects are stronger in how the district courts use the precedent—i.e., how many times precedent is cited—than in what higher court precedent is used

Citation to Legislative History: Empirical Evidence on Positive Political and Contextual Theories of Judicial Decision Making

We present empirical evidence suggesting that political context—judicial hierarchy and judicial panel dynamics—influences an authoring judge’s use of legislative history. Specifically, we find that to the extent that political ideology matters, a district court judge’s choice of legislative history is influenced, albeit mostly, by (1) the political makeup of the overseeing circuit court and (2) the political characteristics of a judge’s panel colleagues, as well as by the circuit court as a whole. These factors matter more than the authoring judge’s own political-ideological connection to the legislators. Put differently, an authoring judge will have a greater tendency to cite legislative history by legislators who share political affiliation with the colleagues and superiors of the authoring judge than legislators sharing the same political party affiliation as the authoring judge himself. These findings are consistent generally with positive political and contextual theories of judicial persuasion, collegiality, and strategic decision making