JUDIC PROCESS BEHAV
JUDIC PROCESS BEHAV POLS 4740
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This 22 page Class Notes was uploaded by Estelle Prosacco on Saturday September 12, 2015. The Class Notes belongs to POLS 4740 at University of Georgia taught by Wanless in Fall. Since its upload, it has received 19 views. For similar materials see /class/202235/pols-4740-university-of-georgia in Political Science at University of Georgia.
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Date Created: 09/12/15
March 19 2012 Agenda Setting and the Court Readings Deciding to Decidequot and Hollow Hopequot excerpt and a rebuttal for Hollow Hopequot Ways Supreme Court In uences Policy Agenda 0 Case Selection 0 Impact of Decision can change the policy direction or need for policy change by other actors 0 Direct Judiciary taking up cases and which direction they rule in The Power to Decide What to Decide 0 Court Sets its own Agenda Discretionary Docket seems to change but only incrementally It evolves throughout time 0 Court membership tends to change its agenda 0 Main goal of case selection their desire to put the court s agenda in a certain direction courts see themselves as the national arbiter over certain government regulations 0 Policy making cycles 0 Changes from one main case to smaller cases to determine What is actually meant Case Selection 0 4 out of 9 justices must be present to grant cert 0 Process 1St there is the Initial Review of all Appeals 0 Cert Pool 0 Discussion List vs Dead List I Discussion List the chief justice makes a list of cases he believes should be discussed 0 Less than abt 15 of all cases are made onto the Discussion List but could possibly not be granted cert o More focus is on the Discussion List now than in the past 0 Not always public 0 Once the list is chosen the justices go down the list and determine which cases will get cert 0 Most cases are chose unanimously to get cert o I Dead List cases that will not take up and will not entertain the idea of those cases 0 Difference from being on Discussion List than being Granted Cert I To get on the Discussion List there doesn t have to be actual conflict but at least the potential for some type of con ict I Presence of the US as a party will get you on discussion list as well as claims of con ict presence of amicus briefs if the case deals with civil liberties the judges personal preferences on the case I 1 Initial Review of all Appeals I Factors that influence getting Cert from a case on the Discussion List 1 Ideology 2 Con ict real 3 Amicus Briefs Motivation for Setting the Agenda in Case Law 0 External influences 0 Political institution which gives credence and legitimacy by addressing it in its formal proceedings 0 Court must be attentive of external factors president congress public media 0 Court takes policy queues from president s agenda congress agenda and public opinion 0 Internal Influences 0 Anything that deals with members of the court organizational dynamics o The ore ideologically extreme the more likely they will devote time to their preferences 0 Why Does Court Allocate Agenda Space to One Issue Over Another Case Study 0 Case looking at criminal justices cases as an issues area before the court 0 From 1955 1994 0 Findings The courts respond to external in uences other branches of the government 0 Court s internal ideological balance plays a part in the way they choose cases Specific Factors Affecting Case Selection 0 Procedural Considerations 0 Standing live case and problem etc 0 Legal or Principled Considerations 0 Rule 10 the governing principle of the court that believes justices would prefer to select cases that have been rendered decided differently between two federal courts or state courts or when the decision goes against the Supreme Courts on preference Principle Agenda Setting maintain legitimacy of the court any case that is O rendered Rule 10 will not be denied Cert but will not necessarily gain cert either 0 Political Considerations 0 Yates and other s motivations external and internal motivations 0 March 21 2012 Agenda Setting amp the Court 0 Courts Ability to In uence Congress 0 Three Criteria needed for court s ruling to be effective 1 Constitutional Standard and its simplicity The constitutional standard must be simple The court must have clear jurisdiction to hear the case 2 Control of Enforcement judges need to have control over their means of enforcement How 0 Their rulings need to be clear and specific 0 The change that needs to be made needs to be clear 0 The actor and the change need to be seen as legitimate 3 Public Opposition The public cannot be in opposition to the ruling and the ramifications of the law ruling made 0 How successful has the Court been at In uencing Congress agenda 1 Congress members are generally aware of what the court s plan or ruling will be 2 Congress can also build upon legislation 3 Factors At Work that we think determine Congress decisiongtgt 0 Agenda entrepreneurs ppl who care abt a specific case s issue and they work to make sure Congress responds