The New Legal Realism

The last decade has witnessed the birth of the New Legal Realism - an effort to go beyond the old realism by testing competing hypotheses about the role of law and politics in judicial decisions, with reference to large sets and statistical analysis. The New Legal Realists have uncovered a Standard Model of Judicial Behavior, demonstrating significant differences between Republican appointees and Democratic appointees, and showing that such differences can be diminished or heightened by panel composition. The New Legal Realists have also started to find that race, sex, and other demographic characteristics sometimes have effects on judicial judgments. At the same time, many gaps remain. Numerous areas of law remain unstudied; certain characteristics of judges have yet to be investigated; and in some ways, the existing work is theoretically thin. The New Legal Realism has clear jurisprudential implications, bearing as it does on competing accounts of legal reasoning, including Ronald Dworkin's suggestion that such reasoning is a search for 'integrity.' Discussion is devoted to the relationship between the New Legal Realism and some of the perennial normative questions in administrative law.

The Real World of Arbitrariness Review

The Administrative Procedure Act instructs federal courts to invalidate agency decisions that are 'arbitrary' or 'capricious.' In its 1983 decision in the State Farm case, the Supreme Court firmly endorsed the idea that arbitrariness review requires courts to take a 'hard look' at agency decisions. The hard look doctrine has been defended as a second-best substitute for insistence on the original constitutional safeguards; close judicial scrutiny is said to discipline agency decisions and to constrain the illegitimate exercise of discretion. In the last two decades, however, hard look review has been challenged on the plausible but admittedly speculative ground that judges' policy preferences affect judicial decisions about whether agency decisions are 'arbitrary.' This study, based on an extensive data set, finds that the speculation is correct. Democratic appointees are far more likely to vote to invalidate, as arbitrary, conservative agency decisions than liberal agency decisions. Republican appointees are far more likely to invalidate, as arbitrary, liberal agency decisions than conservative agency decisions. Significant panel effects are also observed. Democratic appointees show especially liberal voting patterns on all-Democratic panels; Republican appointees show especially conservative voting patterns on all-Republican panels. Our central findings do not show that judicial votes are dominated by political considerations, but they do raise grave doubts about the claim that hard look review is operating as a neutral safeguard against the errors and biases of federal agencies. Because judicial policy commitments are playing a large role, there is a strong argument for reducing the role of those commitments, and perhaps for softening hard look review.

Do Judges Make Regulatory Policy? An Empirical Investigation of Chevron

In the last quarter-century, the Supreme Court has legitimated agency authority to interpret regulatory legislation, above all in Chevron U.S.A., Inc v Natural Resources Defense Council, Inc, the most-cited case in modern public law. Chevron recognizes that the resolution of statutory ambiguities often requires judgments of policy; its call for judicial deference to reasonable interpretations was widely expected to have eliminated the role of policy judgments in judicial review of agency interpretations of law. But this expectation has not been realized. On the Supreme Court, conservative justices vote to validate agency decisions less often than liberal justices. Moreover, the most conservative members of the Supreme Court show significantly increased validation of agency interpretations after President Bush succeeded President Clinton, and the least conservative members of the Court show significantly decreased validation rates in the same period. In a similar vein, the most conservative members of the Court are less likely to validate liberal agency interpretations than conservative ones and the least conservative members of the Court show the opposite pattern. Similar patterns can be found on federal appellate courts. In lower court decisions involving the EPA and the NLRB from 1990 to 2004, Republican appointees demonstrated a greater willingness to invalidate liberal agency decisions and those of Democratic administrations. These differences are greatly amplified when Republican appointees sit with two Republican appointees and when Democratic appointees sit with two Democratic appointees.

Empiricism and the Rising Incidence of Coauthorship in Law

The recent growth of empirical scholarship in law, which some have termed empirical legal studies, has received much attention. A less-noticed implication of this trend is its potential impact on the manner of scholarly production in legal academia. A common prediction is that academic collaboration rises with scholarly specialization. As the complexity of a field grows, more human capital and more diverse types of human capital are needed to make a contribution. This Article presents two tests of whether empiricism has spurred more coauthorship in law. First, the Article shows that the fraction of articles in the top fifteen law reviews that were empirical or coauthored (or both) trended upwards between 2000 and 2010. The increase in empirical articles accounted for a substantial share of the growth in coauthored articles, and the correlation between coauthorship and empiricism persisted after controlling for numerous other influences. Second, the Article examines the articles published since 1989 in two prominent, faculty-edited journals specializing in law and economics: the Journal of Legal Studies and the Journal of Law, Economics and Organization. Coauthored articles were far more common in these journals than in the general interest, student-edited law reviews-a pattern which itself is consistent with the specialization hypothesis. The share of articles without empirical analysis or formal models in these journals plummeted over this period, while coauthorship rose sharply. These results support the view that specialization, and specifically the growth of empirical scholarship, has contributed to the trend of coauthorship in legal academia

