The Attitudinal Model

In the field of political science, Reference Segal and SpaethSegal and Spaeth's (1993, Reference Segal and Spaeth2002) Attitudinal Model (AM) argues that institutional features securing judicial independence allow Supreme Court judges to base their decisions on their policy preferences. This perspective is well-known and with a wealth of quantitative studies supporting this view (Reference Hagle and SpaethHagle and Spaeth 1993; Reference Howard and SegalHoward and Segal 2002; Reference Rohde and SpaethRohde and Spaeth 1976; Reference SegalSegal 1997; Reference Segal and CoverSegal and Cover 1989) it would be hard to overestimate the effect AM has had on judicial scholarship. As one review of the state of knowledge on judicial behavior stated, “in scholarship on the Supreme Court … the view that policy considerations are dominant over legal considerations has been taken by the most prominent work” (Reference BaumBaum 1997: 22). Another assessment echoes this view by concluding that, “the attitudinal model's systematic empirical shattering of the myth of mechanical jurisprudence permeates virtually all our work on judges and courts today” (Reference LawrenceLawrence 1994: 3). While the attitudinal model has attracted critics (see, e.g., Reference Gillman, Clayton and GillmanGillman 1999; Reference WhittingtonWhittington 2001), it continues to motivate influential studies of judicial decision making, providing support for, or limitations to, the basic argument (see, e.g., Reference Bailey and MaltzmanBailey and Maltzman 2008; Reference Bowie and SongerBowie and Songer 2009; Reference Brace and BoyeaBrace and Boyea 2008; Reference Richards and KritzerRichards and Kritzer 2002).

Law and Economics

Less known to those who study court outcomes in political science is an alternative but not necessarily contradictory perspective developed in Law and Economics (LE) which focuses on the impact of litigants on judicial outcomes (see, e.g., Reference Eisenberg and FarberEisenberg and Farber 1997; Reference KesslerKessler et al. 1996; Reference PosnerPosner 1973; Reference Priest and KleinPriest and Klein 1984; Reference WittmanWittman 1985). Reference Priest and KleinPriest and Klein (1984) famously promoted the perspective, noting that taking cases to court incurs costs. According to their “selection hypothesis,” litigants seek to avoid expanding costs when possible, settling cases when the cost of litigation is high. Litigants estimate who is likely to win and lose, and simpler cases commonly settle in pre-trial. The remaining cases that go to trial are typically difficult, complex, and less predictable. A priori these cases reveal no obvious winners or losers, it is predicted that success for plaintiffs and defendants will hover around 50 percent.Footnote ²

The “50 percent rule” has become a prominent idea in the LE perspective (Reference Cooter and UlenCooter and Ulen 1988; Reference CrossCross 2003; Reference DonohueDonohue 1988; Reference PolinskyPolinsky 1989; Reference PosnerPosner 1998). Although this idea remains influential, a theoretical debate has emerged about strategy and/or rationality—that is, how the plaintiff/defendant might predict the probability of winning. Critics of the 50 percent rule commonly focus on forces shaping the ability of litigants to deal with uncertainty, including the legal environment and litigant resources as well as litigants’ asymmetrical information and variations in stakes at risk for litigants (e.g., Reference BebchukBebchuk 1984; Reference WattsWatts 1994).Footnote ³ While the 50 percent rule has not found a wealth of empirical support when considered in its simplest (most strict) form, more sophisticated analyses of the rule (i.e., adjusted to consider factors affecting uncertainty such as asymmetrical information or stakes) have empirically confirmed its viability (e.g. Reference KesslerKessler et al. 1996).

