Taking the measure of ideology: Empirically measuring supreme court cases

Georgetown Law Journal

Volumn 98, Issue 1, 2009, Pages 1-75

  Jacobi, Tonja ^a   Sag, Matthew ^b  

^a NORTHWESTERN UNIVERSITY   (United States)

^b DEPAUL UNIVERSITY   (United States)

Author keywords

[No Author keywords available]

Indexed keywords

EID: 73049118602     PISSN: 00168092     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Review

References (330)

1. Tonja Jacobi, Competing Models of Judicial Coalition Formation and Case Outcome Determination, 2 J. Legal Analysis 411, 413 (2009) ("Currently, empirically-minded scholars have a simple measure of case outcomes and a sophisticated measure of judicial ideology available for their research. It is possible to combine these two elements to create a potentially more sophisticated measure of case outcomes.").
2. See infra Part I.
3. See Lee Epstein & Gary King, The Rules of Inference, 69 U. Cm. L. Rev. 1 (2002) (reviewing the increasing use of formal empiricism in legal analysis).
4. See Gregory C. Sisk & Michael Heise, Judges and Ideology: Public and Academic Debates About Statistical Measures, 99 Nw. U. L. Rev. 743, 744-745 (2005) (describing increased public notice of empirical research on judicial decision-making).
5. See, e.g., Oliver Wendell Holmes, Jr., The Common Law 1 (Little, Brown, & Co., Boston 1881) (arguing that "moral and political theories, intuitions of public policy," and judicial prejudices shape case outcomes);
6. Jeffrey A. Segal & Harold J. Spaeth, The Supreme Court and the Attttudinal Model Revisited 312-336 (2002) (applying the attitudinal model to Supreme Court search and seizure cases, respectively).
7. See infra notes 42-45 and accompanying text.
8. See Andrew D. Martin & Kevin M. Quinn, Dynamic Ideal Point Estimation via Markov Chain Monte Carlo for the U.S. Supreme Court, 1953-1999, 10 Pol. Analysis 134 (2002), available at http:// www.mqscores.wustl.edu/measures.php;
9. Michael Bailey & Kelly H. Chang, Comparing presidents, senators, and justices: Interinstitutional preference estimation, 17 J. L. Econ. & ORG. 477,477 (2001), For a more detailed explanation of the Martin-Quinn scores, see infra Part II.
10. See Bailey & Chang, supra note 7;
11. Martin & Quinn, supra note 7.
12. They do. See Epstein et al., Ideological Drift Among Supreme Court Justices: Who, When, and How Important?, 101 Nw. U. L. Rev. 1483 (2007) (using the Martin-Quinn scores to determine that judicial ideologies shift over time).
13. There was, but not at the time generally assumed. See Kevin Quinn & Daniel Ho, Did a Switch in Time Save Nine?, 2 J. Legal Analysis (forthcoming 2009) (manuscript at 33), available at http:// dho.stanford.edu/research/switch. html (using statistical analysis to show that there was a "shift," rather than a "switch," and at a time different than commonly assumed).
14. Jacobi, supra note 1, at 434.
15. See infra notes 44-56 and accompanying text.
16. See, e.g., Brian R. Sala & James F. Spriggs, II, Designing Tests of the Supreme Court and the Separation of Powers, 57 Pol. Res. Q. 197, 198-199 (2004) (modeling an attitudinalist view of judges whereby a judge votes for an outcome that comes closest to his or her ideal outcome).
17. See infra section II.A.
18. See infra section II.A.
19. See infra section II.A.
20. Jacobi, supra note 1, at 440-447
21. Id. at 449-452
22. The U.S. Supreme Court Judicial Database is a widely used database of Supreme Court opinions developed by Harold Spaeth. See Harold J. Spaeth, The Original U.S. Supreme Court Judicial Database (Feb. 24, 2009), available at http://www.cas.sc.edu/poli/juri/sctdata.htm [hereinafter Spaeth Database];
23. Harold J. Spaeth, The Original United States Supreme Court Judicial Database, 1953-2007 Terms,2008, http://www.cas.sc.edu/poli/juri/allcourt- codebook.pdf [hereinafter Spaeth Codebook].
24. Matthew Sag, Tonja Jacobi & Maxim Sytch, Ideology and Exceptionalism in Intellectual Property: An Empirical Study, 97 Cal. L. Rev. 801 (2009). The advantages of using Pro-IP as an additional point of reference are discussed more fully infra Part III.
25. See infra Part V.
26. Even those scholars who conduct similar longitudinal studies of the Supreme Court's IP jurisprudence generally do so impressionistically and anecdotally. See, e.g., Keith Aoki, Balancing Act: Reflections on Justice O'Connor's Intellectual Property Jurisprudence, 44 Hous. L. Rev. 965 (2007) (reviewing the IP jurisprudence of Justice O'Connor);
27. Pamela Samuelson, The Generativity of Sony v. Universal: The Intellectual Property Legacy of Justice Stevens, 74 Fordham L. Rev. 1831 (2006) (surveying the IP jurisprudence of Justice Stevens).
28. See Epstein & King, supra note 3.
29. See, e.g., Jeffrey A. Segal, Separation-of-Powers Games in the Positive Theory of Congress and Courts, 91 Am. Pol. Sci. Rev. 28, 28-29 (1997) (reviewing the attitudinalist literature).
30. Lee Epstein & Jeffrey A. Segal, Trumping the First Amendment?, 21 Wash. U. J.L. & Pol'y 81, 89-91 (2006) (discussing liberal Justices' willingness to sacrifice free speech rights in order to protect other liberal goals).