Low radiation dose in computed tomography: the role of iodine

Recent approaches to reducing radiation exposure during CT examinations typically utilize automated dose modulation strategies on the basis of lower tube voltage combined with iterative reconstruction and other dose-saving techniques. Less clearly appreciated is the potentially substantial role that iodinated contrast media (CM) can play in low-radiation-dose CT examinations. Herein we discuss the role of iodinated CM in low-radiation-dose examinations and describe approaches for the optimization of CM administration protocols to further reduce radiation dose and/or CM dose while maintaining image quality for accurate diagnosis. Similar to the higher iodine attenuation obtained at low-tube-voltage settings, high-iodine-signal protocols may permit radiation dose reduction by permitting a lowering of mAs while maintaining the signal-to-noise ratio. This is particularly feasible in first pass examinations where high iodine signal can be achieved by injecting iodine more rapidly. The combination of low kV and IR can also be used to reduce the iodine dose. Here, in optimum contrast injection protocols, the volume of CM administered rather than the iodine concentration should be reduced, since with high-iodine-concentration CM further reductions of iodine dose are achievable for modern first pass examinations. Moreover, higher concentrations of CM more readily allow reductions of both flow rate and volume, thereby improving the tolerability of contrast administration

Depoliticizing Administrative Law

A large body of empirical evidence demonstrates that judicial review of agency action is highly politicized, in the sense that Republican appointees are significantly more likely to invalidate liberal agency decisions than conservative ones, while Democratic appointees are significantly more likely to invalidate conservative agency decisions than liberal ones. These results hold for both (a) judicial review of agency interpretations of law and (b) judicial review of agency decisions for "arbitrariness" on questions of policy and fact. On the federal courts of appeals, the most highly politicized voting patterns are found on unified panels, that is, on panels consisting solely of either Democratic or Republican appointees. On the Supreme Court, politicized administrative law is also unmistakable, as the more conservative justices show a distinctive willingness to vote to invalidate liberal agency decisions, and the more liberal justices show a distinctive willingness to vote to invalidate conservative agency decisions. Indeed, it is possible to "rank" justices in terms of the extent to which their voting patterns are politicized. The empirical results raise an obvious question: What might be done to depoliticize administrative law? Three sets of imaginable solutions have promise: (1) self-correction without formal doctrinal change, produced by a form of "debiasing" that might follow from a clearer judicial understanding of the current situation; (2) doctrinal innovations, as, for example, through rethinking existing deference principles and giving agencies more room to maneuver; and (3) institutional change, through novel voting rules and requirements of mixed panels. An investigation of these solutions has implications for other domains in which judges are divided along political lines, and indeed in which nonjudicial officials show some kind of politicized division or bias

Depoliticizing Administrative Law

A large body of empirical evidence demonstrates that judicial review of agency action is highly politicized in the sense that Republican appointees are significantly more likely to invalidate liberal agency decisions than conservative ones, while Democratic appointees are significantly more likely to invalidate conservative agency decisions than liberal ones. These results hold for both (a) judicial review of agency interpretations of law and (b) judicial review of agency decisions for arbitrariness on questions of policy and fact. On the federal courts of appeals, the most highly politicized voting patterns are found on unified panels, that is, on panels consisting solely of either Democratic or Republican appointees. On the Supreme Court, politicized administrative law is also unmistakable, as the more conservative Justices show a distinctive willingness to vote to invalidate liberal agency decisions, and the more liberal Justices show a distinctive willingness to vote to invalidate conservative agency decisions. Indeed, it is possible to rank Justices in terms of the extent to which their voting patterns are politicized. The empirical results raise an obvious question: what might be done to depoliticize administrative law? Three sets of imaginable solutions have promise: (1) self-correction without formal doctrinal change, produced by a form of debiasing that might follow from a clearer judicial understanding of the current situation; (2) doctrinal innovations, as, for example, through rethinking existing deference principles and giving agencies more room to maneuver,, and (3) institutional change, through novel voting rules and requirements of mixed panels. Each of these solutions runs into significant problems, though the evidence suggests that mixed panels would greatly reduce politicized voting. An investigation of these solutions has implications for other domains in which judges are divided along political lines, and indeed in which nonjudicial officials, including members of regulatory commissions, show some kind of politicized division or bias. In multiple areas, politicized voting might be reduced through disclosure of existing patterns, through doctrinal changes, or through institutional change