One factor not in much dispute in LE is that litigant strategy should cancel out the effects of judge ideology when ideology is known. Research within LE acknowledges that while judges may be motivated ideologically, litigant knowledge of judge ideology reduces its impact. This is because litigants decide whether to pursue their cases with judge ideology in mind (Reference Priest and KleinPriest and Klein 1984; Reference WaldfogelWaldfogel 1998; Reference WittmanWittman 1985, Reference Wittman1988); such litigant strategies result in courts hearing non-random samples of cases. Litigants seeking liberal (or conservative) outcomes generally do not pursue their cases in conservative (or liberal) courts. If a litigant seeks a liberal outcome but faces a conservative court, then that litigant has greater incentive to either settle pre-trial or drop the case altogether. As a consequence, cases that do go to court are commonly ideologically ambiguous. Alternatively, some cases may result from miscalculations by litigants about the ideological dimensions of their case, or the preference of judges, or both. However it is expected that strategic miscalculations should be balanced between those seeking conservative and liberal outcomes in the long run. This leads to the expectation of approximately 50 percent win rates for petitioners and defendants in outcomes, producing no ideological bias despite the ideology of judges. Overall, the LE perspective leads us to expect that strategic litigants respond to incentives to produce cases that nullify the effects of judge ideology across repeated outcomes.

Within the AM perspective, research has likewise considered the rationality of litigants (e.g., Reference SongerSonger et al. 1995). Reference SongerSonger et al. (1995) find that criminal defendant litigants are rational when weighing the costs and benefits of waging an appeal; litigants convicted of crimes calculate success given several factors, including their personal estimate that an appeal will be upheld, disagreement in a lower appellate court decision, and costs in relation to the litigants’ personal resources. That important work provides an excellent starting point for addressing the questions that we endeavor to answer. However, it examines just one aspect of the larger courts/litigation process (i.e., litigants’ appellate strategies) with which we are concerned. It does not address the broader issue of the influence of litigant strategy on judicial outcomes over the long run, nor does it speak to the possible impact of significant differences in judicial institutional structure on the influence of judges’ ideologies on voting.

We must note that AM and LE approaches were derived from studying courts at the opposite ends of the judicial system. Overwhelmingly, the AM literature focuses on the U.S. Supreme Court, the court for which it was intended.Footnote ⁴ Given its purpose, applying its logic elsewhere should not be construed as a challenge to its adequacy. However, the apparent primacy of ideology in that court makes it reasonable to consider its role in lower courts. Alternatively, the LE literature on case selection focuses primarily on the effects of litigant selection in trial courts (see Reference WaldfogelWaldfogel 1998; but see, e.g., Reference HanssenHanssen 1999; Reference ClermontClermont 2000 for exceptions). However, it seems unrealistic to presume that litigant choices about pursuing their cases are not operating in other courts. While we know that the estimated ideologies of state supreme court judges vary widely and have differential impact across these courts (Reference BraceBrace et al. 2000), the widely varying impact of state supreme court judge ideology could be the result of strategic litigant case selection. Our premise, to be developed below, is that the effects of judge ideology and litigant strategies are jointly conditioned by the institutional design of courts, illustrating more systematically when judge ideology does and does not influence outcomes in these courts and why.

Judge Ideology, Litigant Strategy, and Institutional Design

These seemingly opposed perspectives can be productively reconciled by considering institutional design and forces driving cases reaching appeal. Past research on the U.S. Supreme Court underscores the important role docket discretion plays in their decision making.Footnote ⁵ There is consistent evidence that the Court is more likely to grant certiorari to review lower court decisions that are ideologically inconsistent with the Court's current majority because the Supreme Court acts ideologically, and thus it is more likely to grant certiorari to reverse than to affirm the lower court (see, e.g., Reference Armstrong and JohnsonArmstrong and Johnson 1982; Reference Black and OwensBlack and Owens 2009; Reference Boucher and SegalBoucher and Segal 1995; Reference Brenner and KrolBrenner and Krol 1989; Reference McGuire and StimsonMcGuire and Stimson 2004).

