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Jurisprudential Regimes in Supreme Court Decision Making

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  • RICHARDS, MARK J.
  • KRITZER, HERBERT M.

Abstract

We theorize that if law matters in Supreme Court decision making, it matters not as a mechanistic force that dictates decisions, but as an institutional construct created by justices who possess political attitudes. Jurisprudential regimes identify relevant case factors and/or set the level of scrutiny or balancing the justices will use. These jurisprudential regimes have the potential to make a significant difference in the decisions of the justices. We identify a candidate jurisprudential regime, content-neutrality, which appears to govern the general area of free expression law. The Court applies the strictest standard of review to regulations of expression that target the content or viewpoint of expression. Relying on a series of statistical tests using logistic regression, we find that the justices take seriously this jurisprudential regime.

Suggested Citation

  • Richards, Mark J. & Kritzer, Herbert M., 2002. "Jurisprudential Regimes in Supreme Court Decision Making," American Political Science Review, Cambridge University Press, vol. 96(2), pages 305-320, June.
    • Handle: RePEc:cup:apsrev:v:96:y:2002:i:02:p:305-320_00
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    1. Hoffmann, Jakob & Glückler, Johannes & Khuchua, Tamar & Lachapelle, Francois & Lazega, Emmanuel & Zipf, Marius, 2024. "Legalist and realist decision-making in patent law: Validity cases in Germany," SocArXiv p354r, Center for Open Science.
    2. JBrandon Duck-Mayr, 2022. "Explaining legal inconsistency," Journal of Theoretical Politics, , vol. 34(1), pages 107-126, January.
    3. Anthony Niblett & Richard A. Posner & Andrei Shleifer, 2010. "The Evolution of a Legal Rule," The Journal of Legal Studies, University of Chicago Press, vol. 39(2), pages 325-358.
    4. Greg Goelzhauser, 2024. "Constitutional accountability for police shootings," Journal of Empirical Legal Studies, John Wiley & Sons, vol. 21(1), pages 92-108, March.
    5. Michael Evans & Wayne McIntosh & Jimmy Lin & Cynthia Cates, 2007. "Recounting the Courts? Applying Automated Content Analysis to Enhance Empirical Legal Research," Journal of Empirical Legal Studies, John Wiley & Sons, vol. 4(4), pages 1007-1039, December.
    6. Hossain, Ashrafee & Rjiba, Hatem & Saadi, Samir, 2022. "Judge Ideology and Corporate Sexual Orientation Equality," Finance Research Letters, Elsevier, vol. 49(C).
    7. Justin Wedeking, 2010. "Supreme Court Litigants and Strategic Framing," American Journal of Political Science, John Wiley & Sons, vol. 54(3), pages 617-631, July.
    8. 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.
    9. Keren Weinshall & Udi Sommer & Ya'acov Ritov, 2018. "Ideological influences on governance and regulation: The comparative case of supreme courts," Regulation & Governance, John Wiley & Sons, vol. 12(3), pages 334-352, September.
    10. 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.
    11. Paul M. Collins, Jr. & Wendy L. Martinek, 2011. "The Small Group Context: Designated District Court Judges in the U.S. Courts of Appeals," Journal of Empirical Legal Studies, John Wiley & Sons, vol. 8(1), pages 177-205, March.
    12. Christoph Engel, 2024. "The German Constitutional Court – Activist, but not Partisan?," Discussion Paper Series of the Max Planck Institute for Research on Collective Goods 2024_04, Max Planck Institute for Research on Collective Goods.
    13. Allen Huang & Kai Wai Hui & Reeyarn Zhiyang Li, 2019. "Federal Judge Ideology: A New Measure of Ex Ante Litigation Risk," Journal of Accounting Research, Wiley Blackwell, vol. 57(2), pages 431-489, May.

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