31. Kevin McGuire & George Vanberg, Mapping the Policies of the U.S. Supreme Court: Data, Opinions, and Constitutional Law 2, 28 (Sept. 1-5, 2005) (unpublished manuscript), available at http:// www.unc.edu/∼kmcguire/papers/ McGuire-and-Vanberg-2005-APSA-Paper.pdf.
32. Also, such subjectivity is not necessary: Jacobi's measures make use of objective information contained in the Spaeth Database, particularly the size and composition of the majority in every case. See infra Part II.
33. See Spaeth, Spaeth Codebook, supra note 19, at 53-54 (noting in "Variable 31: direction of decision" the use of liberal or conservative coding, where 1 is liberal and 0 is conservative).
34. Id. In addition, outcomes favoring children, indigents, American Indians, affirmative action, and reproductive freedom are also coded as liberal.
35. Id. In addition, outcomes favoring children, indigents, American Indians, affirmative action, and reproductive freedom are also coded as liberal. Id. Pro-union decisions are coded as liberal except in the context of antitrust cases. Id. In cases pertaining to economic activity, liberal outcomes include pro-competition, anti-business, pro-indigent, pro-debtor, pro-bankrupt, pro-Indian, pro-environmental protection, pro-consumer, and pro-economic underdog (as well as pro-small business vis-à-vis large business). Id.
36. Id. Although much has been written criticizing the coding of the Spaeth Database, see, for example, Carolyn Shapiro, Coding Complexity: Bringing Law to the Empirical Analysis of the Supreme Court, 60 Hastings L.J. 477 (2009), inter-coder reliability checks found only three errors with the direction of decision variable used here. Spaeth, Spaeth Codebook, supra note 19, at 82 (reliability check on Variable 31: direction of decision).
37. By way of analogy, all you need to know to decide whether to bring an umbrella is whether it is going to rain. In contrast, to decide what clothes to wear you need to know more about the temperature than a single binary indication can convey.
38. Eldred v. Ashcroft, 537 U.S. 186 (2003).
39. Metro-Goldwyn-Mayer Studios Inc. v. Grokster, Ltd., 545 U.S. 913 (2005).
40. Spaeth, Spaeth Database, supra note 19.
41. Diamond v. Chakrabarty, 447 U.S. 303 (1980).
42. Diamond v. Diehr, 450 U.S. 175 (1981).
43. Vanessa Baird & Tonja Jacobi, How the Dissent Becomes the Majority: Using Federalism To Transform Coalitions in the U.S. Supreme Court, 59 Duke L.J. (forthcoming 2009).
44. Id., Vanessa Baird & Tonja Jacobi, How the Dissent Becomes the Majority: Using Federalism To Transform Coalitions in the U.S. Supreme Court, 59 Duke L.J.
45. See Sag et al., supra note 20, at 827-828
46. See John Scott & Gordon Marshall, A Dictionary of Sociology 559-560 (3d ed. 2005) (defining "reliability").
47. A measure is valid if it effectively captures the effect that is intended to be assessed, whereas a measure is reliable if it yields results that are consistently accurate and stable. See infra notes 42-44 and accompanying text for an example. For the significance of, and often the trade-off between, validity and reliability, see Epstein & King, supra note 3, at 83-97.
48. It is reliable assuming that a publicly available, rigorous score of judicial positioning is used. See infra section II.B.
49. See Jeffrey R. Lax & Charles M. Cameron, Bargaining and Opinion Assignment on the U.S. Supreme Court, 23 J.L. Econ. & Org. 276, 276-277 (2007) (arguing that the "persuasiveness, clarity, and craftsmanship" of an opinion can give the writer a degree of monopoly power over policy determination in the case).
50. For a critique of the author-centered view of coalition formation, see Thomas H. Hammond et al., Strategic Behavior and Policy Choice on the U.S. Supreme Court 110-25 (2005) (showing that the median would have to be passive for the author to have full agenda-setting power);
51. Chris W. Bonneau et al., Agenda Control, the Median Justice, and the Majority Opinion on the U.S. Supreme Court, 51 Am. J. Pol. Sci. 890, 891 (2007) (empirically testing the results of Hammond, Bonneau, and Sheehan);
52. Chad Westerland, Who Owns the Majority Opinion? An Examination of Policy Making on the Supreme Court 3 (Aug. 29, 2003) (unpublished manuscript), available at http://www.allacademic.com/meta/p-mla-apa-research-citation/0/6/2/ 0/4/pages62042/p62042-l.php (empirically showing that the median of the majority is a better measure than the author of the majority or the Court median);
53. Thomas H. Hammond, Who Most Influences the Majority Opinion on the U.S. Supreme Court?: Evaluating the Median-of-the-Majority-Coalition Hypothesis 2-3 (July 31, 2008) (unpublished manuscript) http://www.allacademic.eom//meta/p-mla- apa-research-citation/2/7/9/4/9/ p279490-index.html (summarizing the different views).
54. See, e.g., Lee Epstein & Jack Knight, The Choices Justices Make 66-67 (1998).
55. Jacobi, supra note 1, at 415.
56. See Tonja Jacobi, The Judiciary, in Public Choice and Public Law (Dan Farber & Anne Joseph O'Connell eds.) (forthcoming 2009) (manuscript at 7-8, on file with author).
57. See, e.g., Richard A. Posner, What Do Judges and Justices Maximize? (The Same Thing Everybody Else Does), 3 Sup. Ct. Econ. Rev. 1 (1993) (discussing the various theories regarding judicial behavior).
58. See Segal & Spaeth, supra note 5, at 1-27.
59. See, e.g., Pablo T. Spiller & Emerson H. Tiller, Invitations To Override: Congressional Reversals of Supreme Court Decisions, 16 Int'l Rev. L. & Econ. 503, 504 (1996) (modeling Supreme Court "Invitations to Override").