To date, one study has examined the effects of case selection on outcomes in state appellate courts. Reference Eisenberg and HeiseEisenberg and Heise (2009) observe that at the state trial court level, selection theory reasonably describes the outcome distribution—at least at the aggregate level—as outcomes do not dramatically favor plaintiffs or defendants. At the appellate level however, defendants were far more successful than plaintiffs in securing a reversal of a trial decision, providing little support for litigant selection effects. Because these authors were primarily interested in features of trial litigation (jury versus non-jury on ultimate outcome), they employ the Civil Court Justice Survey of States (CCJS). This survey examines courts from the country's largest trial courts. Unfortunately, the data on state supreme courts in the CCJS survey analyzed by Eisenberg and Heise all have lower appellate courts.

Reference Eisenberg and HeiseEisenberg and Heise (2009: 124) present a differential attitude hypothesis to refer not to judicial background or belief variables but rather to group-level attitudinal differences between appellate and trial court judges. They do not directly test the effects of judge ideology on these biases. Moreover, as noted above, their results derive from particular types of state supreme courts (those with docket discretion), albeit the modal type, with discretionary dockets. Their findings are consistent with those on the U.S. Supreme Court where the attitudinal model finds most consistent support. There, the Justices enjoy discretionary jurisdiction and choose almost all of the cases they hear (Reference Guthrie and GeorgeGuthrie and George 2005). They do not consider the effects non-discretionary dockets have on the forces affecting court decision making and outcomes.

The neo-institutional literature suggests that institutional structures are important influences on judicial outcomes affecting everything from the business of courts to the impact of judges’ preferences (e.g., Reference Brace and HallBrace and Hall 1997, Reference Brace2001; Yates, Tankersley & Reference Yates, Tankersley and BraceBrace 2010). To consider the influence of institutional design and litigant strategy, we examine all tort cases decided by state supreme courts in the years 1995 through 1998, distinguishing between state courts with and without discretionary jurisdiction over torts.Footnote ⁶ Dockets on courts without discretionary jurisdiction over torts are not filtered by their judges and are thus litigant-driven: cases that make it to appeal are the result of litigant calculations influenced by the degree of uncertainty that litigants bear. Following the logic of the LE perspective, litigants should adjust their strategies to incorporate and effectively nullify judge ideology: appeals are costly and knowledge of court ideological preferences should figure into their strategies and incentives for pre-trial amelioration. Alternatively, other state supreme courts have control over their tort case agenda and authority to let lower court decisions stand or to hear a case. Although litigant strategies still play a large role in shaping the pool of cases eligible for review, judges exercise discretion reflecting their ideological preferences, ultimately determining which cases get on the docket in a manner resembling the U.S. Supreme Court. Consequently, we expect the effects of judge ideology to be significant in these courts. We divide our analysis to compare state supreme courts with discretionary authority over tort litigation and courts with constrained discretion. According to Reference Flango and RottmanFlango and Rottman (1998), sixteen state supreme courts have complete discretion to accept or reject tort appeals and another thirty-four state supreme courts are required to accept each tort appeal or have limited authority over their tort agendas.

Further related to the discretion of state supreme courts is the connection between agenda authority and the presence of lower appellate courts. Logically, state supreme courts with lower appellate courts may be more likely to independently select tort disputes on a case by case basis, while state high courts without lower appellate courts should be constrained by mandatory jurisdictions. While the relationship between agenda discretion and the presence of lower appellate courts may seem straightforward, agenda authority within state supreme courts actually varies considerably whether or not they receive assistance from lower appellate courts. While thirty-nine states have lower appellate courts, only fourteen of those states permit state supreme courts complete discretionary control over their tort agenda. Among the eleven states without lower appellate courts, two state supreme courts have authority to decide their tort caseload. Thus, discretionary jurisdiction is not always connected with lower court assistance.

While we acknowledge the more complex choices facing litigants where operating in a state with an intermediate appellate court, we believe the impact of lower appellate courts is overshadowed by the capability of judges in state high courts with discretionary tort jurisdictions to select disputes on a case by case basis. While litigants in non-discretionary jurisdiction states determine those cases the state supreme court hears, where courts have discretionary authority to single out cases, judges make the final decision about which cases they adjudicate. We discuss the impact of this discretion more fully below.

