Judicial decision making under the microscope: Moving beyond politics versus precedent

Rutgers Law Review

Volumn 60, Issue 4, 2008, Pages 919-969

  Fleisher, Madeline ^a  

^a NONE

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EID: 78649892675     PISSN: 00360465     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Review

References (346)

1. See Pauline T. Kim, Lower Court Discretion, 82 N.Y.U. L. REV. 383, 388 (2007);
2. see also DAVID E. KLEIN, MAKING LAW IN THE UNITED STATES COURTS OF APPEALS 4 (2002) (discussing influence of lower courts in determining substantive law);
3. Sanford Levinson, On Positivism and Potted Plants: "Inferior" Judges and the Task of Constitutional Interpretation, 25 CONN. L. REV. 843, 844 (2003) ("[The] twelve circuit courts and ninety district courts ... as a matter of empirical fact, play a far more important role in the actual lives of citizens than does the Supreme Court. The behavior of the roughly 100 circuit judges and 500 district judges is, for most citizens most of the time, far more likely to count as 'the law than the pronouncements of the nine denizens of the Supreme Court ensconced-for most Americans literally and for almost all metaphorically-at least a thousand miles away in a marble palace (or tomb inhabited by the living dead) in Washington, D.C").
4. See, e.g., Frank B. Cross, Political Science and the New Legal Realism: A Case of Unfortunate Interdisciplinary Ignorance, 92 Nw. U. L. REV. 251, 315 (1997) [hereinafter Cross, Political Science] (criticizing "unexamined faith in the significance of legal rules").
5. See Nancy C Staudt, Modeling Standing, 79 N.Y.U. L. REV. 612, 614 (2004). There is plentiful literature on the issue of judicial decision making, which has become especially well-developed in recent decades as academics have attempted to gather empirical evidence to illuminate what factors influence judges in their task.
6. See generally Emerson H. Tiller & Frank B. Cross, What is Legal Doctrine?, 100 Nw. U. L. REV. 517 (2006) [hereinafter Tiller & Cross, What is Legal Doctrine?]. The debate between the attitudinal and legal models of judicial decision making is explored in depth below, infra Part TV.
7. See, e.g., Sarah A. Maguire, Precedent and Procedural Due Process: Policymaking in the Federal Courts, 84 U. DET. MERCY L. REV. 99,109 (2007);
8. Gregory C Sisk et al, Charting the Influences on the Judicial Mind: An Empirical Study of Judicial Reasoning, 73 N.Y.U. L. REV. 1377, 1499 (1998) [hereinafter Sisk et al, Charting the Influences on the Judicial Mind] (detailing empirical results both supporting and undermining the thesis that judges decide cases based on personal preferences and characteristics).
9. Articles attempting to provide theoretical backing for the legal model have proposed that judges might follow precedent because of reputational concerns, a norm of respect for the rule of law, the need to communicate information about their preferences to future decision makers, or merely because it requires some effort to evade that precedent in the traditional manner of incorporating it into a reasoned legal opinion that supports a judge's preferred outcome.
10. See Ethan Bueno De Mesquita & Matthew Stephenson, Informative Precedent and Intrajudicial Communication, 96 AM. POL. SCI. REV. 755 (2002) (discussing judges' use of precedent to communicate information to lower courts);
11. Stefanie A. Lindquist & Frank B. Cross, Empirically Testing Dworkin's Chain Novel Theory: Studying the Path of Precedent, 80 N.Y.U. L. REV. 1156, 1160-68 (2005) (reviewing a number of explanations for judicial obedience to precedent);
12. Erin O'Hara, Social Constraint or Implicit Collusion?: Toward a Game Theoretic Analysis of Stare Decisis, 24 SETON HALL L. REV. 736, 745-49 (1993) (explaining that judges follow each other's precedents to avoid nonproductive competition). However, there are fewer examples of empirical studies supporting any one of these theories in particular. That may be changing, as more sophisticated investigations distinguish among the various forces affecting judicial decision making.
13. See, e.g., Sisk et al, Charting the Influences on the Judicial Mind, supra note 4 (isolating a district court judge's potential for promotion to a higher court as a variable correlated with closer adherence to precedent); Staudt, supra note 3 (comparing compliance of appellate and district court judges and concluding that fear of reversal is an important factor in ensuring obedience to precedent).
14. See ERWIN CHEMERINSKY, FEDERAL JURISDICTION §2.1 (5th ed. 2007).
15. U.S. CONST, art. Ill, §2;
16. Lujan v. Defenders of Wildlife, 504 U.S. 555, 559-60 (1992).
17. See Flast v. Cohen, 392 U.S. 83, 94-95 (1968) ("The jurisdiction of federal courts is defined and limited by Article III of the Constitution. In terms relevant to the question for decision in this case, the judicial power of federal courts is constitutionally restricted to 'cases' and 'controversies.'... Embodied in the words 'cases' and 'controversies' are two complementary but somewhat different limitations. In part those words limit the business of federal courts to questions presented in an adversary context and in a form historically viewed as capable of resolution through the judicial process. And in part those words define the role assigned to the judiciary in a tripartite allocation of power to assure that the federal courts will not intrude into areas committed to the other branches of government."). For a more in-depth discussion of justiciability doctrine,
18. see infra Part II.
19. For descriptions of this general trend, see, for example, Michael Herz, The Rehnquist Court and Administrative Law, 99 Nw. U. L. REV. 297, 334 (2004) and
20. Robert J. Pushaw, Jr., Justiciability and Separation of Powers: A Neo-Federalist Approach, 81 CORNELL L. REV. 393, 395 (1996). A number of cases represent specific examples of this trend.
21. See Hein v. Freedom from Religion Found., Inc., 127 S. Ct. 2553, 2562 (2007) ('"[T]he judicial power of the United States defined by Art. Ill is not an unconditioned authority to determine the constitutionality of legislative or executive acts.'... [F]ederal courts sit 'solely, to decide on the rights of individuals,' and must 'refraifn] from passing upon the constitutionality of an act... unless obliged to do so in the proper performance of our judicial function, when the question is raised by a party whose interests entitle him to raise it."') (alteration in original) (citations omitted);
22. Norton v. S. Utah Wilderness Alliance, 542 U.S. 55, 66 (2004) ("The principal purpose of the... limitations we have discussed-and of the traditional limitations upon mandamus from which they were derived-is to protect agencies from undue judicial interference with their lawful discretion, and to avoid judicial entanglement in abstract policy disagreements which courts lack both expertise and information to resolve.");
23. Ohio Forestry Ass'n v. Sierra Club, 523 U.S. 726, 733 (1998) (noting that in ripeness inquiry, court must consider "whether judicial intervention would inappropriately interfere with further administrative action");
24. Bennett v. Spear, 520 U.S. 154, 162 (1997) (making the test for prudential standing more demanding and discussing it as one of several prudential limitations on '"the exercise of federal jurisdiction,' [that] are 'founded in concern about the proper-and properly limited- role of the courts in a democratic society'") (citations omitted);
25. Lujan, 504 U.S. at 577 ('To permit Congress to convert the undifferentiated public interest in executive officers' compliance with the law into an 'individual right' vindicable in the courts is to permit Congress to transfer from the President to the courts the Chief Executive's most important constitutional duty, to 'take Care that the Laws be faithfully executed,' Art. II, §3.").
26. Lujan, 504 U.S. 555 (setting out a relatively narrow conception of standing).
27. Id.; see also infra Part ILB.
28. Ohio Forestry, 523 U.S. 726. Although Ohio Forestry did not change the ripeness test per se to make it either more stringent or relaxed, the opinion did thoroughly explore the issue of ripeness from an angle indicating disfavor of judicial review as a route for abstract objections to general agency policies, and thus could be considered to have the potential to signal to lower courts that they should be on guard for unripe petitions.
29. See id. at 735 ("The ripeness doctrine reflects a judgment that the disadvantages of a premature review that may prove too abstract or unnecessary ordinarily outweigh the additional costs of-even repetitive-post-implementation litigation.");
30. Herz, supra note 9, at 331-34 (grouping Ohio Forestry with other cases demonstrating the Rehnquist Court's reluctance to review certain kinds of agency action);
31. Ronald M. Levin, The Administrative Law Legacy of Kenneth Culp Davis, 42 SAN DlEGO L. REV. 315, 342 (2005) [hereinafter Levin, Kenneth Culp Davis] ("[B]ecause so much [of the context-specific ripeness test] does depend on discretion, the attitude with which the doctrine is implemented is critical.").