60. Tonja Jacobi & Emerson H. Tiller, Legal Doctrine and Political Control, 23 J.L. Econ. & Org. 326, 326-327 (2007).
61. See Eileen Braman, Law, Politics and Perception: How Policy Preferences Influence Legal Reasoning (forthcoming 2009) (arguing that judges internalize legal norms with idealized notions of decision-making, but also have directional policy goals that influence their legal reasoning processes).
62. Posner, supra note 48, at 1-2.
63. See generally Jacobi, supra note 1.
64. Frank M. Coffin, On Appeal: Courts, Lawyering, and Judging 228-229 (1994).
65. Harry T. Edwards, Collegiality and Decision Making on the D.C. Circuit, 84 Va. L. Rev. 1335, 1335 (1998);
66. David M. O'Brien, Institutional Norms and Supreme Court Opinions: On Reconsidering the Rise of Individual Opinions, in Supreme Court Decision-Making: New INSTUTIONALIST Approaches 91, 91 (Cornell W. Clayton & Howard Gilman eds., 1999);
67. see also Braman, supra note 52 (arguing that legal norms, more generally, influence judicial behavior, encouraging "sincere" legal reasoning and inhibiting "attitudinal behavior," or, in other words, preventing judges from constructing justifications for their attitudinally preferred outcomes);
68. Lewis A. Kornhauser & Lawrence G. Sager, The one and the many: Adjudication in collegial courts, 81 CAL. L. REV. 1, 12-13 (1993) (arguing that collegiality differentiates the U.S. Supreme Court from its English roots).
69. Jeffrey Rosen, Roberts's Rules, Atlantic, January/February 2007, at 104, 105.
70. William N. Eskridge, Jr., Overriding Supreme Court Statutory Interpretation Decisions, 101 Yale L.J. 331, 346 (1991) (finding that "[a] majority of overridden decisions involved 4-4, 5-4, or 6-13 division[s]... and three-fifths of the [overridden] decisions reflected an ideological split").
71. James F. Spriggs, II & Thomas G. Hansford, Explaining the Overruling of U.S. Supreme Court Precedent, 63 J. Pol. 1091, 1105 (2001) (finding that "a minimum winning coalition increases the risk of an overrule by 53.6% and a unanimous coalition decreases it by 46.9%").
72. See, e.g., Jeffrey A. Segal & Harold Spaeth, The Influence of Stare Decisis on the Votes of United States Supreme Court Justices, 40 Am. J. Pol. Sci. 971, 983, 987 (1996) (showing Supreme Court Justices decide cases according to their pre-existiflg "revealed preferences" in 90.8% of cases, and thus in only 9.2% of cases "did a justice switch to the position established in the landmark precedent"; concluding that stare decisis does not strongly influence Supreme Court Justices).
73. See generally David W. Rohde & Harold J. Spaeth, Supreme Court Decision Making 31 (1976) (indicating various policy goals influencing judges).
74. Generally Epstein & Segal, supra note 25 (showing the effect of ideology in First Amendment cases);
75. See generally Epstein & Segal, supra note 25 (showing the effect of ideology in First Amendment cases); Tracey E. George & Lee Epstein, On the Nature of Supreme Court Decision Making, 86 Am. Pol. Sci. Rev. 323 (1992) (showing the effect of ideology in death penalty cases);
76. Richard L. Revesz, Environmental Regulation, Ideology, and the D.C. Circuit, 83 Va. L. Rev. 1717 (1997) (showing the effect of ideology on environmental decisions from the D.C. Circuit);
77. Harold J. Spaeth & Jeffrey A. Segal, The U.S. Supreme Court Judicial Data Base: Providing New Insights into the Court, 83 Judicature 228 (2000) (discussing various uses, applications, and analysis of the Supreme Court in the context of ideology);
78. Cass R. Sunstein et al., Ideological Voting on Federal Courts of Appeals: A Preliminary Investigation, 90 Va. L. Rev. 301 (2004) (showing the effect of ideology in nine of twelve issue areas at the federal appellate court level).
79. See generally Joshua B. Fischman, Decision-Maker Under a Norm of Consensus: A Structural Analysis of Three-Judge Panels (Jan. 4, 2008) (unpublished manuscript, on file with author) (finding a strong effect of consensus voting among judges in asylum and discrimination cases before the U.S. Courts of Appeals).
80. See, e.g., Hammond, supra note 44, at 13-14 ("[N]o matter where the opinion writer's ideal point is located, the majority opinion will always end up at [the median].... [I]f the median justice prefers SQ to a draft majority opinion... this draft opinion cannot possibly gain majority support.").
81. Jacobi, supra note 1, at 418.
82. See, e.g., Harold J. Spaeth & Jeffrey A. Segal, Majority Rule or Minority Will: Adherence to Precedent on the U.S. Supreme Court 313-314 (1999) (finding that consensual norms have eroded since Harlan Fiske Stone became Chief Justice).
83. See, e.g., Hammond et al., supra note 44, at 79 (assuming that a Justice's "sole objective is to have the Supreme Court adopt a policy as close as possible to his or her most-preferred policy on each case"); Hammond, supra note 44.
84. Detail provided infra notes 77-79 and accompanying text.
85. Gregory A. Caldiera et al., Sophisticated Voting and Gate-Keeping in the Supreme Court, 15 J.L. Econ. & Org. 549, 554 (1999).
86. See, e.g., id. at 550 (arguing that judicial agenda setting is particularly "fertile soil for strategic manipulation");
87. Lee Epstein et al., Dynamic Agenda-Setting on the United States Supreme Court: An Empirical Assessment, 39 Harv. J. on Legis. 395 (2002) (same);
88. Glendon Schubert, Policy Without Law: An Extension of the Certiorari Game, 14 Stan. L. Rev. 284, 298-309 (1962) (discussing the various strategies involved in the Supreme Court's certiorari decisions).
