• Selected
• Entire List

Abstract:
Although business methods previously had been patented, the Court of Appeals for the Federal Circuit first gave them formal recognition as patentable subject matter in 1998. Internet business method patents have been roundly criticized by most observers as being singularly inferior to most other patents. Many have even argued that business methods should not be patentable subject matter. As a result, Congress and the Patent and Trademark Office (PTO) singled them out for special treatment. All of these criticisms were voiced without empirical support. We gathered data on most Internet business method patents issued through the end of 1999 and compared them with a large contemporaneous data set of patents in general. We also compared them with patents in fourteen individual technology areas within the general patent data set. Our comparison focused on several metrics that we believe serve as good proxies for patent quality and value.

We found that Internet business method patents appear to have been no worse than the average patent, and possibly even better than most. They also appear to have been no worse, and possibly even better than patents in most individual technology areas. These findings lead us to question the conventional wisdom that these patents were uniquely deficient. We briefly explore some possible explanations for the chasm between the accepted view and what we believe to have been the reality, including the possibility that negative opinions about these patents may have been characterized by an information cascade. More important, we believe that efforts to single out these patents for special treatment not only lacked sound justification in the particular case but also reveal more fundamental problems associated with ex ante definitions to carve out any particular technology area for different treatment.

Abstract:
This paper examines the amount and organization (individual vs. collective) of lobbying 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 covering 101 issues at the Federal Communications Commission (FCC) in early 1998. It finds 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. Small firms show little sensitivity to collective-action issues or transaction-cost issues in the organization of their lobbying, but they do lobby less when having to reveal proprietary information. In sum, large firms behave in a manner largely consistent with theoretical predictions, while small firms do not.

Abstract:
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.

Abstract:
This paper examines the amount and organization of 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 covering 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 transaction costs theories and the main results of collective action theories. 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.

Abstract:
Legal doctrine is the currency of the law. In many respects, doctrine is the law, at least as it comes from courts. Judicial opinions create the rules or standards that comprise legal doctrine. Yet the nature and effect of legal doctrine has been woefully understudied. Researchers from the legal academy and from political science departments have conducted extensive research on the law, but they have largely ignored the others' efforts. Part of the reason for this unfortunate disconnect is that neither has effectively come to grips with the descriptive meaning of legal doctrine. In this article, we attempt to describe the concept of legal doctrine and propound various theories of how legal doctrine may matter in judicial decision making and how those theories may be empirically tested.

Legal doctrine, law and positive political theory

Abstract:
We present a positive political theory of criminal sentencing and test it using data from the United States Sentencing Commission. The theory predicts that the policy preferences of the sentencing judge matter in sentencing, that sentencing judges consider the policy preferences of the overseeing circuit court when making their own sentencing decisions, and that sentencing judges manipulate the underlying sentencing instruments associated with the United States Sentencing Guidelines - fact-oriented "adjustments" to a defendant's offense level, and law-oriented "departures" from the Sentencing Guidelines - to achieve their preferred outcomes subject to the constraint of circuit court review. Because a sentencing judge's use of adjustments is reviewed with great deference by appellate courts, sentencing judges use them to maximize their preferences without regard to the preferences of the overseeing circuit court. Departures, by contrast, are reviewed with greater scrutiny by the circuit courts and their use is dependent in part upon the amount of policy preference alignment between the sentencing judge and the circuit court - the greater the alignment of generalized sentencing preferences between the two courts, the more use of departures by the sentencing judges. The empirical test of our theory finds that, as predicted: (1) judges' policy preferences (measured by political ideology) matter in sentencing - liberal judges give different sentences than conservative judges for certain categories of crime; (2) the length of sentence given by sentencing judges depends in part on the amount of political-ideological alignment between the sentencing judge and the circuit court; and, (3) the use of law-oriented departures to determine sentence length is influenced by the degree of political alignment between the sentencing judge and the overseeing circuit court, while the use of fact-oriented adjustments is not so influenced.

Law and positive political theory, judges, judicial hierarchy, law and politics, criminal sentencing, sentencing guidelines

Abstract:
Much of American legal discourse is driven by concern over how judges should follow or create legal doctrines - decision-making rules established or endorsed by higher courts that stipulate, with varying degrees of specificity, outcomes that should follow from underlying fact patterns. In this Article, we model legal doctrine as an instrument of political control by higher courts over lower courts and the case outcomes they produce. Working out of a Law and Positive Political Theory framework, we focus on the amount of judicial political control exercised in the choice between creating determinate (highly specified) and indeterminate (weakly specified) doctrines within a hierarchy of courts. The model assumes that the creators of legal doctrine - higher courts - are policy seeking actors who, within the limitations of professionalism and public legitimacy, manipulate the structure of legal doctrine to maximize political-ideological policy objectives. The key determinants of doctrinal choice in our model are (1) the amount of political-ideological alignment between lower and higher courts, (2) the inherent control characteristics of doctrines themselves, and (3) how the choice of doctrines maps on to preferred litigant successes.