32. But see Ronald M. Levin, The Year in Judicial Review, 1997-1998, 51 ADMIN. L. REV. 389, 392 (1999) [hereinafter Levin, Year in Judicial Review] (arguing Ohio Forestry did not mark a major turning point in ripeness doctrine). For further discussion of this issue,
33. see infra Part U.C. 13. Myriam E. Gilles, Representational Standing: U.S. ex rei. Stevens and the Future of Public Law Litigation, 89 CAL. L. REV. 315, 321-23 (2001) (identifying prudential approach to standing with liberal Warren Court and constitutional approach with conservative Burger Court);
34. Laura A. Smith, Justiciability and Judicial Discretion: Standing at the Forefront of Judicial Abdication, 61 GEO. WASH. L. REV. 1548, 1614 (1993);
35. Maxwell L. Stearns, Standing and Social Choice: Historical Evidence, 144 U. PA. L. REV. 309, 389 (1995) (highlighting conservatives' tendency to use standing doctrine to reinforce preferred constitutional boundaries between the branches).
36. See Maxwell L. Stearns, Standing Back from the Forest- Justiciability and Social Choice, 83 CAL. L. REV. 1309, 1402 (1995) (arguing that inconsistencies in application of standing doctrine do not mean it should be discarded, because no doctrine can be applied with perfect consistency and standing doctrine does serve some purpose in preventing the cycling preferences predicted by social choice theory from being revealed in the Supreme Court).
37. See CHEMERINSKY, supra note 6.
38. See, e.g., Erwin Chemerinsky, A Unified Approach to Justiciability, 22 CONN. L. REV. 677, 677 (1990) ("[Justiciability is a morass that confuses more than it clarifies.");
39. Melvyn R. Durchslag, The Inevitability (and Desirability?) of Avoidance: A Response to Dean Kloppenberg, 56 CASE W. RES. L. REV. 1043, 1053 (2006) (noting that justiciability doctrine is "all but incomprehensible");
40. Steven L. Winter, The Metaphor of Standing and the Problem of Self-Governance, 40 STAN. L. REV. 1371, 1372 (1988) (indicating that standing doctrine is "among the most amorphous in the entire domain of public law") (quoting Hearings on S. 2097 Before the Subcomm. on Constitutional Rights of the Comm. on the Judiciary, 89th Cong. 498 (1966) (statement of Prof. Ernst Freund)). For a list of some of the more colorful epithets that have been hurled at standing, one of the most notorious justiciability doctrines in this respect,
41. see Staudt, supra note 3, at 614.
42. 127 S. Ct. 1438 (2007).
43. Compare id. at 1455 ("[I]t is clear that petitioners' submissions as they pertain to Massachusetts have satisfied the most demanding standards of the adversarial process."), with id. at 1470 (Roberts, C.J., dissenting) ("The constitutional role of the courts, however, is to decide concrete cases-not to serve as a convenient forum for policy debates.").
44. Notably, the hotly debated question was resolved mainly on a basis unique to the case-the fact that many of the plaintiffs were states, which have generally been treated more generously than other litigants in the standing context. Id. at 1454-55. While that principle allowed a decision on the particular dispute before the Court, it does not shed much light on the correct approach to more routine standing disputes involving private plaintiffs.
45. See, e.g., Pub. Citizen, Inc. v. Nat'l Highway Traffic Safety Admin., 489 F.3d 1279, 1294 n.2 (D.C Cir. 2007) (refusing to apply the relaxed standing analysis from Massachusetts v. EPA where the case before the court did not involve states as litigants).
46. See CHEMERINSKY, supra note 6.
47. Richard J. Pierce, Jr., Is Standing Law or Politics?, 77 N.C. L. REV. 1741, 176364 (1999).
48. Id. (quoting 2 THE RECORDS OF THE FEDERAL CONVENTION OF 1787, at 430 (Max Farrand ed., 1911)).
49. See Pushaw, supra note 9, at 436-52 (reviewing development of these doctrines).
50. Id. at 453. At this time, standing was merely a nonconstitutional, substantive question of whether a remedy was available for the claim asserted by a party.
51. See Winter, supra note 16, at 1418-25 (discussing standing in relation to remedy).
52. Pushaw, supra note 9, at 458 (noting that the creation of new vehicles for litigation, such as declaratory judgment actions, contributed to the proliferation of cases within federal jurisdiction). See generally id. for elaboration of this brief sketch of standing's historical pedigree.
53. Richard H. Fallon, Jr., The Linkage Between Justiciability and Remedies-And Their Connections to Substantive Rights, 92 VA. L. REV. 633, 657 (2006);
54. Pierce, supra note 21, at 1767; Pushaw, supra note 9, at 458.
55. Robert J. Pushaw, Jr., Article Ill's Case/Controversy Distinction and the Dual Functions of Federal Courts, 69 NOTRE DAME L. REV. 447, 451 (1994).
56. Id. at 459-63 (criticizing Frankfurter's attempts to trace justiciability doctrines to roots in English law and early American doctrines like the bar on advisory opinions as inaccurate and unfaithful to the Founders' actual views regarding separation of powers). This constitutional approach to justiciability was reinforced when Alexander Bickel set out his well-known theory that the courts could use threshold screening devices such as justiciability to prevent inadvertent extension of their "undemocratic" review beyond the proper and sustainable scope of judicial power.
57. See ALEXANDER M. BICKEL, THE LEAST DANGEROUS BRANCH 111-98 (1962);
58. see also Pushaw, supra note 9, at 465-66. Though Pushaw argues that this represents a prudential use of the justiciability doctrine, it is to achieve a constitutional end of a particular relationship among the branches and thus may also be considered a constitutional approach to justiciability.
59. Pushaw, supra note 9, at 463.
60. Gene R. Nichol, Jr., Ripeness and the Constitution, 54 U. CHI. L. REV. 153, 154 (1987).
61. Pushaw, supra note 9, at 467 n.365;
62. see also Pierce, supra note 21, at 1769 ("The circumstances in which the Burger Court applied its expanded version of standing strongly suggest that the Burger Court was trying once more to insulate the politically accountable braches of government from the constant assaults of activist judges.").
63. See Kenneth M. Casebeer, The Empty State and Nobody's Market- The Political Economy of Non-Responsibility and the Judicial Disappearing of the Civil Rights Movement, 54 U. MIAMI L. REV. 247, 305 (2000) (discussing the Court's treatment of affirmative action cases);
64. see also Nancy Levit, The Caseload Conundrum, Constitutional Restraint, and the Manipulation of Jurisdiction, 64 NOTRE DAME L. REV. 321, 362 (1989) ("The liberal-conservative battle regarding court access has played out over the years with liberals maintaining that current doctrines of justiciability and jurisdiction hurt underprivileged and marginal groups. Conservatives responded that this position was value-laden, and therefore not good legal argument. Conservatives, and now many law and economics adherents, called for neutral principles of adjudication, one of which is the efficient administration of the federal caseload.");
65. Rorie Spill Solberg & Stefanie A. Lindquist, Activism, Ideology, and Federalism: Judicial Behavior in Constitutional Challenges Before the Rehnquist Court, 1986-2000, 3 J. EMPIRICAL LEGAL STUD. 237, 242 (2006) ("[T]he Warren Court's liberally-oriented activism has led conservatives to eschew activist judicial review....").
66. But see William A. Taggart & Matthew R. DeZee, A Note on Substantive Access Doctrines in the U.S. Supreme Court: A Comparative Analysis of the Warren and Burger Courts, 38 W. POL. Q. 84 (1985) (finding no difference in provision of access between liberal Warren and conservative Burger Courts).
67. Nichol, supra note 30, at 159 ("[T]he Burger Court[]... castQ the constitutional 'case' demand as an objective, concrete, independent barrier to the exercise of judicial power.");
68. see also Thomas W. Merrill, Marbury v. Madison as the First Great Administrative Law Decision, 37 J. MARSHALL L. REV. 481, 489-90 (2004) (noting the period around 1970 as when the controversy and standing link first clearly emerged);
69. Pushaw, supra note 9, at 473-74.
70. Allen v. Wright, 468 U.S. 737, 750 (1984) (citations omitted).
71. See, e.g., Neal Devins, Asking the Right Questions: How the Courts Honored the Separation of Powers by Reconsidering Miranda, 149 U. PA. L. REV. 251, 256 (2000);
72. Jonathan R. Siegel, A Theory of Justiciability, 86 TEX. L. REV. 73, 82 (2007);
73. Ernst A. Young, Judicial Activism and Conservative Politics, 73 U. COLO. L. REV. 1139, 1202 (2002) (identifying conservatives seeking a limited role for the judiciary as "institutional conservatives"). This is certainly not an inevitable alignment,
74. see Richard A. Posner, The Meaning of Judicial Self-Restraint, 59 IND. L.J. 1, 12 (1983), but it is fairly descriptive of the positions of liberals and conservatives sitting on the Supreme Court and D.C Circuit during the time period in question.