89. H.W. PERRY, DECIDING TO DECIDE: AGENDA SETTING IN THE UNITED STATES SUPREME COURT 15 (1994) (finding from interviews that Supreme Court Justices sometimes behave strategically, but arguing that deciding every case strategically would be institutionally overwhelming to the judiciary, and so outcome-focused behavior is the exception rather than the rule)
90. Robert L. Boucher, Jr. Jeffrey A. Segal, Supreme Court justices as strategic decision makers: Aggressive grants and defensive denials on the vinson Court, 57 J. POL. 824, 836(1995) (arguing that the extent of strategic behavior varies by individual Justice).
91. For a complete formal exposition of these models, see Jacobi, supra note 1.
92. For more on the modeling of status quo positions, see Hammond, supra note 44, at 6-14.
93. This modeling treats the various stages of the opinion writing process - including the assignment of the case, writing of a draft opinion, responses of other Justices to the draft, and adjustments to other Justices' responses, as well as potential concurrences and dissents being circulated - as if they occurred in one stage. However, each stage can be strategically significant in different ways.
94. See FORREST MALTZMAN, Et Al. CRAFTING LAW ON THE SUPREME COURT: THE COLLEGIAL GAME 6-10 (2000) (describing the various stages and strategy of opinion writing)
95. Epstein & Knight, supra note 45, at 59 & n.b (discussing the strategy utilized in deciding to grant or deny certiorari). For an analysis of the effect of an open and closed rule for coalition formation within the context of opinion assignment, conference vote, and certiorari under the ideological model
96. see Hammond et al., supra note 44, at 139-228.
97. Jacobi, supra note 1, at 441. When the full Court is not hearing the case, it will not be the overall median of the Court that has leverage, but rather the median of the Court that is sitting in the particular case - unless the Justices engage in cross-case logrolling, which Justices consistently deny occurs, even those who will admit to other forms of strategic behavior.
98. See, e.g.. PERRY, supra note 69, at 198-215 (interviewing Justices who acknowledge various forms of strategic behavior, such as aggressive grants, defensive denials, and signaling for desired cases, but strenuously deny logrolling behavior).
99. Duncan Black, On the Rationale of Group Decision-Making, 56 J. POL. ECON. 23 (1948).
100. Cf. ANTHONY DOWNS, AN ECONOMIC THEORY OF DEMOCRACY (1957) (developing the political science model of the median voter and electoral behavior in the American political system, wherein both voters and political parties trend toward centrist positions);
101. Andrew D. Martin et al., The Median Justice on the United States Supreme Court, 83 N.C. L. REV. 1275, 1277 (2005) (emphasizing social scientists' focus on the median Justice as the crucial figure in determining case outcomes).
102. See, e.g., Keith Krehbiel, Supreme Court Appointments as a Move-the-Median Game, 51 Am. J. POL. SCI. 231, 238 (2007).
103. See Lee Epstein & Tonja Jacobi, Super Medians 61 Stan. L. Rev. 37, 98 (2008) (Arguing That Not All Medians Are As Influential As Others and That Presidents Can Influence the Court by Diluting or Strengthening the Power of the Existing Median).
104. Cf. Saul Brenner et al., The Defection of the Marginal Justice on the Warren Court, 42 W. POL. Q. 409, 423 (1989) ("Marginal justices ideologically closer to one of the dissenters than to any one of the other members... defect disproportionately more often.").
105. Canon 19 of the Canons of Judicial Ethics states that "a court of last resort should use effort and self-restraint to promote solidarity of conclusion." CANONS OF JUDICIAL ETHICS Canon 19 (1924), available arhttp://www.abanet.org/cpr/jclr/1924-canons.pdf. So a group of very liberal Justices should not say that they are willing to form an opinion very far from their preferences simply to provide the median Justice with a threat against the conservatives in order to move the case outcome in a slightly liberal direction, unless they genuinely intend to form an alternative majority.
106. Epstein and Knight give examples of Justices amending their draft opinions so as to maintain a coalition - sometimes with explicit statements such as: "As I need you for a Court... I send the draft to you before circulating it." Epstein & Knight, supra note 45, at 66. Epstein and Knight also found that significant changes occur in draft opinions in over 50% of opinions studied.
107. Epstein and Knight give examples of Justices amending their draft opinions so as to maintain a coalition - sometimes with explicit statements such as: "As I need you for a Court... I send the draft to you before circulating it." Epstein & Knight, supra note 45, at 66. Epstein and Knight also found that significant changes occur in draft opinions in over 50% of opinions studied.
108. Id. at 99 tbl. 3-6., Similarly, significant amendments to opinions by dissenting Justices may render an opinion closer to the preferences of the marginal Justice than the original majority opinion, and thus induce a switch. For example, Paul Goldstein describes the development of the opinion in the landmark fair use case
109. Sony Corp. of America v. Universal City Studios, Inc., 464 U.S. 417 (1984).
110. Paul Goldstein, Copyright's Highway: From Gutenberg to the Celestial Juke Box 149-58 (rev. ed. 2003). Justice Stevens' dissent initially considered all private use beyond the scope of the Copyright Act, but he amended his opinion to say that fair use protects private copying for the purpose of time shifting - but potentially excluding library building - and ultimately garnered a majority coalition.
111. Id. at 152, 156.
112. Jacobi, supra note 1, at 445-446.
113. As discussed in Part I, there has been very little scholarship devoted to developing scores of case outcomes. However, two working papers have discussed the median of the majority coalition as a measure of case outcomes. The possibility of using the median of the majority coalition as a measure received passing mention in Segal and Spaeth's re-examination of their classic attitudinalist tome, The Supreme Court and the Attitudinal Model.