Positive Political Theory, Legal Doctrine, Judicial Hierarchy

Abstract:
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's 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's 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's 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's terms, instead of looking for their own ideological friends, judges look over the heads of the guests for the legislative friends of the judge's 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.

Legislative History, Contextual Theory, Law and Positive Political Theory, Empirical, Judicial Behavior

Abstract:
This article presents the first large-scale empirical study of federal guidelines sentencing that matches offenders to the sentencing judge. We confirm the widely-held belief that political ideology matters in criminal sentencing - specifically, Republican-appointed judges give longer sentences than Democrat-appointees with regard to certain crimes. More interestingly, we find evidence consistent with positive political theory that such decision making is nested within the broader political-ideological relationship of the sentencing judge and the overseeing circuit court. We find, for example, that Democrat-appointed judges depart from the Sentencing Guidelines to give shorter sentences more often and to a greater degree when the reviewing court is politically aligned (circuit majority Democrat-appointed) than when not aligned (circuit majority Republican-appointed). We then discuss the Supreme Court's evolving sentencing jurisprudence and the likely impact of alternatives to the present system. We conclude that Guidelines improves sentencing consistency and preserves the benefit of appellate review. We also proposes two potential reforms: first, mandating open access to judge identifiers in sentencing data for researchers to study sources of judicial bias; and, second, mandating ideologically mixed appellate panels for review of criminal sentences to prevent the more extreme instances of ideological alignment that frequently occur between district and circuit court panels that lead to more extreme outcomes in sentencing.

Judicial decision-making, criminal law, sentencing, political science

Abstract:
This paper incorporates insights from Positive Political Theory to examine the role of legislative reform on judicially created legal doctrines relating to private securities litigation. The study bears on the general question of how Congress can influence the use of legal doctrines within a judicial hierarchy. Specifically, we examine the effect of the Private Securities Litigation Reform Act of 1995 on the use of the "Group Pleading Doctrine" and "Fraud on the Market" theory - two doctrines that assisted plaintiff-investors in overcoming the strict federal pleading requirements for bringing their claims in federal court.

Positive Political Theory, judicial politics, judicial hierarchy, securities, fraud on the market, group pleading

Abstract:
In the recent Booker, Rita, and Gall cases, the Supreme Court continued to loosen federal sentencing law without exploring the implications of broader trial-court sentencing discretion. Drawing on our previous work in positive political theory, this essay argues that binding sentencing guidelines are necessary to constrain trial-court discretion and permit meaningful appellate review. The Court has taken too rosy a view of trial-court sentencing discretion, undervaluing appellate review as a check on policy and ideological variations. Moreover, its case law discourages the transparency needed for appellate review and public scrutiny. Finally, this essay considers what guideline sentencing ought to look like if we could build it from scratch.

criminal law and procedure, sentencing, guidelines, discretion

Abstract:
Expanding the number of U.S. district judgeships is often justified as a response to expanding caseloads. Increasing judgeships during unified government, however, allows Congress and the President to engage in political (patronage and ideological) control of the federal district courts. This paper examines empirically the relative importance of caseload pressure and political motives for Congress to expand the number of federal district judgeships. We demonstrate that politics dominates the timing of judgeship expansion in the U.S. District Courts. We also show that both politics and caseload affect the actual size of those timed expansions. In particular, we find that before 1970, Congress seemed to have strong political motivations for the size of an expansion. After 1970, Congress became much more attentive to caseload considerations.

Abstract:
Expanding the number of U.S. district judgeships is often justified as a response to expanding caseloads. Increasing judgeships during unified government, however, allows Congress and the President to engage in political (patronage and ideological) control of the federal district courts. This paper examines empirically the relative importance of caseload pressure and political motives for Congress to expand the number of federal district judgeships. We demonstrate that politics dominates the timing of judgeship expansion in the U.S. District Courts. We also show that both politics and caseload affect the actual size of those timed expansions. In particular, we find that before 1970, Congress seemed to have strong political motivations for the size of an expansion. After 1970, Congress became much more attentive to caseload considerations.

Abstract:
Expanding the number of U.S. district judgeships is often justified as a response to expanding caseloads. Increasing judgeships during unified government, however, allows Congress and the President to engage in political (patronage and ideological) control of the federal district courts. This paper examines empirically the relative importance of caseload pressure and political motives for Congress to expand the number of federal district judgeships. We demonstrate that politics dominates the timing of judgeship expansion in the U.S. District Courts. We also show that both politics and caseload affect the actual size of those timed expansions. In particular, we find that before 1970, Congress seemed to have strong political motivations for the size of an expansion. After 1970, Congress became much more attentive to caseload considerations.