75. See, e.g., John Ferejohn, The Law of Politics: Judicializing Politics, Politicizing Law, 65 LAW & CONTEMP. PROBS. 41, 57 (2002) (describing changes in liberal stance on judicial review, with liberals currently in favor of less judicial restraint). For example, Justices Scalia and Roberts, among the most conservative current members of the Supreme Court, are well-known for their advocacy of the strict application of constitutional standing requirements.
76. See Massachusetts v. EPA, 127 S. Ct. 1438, 1464-71 (2007) (Roberts, C.J., Scalia, Thomas & Alito, JJ., dissenting);
77. Lujan v. Defenders of Wildlife, 504 U.S. 555, 559-78 (1992) (Scalia, J.).
78. See infra notes 93-96 and accompanying text for an explanation of why the empirical analysis centered on these two doctrines.
79. Warth v. Seldin, 422 U.S. 490, 498-501 (1975);
80. see also Lonny Sheinkopf Hoffman, A Window into the Courts: Legal Process and the 2000 Presidential Election, 95 Nw. U. L. REV. 1533, 1550 (2001) (reviewing
81. SAMUEL ISSACHAROFF ET AL., WHEN ELECTIONS GO BAD: THE LAW OF DEMOCRACY AND THE PRESIDENTIAL ELECTION OF 2000 (2001));
82. Staudt, supra note 3, at 623-25.
83. Baker v. Carr, 369 U.S. 186, 204 (1962).
84. Massachusetts v. EPA, 127 S. Ct. 1438, 1453 (2007).
85. Fallon, supra note 26, at 656-57;
86. Cass R. Sunstein, What's Standing After Lujan? Of Citizen Suits, "Injuries," and Article III, 91 MlCH. L. REV. 163, 170-79 (1992).
87. See generally Winter, supra note 16 for a detailed tracing of the historical roots of standing in American courts.
88. But see Ann Woolhandler & Caleb Nelson, Does History Defeat Standing Doctrine?, 102 MICH. L. REV. 689 (2004) (asserting that historical evidence does support a coherent concept of standing).
89. See generally Winter, supra note 16 (offering a detailed exploration of the various iterations of standing doctrine and their coalescence into the modern day inquiry into injury, causation, and redressability).
90. Sunstein, supra note 40, at 169
91. (citing Stark v. Wickard, 321 U.S. 288 (1944));
92. see also Pierce, supro note 21, at 1763-65 (offering more details to support argument that standing's link to Article III is a flimsy one).
93. 262 U.S. 447 (1923).
94. See, e.g., Gilles, supra note 13, at 319 n.21.
95. But see Winter, supra note 16, at 1375-76
96. (citing earlier case, Fairchild v. Hughes, 258 U.S. 126 (1922), as being the first such instance, but ignored by most scholars).
97. 262 U.S. at 486.
98. Id. at 487.
99. Id. at 488.
100. 426 U.S. 26 (1976).
101. Id. at 41, 43.
102. 397 U.S. 150, 153-54 (1970).
103. 412 U.S. 669 (1973). The challengers alleged that the surcharge would discourage recycling by increasing the costs of transporting materials for recycling, leading to more natural resource extraction around the camping areas in question as well as more accumulation of normally recyclable materials in those areas.
104. Id. at 676;
105. see also Kurt S. Kusiak, Note, Standing to Sue: A Brief Review of Current Standing Doctrine, 71 B.U. L. REV. 667, 671 (1991) (providing more discussion of the case in a larger overview of standing doctrine).
106. See, e.g., Allen v. Wright, 468 U.S. 737, 750 (1984) (denying standing to petitioners seeking ruling that 1RS had failed its obligation to deny private racially discriminatory schools tax-exempt status);
107. Valley Forge Christian Coll. v. Am. United for Separation of Church & State, Inc., 454 U.S. 464, 471 (1982) (denying taxpayers standing to challenge government transfer of property to religious college at no cost);
108. Gladstone Realtors v. Village of Bellwood, 441 U.S. 91, 99 (1979) (granting standing to litigants challenging housing discrimination even though they had not actually been seeking housing, but rather had merely acted as "testers" of housing practices);
109. Warth v. Seldin, 422 U.S. 490, 498 (1975) (denying standing to various parties challenging town zoning ordinance).
110. 504 U.S. 555 (1992).
111. id. at 559.
112. Id.
113. Id. at 564, 571-78 (allowing suit without particularized, actual injury would violate precedent requiring more than a "generalized grievance"). A plurality of the Court also argued that redressability was lacking since the consultation, even if it occurred, might not affect the consulting agency's ultimate action.
114. Id. at 568-71.
115. Sunstein, supra note 40, at 164-65.
116. Lujan, 504 U.S. at 571-78 (holding that contravention of Endangered Species Act provision allowing suit does not itself establish injury sufficient for constitutional standing);
117. see also Pierce, supra note 21, at 1766.
118. See Herz, supra note 9, at 328 n.144 (noting that injury-in-fact requirement blends prudential and constitutional concerns);
119. James Leonard & Joanne C Brant, The Half-Open Door: Article III, the Injury-in-Fact Rule, and the Framers' Plan for Federal Courts of Limited Jurisdiction, 54 RUTGERS L. REV. 1, 2 (2001);
120. Stearns, supra note 14, at 1325 n.59.
121. Discussing the ripeness test, which balances "the fitness of the issues for judicial decision" against "the hardship to the parties of withholding" review, Abbott Labs. v. Gardner, 387 U.S. 136, 149 (1967), Alexander Bickel has described it thus: [G]overnment action may well have hurt the individual plaintiff, so that his standing in the pure or constitutional sense is beyond doubt.... But the action he complains of may nevertheless be in its initial stages only; if he waits a little while longer, he will be hurt more. This sounds gratuitously harsh, but the damage may not be major or irremediable. The point is that, if litigation is postponed, the Court will have before it and will be able to use, both in forming and supporting its judgment, the full rather than merely the initial impact of the statute or executive measure whose constitutionality is in question. To put it in yet another way, pure standing ensures a minimum of concreteness; the other impure elements of standing and the concept of ripeness seek further concreteness, in varying conditions that cannot be described by a fixed constitutional generalization.
122. BICKEL, supra note 28, at 123-24.
123. Abbott Labs., 387 U.S. at 148.
124. Pushaw, supra note 9, at 493.
125. See, e.g., United Pub. Workers v. Mitchell, 330 U.S. 75 (1947) (citing Article III and separation-of-powers concerns in rejecting pre-enforcement challenge to statute regulating political campaigning by government employees). 64.
126. Abbott Labs., 387 U.S. at 137-39.
127. Id. at 149.
128. 415 U.S. 452, 458 (1974);
129. see also Reg'l Rail Reorg. Act Cases, 419 U.S. 102, 138 (1974) ("[I]ssues of ripeness involve, at least in part, the existence of a live 'Case or Controversy."').
130. See Nichol, supra note 30, at 163 n.65 for more cases discussing ripeness as a constitutional doctrine .
131. 523 U.S. 726, 728 (1998).
132. Id. at 733.
133. Justice Breyer quoted the admonition of Abbott Laboratories that ripeness analysis is necessary "to prevent the courts, through avoidance of premature adjudication, from entangling themselves in abstract disagreements over administrative policies, and also to protect the agencies from judicial interference until an administrative decision has been formalized and its effects felt in a concrete way by the challenging parties.
134. " Id. at 732-33
135. (quoting Abbott Labs. v. Gardner, 387 U.S. 136, 148-49 (1967)).
136. Id. at 731.
137. id. at 732-37.
138. Id.
139. The Court also noted that Congress had not provided for pre-enforcement review through a statutory provision, though it had done so in other statutes.
140. Id. at 737.
141. Although Ohio Forestry did not change the ripeness test per se to make it either more stringent or relaxed, the opinion did thoroughly explore the issue of ripeness from an angle indicating disfavor of judicial review as a route for abstract objections to general agency policies, and thus could potentially signal to lower courts that they should be on guard for unripe petitions.
142. See id. at 735 ("The ripeness doctrine reflects a judgment that the disadvantages of a premature review that may prove too abstract or unnecessary ordinarily outweigh the additional costs of-even repetitive-post-implementation litigation.");
143. Herz, supra note 9, at 331-34 (grouping OAto Forestry with other cases demonstrating Rehnquist Court's reluctance to review certain kinds of agency action);
144. Levin, Kenneth Culp Davis, supra note 12, at 342 ("[B]ecause so much [of the context-specific ripeness test] does depend on discretion, the attitude with which the doctrine is implemented is critical.");
145. see also infra Part U.C. But see Levin, The Year in Judicial Review, supra note 12, at 393 (arguing that OAto Forestry did not mark a major turning point in ripeness doctrine).
