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Separation-of-Powers Games in the Positive Theory of Congress and Courts

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  • Segal, Jeffrey A.

Abstract

The hallmark of the new positive theories of the judiciary is that Supreme Court justices will frequently defer to the preferences of Congress when making decisions, particularly in statutory cases in which it is purportedly easy for Congress to reverse the Court. Alternatively, judicial attitudinalists argue that the institutional structures facing the Court allow the justices to vote their sincere policy preferences. This paper compares these sincere and sophisticated models of voting behavior by Supreme Court justices. Using a variety of tests on the votes of Supreme Court justices in statutory cases decided between 1947 and 1992, I find some evidence of sophisticated behavior, but most tests suggest otherwise. Moreover, direct comparisons between the two models unambiguously favor the attitudinal model. I conclude that the justices overwhelmingly engage in rationally sincere behavior.

Suggested Citation

  • Segal, Jeffrey A., 1997. "Separation-of-Powers Games in the Positive Theory of Congress and Courts," American Political Science Review, Cambridge University Press, vol. 91(1), pages 28-44, March.
    • Handle: RePEc:cup:apsrev:v:91:y:1997:i:01:p:28-44_23
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    Citations

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    Cited by:

    1. Pablo T Spiller & Rafael Gely, 2007. "Strategic Judicial Decision Making," Levine's Working Paper Archive 122247000000001409, David K. Levine.
    2. Karakas, Leyla D., 2017. "Political rents under alternative forms of judicial review," International Review of Law and Economics, Elsevier, vol. 52(C), pages 86-96.
    3. Fleck, Robert K. & Hanssen, F. Andrew, 2024. "Courts, legislatures, and evolving property rules: Lessons from eminent domain," Explorations in Economic History, Elsevier, vol. 93(C).
    4. Mario Bergara & Barak Richman & Pablo T. Spiller, 2002. "Modeling Supreme Court Strategic Decision Making: Congressional Constraint," Documentos de Trabajo (working papers) 1402, Department of Economics - dECON.
    5. De Figueiredo, John M. & De Figueiredo, Rui J. P. Jr., 2002. "The Allocation of Resources by Interest Groups: Lobbying, Litigation and Administrative Regulation," Working papers 4247-02, Massachusetts Institute of Technology (MIT), Sloan School of Management.
    6. Jonathan P. Kastellec & Jeffrey R. Lax, 2008. "Case Selection and the Study of Judicial Politics," Journal of Empirical Legal Studies, John Wiley & Sons, vol. 5(3), pages 407-446, September.
    7. Álvaro Bustos & Nuno Garoupa, 2020. "An Integrated Theory of Litigation and Legal Standards," Documentos de Trabajo 536, Instituto de Economia. Pontificia Universidad Católica de Chile..
    8. Rorie Spill Solberg & Stefanie A. Lindquist, 2006. "Activism, Ideology, and Federalism: Judicial Behavior in Constitutional Challenges Before the Rehnquist Court, 1986–2000," Journal of Empirical Legal Studies, John Wiley & Sons, vol. 3(2), pages 237-261, July.
    9. Charles R. Shipan, 2000. "The Legislative Design of Judicial Review," Journal of Theoretical Politics, , vol. 12(3), pages 269-304, July.
    10. John M. de Figueiredo & Rui J.P. de Figueiredo, 2002. "The Allocation of Resources by Interest Groups: Lobbying, Litigation and Administrative Regulation," NBER Working Papers 8981, National Bureau of Economic Research, Inc.
    11. Ryan J. Owens, 2010. "The Separation of Powers and Supreme Court Agenda Setting," American Journal of Political Science, John Wiley & Sons, vol. 54(2), pages 412-427, April.
    12. John M. de Figueiredo, 2009. "Integrated Political Strategy," NBER Working Papers 15053, National Bureau of Economic Research, Inc.
    13. Udi Sommer, 2011. "How rational are justices on the Supreme Court of the United States? Doctrinal considerations during agenda setting," Rationality and Society, , vol. 23(4), pages 452-477, November.
    14. Tom S. Clark, 2009. "The Separation of Powers, Court Curbing, and Judicial Legitimacy," American Journal of Political Science, John Wiley & Sons, vol. 53(4), pages 971-989, October.
    15. Jeffrey R. Lax, 2003. "Certiorari and Compliance in the Judicial Hierarchy," Journal of Theoretical Politics, , vol. 15(1), pages 61-86, January.
    16. Caporale, Tony & Winter, Harold, 1998. "Political influence over Supreme Court criminal procedure cases," Journal of Economic Behavior & Organization, Elsevier, vol. 35(4), pages 465-475, May.
    17. Crombez, Christophe & Groseclose, Timothy J. & Krehbiel, Keith, 2005. "Gatekeeping," Research Papers 1861r1, Stanford University, Graduate School of Business.
    18. Lee Epstein & Olga Shvetsova, 2002. "Heresthetical Maneuvering on the US Supreme Court," Journal of Theoretical Politics, , vol. 14(1), pages 93-122, January.
    19. David Gliksberg, 2014. "Does the Law Matter? Win Rates and Law Reforms," Journal of Empirical Legal Studies, John Wiley & Sons, vol. 11(2), pages 378-407, June.
    20. repec:gig:joupla:v:2:y:2010:i:3:p:71-97 is not listed on IDEAS
    21. Assaf Meydani & Shlomo Mizrahi, 2010. "The Relationship Between the Supreme Court and Parliament in Light of the Theory of Moves: the Case of Israel," Rationality and Society, , vol. 22(1), pages 55-82, February.

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