Abstract:
Expanding the number of U.S. district judgeships is often justified as a response to expanding caseloads. Increasing judgeships during unified government, however, allows Congress and the President to engage in political (patronage and ideological) control of the federal district courts. This paper examines empirically the relative importance of caseload pressure and political motives for Congress to expand the number of federal district judgeships. We demonstrate that politics dominates the timing of judgeship expansion in the U.S. District Courts. We also show that both politics and caseload affect the actual size of those timed expansions. In particular, we find that before 1970, Congress seemed to have strong political motivations for the size of an expansion. After 1970, Congress became much more attentive to caseload considerations.

Abstract:
This article examines the impact of political-ideology and political responsiveness of state courts in the evolution of the common law contract principles – in particular, promissory estoppel.

Contracts, Courts, Law and posititve political theory

Abstract:
This article presents models of strategic behavior by agencies and courts where the ability to manipulate the instruments of decision making, rather than merely selecting policy choices, allows actors to insulate their policy choices from higher level review. The theory is based on the notion that decision instruments (for example, rulemaking and adjudication for agencies, statutory interpretation and reasoning process review for courts) pose differential costs and payoffs for both the initiating and reviewing actors, each of whom have resource constraints. Because the initiating actor has the choice among instruments to make a decision (and to which a higher level reviewing actor is tied), the initiating actor can manipulate decision costs in a strategic fashion (choosing high-cost instruments to discourage higher level review, in particular). This article adds new insight into how judges and agencies engage in strategic decision making.

Abstract:
This article presents models of strategic behavior by agencies and courts where the ability to manipulate the instruments of decision making, rather than merely selecting policy choices, allows actors to insulate their policy choices from higher level review. The theory is based on the notion that decision instruments (for example, rulemaking and adjudication for agencies, statutory interpretation and reasoning process review for courts) pose differential costs and payoffs for both the initiating and reviewing actors, each of whom have resource constraints. Because the initiating actor has the choice among instruments to make a decision (and to which a higher level reviewing actor is tied), the initiating actor can manipulate decision costs in a strategic fashion (choosing high-cost instruments to discourage higher level review, in particular). This article adds new insight into how judges and agencies engage in strategic decision making.

Abstract:
We model legal doctrine as an instrument of political control by higher courts over lower courts and the case outcomes they produce. We focus on the choice between determinate and indeterminate doctrines within a hierarchy of courts where political-ideological alignment between lower and higher courts varies. We show that the choice over doctrinal determinacy depends on the distribution of cases, the distribution of litigants, judicial types, and the level of policy alignment between higher and lower court judges. The model suggests the optimal doctrinal choice for a high court, given the political-ideological alignment between the high court and the lower court, the control characteristics of doctrines themselves, and the matching of doctrines to litigant pools. This has implications regarding preference divergence within the judicial hierarchy, the interaction of different doctrines, and interplay between doctrinal specificity and doctrinal reach.

Abstract:
We present a positive political theory of criminal sentencing and test it using data from the U.S. Sentencing Commission. Under the U.S. Sentencing Guidelines, judges can use offense-level adjustments (fact-based decision making) to lengthen or shorten the Guidelines' presumptive sentences. Judges also can use departures from the Guidelines (law-based decision making) to lengthen or shorten sentences. In general, departures are reviewed more strictly than adjustments by circuit (appeals) courts. Our theory predicts that a sentencing judge politically aligned with the circuit court will be more likely to alter sentences through sentencing departures than a judge not so aligned with the circuit; by contrast, our theory predicts that judges can more freely use fact-oriented adjustments to alter sentences, regardless of the circuit court's sentencing policy preferences. Our analysis of federal sentencing data largely supports the theory's predictions regarding the use of adjustments and departures and the impact of political alignment between higher courts and sentencing judges.

Abstract:
While the notion of decision costs and limited resources as constraints on law and policy making have found their way into recent legal analyses, few scholars have described the broader political control strategies available to institutions using such resource-based approaches. The political control exercised by Congress, the President, and courts through cost-benefit analysis, and similar strategy-laden instruments, allows one or more policy makers to force a competing policy maker to expend valuable, and limited, resources thereby preventing, or greatly compromising, policies desired by the competing policy maker. Resource-based strategies can be exercised horizontally through separated powers games or vertically (upstream and downstream) in court-agency hierarchies. These strategies are revealed in legislation and agency design by Congress, executive orders by the President, and doctrine and other instruments of legal reasoning by the judiciary. Positive Political Theory offers a framework for thinking about these resource-based strategies and the implications are profound. This article solidifies the current understanding of resource-based strategies from the Positive Political Theory (PPT) perspective and presents extensions, including analyses of (1) the differential resource impacts on policy players from the various types of regulation that may be imposed on agencies (benefits statutes and cost-benefit statutes), and (2) the introduction of regulated targets as resource strategizers with public institutions.