146. It is revealing to note that Ohio Forestry was part of a more general constriction of judicial review of government action in the 1990s, a trend exemplified by Lujan along with cases such as Bennett v. Spear, 520 U.S. 154, 175-76 (1997),
147. which narrowed the test for prudential standing, and Norton v. Southern Utah Wilderness Alliance, 542 U.S. 55, 66 (2004),
148. which, though occurring in the statutory context of review under the Administrative Procedure Act, was similar to Ohio Forestry in disfavoring judicial entanglement in abstract policy disagreements which courts lack both expertise and information to resolve." As one prescient commenter noted in the aftermath of the Lujan decision, "[o]ne area where Defenders may have an impact is in tightening the Court's current view of mootness and ripeness which ... may be viewed as time-based perspectives on the injury in fact requirement."
149. Marshall J. Breger, Defending Defenders: Remarks on Nichol and Pierce, 42 DUKE L.J. 1202, 1215 (1993). Indeed, in hindsight Lujan appears to have been the harbinger of a Supreme Court tightening of justiciability doctrine on multiple fronts.
150. Fallon, supra note 26, at 658-59;
151. Nichol, supra note 30, at 162 ("[R]ipeness review often has been employed to determine whether the litigant's asserted harm is real and concrete rather than speculative and conjectural. This methodology parallels standing analysis.").
152. Fallon, supra note 26, at 658-59;
153. see also Susan Bandes, The Idea of a Case, 42 STAN. L. REV. 227, 269 (1990) ("The Court's duty is to ensure that is has sufficient concrete facts, and sufficiently adverse parties, to permit it to perform its proper role. Whatever the doctrinal label, these qualities exist on a continuum, and the requisite quantity should vary according to the nature of the case.").
154. See Eric R. Claeys, Note, The Article III, Section 2 Games: A Game-Theoretic Account of Standing and Other Justiciability Doctrines, 67 S. CAL. L. REV. 1321, 135859 (1994).
155. Some might argue that the biggest difference between the two is that a dismissal on ripeness grounds merely puts litigation off until another day while standing ends it forever. This is debatable in two respects. First, the standing inquiry can at times be sensitive to the issue of whether finding a lack of standing would make any legal challenge impossible.
156. See, e.g., Massachusetts v. EPA, 127 S. Ct. 1438, 1457 (2007) (holding that standing exists despite fact that agency refusal to regulate contributes only to small fraction of petitioner's injury since "accepting that premise would doom most challenges to regulatory action");
157. Covington v. Jefferson County, 358 F. 3d 626, 654 (9th Cir. 2004) (finding standing based on complex link between CFC emission and ozone depletion where "[t]o hold that there is no causation here 'would permit virtually any contributory cause to the complex calculus of environmental harm to be ignored as too small to supply the causal nexus required for standing"'
158. (citing City of Los Angeles v. Natl Highway Traffic Safety Admin., 912 F.2d 478, 498 (D.C Cir. 1990)));
159. see also Lea Brilmayer, The Jurisprudence of Article III: Perspectives on the "Case or Controversy" Requirement, 93 HARV. L. REV. 297, 315-16 (1979) (recommending that, although standing requirement offers benefits, exception should be made where no one else would litigate claim). Second, while ripeness leaves open the possibility of a future suit once circumstances have become more defined, a dismissal on ripeness grounds may end up having the same effect of a dismissal on the merits if the petitioners do not have the resources to mount another legal challenge, if delay allows an agency policy to become insurmountably entrenched, or if too long a wait leaves litigants facing the converse problem of mootness. The mere fact that the ripeness test contains a "hardship" prong shows that courts are sensitive to the fact that delay of judicial review can have irreversible consequences.
160. See Fallon, supra note 26, at 699, 704 (proposing a relatively low bar for standing, with more emphasis on ripeness and equitable concerns, since the latter allow more fine-tuned judgments on a rights-specific basis of the suitability of a dispute for judgment);
161. Nichol, supra note 30, at 182-83.
162. But see Gene R. Nichol, Jr., Standing for Privilege: The Failure of Injury Analysis, 82 B.U. L. REV. 301, 339 (2002) [hereinafter Nichol, Failure of Injury Analysis] ("[TJhe artificial categories of injury that have rendered the Court's standing jurisprudence one of the most manipulated, result-oriented arenas of constitutional law."). While the formal test for ripeness may be more flexible, academic commentary indicates that standing decisions have been subject to judicial manipulation just as much if not more. 78. Nichol, supra note 30, at 155-56. Aspects of the ripeness doctrine are anomalous for a requirement rooted in the Constitution. The demands of the principle vary greatly according to the dictates and posture of the claim on the merits.... In short, except for those instances in which ripeness analysis is employed to eschew advisory opinions-a task performed more directly by the standing requirement-the doctrine serves goals that the Court has typically characterized as prudential rather than constitutional. It aims to fine-tune the decision-making process of the federal courts and to measure the demands of substantive constitutional principle. These tasks are essential. They are not best performed, however, by an overarching barrier to the exercise of judicial power. Ripeness analysis is intertwined with the posture, factual record, and substantive standards of the claim being litigated. It cannot easily be encompassed by an independent, uniform constitutional limitation on judicial authority.
163. Id. It is unclear why this argument should stop at ripeness; many of the other justiciability doctrines, especially standing, share similar prudential aspects, not to mention a relatively tenuous connection to the case or controversy requirement. Furthermore, Nichol's argument is premised on the idea that a substantial number of ripeness decisions dealing with the issue of whether the plaintiffs have shown any ongoing harm should in fact be folded into the standing inquiry.
164. See id. at 170-73.
165. See supra notes 37-71 and accompanying text; see also Bandes, supra note 74, at 266, 269-70 (providing examples of inconsistent application of injury and causation prongs of standing test);
166. Nichol, supra note 30, at 165 (highlighting the "variable nature of the ripeness doctrine" in cases requiring some plaintiffs to wait years for claims to mature while others may bring suit upon enactment of statute).
167. See 33 CHARLES ALAN WRIGHT & CHARLES H. KOCH, JR., FEDERAL PRACTICE AND PROCEDURE §8418 (2006) ("Ripeness also involves aspects of the separation of powers.... If a court ruled on a nonfinal action, the agency would be able to co-opt the judicial ruling by modifying its decision. The judiciary does not want to see its decisions reduced to a nullity by subsequent administrative action. On the other hand, courts must take care that they do not take on administrative functions in violation of the assigned authority and status granted them by the Constitution. In short, the ripeness doctrine... helps assure that the courts exercise 'judicial power' and not powers assigned to the other branches.");
168. Bandes, supra note 74, at 276 ("The spare language of article III and the broad outlines of the separation of powers and federalism principles it is meant to preserve cannot be mechanically applied. Reasoned application of the case limitation requires interpretation of the case requirement's underlying principles and their implications for the scope of federal judicial power. Value-neutrality is impossible.");
169. Fallon, supra note 26, at 667.
170. See, e.g., Fallon, supra note 26, at 668-70, 672 n.140, 679-80 (arguing that in both standing and ripeness cases, judges exhibit concern about hearing cases that would require remedies intruding too far into the executive sphere).
171. But see Bandes, supra note 74, at 318 ("The [Supreme] Court has tried to interpret the case requirement through a process of exclusion and inference. It has determined, on a case-by-case basis, what a case is not. For the most part, it has treated each article III problem as discrete. The result is a complex collection of doctrines which are disconnected from each other, and most of all, from any overarching, normative theory of a case.").
172. See F. Andrew Hessick, Standing, Injury in Fact, and Private Rights, 93 CORNELL L. REV. 275, 296 (2008) (arguing that standing evolved and is appropriate only as a restraint on public litigation, not on assertions of private rights).
173. Although a judge's view of the correct amount of "space" to give a government entity might depend on the exact unit of government being challenged, the substantive issue in question, the identity of the litigant, and other factors, reliance on a relatively broad spectrum of cases ensures that the mix of cases includes plenty of "routine" disputes. This might help to avoid the selection effect of focusing on issues of particular political importance or difficulty, producing results that can speak to a range of cases. Judge Patricia Wald, while a member of the D.C Circuit, noted that a "large proportion of [the circuit's] cases (particularly administrative law cases) have no apparent ideology to support or reject at all."
174. Patricia M. Wald, A Response to Tiller and Cross, 99 COLUM. L. REV. 235, 237 (1999). Indeed, an early attempt to code these cases according to the liberal or conservative stance of the litigant bringing the challenge was unsuccessful due to the frequency of lawsuits lacking any clear ideological valence. Further investigation of this topic would ideally take better account of the possibility of judges' preferences on the merits of a suit overriding their general beliefs regarding the proper role of judicial oversight of other branches. However, the seeming prevalence of non-ideologically contentious litigation provides some reassurance that this study's reliance on the assumption that conservative judges will generally use standing and ripeness doctrines to maintain a narrow scope for citizen challenges to government action while liberal judges will tend in the opposite direction is fairly sensible. Additionally, since this study considered the incidence of discussion of justiciability issues as well as the outcomes of such discussions,
175. see infra notes 88-92 and accompanying text for some of the results as to the extent to which judges manipulated justiciability doctrine to achieve certain preferred outcomes on the merits is irrelevant.