Judge Votes—How Does Court Design Condition the Influence of Judge Ideology?

In American state supreme courts some judges get to pick the cases they wish to review while others do not. This distinction is not trivial because given the opportunity it is reasonable to expect judges to pick cases in a manner that reflects their ideological preferences. This argument was made cogently by Reference McGuire and StimsonMcGuire and Stimson (2004) (see also Reference McGuireMcGuire et al. 2004; Reference McGuireMcGuire et al. 2009) who examined the United States Supreme Court (a court notable for its docket discretion). They show that the effects of judge ideology on case votes are conditioned by the nature of the appeal. Specifically, appellants may make accurate or inaccurate estimates of the preferences of judges (or the “winnability” of an appeal), and courts may choose to review cases or not. Reversals of lower court decisions occur when a petitioner accurately estimates the outcome of the appeal—i.e., the lower court will be overturned in the higher court. Because the appellate process operates primarily to correct error, strategic reversals by judges are expected to be more frequent in appellate courts with discretionary jurisdiction.Footnote ⁷ Alternatively, petitioning parties sometimes misestimate the higher court's ideological position, leading the court to affirm a lower court ruling. Under these circumstances, petitioners are worse off than before because the status quo remains unchanged and they have incurred the additional costs of the appeal. These cases represent strategic miscalculations on the part of litigants and provide less evidence of ideological voting (Reference McGuire and StimsonMcGuire and Stimson 2004). As a consequence, appellate courts should generally let lower court decisions they favor stand and most typically intervene with lower court decisions they oppose.Footnote ⁸ It is here that we expect judge ideology to operate but note that its operation is contingent on having discretion over the docket.

The expectations for judge voting are thus straightforward:

In sum, where courts have discretion like the U.S. Supreme Court to pick their cases, they should most commonly pick cases they wish to reverse. Their case selection should reflect their ideological preferences and it is here we should expect to see judge ideology operating in a significant and predictable manner. Alternatively, where courts do not exercise this discretion, their dockets are shaped exclusively by the strategic calculations of litigants and, for the reasons outlined above, we expect those calculations to cancel out the effects of judge ideology.

Court Outcomes—Win-Rate Equilibrium and Litigant Uncertainty

We also consider aggregate court outcomes. The LE perspective commonly focuses on win-rates, or plaintiff victories relative to defendant victories, with the expectation that these should hover at 50 percent due to the operation of litigant strategies. Recall from above that it is litigant uncertainty that leads cases to trial. We reason that departures from the 50 percent norm should be influenced by features of state supreme court environments that heighten or lessen litigant uncertainty regarding outcomes.Footnote ⁹ It is expected that institutional and contextual factors reduce (or increase) uncertainty, which consequently reduces (or increases) departures from 50 percent win-rates for plaintiffs.Footnote ¹⁰ Most notably, these effects should be observed where state supreme courts have no discretion because it is here that court dockets are driven exclusively by the strategic calculations of litigants. Accordingly, this analysis provides three general conditions that affect uncertainty among litigants. First, litigants may vary in their capability to estimate likely outcomes. Second, litigants should react to the preferences and voting behavior of judges thereby increasing their ability to make precise estimates. Third, features of courts may increase the accuracy of litigant estimates. The question then becomes what can reduce uncertainty for litigants about prospective outcomes; the following section considers several probable conditions of uncertainty.

Judge Votes in Tort Cases

We begin with this model which considers the effects of judge ideology on decisions to support the plaintiff in state supreme court tort appeals. Our analysis considers the nature of the case (reversals versus affirmances) as well as the nature of tort jurisdiction with the expectation that the effects of ideology will be strongest in reversals and evident only in states with discretionary control over tort litigation.