to the courts accordingly Members agenda entrepreneurs Congress members specifically Congress members who serve on a committee dealing with a certain issue interest groups helps with salience journalists helps with salience I justices justices will insight congress to act this makes them a player 0 Relevant Crisis anything Where there is a major issue dealing with nature of the timesquot 0 Ideological Differences disparity between ideologies chances are high that Congress will take it up if opposing sides differ o Periods of Legal Reform 0 Why are certain cases taken up by Congress 1 About 50 of cases are taken by Congress 2 Largest determinant is Whether or not the Courts ask or incite Congress to act 0 Why are some cases able to attract sustained attention 1 Cases are only brought up once 0 Why do some cases receive immediate attention 1 Very small chance that Congress will accept a case the same year its accepted normally takes longer 2 If two of the agenda entrepreneurs are present justices and interest groups the process is normally faster possibly in the same year c This also could mean there is a presence of a relevant case 0 Congress Responses to Court Decisions 0 Four Categories 1 Negative Z S 4 o A divided court incites rnore reaction from Congress but if the court is unanimous Congress sticks to supporting the decision made Positive Both Negative amp Positive Neutral 0 Court Ability to Influence Attention to Issues 0 How does Court increase intention H N 9 8 By taking up a case you increase the advocacy groups involved rejuvenate rivals prornpt Congress to act essentially creating an issue Findings of a School Desegregationquot story prior to Brown v Board there were 3 stories concerning school segregation AFTER Brown v Board there were 29 cases LARGE jump 0 Brown v Board was a landmark case that received and affected the media attention on it dramatically increased it Findings on Free Speech cases flag burning 0 Had the most media attention alrnost instant media attention 0 Media attention will go up if public outrage forrns based on the case at hand Finding on Freedom of Religion cases 0 Increased media coverage but only for a short period of tirne not a hot topic issue 0 But schools and child prayer cases see a lot more media attention there is already a division between the people when the court brings it up it just reactivates public 5 Why do some decisions have a lasting effect c The magnitude of opposition to the decisions makes media focus more on it o If there is no real controversy between society media coverage will not see a large change March 26 2012 Writing Assignment POLS474O 4 7 pgs Outside sources 7 last name date pg Paper is due the day of the presentation Specific questions to address in paper in Paper Outline LECTURE Intro to Decision Making Models 0 Judicial Decision Making 0 Decision making is not automatic 0 There are a number of factors that can play a role and a number of ways we can look at the law Factors that could influence 0 I Personal Values ideological preferences political parties I Philosophy towards law I Perception of judge s judicial role I External influence repercussions and responses to decisions 0 Number of ways to look at decision making I The type of court 0 Trial Court 1 person makes the decision 0 Collegial Court Appellate amp Supreme courts gt judges work in groups 0 Here they must consider group relationships being outnumbered 0 Rule on issues of the case not really issues on a crime 0 In both courts must consider the hierarchy o Courts can be limited by the preferences of the Supreme Court I Small group analysis judges want to influence the judgment of their colleagues and they want to be on the winning side as often as possible This assumes that judge s decisions are susceptible to moderation or change There is a great deal of influence within the judges gtgt FLUIDITY the appellate judge s openness to change The way justices interact with each other depends on two factors 0 Personality o judge s intellect 3 major strategies a justice may partake in to in uence colleagues 0 Persuasion on the Merits my legal argument vs your legal argument if you have a large amount of legal evidence on your side a judge can be swayed o Bargaining how strong is your opinion 0 Sanctions can impose sanctions on those that don t agree judge s vote the judge can switch sides if no one agrees with him Strong dissent takes away from majoritys opinion can be threatening I Threat of Going Publicquot the concept where appealing to the public will persuade the courts to decide a certain way 0 Multiple Opportunities to Make A Decision I Case Selection I Oral Arguments I Conference in uenced by fellow justices I Final vote on the merits do they vote in the majority or minority I Opinions dissent Concurrence the strength of argument 0 Involved Parties in Decision Making I Internal 0 Justice 0 Fellow Justices 0 Lower Court I External 0 President 0 Congress 0 Interest groups 0 Public at large 0 Media March 28th notes in PDF File sent from Jennifer March 30 2012 The