114. See Segal & Spaeth, supra note 5, at 434. Picking up on the Segal and Spaeth suggestion, Hammond considered the median of the coalition measure but argued that it was theoretically indefensible.
115. Hammond., supra note 44, at 4-5. But Hammond only considered a model equivalent to Jacobi's Ideological model, and thus his conclusion is not persuasive. Chad Westerland empirically evaluated the median of the majority coalition measure in a 2003 working paper and found that the median of the majority was a viable measure.
116. Westerland, supra note 44, at 29. In fact, Westerland found that the median of the majority performed better than a measure using the author of the case opinion or the Court median.
117. Id. Westerland addressed a question closely associated to the inquiry here: Which Justice on the Court is most likely to shape the majority opinion in the case: the median of the Court, the opinion writer, or the median of the majority coalition? He tested this by examining the ideological distances between Justices and asking which distance is most determinative of an individual Justice's proclivity to join or not join a majority opinion: that between each of the three possible opinion shapers - the court median, the opinion writer, or the median of the coalition - and each other Justice.
118. Id. at 3, Westerland found that the only distance measure that "is in the expected direction and statistically significant" is that between each Justice and the median of the majority coalition, suggesting that case outcomes are most likely to approximate the position of the median of the majority coalition, as compared to the other possibilities Westerland tested.
119. Id at 29. Westerland used different testing techniques, did not test for the last Justice in nor the mean of the majority Coalition, and based his hypotheses on individual power rather than a theory of judicial decisionmaking process; nonetheless, his results are consistent with our own. See id.
120. Martin & Quinn, supra note 7. Additionally, these scores are updated annually. See id.
121. See, e.g., Bernard Grofman & Timothy J. Brazill, Identifying the Median Justice on the Supreme Court Through Multidimensional Scaling: Analysis of "Natural Courts" 1953-1991, 112 Pub. Choice 55, 58 (2002) (noting that the single dimension solution explains much of the Justices' voting behaviors).
122. See, e.g., George & Epstein, supra note 61, at 333-334.
123. See, e.g., Epstein & Segal, supra note 25, at 109-110 (finding that although generally the more liberal a Justice, the more likely she or he will favor litigants alleging abridgment of First Amendment rights, liberal Justices are no more likely than their conservative counterparts to uphold First Amendment claims where other values, such as privacy and equality, are prominently at stake; if anything, conservatives are more likely than liberals to vote in favor of speech, press, assembly, or association claims).
124. See, e.g., Segal & Spaeth, supra note 5, at 312-336
125. See, e.g., Frank B. Cross & Emerson H. Tiller, The Three Faces of Federalism: An Empirical Assessment of Supreme Court Federalism Jurisprudence, 73 S. CAL. L. REV. 741 (2000) (finding that ideology dominates questions of institutional federalism);
126. David B. Spence Paula Murray, The law, economics, and politics of federal preemption jurisprudence: A quantitative analysis, 87 CAL. L. REV. 1125(1999) (finding that federal judges decide preemption cases partly based on ideology, but constrained by the facts and the legal context, and not necessarily monolithically based on party affiliation)
127. Michael. S. Greve & Jonathan Klick, Preemption in the Rehnquist Court: A Preliminary Empirical Assessment, 14 SUP. CT. ECON. REV. 43, 86 (2006) (finding that preemption cases are multi-dimensional and "are unlikely to yield clear confirmation for either an 'attitudinal' or a 'legal' model of judicial behavior").
128. See, e.g., Donald W. Crowley, Judicial Review of Administrative Agencies: Does the Type of Agency Matter?, 40 W. POL. q. 265, 276 (1987) (finding that Justices Rehnquist, Burger, and Powell consistently favored conservative administrative determinations, while Justices Brennan and Marshall favored liberal outcomes).
129. See, e.g., Evan H. Caminker, Sincere and Strategic Voting Norms on Multimember Courts, 97 Mich. L. Rev. 2297, 2320 (1999) ("It is frequendy assumed that... the majority will converge in a moderate or median position. This is likely when the Justices' ideal points can be lined up nicely in a single-peaked fashion along a single dimension, for instance from liberal to conservative.... But sometimes the options under discussion cannot easily be aligned along a single dimension.").
130. 2004, O'Connor held the position of median Justice with a Martin-Quinn score of 0.08; with her retirement and the death of Rehnquist, Kennedy has become the median Justice, with a Martin- Quinn score of 0.49. Media portraits of Kennedy as the new "swing vote" on the Court fit very well with Martin and Quinn's analysis.
131. Robert Barnes, In Second term, roberts Court defines itself; Many 5 to 4 decisions reflect narrowly split Court that leans conservative, WASH. POST June 25, 2007, at A3;
132. Robert Barnes, Justice Kennedy: The Highly Influential Man in the Middle; Court's 5 to 4 Decisions Underscore His Power, WASH. POST, May 13, 2007, at Al.
133. Sag et al., supra note 20, at 838.
134. However, the incorporation of the Martin-Quinn scores into the Jacobi measures means that the Jacobi measures and the Martin-Quinn scores cannot be used in the same applications.
135. Other measures of case outcomes than the Spaeth coding can be used, see infra text accompanying note 96. For a more detailed discussion of this element of the measure, and variations upon it, see infra Part III.
136. Sag et al., supra note 20.
137. Id (developing the variable that distinguishes between cases on the basis of deciding for or against the intellectual property claim). Note that although IP cases often involve two parties who are both owners of distinct IP rights, the Court is rarely confronted by directly conflicting claims of IP protection. For a more detailed discussion of the Pro-IP variable, see id.