176. See Fallon, supra note 26, at 687.
177. Harold H. Bruff, Coordinating Judicial Review in Administrative Law, 39 UCLA L. REV. 1193, 1202 (1992). Focusing on a single circuit also avoids the problem of inter-circuit discrepancies in attitudes regarding stare decisis. The D.C Circuit additionally offered two other advantages: a relatively small membership, reducing the amount of personal variation among judges, and its relatively constant ideological composition over this time period. According to an ideological scoring of the judges, infra notes 97-99 and surrounding text, the average ideological score of a judge on the D.C Circuit varied by less than 0.1 on a scale of 2.0 during the time span considered in this study.
178. The use of only published cases does pose the danger of ending up with a skewed picture of the effects of Supreme Court precedent on all litigants appearing before the D.C Circuit, especially if judges choose not to publish opinions where they misuse or do not follow precedent.
179. Stephen L. Wasby, Unpublished Decisions in the Federal Courts of Appeals: Making the Decision to Publish, 3 J. APP. PRAC. & PROCESS 325, 328-29 (2001). However, recent studies of this process indicate that judges are relatively compliant with the traditional rules dictating when to publish a case and are subject to monitoring in making such decisions.
180. See id. at 339-40;
181. J ohn R. Allison & Mark A. Lemley, The (Unnoticed) Demise of the Doctrine of Equivalents, 59 STAN. L. REV. 955, 976 (2007);
182. Deborah Jones Merritt & James J. Brudney, Stalking Secret Law: What Predicts Publication in the United States Courts of Appeals, 54 VAND. L. REV. 71, 97-103 (2001). This rationale is bolstered by a practical one: comprehensive databases of unpublished opinions, even at the appellate court level, are not readily available.
183. See James J. Brudney et al, Judicial Hostility Toward Labor Unions? Applying the Social Background Model to a Celebrated Concern, 60 OHIO ST. L.J. 1675, 1680 (1999);
184. Peter H. Schuck & Theodore Hsien Wang, Continuity and Change: Patterns of Immigration Litigation in the Courts, 1979-1990, 45 STAN. L. REV. 115, 127 (1992);
185. Gregory Sisk et al., Searching for the Soul of Judicial Decision making: An Empirical Study of Religious Freedom Decisions, 65 OHIO ST. L.J. 491, 535 (2004). Additionally, an informal review of unpublished decisions available on Westlaw that dealt with standing and ripeness over the time period in question (of which there were 285) indicates that most were summary dismissals on those grounds. This suggests that, if anything, consideration of these cases would skew these results-since many unpublished cases are summary dispositions, they are less likely to discuss standing or ripeness unless that is the ground on which the case is decided, and thus inclusion of unpublished opinions would fail to convey the number of cases in which justiciability was actually considered by the judges but deemed to be present. Published decisions, offering a fuller discussion of all issues in a case, provide a more accurate picture of a court's complete decision-making process rather than just the ground on which the case is ultimately decided. Furthermore, it may be that abusive non-publication is less of a problem in the justiciability context because publication decisions are usually made based on the merits of the case; standing or ripeness, unless they are particularly contentious or central to the case, thus seem relatively unlikely to dictate the publication decision in a given lawsuit. And since published cases are the most prominent mechanism for appellate courts to create precedent (the D.C Circuit allows citation of unpublished opinions only for res judicata, not precedential purposes, D.C ClR. R. 32.1(b)), to the extent that appellate judges are interested in furthering their policy goals by binding lower court judges, they will be just as likely to pursue ideological aims in published as unpublished precedent.
186. See Sisk et al, supra at 535, and
187. Bernard Trujillo, Patterns in a Complex System: An Empirical Study of Valuation in Business Bankruptcy Cases, 53 UCLA L. REV. 357, 365 (2005), for similar rationales justifying the exclusion of unpublished opinions from a study. Still, it is important to note that the findings below regarding the D.C Circuit's response to Supreme Court precedent on standing and ripeness represent only results in published opinions and may not accurately reflect the overall effect of Supreme Court precedent in the D.C Circuit due to selection effects. Although, to the extent that these results deal with comparisons across more than one doctrine, this issue should not be relevant since there is no reason to assume a different selection effect between standing and ripeness decisions.
188. See generally Andrew P. Morriss, Developing a Framework for Empirical Research on the Common Law: General Principles and Case Studies of the Decline of Employ ment-at-Will, 45 CASE W. RES. L. REV. 999,103846 (1995) for a more thorough discussion of the issue of using only published opinions in empirical studies.
189. I read through all published cases of the D.C. Circuit from 1988 through 2005 (procured through a search on Westlaw). I collected cases involving "challenges to government action" by a process of exclusion, including any case in which a government entity was a party but then eliminating criminal cases, prisoner litigation, cases involving internal government personnel issues (including cases brought by military personnel against their superiors), access to information cases under the Freedom of Information Act and the Privacy Act, habeas corpus cases, cases where the District of Columbia was the only government party, cases only for monetary damages, attorney's fees cases, and cases involving trial issues (such as the enforcement of subpoenas). All of these exclusions were aimed at filtering out cases where the correct role of the judiciary in monitoring the behavior of other branches would not be an important consideration or might skew in a different direction than it would in a traditional challenge to agency action. For example, military personnel cases were excluded because of the extra deference generally given to the executive in its management of the military.
190. See United States v. Johnson, 481 U.S. 681, 690-91 (1987). Although I could also have separated challenges to legislative versus executive action, I combined the two based on the belief that judges would have a similar view of the comparative advantages of either of the "political" branches in dealing with abstract policy questions.
191. See Merrill, supra note 33, at 482 ("[JJudicial review of executive action and judicial review of legislative action ... raise the same dilemma: how do we prevent courts, in the guise of enforcing their interpretation of the law, from usurping the rightful functions of the elected branches of government?").
192. Nancy Staudt, who has authored a similar study in the arena of taxpayer standing cases, criticizes most empirical studies of standing for leaving out cases where courts do not discuss the issue of standing at all, since even there the judges make an implicit judgment that the case is justiciable. Staudt, supra note 3, at 619. In her own investigation, Staudt remedied that flaw by considering all cases within the subject area to determine when standing was brought up as an issue.
193. Id.
194. In this Article, I attempt to extend her approach to all cases challenging government action, and to include ripeness as well as standing. The results will inevitably be shallower, since the cases have fewer common variables, making any attempt to control for a discrete set of possibly influential variables a more onerous task; however, what is lost in depth is hopefully compensated for by the breadth of the outcomes observed, allowing for more general conclusions on judicial treatment of justiciability doctrines.
195. A case was coded as "discussing" standing or ripeness if the opinion cited at least one case on the topic. Though this did result in some cases being discarded that mentioned ripeness or standing, it did provide a bright line rule for when this variable was present. Furthermore, any selection effect resulting from this approach was not significant since it did not exclude many cases and since citation of precedent should not be correlated with any substantive outcome. Though one could argue that judges are more likely to cite precedent where they are following it, this seems unlikely to be true in an area such as standing or ripeness where the factual complexity of application of the doctrine means that cases are generally cited more to establish the relevant legal test and are unlikely to actually determine the outcome by factual analogy. Additionally, a judge might be just as likely to cite a supportive precedent to conceal a decision in fact motivated by ideology.
196. The full set of data produced by this process is on file with the author and available upon request.
197. See, e.g., Natl Park Hospitality Ass'n v. Dep't. of the Interior, 538 U.S. 803, 808 (2003) ("[T]he question of ripeness may be considered on a court's own motion." (citations omitted)).
198. See Staudt, supra note 3, at 655 & n.179, for a similar approach. It should be noted that the significant ideological effects observed in this study, see infra Part III.B.l, rule out the alternative hypothesis that changes in standing trends are the product of a shift in pleading practices of parties rather than reflecting a trend in judicial decision making. If parties brought up standing more often poet-Lujan because they perceived arguments regarding that issue as having greater traction in the aftermath of that case, and judges merely responded to that by deciding the question whenever it was raised in the briefs, then the results should be consistent across panels regardless of the composition of those panels. Instead, more conservative panels were more likely to raise justiciability issues than liberal panels. It is possible that parties raise standing questions more often before conservative judges because they are perceived to be more likely to rule against the opposition on standing grounds than more permissive liberal judges, but that seems unlikely given that parties will generally raise any possible argument in their favor, and can do so for justiciability without that much trouble. Furthermore, the D.C. Circuit's decision in Sierra Club v. EPA in 2002, which prospectively ruled that petitioners of agency action must supplement the administrative record with evidence of standing if it is not selfevident, 292 F.3d 895, 899-900 (D.C. Cir. 2002), indicates that parties' pleading behavior had not changed substantially since Lujan; otherwise they presumably would have already begun defensively providing more evidence of standing as well as bringing it up more on the offensive.