Table 1 presents the analysis of judge votes favoring plaintiffs, which we construe as a reflection of liberal behavior: liberal judges are expected to support “have-not” plaintiffs more than do conservative judges.Footnote ²¹ The results are divided into votes in reversals in which theory suggests the strongest evidence of ideological voting occurs, and affirmances in which the same theory predicts a weaker relationship with ideological preferences. We further divide our results into courts with and without full discretionary docket control with the expectation that judicial discretion in case selection is a necessary condition for ideological influence on judge votes.

Table 1. Predicting Individual State Supreme Court Judges’ Votes in Tort Cases GEE Fixed Effects Logistic Regression, Robust Standard Errors. Dependent Variable: Judge's Vote Favoring Plaintiff = 1, Judge's Vote Favoring Defendant = 0Footnote *

Notes: Entries in bold are significant at the.05 level, one-tailed test.

^* Unit of analaysis is a judge's vote.

^† Represents the change in probability of votes favoring a plaintiff given a change from the minimum to maximum value of judge ideology.

The results in Table 1 conform well to the expectation offered by Reference McGuireMcGuire et al. (2004) and the supplemental institutional caveat offered here, and are robust with regard to model specification (i.e., random or fixed effects models) and estimation technique (i.e., standard or population-averaged logistic regression).Footnote ²² Specifically, ideological voting in these tort cases is strongly evident in reversals, while the impact is weakened in affirmances. Substantively speaking, the effect of judge ideology is always stronger in reversals than affirmances; this effect is enhanced by the presence of discretionary jurisdiction over torts. Table 1 reports that the most liberal justice, compared to the most conservative justice, is 13% more likely to support a plaintiff in a reversal, while a similar difference in an affirmance increases the likelihood of a pro-plaintiff vote by approximately 8%. Clearly the impact of judge ideology is strongest in reversals and in those courts that have discretion over their docket. The comparative weakness of judge ideology in courts without discretion compared to courts with discretion corresponds to what we would expect if litigant strategies operated to cancel out the influence of judge ideology. In sum, the effect of judge ideology is most pronounced where judges have the opportunity to exercise their strategic discretion and least pronounced where litigant strategies are dominant.

Litigant Win-Rates in Tort Cases

We now turn our attention to court outcomes and factors influencing departures from the 50 percent equilibrium. Table 2 first presents descriptions of plaintiff win-rates in twelve areas of tort litigation appealed before state supreme courts and it illustrates the pervasiveness of the 50 percent norm.Footnote ²³ In all but one area the 50 percent norm is evident: only one category of tort (i.e., toxic injury) is statistically different from 50 percent; yet this occurs only in one of the most infrequent tort areas.Footnote ²⁴ In sum, with the noted exception, tort outcomes reveal no significant bias favoring plaintiffs or defendants.

Table 2. Plaintiff Success Rates (%) by Areas of Tort Litigation and Tort Discretion*

Note: ^*Unit of analysis is a tort case by area of policy and tort discretion.

Entries in bold are statistically different from 50 percent at the 0.05 level.

This preliminary evidence suggests that strategic litigants are acting in the manner hypothesized by the 50 percent rule. A more in-depth analysis can determine if, in fact, variations in win-rates are influenced by factors that could be reasoned to shape uncertainty. Although significant departures from 50 percent win-rates are the exception and not the norm, nevertheless, variation exists in the degree of departure from this norm across courts. As reasoned earlier, smaller departures from the 50 percent norm are expected when litigants have a stronger basis for estimating potential outcomes. The magnitude of departure from 50 percent should increase as a function of uncertainty that litigants face if case selection is litigant driven, as hypothesized in courts without discretionary jurisdiction. However, this expectation does not extend to outcomes in courts with docket selection authority over torts because case selection in these courts is a joint function of litigant and court strategies; thus, litigants need to pursue their appeal, and the court has to grant review. This process resembles that operating in the U.S. Supreme Court. This distinction is not trivial. The majority of literature concerning the effects of ideology on court outcomes centers on the U.S. Supreme Court while the preponderance of literature on the 50 percent rule focuses on trial courts (where dockets are shaped exclusively by litigant strategies). Thus, conflicting expectations concerning the effects ideology can be resolved by considering the appellate structure and the nature of the judicial vote.