138. We have also updated the SJS IP coding to take into account recent Supreme Court decisions.
139. Spaeth, Spaeth Database, supra note 19.
140. Id.
141. The skewness of the Ideological scores is -1.06.
142. The skewness of the Collegial scores is -0.33.
143. The skewness of the Strategic-Median scores is -0.59.
144. The skewness of the Strategic-Mean scores is -0.05.
145. Spaeth, Spaeth Database, supra note 19.
146. Given the small sample, the scores yielded by the Ideological measure (median of the Court) and the Strategic-Median measure are the same. This calculation is based is based on a simple t-test of the means. A t-test assesses whether the means of two groups are statistically differentiable, assuming a normal distribution, and is interpreted using standard teset of statistical singnificanece(p-<0.05).
147. For the individual scores of each IP case, see infra app. tbl. 12.
148. Although we run a pair-wise correlation in this analysis, the results are almost exactly the same using a Spearman correlation. There are only 8808 observations in this table because the Spaeth liberal-conservative coding was missing in some cases.
149. Again, this effectively means that there is a less than 1% chance that the finding of a relationship is a product of random chance.
150. In absolute values, the level of correlation ranges from 0 to 1, with 1 indicating perfect correlation and 0 indicating no correlation whatsoever. A negative correlation means that the two variables change together but in the opposite direction.
151. The difference between two correlations can be compared with the assistance of Fisher's r-to-z Transformation, which converts the correlation statistic r into the normally distributed variable z. See generally James H. Steiger, Tests for Comparing Elements of a Correlation Matrix, 87 Psychol. Bull. 245 (1980) (reviewing the literature on the comparison of correlation coefficients). For a more detailed explanation
152. REBECCA M. WARNER, APPLIED STATISTICS: FROM BIVARIATE THROUGH MULTIVARIATE TECHNIQUES, 275-277(2007).
153. In light of our previous findings in Ideology and Exceptionalism, we find this second explanation unlikely. See Sag et al., supra note 20, at 846;
154. supra section III.B.
155. Sag et al., supra note 20, at 838.
156. Id.
157. For completeness, we performed the same analysis using the second version of the Collegial measure. However, any result on this variant of the measure has to be treated with suspicion because it is somewhat circular, in that both sides of the ledger use Pro-D?. Unsurprisingly, the coefficient for this version of the measure is extremely high, yet it is still in the wrong direction.
158. An impression we confirm more formally below in this Part.
159. See supra note 104. A paired t-test here rejects the null-hypothesis that the means are equal (p = 0.0003).
160. These results are in accordance with the only other comparative empirical study of proposed measures of judicial case outcomes. Mirroring our results, Westerland's working paper finds that once properly specified, the median of the Court produces results in the direction predicted and at statistically significant levels, but with an inferior fit to the median of the coalition measure.
161. See Westerland, supra note 44, at 32. Note that Westerland's study did not consider the mean of the majority measure or the Collegial measure.
162. For completeness we note that, as expected, there is a substantive and significant correlation between the two different versions of the Collegial measure in the IP cases. See supra note 113.
163. See infra Part V.
164. Using Fisher's r-to-z Transformation, we confirmed the statistical significance of this difference.
165. Hammond argues that this is. a significant weakness of the median of the majority measure. Hammond, supra note 44, at 26. However, we think that he overstates the significance of this drawback.
166. See supra section III.A & fig. 2.
167. Quantiles are points taken at regular intervals from the cumulative distribution function of a random variable.
168. This second step is admittedly subjective; however, the complete analysis of all twenty-two cases is available in an on-line appendix to this Article. See Tonja Jacobi & Matthew Sag Taking the Measure of Ideology: Empirically Measuring Supreme Court Cases: On-line Supplement (unpublished manuscript), http://www.matmewsag.net/nles/A%20Doctrinal%20Review%20of%2022%20Leading% 20IP%20Cases.pdf.
169. Diamond v. Chakrabarty, 447 U.S. 303, 305 (1980).
170. Id. at 306.
171. Id. at 309.
172. (quoting S. Rep. No. 82-1979, at 5 (1952);
173. H.R. Rep. No.82-1923, at 6 (1952)).
174. Chakrabarty, 447 U.S. at 309. In contrast to the majority's expansive reading of the statute, the dissent - Justices Brennan, White, Marshall, and Powell - argued that the Court's decision does not follow the unavoidable implications of the statute. Rather, it extends the patent system to cover living material even though Congress plainly has legislated in the belief that § 101 does not encompass living organisms. It is the role of Congress, not this Court, to broaden or narrow the reach of the patent laws. This is especially true where, as here, the composition sought to be patented uniquely implicates matters of public concern.
175. Id. at 321-322 (Brennan, J., dissenting).
176. See Margo A. Bagley, Academic Discourse and Proprietary Rights: Putting Patents in Their Proper Place, 47 B.C. L. REV. 217, 235 (2006);
177. Biotechnology, technology policy, and patentability: Natural products and invention in the american system, 50 EMORY L.J. 101, 125(2001) (arguing that Chakrabarty set the stage "for a decade of aggressive expansion of biotechnology patenting").
178. See Diamond v. Diehr, 450 U.S. 175 (1981).
179. State St. Bank & Trust Co. v. Signature Fin. Group, Inc., 149 F.3d 1368 (Fed. Cir. 1998)
180. In re Alappat, 33 F.3d 1526 (Fed. Cir. 1994).
181. The Spaeth Database codes the primary issue in this case as "Patent" under the general issue of "Economic Activity." Spaeth, Spaeth Database, supra note 19.
182. These assessments are based on the Martin-Quinn Scores. See Martin & Quinn, supra note 7.
183. The Strategic-Median measure lies between the two already discussed, yielding a score of 0.48.
184. Sony Corp. of Am. v. Universal City Studios, Inc., 464 U.S. 417, 420 (1984).
185. Id. at 422-423.
186. Id. at 420.
187. Id. at 442.
188. Id. at 442-447.
189. Id. at 448-19, 450-51, 454-455.
190. The question of exactly what constitutes a substantial non-infringing use has been litigated in a number of circuits, but the Supreme Court has declined to further expand upon the meaning of the concept.