Legal Model 0 Critique of the Legal Model The legal model only serves to rationalize the court s decisions and the reality of the actual decision makingquot 0 Problems with Plain Meeting I Precision 0 English language the words have multiple meanings o Meanings are not precise I Vague provision 0 Provisions can conflict with each other a older provision made I Con ict 0 Problems with Intent I Rationale for different conclusions 0 Opposition to plain meaningquot 0 Framer s intent does not always work with the times today s I Group intent I Room for Ideology o Framer s intent can be looked at from either a conservative or liberal perspective 0 Both plain meaning and intent are problematic to those that oppose the legal model because essentially we are diviningreading into what the framer s or drafter s of legislation met 0 Mann Act of 1913 I Shows 3 different rulings using the same act problematic 0 Problems with Precedent I Precedent on both sides 0 There is precedence to prove both sides argues there is too much so the legal model can t work I Devices to disregard precedent o Devices that don t alter precedent o Dicta clarifies how precedence applies to a new issue in an area of law 0 Devices that do alter precedent o Distinguish a precedent acknowledging precedent but saying it s not applicable 0 Limit a precedent in Principle taking precedent and reshaping it o Overturning precedent There are some cases Where there just is no precedent What is precedent judges disagree on What is considered precedent majority opinion or dissenting How to apply precedent 0 Its clear that precedent plain meaning and intent provide a guide to judges decisions 0 judicial behavior norrns require that these factors are at least considered 0 Appearing to use this model April 2 2012 The Attitudinal Model 0 A response to the Legal Model 0 Take Away Court decides disputes in light of the facts of the case 4 0 Basis for the Attitudinal Model 0 Legal Realism I Began in 1920s I Born out of reaction towards the conservative legal model I Their main complaint they didn t see law as static I judges should be law makers not law findersquot I Judges should be able to interpret law because the times change so often 0 Behavioralism I Movement in political science that was the first to study political science as a hard sciencequot I Wanted to study political science through a more quantitative and scientific Way I Political science should be capable of predictive science I political science data should be observable main focus I quantifiable data at heart of the conclusion I research is driven by a theory I Result to Attitudinal model the model first starts to take shape here 0 Economics I Judicial decisions depend on goals rules and situations 0 Goals any actor who is outcorne goal oriented 0 They also choose the best Way based on their individual goals 0 Justices will vote based on their policy goals 0 Rules the norms or structures about being a judge that would influence their decision making process Justices lack political accountability they are not elected O o No arnbition rarely lack desire to progress to a higher office 0 They have control of the docket 0 They are at the very top of the hierarchy they cannot be overturned o Situations o The attitudinal model is only applicable on final decisions 0 Psychology I Began in 1960s I Place cases andjustices on an ideological spectrurn I Basis is used for understanding of attitudes 0 An attitude is an enduring interrelated set of beliefs about an object or a situation Objects are indirect parties to a suit women minorities government entities that care about outcome of case Situations are the dominant legal issues of the case case facts 0 How Do Attitudes Manifest O O O 0 CASE FACTS ARE AT THE heart of every judicial decision Behavior is a function of the interaction between attitudes towards and object and towards the situation I object parties involved in the case I towards the situationfacts in the case in which the object is encountered Legal model joins facts with legalistic considerations precedent plain meaning intent while Atlitudinal Model explains the justices votes as an expression of facts situations and objects applied to their personal preferences take object or situation and look at it through personal policy implications Impact Situations have a bigger impact than objects situations has the most substance I Situations allow for preferences to have more of a variance 0 Where do judicial Attitudes Originate O 0 Definition of attitude personal orientations beliefs or views that judges have towards the issues litigants and facts in a case anything dealing with the case Stereotypes I Liberal judge for individual rights for business regulations for economic aid 0 They oppose gov t limitations on individual rights oppose the invisible hand and oppose not helping the less fortunate I Conservative judge against economic aid against business regulation 0 Against the individual against business against economic underdog 0 Examples 0 Object through liberal lenses I lndigents