In examining deviations from the 50 percent hypothesis, the dependent variable is the percentage of wins by the plaintiff minus 50 percent, expressed as an absolute value. The effects of our explanatory variables for all courts, as well as courts with and without discretionary jurisdiction over torts, are then compared.Footnote ²⁵ The results concerning all courts are presented in the first column of Table 3. The model performs reasonably well. The correctly signed and statistically significant coefficients for ideologically extreme courts, dispersion of dissent, elective methods of retention, panel, size of the court, and judge term length provide support for the hypotheses. The results conform to the expectations: in courts with ideological distinctions, consistent patterns of consensus, elected judges, an absence of panels, more judges, and longer terms, litigants face less uncertainty and win-rates stay significantly closer to 50 percent, all other factors being equal.

Table 3. Predicting Deviations from Fifty Percent Plaintiff/Defendant Wins Panel Fixed Effects Regression, Panel Corrected Standard Errors (PCSEs). Dependent Variable: Absolute Value [Obs. Plaintiff Win-rate—50 percent]*

Note: ^*Unit of analysis is the observed plaintiff win-rate deviation from 50 percent by state and year.

RMSE = Root Mean Squared Error; Entries in bold are significant at the.05 level, one-tailed test.

When we divide our analysis into courts with and without discretionary jurisdiction, striking patterns are revealed. In courts without discretionary dockets the model explains 30% of the variance and performs extremely well. As hypothesized, the variables representing original plaintiff suits, ideologically extreme courts, dispersion of dissent, elective method of retention, panels, size of the court, and longer judicial terms receive directional support and are statistically significant. Substantively speaking, for every standard deviation increase in the number of plaintiff appeals, there is approximately a 2% departure from the 50 percent norm. Since plaintiffs are commonly “single-shot” individuals going up against “repeat player” organizations, this finding is consistent with capability theories of litigation. In terms of the ideological characteristics of courts, ideologically extreme courts decrease departures from the 50 percent norm: where courts are more ideologically extreme they are less likely to produce outcomes favoring one side or the other, as hypothesized. As discussed previously, this is likely due to litigants having better information on the probable ideological tenor of outcomes before the court and, accordingly, tending to lean toward negotiated settlements, which in turn push win-rates toward 50 percent. Similarly, a standard deviation increase in the dispersion of dissent (indicating more uncertainty regarding court preferences) increases departures from the 50 percent norm by more than 2%. As for estimates of institutional influence on litigant certainty, four structural features strongly influence the balance between plaintiff and defendant success. Courts with elective methods of retention reduce departure from 50 percent by 4% and those with panels likewise reduce deviations from the 50 percent norm by almost 4%. Further, a standard deviation increase in the number of justices serving decreases departures from 50 percent by more than 1%, while a standard deviation increase in term length of 4.31 years is associated with approximately a 2% decrease in deviation.

Notably different results emerge in courts with discretionary dockets as illustrated in the second column of Table 3. Here the only statistically significant effects on deviations from the 50 percent norm are that for original plaintiff suit, panel, and the length of term. Further, each significant coefficient operates in the opposite direction of those for courts without discretion, further highlighting the conditioning effect of institutional structure. Lastly, ideological change among judges exerts no statistically discernable effects on win-rates whether courts do or do not have discretionary jurisdiction.

The most compelling features of these results are that factors impinging on litigant uncertainty affect win-rates in state supreme courts when those courts’ dockets are driven by litigant strategies. Most notably, in these circumstances, judge ideology operates to cancel rather than promote bias in court outcomes: the more ideologically extreme a court is, the less likely it is to produce ideologically biased outcomes. Moreover, this pattern does not hold where courts exercise discretion over their dockets.