191. Metro-Goldwyn-Mayer Studios Inc. v. Grokster, Ltd., 545 U.S. 913, 934,(2005) The Supreme Court's decision in Grokster is reviewed below.
192. See infra notes 219-226 and accompanying text.
193. Samuelson, supra note 22, at 1850 (arguing that without the Sony safe harbor, a host of technologies that facilitate private or personal use copying might have never become widely available).
194. Jessica Litman, The sony paradox, 55 CASE W. RES. L. REV. 917, 951-952, (2005) (arguing that Sony did little to effectively shield subsequent technologies).
195. See Goldstein, supra note 79, at 106.
196. The irony of the Sony decision is that in rejecting the copyright owners' claims, the decision served these same owners' long-term interests by facilitating the growth of the video rental market. See, e.g., Matthew Sag, Beyond Abstraction: The Law and Economics of Copyright Scope and Doctrinal Efficiency, 81 Tul. L. Rev. 187, 240-241 (2006).
197. The Spaeth Database codes the primary issue in this case as "Copyright" under the general issue of "Economic Activity." Spaeth, Spaeth Database, supra note 19.
198. See Paul H. Edelman et al., Measuring Deviations from Expected Voting Patterns on Collegial Courts, 5 J. Empirical Legal Stud. 819, 833-836 & tbl.3 (2008) (citing Sony as one of the many examples of disordered voting - that is, cases in which the Justices' votes bear little or no resemblance to the standard unidimensional ideological spectrum).
199. See Sony Corp. of Am. v. Universal City Studios, Inc., 464 U.S. 417 (1984).
200. See Litman, supra note 140, at 918 & nn.3 & 6 (discussing the various views on the effect of Sony).
201. Sony, 464 U.S. at 454-455
202. Harper & Row, Publishers, Inc. v. Nation Enters., 471 U.S. 539, 541-542 (1985).
203. Id. at 542.
204. Id. at 542-543.
205. Id. at 543.
206. Id. at 544-545.
207. Id. at 543.
208. Id. at 569.
209. Id. at 564-569.
210. Id. at 555-60;
211. Id. at 555-60; id. at 579 (Brennan, J., dissenting).
212. See, e.g., 4 Melville B. Nimmer & David Nimmer, Nimmer on Copyright § 13.05[A][5], at 13.202.2 (2008) (arguing that Harper & Row "demonstrates the almost infinite elasticity of each of the four factors [of the fair use doctrine], and their concomitant inability to resolve difficult questions").
213. See, e.g., Bond v. Blum, 317 F.3d 385, 396 (4th Cir. 2003).
214. Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 594 (1994).
215. See Matthew Sag, God in the Machine: A New Structural Analysis of Copyright's Fair Use Doctrine, 11 Mich. Telecomm. & Tech. L. Rev. 381, 389-390 (2005).
216. Robin Feingold, Note, When "Fair is Foul": A Narrow Reading of the Fair Use Doctrine in Harper & Row, Publishers, Inc. v. Nation Enterprises, 72 Cornell L. Rev. 218, 234 (1986).
217. The Spaeth Database codes the primary issue in this case as "Copyright" under the general issue of "Economic Activity." Spaeth, Spaeth Database, supra note 19.
218. Cmty. for Creative Non-Violence v. Reid, 490 U.S. 730, 732 (1989).
219. Id., Cmty. for Creative Non-Violence v. Reid
220. Id. at 733.
221. Id. at 735-736.
222. Id. at 838 (citing Copyright Act of 1976,17 U.S.C. § 101 (2006)).
223. Id. at 740.
224. Id. at 742.
225. Id. at 751-752.
226. At at 735. The other case is New York Times Co. v. Tasini, 533 U.S. 483 (2001).
227. The Spaeth Database codes the primary issue in this case as "Copyright" under the general issue of "Economic Activity." Spaeth, Spaeth Database, supra note 19.
228. Spaeth, Spaeth Codebook, supra note 19, at 54.
229. Cmty. for Creative Non-Violence, 490 U.S. at 752.
230. Martin & Quinn, supra note 7.
231. Id.
232. Two Pesos, Inc. v. Taco Cabana, Inc., 505 U.S. 763, 767 (1992). "The 'trade dress' of a product is essentially its total image and overall appearance.".
233. Id. at 765 n.l.
234. Id. at 766 & n.4.
235. Id. at 765.
236. Id. at 765-766.
237. Id. at 766.
238. Id. at 766-767.
239. Id. at 776.
240. Id. at 770.
241. Id. at 768 (citations omitted).
242. Wal-Mart Stores, Inc. v. Samara Bros., 529 U.S. 205, 212-213 (2000).
243. Id. at 216.
244. Id. at 215.
245. However, Justice Scalia reconciles Wal-Mart with Two Pesos by relegating the trade dress in the latter to the status of "some tertium quid that is akin to product packaging and has no bearing on the present case."
246. Id. at 215.
247. The Spaeth Database codes the primary issue in this case as 'Trademark" under the general issue of "Economic Activity." Spaeth, Spaeth Database, supra note 19.
248. Two Pesos, Inc. v. Taco Cabana, Inc., 505 U.S. 763, 775 (1992).
249. See Festo Corp. v. Shoketsu Kinzoku Kogyo Kabushiki Co., 535 U.S. 722, 727 (2002).
250. Warner-Jenkinson Co. v. Hilton Davis Chem. Co., 520 U.S. 17 (1997).
251. Festo Corp., 535 U.S. at 733.
252. Id. at 727.
253. Id. at 728.
254. Id. at 729.
255. Festo Corp. v. Shoketsu Kinzoku Kogyo Kabushiki Co., 234 F.3d 558, 564 (Fed. Cir. 2000) (en banc).
256. Festo Corp., 535 U.S. at 735-737.
257. Id. at 737-738.
258. Festo Corp., 234 F.3d at 574-575
259. Id., Festo Corp.
260. Festo Corp., 535 U.S. at 737-738
261. Id. at 738.
262. See id.
263. The Spaeth Database codes the primary issue in this case as "Patent" under the general issue of "Economic Activity." Spaeth, Spaeth Database, supra note 19.