liberal judges and for the poor people I Business liberal judge against business the want to regulate businesses I Defendants liberal judges are for defendants I Women minorities liberal judges are for because they are underdogs status Wise I Labor unions liberal judges are for because they can regulate business I juveniles liberal judges are for juveniles o Situations through conservative lenses I Punishing about negative speech about president for I Releasing nuclear secrets against I Prohibiting abortion after conception for I Prohibiting abortion after viabilityafter an trimester against I Prohibiting only partial birth abortion for assuming there was an option to not regulate abortion at all April 6 2012 Attitudinal Model continued 0 How Do We Measure Attitudes o Difficulties I judges are not very forthright about their ideologies 0 Potential Ways to Measure I Look at interest group ratings to judge how judges may choose in the future I Problems with these measures 0 Using past behavior to explain future behavior its circular 0 Better to try and create a model outside of their judicial decisions if a justice hasn t had previous rulings you cannot judge based off of their past I Segal Cover scores 0 Read View editorials to see What editors think about justices on the court they then compile all articles read to predict 0 Content analyzing other people s opinions in news articles I Success of measure 0 Past voting behavior is a success 0 Segal Cover scores usingjust their attitudes is 70 likely to determine the justice s votes I Takeawayx Attitudes are the greatest predictors of how judges are going to vote attitudes predict better than case facts 0 Critiques of the Attitudinal Model 0 Potential for Bad Analysis Limited application I Only works in the Supreme Court I Only really successful in final votes Time Bound I Analysis only dates back to 1937 What about changing ideologies Doesn t explain everything 0 Examples Liberals for regulations amp Want less guns Conservatives against gun regulations amp want more guns 0 O Objects I Gun Lobby I Victims of Gun Violence I People desiring Gun Possession Situations I Complete prohibition of guns for individual 0 liberal I No requirements for gun ownership 0 conservative US v Miller 1939 o Is NFA constitutional Required gun restriction and tax 0 Court ruled we can have regulations on guns less guns I McDonald V Chicago 2008 o Is the an amendment a fundamental or lesser right applicable to state law 0 Cannot limit individual rights to own a gun o Conservative more regulations fundamental right I DC v Heller 2010 0 Does the an amendment mean right to arms an individual right or only correspondents to militia service 0 Court ruled it s an individual right violates 2rld amendment 0 Conservative but not a fundamental right I Justices o O Connor Segal cover score 415 between liberal and conservative o Rehnquist 045 most conservative o T Marshall 7 100 most liberal April 9 201 2 Strategic Model Outset amp Origins o Mantra Judges decide cases in light of case facts vis a vis their preferences and the preferences of other actors involved 0 Arise out of problem using ONLY attitudes attitudinal model Attitudinal always vote sincere pref regardless of other opinions on court and o institutions 0 Why would the court take an issue they know Congress will overturn o If judges are single minded seekers of policy wouldn t they care about the ultimate state of policy 0 Judges are policy maximizers get the policy as close to their preferences and willing to disregard actual preferences without causing a reaction from others Roots in Rational Choice 0 Adaptation of economic theory 0 At core 0 Actors order alternative goals ranking 0 Choose from alternative goals 0 Seek to find equilibrium I Equilibrium a stable outcome that represents the best response to the other players best response key 0 Median Voter 50 100 60 left 30 right Strategic Model Rational Choice Model 0 Attitudinal model too simple 0 Actors make choices in order to achieve certain goals 0 Not diametrically opposed to attitudinal model justices are policy goal oriented o The amount of sway they give to others preferences largely corresponds to amount of power other actor has I More powerful more weight I Congress power to overridedirect actiongtPresident 0 General tenets 0 Early work s conclusions 0 They would rather a ruling that comes close to their preferences but doesn t re ect their preferences exactly be strategic to maximize your personal pref among other agents deciding what opinion to support whether to write own opinion etc 0 Example 0 How would the attitudinal model explain judicial deference to Solicitor General picked by President it just so happens their preferences are the same as justices o Strategic justices don t like to take cases that lead to con ict and don t like to ignore decisions other political actors want them to make I Solicitor General indicates case is important preference of government indicates want case to be heard
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