Abstract:
Recent theories of judicial decision making suggest that federal judges are likely to exploit the structure of law to protect decisions which implement their policy preferences. One perspective asserts that judges, when making decisions that move policy toward their preferred policy outcomes, will be more likely to choose legal grounds -- or judicial instruments -- that are difficult for other political actors to reverse than when making decisions that move policy away from the judges' preferred outcomes. We test this "strategic instrument" perspective and compare our results with those expected from other models of judicial decision making. Using federal circuit court cases reviewing the Environmental Protection Agency from 1981 to 1993, we conduct both bivariate analysis and multinomial logit regression to measure the effect of policy goals on the legal instruments chosen by judges. Our results support the conclusion that strategic considerations systematically influence judicial decision making.

Abstract:
In this paper, the authors test whether or not judges act strategically in choosing the "instruments" they use to reverse regulatory agency decisions. Using all published federal appellate court decisions reviewing the EPA from the years 1981-1992, the authors find support for the notion that judges strategically select among the grounds for decisions based upon their desire to make the decision stick. In particular, the authors find that when Republican judicial panels reverse the EPA in favor of business interests, they use process instruments (which are more difficult for higher courts to review) more often than when they are reversing in favor of environmentalists. In contrast, Democratic judicial panels are more likely to use process instruments when they reverse the EPA in favor of environmentalists than when they are reversing in favor of business interests. The results are statistically significant.

Abstract:
In this paper, the ability of a federal appellate court to control agency policy by imposing process requirements upon the agency is analyzed under two administrative law regimes: the deference doctrine, where appellate courts are strictly limited in their ability to interfere with agency decision making, and the non-deference doctrine, where courts have greater reign in scrutinizing agency decision making. The emphasis on the judiciary's ability to affect regulatory process complements earlier scholarship in positive political theory that focused mainly on Congress' ability to use administrative process to control agency behavior. A model of judicial control is developed to allow for comparative statios considering different legal doctrines, shifting agency and judicial preferences, and changing agency resources. An examination of the Federal Energy Regulatory Commission and the D.C. Circuit Court of Appeals' battle over the deregulation of oil pipelines is undertaken to illustrate the insights of the model. Further evidence bearing on the model is also reviewed.

Abstract:
The ability of Congress to structure the institutional costs of agency and judicial decision making gives it considerable control over regulatory policy. The authors analyze the role of decision costs through models of agency-court interaction and consider the ability of Congress to manipulate such costs for its own policy purposes. The authors explore the implications of these models by examining recent congressional efforts to change the decision cost structures of agencies and courts. In particular, the authors consider the so-called "Bumpers Amendments of the 1980s and, from the 1990s, the Republican-proposed imposition of cost-benefit analysis on agency decision making.

Abstract:
In this paper, the authors develop a formal model of strategic interaction between federal regulatory agencies, appellate courts and the Supreme Court. The focus of the paper is on the ability of actors on the lower end of the review hierarchy (agencies and appellate court panels) to impose decision making costs on higher levels of review (appellate courts and the Supreme Court) by selecting the grounds (or "instruments") on which they base their decision.For agencies, the choice of instruments may be rulemaking vs. adjudication. For appellate courts, the choice to overturn an agency may be based on process vs. statutory interpretation. Certain instruments are more difficult for higher courts to review than others. Because higher level actors are resource constrained, they tend to defer to lower level decision makers more often if a high cost review instrument is involved. This allows for strategic behavior by the lower level actors.

Abstract:
In this paper, the ability of a federal appellate court to control agency policy by imposing process requirements upon the agency is analyzed under two administrative law regimes: the deference doctrine, where appellate courts are strictly limited in their ability to interfere with agency decision making, and the non-deference doctrine, where courts have greater reign in scrutinizing agency decisionmaking. The emphasis on the judiciary's ability to affect regulatory process complements earlier scholarship in positive political theory that focused mainly on Congress' ability to use administrative process to control agency behavior. A formal model of judicial control is developed to allow for comparative statistics considering different legal doctrines, shifting judicial preferences, and changing agency resources.An examination of the Federal Energy Regulatory Commission and the D.C. Circuit Court of Appeals' battle over the deregulation of oil pipelines is undertaken to illustrate the insights of the model.

Abstract:
Congress has many available tools to influence the federal judiciary. In this article, we consider Congress' 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 strongly influences 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' decision regarding how many judgeships to add.