199. Prudential standing was considered as a separate doctrine from standing because the legal doctrine and relevant precedents for the two issues are treated separately by the courts. See
200. Elk Grove Unified Sch. Dist. v. Newdow, 542 U.S. 1, 1112 (2004) (explaining the "two strands" of standing jurisprudence); Pierce, supra note 21, at 1781-82 (noting that prudential standing is rooted in section 702 of the Administrative Procedure Act whereas standing is attributed to the requirements of Article III of the Constitution).
201. The finality requirement is not in fact an Article III doctrine, based instead in the language of the Administrative Procedure Act and similar statutes providing for judicial review only of "final agency action." 5 U.S.C. §704 (2006). However, its overlap with the doctrine of ripeness has often been noted, and it has a consequently similar bearing on the relationship between the judicial and political branches.
202. Additionally, the finality issue was also subject to a Supreme Court decision narrowing its scope in Norton v. Southern Utah Wilderness Alliance, 542 U.S. 55 (2004). Thus it bears similarly on the questions addressed in this paper and was initially considered as a potential subject for study.
203. For example, across the years 1995-2005, the D.C. Circuit brought up prudential standing in only 24 cases and mootness in only 45, versus 102 cases considering ripeness and 225 considering standing in the same time period.
204. See generally supra Part ILB-C
205. For the details of this method,
206. see Nolan M. McCarty & Keith Poole, Veto Power and Legislation: An Empirical Analysis of Executive and Legislative Bargaining from 1961 to 1986, 11 J. L. ECON. & ORG. 282 (1995);
207. Common Space Data, Jan. 4, 2007, http://voteview.com/readmeb.htm (last visited September 1, 2008).
208. See also Joseph L. Smith & Emerson H. Tiller, The Strategy of Judging: Evidence from Administrative Law, 31 J. LEGAL STUD. 61, 72-74 (2002) for a similar use of Poole and McCarty's NOMINATE scores to gauge judicial ideology. For a table of these scores, see infra Appendix A.
209. See Smith & Tiller, supra note 97;
210. see also Frank B. Cross, Decisionmaking in the U.S. Circuit Courts of Appeals, 91 CAL. L. REV. 1457, 1506 (2003) [hereinafter Cross, Decisionmaking in the Courts of Appeals] (finding that ideological effect on judicial decision making depends on the particular President that nominated a judge, not just that president's party, and using another alternative system of scoring for presidential ideology).
211. This to some extent precludes the need to code cases based on the ideology of the outcome, which can be quite a difficult task. See Staudt, supra note 3, at 653 n.173;
212. see also Cross, Political Science, supra note 2, at 290 (noting challenges in attempting to categorize case outcomes as "liberal" or "conservative");
213. John G. Roberts, Jr., Article III Limits on Statutory Standing, 42 DUKE L.J. 1219, 1230 (1993) (noting growth of conservative public interest groups as undermining easy assumptions about ideological content of challenges to government action);
214. supra note 83. It is possible that some of these cases represent situations where judges' preferences regarding the ultimate outcome of a case led them to decide threshold justiciability issues in a manner contrary to their beliefs regarding the correct approach to judicial review of government action.
215. David B. Spence & Paula Murray, The Law, Economics, and Politics of Federal Preemption Jurisprudence: A Quantitative Analysis, 87 CAL. L. REV. 1125,1171 (1999) (studying just such situations in selection of preemption cases where judges' bare political preferences pointed in different direction than philosophy of regulation, and finding that the ideological orientation of outcome tended to trump vague preference as to particular method of regulation to determine judges' decisions). However, identifying the ideology of panels deciding these cases allowed an analysis of whether the issuance of Lujan and Ohio Forestry changed the behavior of panels even holding their ideology constant.
216. A logistic regression is a type of generalized linear model that fits a model curve to a set of data and allows calculation of the likelihood that the independent variables in the model explain (i.e., fit the prediction of) the dependent outcomes. For a more complete discussion of the use of such statistical methods in the legal context,
217. a useful reference is MICHAEL O. FINKELSTEIN & BRUCE LEVIN, STATISTICS FOR LAWYERS (2d ed. 2001).
218. For charts showing the results for each doctrine year-by-year, see infra Appendix B.
219. See infra Table 1.
220. Whether a result is statistically significant or not is generally judged by calculating its p-value, the likelihood of getting that result under the "null hypothesis"-the hypothesis that the study seeks to reject (in this study, the hypothesis that the Supreme Court cases being considered had no effect on D.C. Circuit decisions).
221. See FINKELSTEIN & LEVIN, supra note 100, at 124-26. The traditional threshold for significance is a p-value of less than 0.05, which indicates only a 5% likelihood of getting such results under the null hypothesis.
222. See id.
223. I should note here that I relied on the determination in an earlier study of standing doctrine that standing outcomes are independent of outcomes on the merits, and thus these two variables may be treated as independent in statistical analysis.
224. See Staudt, supra note 3, at 656 ("[C]ourts do not use standing as a means of deciding the merits but instead make two independent decisions.").
225. The smaller a sample size, the less predictive power a statistical test can provide. HyperStat Online Contents, Factors Affecting Power: Sample Size, http://davidmlane.com/hyperstat/B81807.html (last visited Sept. 1, 2008). Here, the small number of outcomes means that the logistic regression test will not be able to detect statistically significant trends unless they are extremely significant or the "effect size" (the difference between the before and after results) is large.
226. A number of commentators have conceptualized standing cases in this manner, acknowledging that as a fact-based inquiry, standing is better supported by the facts in some cases than others regardless of what the ultimate decision on the standing issue actually is.
227. See Bandes, supra note 74, at 264 ("The factors relevant to the case determination exist on a continuum, and the Court must unavoidably make choices about where on the continuum a line should be drawn.... The Court must make distinctions of degree, not of kind.");
228. Stearns, supra note 14, at 1403 (discussing standing cases as lying along a spectrum). This understanding of the results may explain the relatively constant rate of dismissal before and after Lujan across those cases where standing was mentioned; even if cases with questionable standing were dismissed more often, the increased discussion of the issue in suits where the case for standing was relatively sound and where it would usually be granted would "dilute" the dismissal rate. The following hypothetical example illustrates how this would work: given a sample of 1000 cases pre-Lujan where standing was discussed, and a dismissal rate of 20%, 200 cases would be dismissed overall. If post-Lujan standing was discussed in 2000 cases, the same overall dismissal rate would be seen if 1000 of those cases were "obvious" and were dismissed at a 30% rate, while the other 1000 were "marginal" cases where standing was only questioned post-Lujan and thus were dismissed at a 10% rate. This would lead to 400 cases being dismissed overall, 300 from the obvious pool and 100 from the marginal pool, preserving the overall dismissal rate at 20% but showing that each set of cases is dismissed at a higher rate (with obvious cases rising from 20% to 30% dismissal, and marginal cases rising from 0% to 10% dismissal).
229. Because of the scarcity of available standing outcomes, it is impossible to discern whether this is purely an ideological phenomenon or if precedent has some effect on liberal judges as well. The small number of outcomes, as explained above, makes it hard to detect statistically significant trends in judicial disposition of standing questions. A study with more outcomes would be able to discern whether more liberal panels are not just raising the issue of standing more, but also dismissing at a higher rate post-Lujan, which would demonstrate compliance with a precedent those judges did not agree with. Until such a study is conducted, these results do not, on their own, rule out the possibility that liberal judges engage in only surface compliance by discussing standing in cases where it previously went unquestioned, but never actually denying standing in those marginal cases.
230. With respect to the discussion of standing, the odds ratio for a one unit increase was 0.98, with p-value equal to 0.944, demonstrating no association between APR and chances of raising standing as an issue.
231. Perhaps this odd result was merely the product of analyzing the small sample size. Alternatively, it might be that more conservative judges do not feel the need to raise the issue of ripeness unless they use it as grounds to dismiss a case. However, that superficial explanation still begs the question of why they exhibit such behavior.
232. Cross, Political Science, supra note 2, at 255;
233. Tiller & Cross, What is Legal Doctrine?, supra note 3, at 518-19.
234. See, e.g., Cross, Political Science, supra note 2, at 61-62 (summarizing the existing literature).
235. These two concepts are given different names by different authors-for example, in her study of taxpayer standing, Staudt calls them the "team theory" and the "agency theory" respectively, but their general outlines remain the same. See Staudt, supra note 3, at 634-41.
