Title Page, Copyright

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pp. 1-4

Contents

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pp. v-vi

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Preface

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pp. vii-xii

How do the governmental institutions enmeshed in America’s system of separated power and federalism interact, and with what consequences? Or, to rephrase the question to fit the concerns addressed by this book, how can we better understand the interaction between the Supreme Court and its institutional environment? ...

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Foreword

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pp. xiii-xx

In his splendid “Afterword” to this volume, Lawrence Baum offers an important observation, one that resonates with those of us who have been deploying models or using quantitative methods in various institutional vineyards lo these many years. If told as a fable, it would go something like this: ...

Part 1: Strategic Games with Congress and the States

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Statutory Battles and Constitutional Wars: Congress and the Supreme Court

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pp. 3-23

After the Brown v. Board of Education (347 U.S. 483 [1954]) decision, many political pundits were concerned about the power of the Supreme Court and its ability to enact seemingly countermajoritarian public policy. Yet, the Founders created a separation-of-powers system whereby no single institution could enact policy unilaterally. ...

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Why Expert Judges Defer to (Almost) Ignorant Legislators: Accounting for the Puzzle of Judicial Deference

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pp. 24-42

Strategic behavior by judges is one way they can pursue their policy preferences in constitutional cases. Justices take into account the competing preferences of the elected branches to make feasible policy gains consistent with judicial views. So why, instead, would judges ever defer to legislatures? ...

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Institutions and Independence in Models of Judicial Review

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pp. 43-68

An enduring, fundamental question in American politics is how to reconcile the existence of an independent, nonaccountable judiciary with a democratically based system of government (e.g., Dahl 1957; Bickel 1962; Casper 1976). In particular, the existence of judicial review, whereby a nonelected Court may overturn laws enacted by a duly elected legislature, ...

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“John Marshall Has Made His Decision”: Implementation, Transparency, and Public Support

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pp. 69-96

The U.S. Supreme Court ranks as one of the most significant and powerful judicial institutions in the world. In other advanced democracies, courts with the power of constitutional review also play an increasingly important role in the policymaking process (See Holland 1991 and Tate and Vallinder 1995). ...

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Court-State Interactions: National Judicial Power and the Dormant Commerce Clause

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pp. 97-124

The rise of the “dormant Commerce Clause” (DCC) is often portrayed as a doctrinal tour de force of a powerfully ascendant U.S. Supreme Court. Richard Bensel, for example, expresses a typical view when he writes: “By striking down state attempts to regulate interstate commerce, the federal courts simultaneously consolidated national judicial supremacy ...

Part 2: Strategic Games within the Judicial Hierarchy

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A Court of Appeals in a Rational-Choice Model of Supreme Court Decision Making

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pp. 127-172

Supreme Court justices—or at least the reigning majorities in cases—expect lower courts to cite, uphold, and implement their decisions. These expectations are clearly important. While the Supreme Court hears only a few dozen cases each year, the lower courts hear many thousands, and if the lower courts ignore Supreme Court decisions, ...

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Appeals Mechanisms, Litigant Selection, and the Structure of Judicial Hierarchies

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pp. 173-204

Judicial systems are typically organized as hierarchies, with rights of appeal from level to level. Why is this? Because appeals mechanisms are ubiquitous in court systems, this question is fundamental for our understanding the structure and operation of judicial organizations. ...

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Informative Precedent and Intrajudicial Communication

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pp. 205-229

Political scientists have long recognized the importance of courts as political actors. However, while an extensive literature examines the judiciary’s strategic interaction with the other branches of government (e.g., Ferejohn and Weingast 1992, Gely and Spiller 1992), less attention has been paid to the effects of the institutional structure of the courts ...

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Decision Making by an Agent with Multiple Principals: Environmental Policy in the U.S. Courts of Appeals

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pp. 230-260

Judges on the United States Courts of Appeals face a complex set of job requirements and constraints. In terms of their job requirements, circuit court judges must dispose of a mandatory docket comprised of cases arising in multiple issue areas, many of which are highly technical. ...

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Afterword: Studying Courts Formally

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pp. 261-274

Formal theory has a long history in the study of judicial behavior.1 But its use was sporadic until the 1990s, when it emerged with surprising speed as a major approach to the analysis of judges’ choices. ...

Appendix: A Primer on Game Theory

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pp. 275-296

References

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pp. 297-314

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Notes on Contributors

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pp. 315-318

Lawrence Baum is a Professor of Political Science at Ohio State University. He works primarily in the field of judicial politics. His research interests include explanation of judicial behavior, selection of judges, and specialization of judges and courts. ...

Index

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pp. 319-336