westerland_StrategicDefiance - Strategic Defiance and...

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Strategic Defiance and Compliance in the U.S. Courts of Appeals * Chad Westerland, Jeffrey Segal, Lee Epstein, Charles Cameron, and Scott Comparato ** Abstract Why do lower courts treat Supreme Court precedents favorably or unfavorably? To address this question, we outline two distinct theoretical frameworks. The first, based on the theory of teams, assumes a shared conception of the judicial role, and emphasizes judicial learning by circuit judges. The second, drawing inspiration from principal-agent theory, assumes pervasive value conflicts among judges, and emphasizes power and control. We use the frameworks to structure an empirical analysis of a random sample of 500 Supreme Court cases, yielding over 10,000 subsequent treatments in the U.S. Courts of Appeals. We find support for both the team-theoretic and agency-theoretic perspectives. The results have important implications for understanding legal change, political control of the judiciary, and strategic litigation. * Chad Westerland is the corresponding author. Email: [email protected]; Post: Department of Political Science, University of Arizona, Tucson AZ 85721-0027; Phone: 520.621.9780; Fax: 520.621.5051. ** Chad Westerland is Assistant Professor of Political Science at the University of Arizona; Jeffrey A. Segal is Chair of Political Science and SUNY Distinguished Professor at Stony Brook University; Lee Epstein is the Beatrice Kuhn Professor of Law and Political Science at Northwestern University; Charles M. Cameron is Professor of Politics and Public Affairs, Princeton University; and Scott Comparato is Assistant Professor of Political Science, Southern Illinois University. We presented earlier versions of this paper at the 2006 annual meeting of the Midwest Political Science Association and the 2006 Empirical Legal Studies conference. We thank Raffaele Engle, Justina Geraci, Scott Graves, Nicole Liguori, and Vanessa Maldonado for research assistance. We also owe thanks to Donald Songer, Tom Hansford, Andrew D. Martin, Jim Spriggs and Nancy Staudt for supplying valuable insights and to the National Science Foundation for supporting our work on the hierarchy of justice. On the project’s web site [http://epstein.law.northwestern.edu/research/defiance.html] is a full replication archive.
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1. Introduction In its landmark decision in Bakke v. California (1978), the U.S. Supreme Court ruled that universities may, under certain circumstances, take race and other factors into account when they make admissions decisions. But even before the justices had the opportunity to reconsider Bakke in Grutter v. Bollinger (2003), the U.S. Court of Appeals for the Fifth Circuit took matters into its own hands. In Hopwood v. Texas (1996, 963), it held “that the University of Texas School of Law may not use race as a factor in deciding which applicants to admit in order to achieve a diverse student body.” With these words, the judges of the Fifth Circuit, at least according to their colleagues in dissent, took the dramatic step of defying precedent established at the top of
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westerland_StrategicDefiance - Strategic Defiance and...

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