236. Cross, Political Science, supra note 2, at 265-66.
237. See generally JEFFREY A. SEGAL & HAROLD J. SPAETH, THE SUPREME COURT AND THE ATTITUDINAL MODEL REVISITED (2002).
238. See Michael J. Gerhardt, Attitudes About Attitudes, 101 MICH. L. REV. 1733 (2003)
239. (reviewing SEGAL & SPAETH, supra note 113).
240. See, e.g., Thomas J. Miles & Cass R. Sunstein, The Real World of Arbitrariness Review, 75 U. CHI. L. REV. 761, 767 (2008) (finding political alignment of judges to be statistically significant variable in predicting outcomes in judicial review of agency decisions);
241. Sisk et al, Charting the Influences on the Judicial Mind, supra note 4, at 1388 (citing several studies illustrating influences of judicial ideology on case outcomes);
242. Smith & Tiller, supra note 97 (detailing a study showing that judges choose grounds for dismissal so as to minimize chances of review for policies they agree with and maximize review for those they oppose);
243. see also Claeys, supra note 75, at 1325-34 (proposing game theoretic model using politically-motivated actors that would explain some aspects of justiciability doctrine as a tool for affecting substantive outcomes).
244. See generally Cross, Political Science, supra note 2, at 265 (reviewing evidence for the attitudinal model and summarizing it as "substantial, if not entirely conclusive");
245. Lindquist & Cross, supra note 5, at 1160-68;
246. Daniel R. Pinello, Linking Party to Judicial Ideology in American Courts: A Meta-Analysis, 20 JUST. SYS. J. 219 (1999).
247. See Nancy C Staudt, Taxpayers in Court- A Systematic Study of a (Misunderstood) Standing Doctrine, 52 EMORY L.J. 771, 836 n.309 (2003);
248. see also Lindquist & Cross, supra note 5, at 1163.
249. See, e.g., Fallon, supra note 26, at 634, 638, 641;
250. Winter, supra note 16, at 1373.
251. Gregory J. Rathjen & Harold J. Spaeth, Access to the Federal Courts: An Analysis of Burger Court Policy Making, 23 AM. J. POL. SCI. 360 (1979).
252. C.K. Rowland & Bridget Jeffery Todd, Where You Stand Depends on Who Sits: Platform Promises and Judicial Gatekeeping in the Federal District Courts, 53 J. POL. 175 (1991).
253. Tiller & Cross, What is Legal Doctrine?, supra note 3, at 525.
254. Id. at 519.
255. Cross, Political Science, supra note 2, at 269.
256. Frank Cross, Appellate Court Adherence to Precedent, 2 J. EMPIRICAL LEGAL STUD. 369, 403 (2005) [hereinafter Cross, Appellate Court Adherence] (finding that precedent has more influence on circuit court decisions than a judge's personal ideology);
257. Cross, Decisionmaking in the Courts of Appeals, supra note 98, at 1499-1503. It is possible that the focus of many studies on the Supreme Court, as well as on controversial areas of law where judges might have particularly strong preferences, has led to an exaggerated view of the influence of ideology.
258. Cross, Political Science, supra note 2, at 285.
259. See Lindquist & Cross, supra note 5, at 1174-77 (reviewing these and other studies showing effect of precedent on lower courts).
260. See, e.g., id.
261. See generally Tiller & Cross, What is Legal Doctrine?, supra note 3.
262. Cross, Political Science, supra note 2, at 298-300;
263. Lindquist & Cross, supra note 5, at 1165-66.
264. Cross, Political Science, supra note 2, at 298-300;
265. Sidney A. Shapiro & Richard E. Levy, Judicial Incentives and Indeterminacy in Substantive Review of Administrative Decisions, 44 DUKE L.J. 1051, 1053-54 (1995) (positing that judges value both "craft" and "outcome").
266. See Bueno De Mesquita & Stephenson, supra note 5, at 756-57 (observing, however, that this fails to account for obedience to precedent in areas of the law where stability is not of much value, and also does not explain the incentive for a judge to produce the "public good" of compliance with a legal rule in the face of the danger that other judges will not themselves follow the precedent);
267. Lindquist & Cross, supra note 5, at 1160 ("[I]n most matters it is more important that the applicable rule of law be settled than that it be settled right.")
268. (quoting Burnet v. Coronado Oil & Gas Co., 285 U.S. 393, 406 (1932) (Brandeis, J., dissenting)));
269. Frederick Schauer, The Generality of Law, 107 W. VA. L. REV. 217, 233 (2004) (explaining that courts might be seen as a branch providing stability through legal rules that might at times treat like cases unalike, with other branches responsible for supplying the benefits of change and flexibility when those are necessary).
270. Cross, Political Science, supra note 2, at 272;
271. Emery G. Lee III, Horizontal Stare Decisis on the U.S. Court of Appeals for the Sixth Circuit, 92 KY. L.J. 767, 771-72 (2004).
272. But see Cross, Appellate Court Adherence, supra note 123 (arguing that threat of reversal cannot completely explain judges' obedience to the principles of stare decisis).
273. Frank B. Cross & Emerson H. Tiller, Judicial Partisanship and Obedience to Legal Doctrine: Whistleblowing on the Federal Courts of Appeal, 107 YALE L.J. 2155, 2155-61 (1998) [hereinafter Cross & Tiller, Judicial Partisanship] (proposing that results demonstrate "whistleblower effect," with minority judge able to exercise threat of exposure to prevent majority judges from disregarding precedent);
274. see also Cass R. Sunstein et al, Ideological Voting on Federal Courts of Appeals: A Preliminary Investigation, 90 VA. L. REV. 301, 346 (2004) (noting both ideological dampening on divided panels and ideological amplification on uniform ones).
275. Staudt, supra note 3, at 657-60 (citing this as a common assumption, supported by empirical data).
276. Id. at 612-18.
277. Staudt does not comment on a 1979 article by Rathjen and Spaeth in her argument that earlier studies had only looked at the influence of ideology on standing decisions. See Rathjen & Spaeth, supra note 118. The Rathjen and Spaeth study examined Burger Court decisions regarding access doctrines including standing specifically to see whether the justices were motivated by pure ideology, their philosophy regarding access to judicial review, or administrative/legal concerns regarding the best use of judicial resources. Id. at 366-67. They found their data was best explained by all three of these factors together, explicitly stating that judicial ideology was not the dominant factor in these decisions. Id. at 374. The article also looked at the motivators for individual justices, which also turned out to be a mix of the above three concerns, although for some justices one or another in particular was more influential on decision making. Id. at 378-79 tbl. 4. Though Rathjen and Spaeth did not address the effect of precedent in their study, they did show that the influence of ideology could be moderated by the presence of other concerns, such as the need to conserve court resources to consider only those cases best suited to judicial review.
278. Id. at 380-81.
279. 392 U.S. 83 (1968).
280. Staudt, supra note 3, at 665.
281. Id. at 659, 661-63.
282. Id. at 663-66.
283. Id. at 664-66. Staudt actually found overzealous compliance with Supreme Court precedent, with appellate courts taking the Court's distaste for federal taxpayer suits in certain situations and extending it to reject almost all federal taxpayer suits.
284. Id. at 665. She traces this to the fact that the Supreme Court is especially likely to hear federal taxpayer suits, and thus circuit courts are especially subject to the threat of reversal.
285. Id. at 666.
286. Lujan v. Defenders of Wildlife, 504 U.S. 555, 564 (1992);
287. see also id. at 592 (Blackmun, J., dissenting) (requiring the purchase of tickets is an "empty formality");
288. Nichol, Failure of Injury Analysis, supra note 77, at 316 (standing should not rest on "so slender... a reed");
289. Sunstein, supra note 40, at 213 ("If a court could set aside executive action at the behest of plaintiffs with a plane ticket, why does the Take Care Clause forbid it from doing so at the behest of plaintiffs without a ticket?").
290. Lujan might also paradoxically have made it easier for liberal judges to advance their ideological goals in some situations. Since standing is an independent threshold determination, judges may avoid distasteful decisions on the merits of a case by dismissing it on standing grounds. Some liberal judges' compliance with Lujan thus may constitute a strategic choice to veil ideological manipulation in favor of a liberal outcome with a decision on ostensibly neutral justiciability grounds. Some research indicates that judges pursue similar options in parallel situations where one of two possible grounds for a decision is less controversial.
