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Judicial Response or Litigant Strategy: Examining the Success of the U.S. Solicitor General

28 Pages Posted: 1 Aug 2011 Last revised: 13 Jun 2014

Brent D. Boyea

University of Texas at Arlingtion

Jeff Yates

Binghamton University - Department of Political Science

Damon M. Cann

Utah State University - Department of Political Science

Date Written: 2011

Abstract

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 to settle cases in which legal outcomes can be readily predicted in the name of efficiency. Thus, judges end up adjudicating a non-random set of cases which, in the typical situation, should not lend themselves to ideological decision making. From this perspective, the influence of Supreme Court justices’ ideological preferences on outcomes should 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 litigant selection effect considerations into a basic attitudinal account of Supreme Court justice decision making. Our primary thesis that the influence of judicial ideology on legal outcomes is conditioned on case sorting decisions that precede the justices’ case decisions on merits. We also extend 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.

Keywords: judicial politics, presidency, lawyers, solicitor general, US Supreme Court

Suggested Citation

Boyea, Brent D. and Yates, Jeff and Cann, Damon M., Judicial Response or Litigant Strategy: Examining the Success of the U.S. Solicitor General (2011). APSA 2011 Annual Meeting Paper. Available at SSRN: https://ssrn.com/abstract=1901133

Brent D. Boyea (Contact Author)

University of Texas at Arlingtion ( email )

Department of Political Science
601 S. Nedderman Drive, Box 19539
Arlington, TX 76019
United States
817-272-5449 (Phone)

HOME PAGE: http://www.uta.edu/faculty/bboyea/

Jeff L. Yates

Binghamton University - Department of Political Science ( email )

Binghamton, NY 13902
United States

Damon M. Cann

Utah State University - Department of Political Science ( email )

0725 University Blvd.
Logan, UT 84322-0725
United States

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