264. Eldred v. Ashcroft, 537 U.S. 186,193-194 (2003).
265. 17 U.S.C. § 302(a) (2006).
266. U.S. Const, art. I, § 8, cl. 8. (providing that Congress shall have the power "[t]o promote the Progress of Science and useful Arts, by securing for limited Times to Authors... the exclusive Right to their respective Writings").
267. Eldred, 537 U.S. at 218.
268. Id. at 205-06. The Council of the European Communities had instructed EU members to enact a similar term extension.
269. Id. at 205;
270. see also Council Directive 93/98/EEC, art. 1(1), 1993 O.J. (L 290) 11 (EC).
271. Eldred, 537 U.S. at 207. But see Paul J. Heald, Property Rights and the Efficient Exploitation of Copyrighted Works: An Empirical Analysis of Public Domain and Copyrighted Fiction Bestsellers, 92 Minn. L. Rev. 1031 (2008) (finding no evidence that works without owners will suffer from under-exploitation).
272. Eldred, 537 U.S. at 199-204.
273. Id. at 210-214.
274. Id. at 212-213.
275. Id. at 218-221.
276. Id. at 219.
277. The Spaeth Database codes the primary issue in this case as "Copyright" under the general issue of "Economic Activity." Spaeth, Spaeth Database, supra note 19.
278. Metro-Goldwyn-Mayer Studios Inc. v. Grokster, Ltd., 545 U.S. 913 (2005).
279. Id. at 919-920.
280. Id. at 920-21, 939-940.
281. Sony Corp. of Am. v. Universal City Studios, Inc., 464 U.S. 417 (1984);
282. see also supra notes 133-147 and accompanying text.
283. See Litman, supra note 140, at 919 ("The Court will almost certainly revisit its holding in Sony in the course of deciding Grokster").
284. Grokster, 545 U.S. at 918-919.
285. Id. at 933-34;
286. see also id. at 942-49 (Ginsburg, J., concurring).
287. id. at 949-966 (Breyer, J., concurring).
288. The Spaeth Database codes the primary issue in this case as "Copyright" under the general issue of "Economic Activity." Spaeth, Spaeth Database, supra note 19.
289. Medlmmune, Inc. v. Genentech, Inc., 549 U.S. 118, 120 (2007).
290. Id. at 120-121.
291. Id. at 121.
292. Id.
293. Id. at 122.
294. Id.
295. Id.
296. Id. (citing Gen-Probe, Inc. v. Vysis, Inc., 359 F.3d 1376, 1381 (2004)).
297. Id. at 124-125, 129.
298. Id. at 129. Justice Thomas dissented, holding that Medlmmune was essentially seeking a hypothetical ruling.
299. Id. at 137 (Thomas, J., dissenting).
300. See id. at 137 (majority opinion).
301. The Spaeth Database classifies the issue in Medlmmune as "Standing to Sue, Legal Enquiry" under the general issue of "Judicial Power." Spaeth, Spaeth Database, supra note 19.
302. KSR Int'l Co. v. Teleflex Inc., 550 U.S. 398, 406-07 (2007).
303. The Court had previously addressed the non-obviousness standard in Graham v. John Deere Co. of Kan. City, 383 U.S. 1 (1966).
304. Id. at 406.
305. Id. at 409-410.
306. Id. at 405-06. Teleflex was the exclusive licensee of U.S. Patent No. 6, 237,565. "Claim 4 of the... patent describes a mechanism for combining an electronic sensor with an adjustable automobile pedal so the pedal's position can be transmitted to a computer that controls the throttle in the vehicle's engine."
307. Id. at 406.
308. Id.
309. Teleflex Inc. v. KSR Int'l Co., 298 F. Supp. 2d 581, 596 (E.D. Mich. 2003).
310. Teleflex, Inc. v. KSR Int'l Co., 119 F. App'x 282, 286 (Fed. Cir. 2005).
311. KSR Int'l, 550 U.S. at 407 (citation omitted).
312. Id. at 415.
313. Id. at 415-418.
314. Id. at 420.
315. Id.
316. Id. at 420-421.
317. Id. at 421.
318. Id. at 422.
319. Id.
320. Id. at 426.
321. Although it must be noted that even small differences from the prior art might be patentable if they "do no more than yield predictable results."
322. Id. at 416.
323. See, e.g.. Leapfrog Enters., Inc. v. Fisher-Price, Inc., 485 F.3d 1157, 1161 (Fed. Cir. 2007) (invalidating a patent due to obviousness).
324. See Yar R. Chaikovsky & Firasat Ali, Chaikovsky and Ali on the Changing Face of Inter Partes Reexamination, EMERGING ISSUES, Dec. 4, 2007, at 21.
325. The Spaeth Database codes the primary issue in this case as "Patent" under the general issue of "Economic Activity." Spaeth, Spaeth Database, supra note 19.
326. Fla. Prepaid Postsecondary Educ. Expense Bd. v. Coll. Sav. Bank, 527 U.S. 627 (1999).
327. The Strategic-Mean scores for Harper & Row, Campbell, and Sony are 1.13, 0.43, and 0.07, respectively.
328. See supra note 123.
329. Westerland, supra note 44, at 32.
330. See Epstein & Jacobi, supra note 76, at 98.