291. See, e.g., Smith & Tiller, supra note 97, at 81 (finding that judges choose to dismiss administrative law on statutory interpretation versus reasoning process grounds according to extent of agreement with merits of agency decision and desire to avoid higher court review);
292. Emerson H. Tiller & Pablo T. Spiller, Judicial Choice of Legal Doctrines, 8 J. L. ECON. & ORG. 8, 10-11 (1992) (outlining strategic choices between constitutional versus non-constitutional grounds for decision);
293. Emerson H. Tiller & Pablo T. Spiller, Strategic Instruments: Legal Structure and Political Games in Administrative Law, 15 J. L. ECON. & ORG. 349, 369-70 (1999) (creating model to explain strategic choice of decision instrument).
294. By contrast, Staudt compared federal taxpayer standing, where there is a single definitive case, and municipal and state taxpayer standing, where the Supreme Court has yet to rule at all.
295. See Staudt, supra note 3, at 664.
296. Indeed, Staudt found much more orthodox adherence to precedent on taxpayer standing by district courts, which she attributed to their being subject to effective judicial oversight.
297. Id. at 661-63. To the extent appellate courts exhibited similar behavior, she attributed their obedience to the Supreme Court's unusual dedication to monitoring compliance with its federal taxpayer standing doctrine.
298. Id. at 640, 663-64;
299. see also Cross, Appellate Court Adherence, supra note 123, at 369 (arguing the threat of reversal is insufficient to ensure appellate court compliance with precedent);
300. Cross, Decisionmaking in the Courts of Appeals, supra note 98, at 1483 (stating that chances of Supreme Court review are generally low for appellate judges).
301. See Lindquist & Cross, supra note 5, at 1165-66. However, this argument is susceptible to the charge that it ignores judges' countervailing incentive to ignore the decisions of judges whose opinions don't match their personal preferences.
302. See, e.g., LEE EPSTEIN & JACK KNIGHT, THE CHOICES JUSTICES MAKE (1998);
303. O'Hara, supra note 5, at 748-53 (proposing game-theoretic account in which judges might follow precedent in order to sustain a jurisprudential norm that allows their own policy preferences to be incorporated into legal doctrine through that same operation of precedent).
304. See Alexander Volokh, Choosing Interpretive Methods: A Positive Theory of Judges and Everyone Else, 83 N.Y.U. L. REV. 769, 790-94 (2008) (explaining the value of "plausibility" injudicial decisions).
305. Bueno De Mesquita & Stephenson, supra note 5, at 755.
306. See id. at 757.
307. See id. at 758.
308. See id. at 758, 765. The authors formulate several new hypotheses based on this model, such as the thesis that strict legal rules will produce periods of little deviation from precedent, but punctuated with sharp breaks, whereas legal standards will allow gradual drifts away from precedent without outright abandonment of it.
309. Id. at 765.
310. If nothing else, the need to shape arguments for why existing precedent supports a judge's preferred outcome that will enable an opinion to pass muster imposes some cost on a judge in terms of time and effort spent in research and drafting the decision. Here, the term "pass muster" is meant to account for a number of reasons why judges might want their colleagues to at least perceive them to be obeying precedent. These include motivations such as the desire to maintain their professional reputation or a norm of collegiality. See supra Part IV.B. Indeed, judges may even have a personal preference for following precedent wherever possible, for instance because it makes people more likely to comply with the law or because it saves them some effort by allowing them to rely on the reasoning of past judges, and thus prefer an opinion that justifies its conclusion under existing precedent, even if by tortuous reasoning, to an opinion that explicitly breaks from precedent.
311. See Bueno De Mesquita & Stephenson, supra note 5, at 756-57.
312. id. at 756.
313. See id. at 764-65.
314. Rathjen & Spaeth, supra note 118, at 364-67, 374. Although these results might seem to contradict the assertion above that standing has for the most part been transformed into a separation-of-powers doctrine, Rathjen and Spaeth conducted their study in the 1970s, before that doctrinal transition was complete.
315. Lujan v. Defenders of Wildlife, 504 U.S. 555, 577 (1992);
316. see also id. at 576 ("Whether the courts were to act on their own, or at the invitation of Congress, in ignoring the concrete injury requirement described in our cases, they would be discarding a principle fundamental to the separate and distinct constitutional role of the Third Branch-one of the essential elements that identifies those 'Cases' and 'Controversies' that are the business of the courts rather than of the political branches. 'The province
317. The Abbott Laboratories test currently used to determine ripeness was formulated in the 1960s, before ripeness doctrine was "constitutionalized, " and reflects prudential concerns such as hardship to the parties and the possible waste of judicial resources in hearing a case before its facts have been fully developed.
318. See supra Part. II.C
319. Ohio Forestry Ass'n v. Sierra Club, 523 U.S. 726, 732-33 (1998) (quoting Abbott Labs. v. Gardner, 387 U.S. 136, 148-49 (1967));
320. see also id. at 735 ("The ripeness doctrine reflects a judgment that the disadvantages of a premature review that may prove too abstract or unnecessary ordinarily outweigh the additional costs of-even repetitive-post-implementation litigation.").
321. See id. at 738-39.
322. See id. at 733-37.
323. See id. at 738-39.
324. Cross, Decisionmaking in the Courts of Appeals, supra note 98, at 1477;
325. Sunstein et al., supra note 131, at 344 (using this phenomenon to explain why having a judge of opposite ideological orientation will dampen ideological behavior of that panel, since a minority judge can confront majority judges if she sees them engaging in such "motivated reasoning").
326. See, e.g., Eileen Braman, Reasoning on the Threshold: Testing the Separability of Preferences in Legal Decision making, 68 J. POL. 308 (2006);
327. Charles S. Taber & Milton Lodge, Motivated Skepticism in the Evaluation of Political Beliefs, 50 AM. J. POL. SCI. 755 (2006).
328. See CK. ROWLAND & ROBERT A. CARP, POLITICS AND JUDGMENT IN FEDERAL DISTRICT COURTS 171 (1996) (finding that use of "cognitive shortcuts" by district court judges leads to politically influenced results).
329. Cross & Tiller, Judicial Partisanship, supra note 131, at 2156.
330. Sunstein et al, supra note 131, at 344-46.
331. Professor Alexander Volokh has proposed a theory under which judges consciously select particular interpretive approaches to achieve certain substantive results, but he acknowledges that such a model need not assume that all judges act in such a way or that they do so consciously. Volokh, supra note 146, at 777-78, 800 n.155.
332. Tiller & Cross, What is Legal Doctrine?, supra note 3, at 530.
333. See Kim, supra note 1, at 387 (noting that strategic models of judicial decision making fail to account for "internal perspectives... of judges and lawyers who participate in the system" and who "report that... [T]egal rules influence how cases come out, even though they may not determine the result in all cases");
334. see also Cross, Decisionmaking in the Courts of Appeals, supra note 98, at 1466-67. One member of the Second Circuit asserted that while the immediate results of cases attract the attention of the public, [i]t is the explanation for the result, however, that attracts the attention of the legal profession-judges of other courts who review the decision on appeal, or attempt to comply with it on remand, or decide whether or not to follow it in another jurisdiction; lawyers who enlist the decision when it helps, distinguish it when it hurts, and ponder it when advising a client; and especially students of the law, whether standing at the front of the classroom or sitting at the rear.
335. Jon O. Newman, Between Legal Realism and Neutral Principles: The Legitimacy of Institutional Values, 72 CAL. L. REV. 200, 201 (1984). While disdaining "results-oriented" jurisprudence, judges may still be attracted to precedents that contain appealing reasoning compatible with "the law as they understand it."
336. Id. at 204.
337. Kim, supra note 1, at 404.
338. Mark J. Richards & Herbert M. Kritzer, Jurisprudential Regimes in Supreme Court Decision Making, 96 AM. POL. SCI. REV. 305, 307 (2002).
339. Id. at 314-15.
340. Id. at 308, 315. The authors acknowledge the relevance to this finding of "neoinstitutionalism," the theory that "political actors create institutions and institutions ... in turn structure the actions of political agents," and of international regime theory, which argues that "ideas matter as they become imbedded in institutional frameworks."
341. Id. at 315.
342. Id. at 306.
343. Numerous articles discuss opposing schools of statutory and constitutional interpretation as correlating with a judge's ideological position, such as conservatives' tendency toward textualist readings versus liberals' preference for taking into account legislative history and purpose.
344. See, e.g., Orin S. Kerr, Shedding Light on Chevron: An Empirical Study of the Chevron Doctrine in the U.S. Courts of Appeals, 15 YALE J. ON REG. 1, 28 (1998);
345. Thomas J. Miles & Cass R. Sunstein, Do Judges Make Regulatory Policy? An Empirical Investigation of Chevron, 73 U. CHI. L. REV. 823, 828 (2006).
346. Cross, Political Science, supra note 2, at 309 (arguing for need to take next step of integrating the legal and attitudinal models rather than simply elaborating on them).