Emerson H. Tiller

Judicial Partisanship and Obedience to Legal Doctrine: Whistleblowing on the Federal Courts of Appeals

In traditional legal analysis, scholars take for granted the effect of Supreme Court doctrine. Lower courts are presumed to adhere to the self-enforcing principle of stare decisis and to apply the doctrines of higher courts to the particular facts of the underlying case.1 Precedent reputedly controls lowercourt decisions.2 Whether such obedience to legal doctrine occurs as routinely as this analysis suggests, however, has not been adequately addressed in the legal literature. Indeed, there are few empirical studies by legal scholars bearing on the matter at all.3 In this Essay, we go to the heart of the issue and

The Structure And Conduct Of Corporate Lobbying: How Firms Lobby The Federal Communications Commission

lobbying (internal organization vs. trade association) by firms in administrative agencies. It explores the power and limitations of the collective action theories and transaction cost theories in explaining lobbying. It introduces a dataset of over 900 lobbying contacts cover 101 issues at the Federal Communications Commission (FCC) in early 1998. We find that the structure and conduct of large firm lobbying at the FCC is consistent with the predictions of theories of transaction costs and the main results of theories of collective action. However, large firms do not change their behavior drastically as structures arise to remedy the free rider problem. Small firms show no sensitivity to collective action issues or transaction cost issues in the organization or amount of their lobbying, but they do lobby less when having to reveal proprietary information. In sum, large firms behave largely consistent with theoretical predictions, while small firms do not.

Integrating market, technology, and policy opportunities in e-business strategy

Abstract This article is a call to arms for electronic business managers and researchers to increase their attention to the emerging “policy” frontiers and employ theories and methods integrating policy with market and technology issues. The e-business environment is growing more complex—not just economically, but socially, politically, and legally—and firms must manage this complexity with strategies that match the amount and variety of complexity in their environment. In many e-business firms, there is a notable disdain toward emerging policy developments or even a mind set that e-business is beyond emerging social conventions, politics and the law (or at least beyond the reach of regulators). In the emerging global policy landscape, few firms can afford this hands-off attitude toward policy and maintain their chance of survival. E-business firms must integrate their policy strategies with their technology and market strategies. We outline five broad questions for researchers to help e-business firms address the interdependent challenges of market, technology and policy environments.

Decision Costs and the Strategic Design of Administrative Process and Judicial Review

The ability of Congress to structure the institutional costs of agency and judicial decision making gives it considerable control over regulatory policy. We analyze the role of decision costs through models of agency‐court interaction and consider the ability of Congress to manipulate such costs for its own policy purposes. We explore the implications of these models by examining recent congressional efforts to change the decision cost structures of agencies and courts. In particular, we consider the so‐called Bumpers Amendments of the 1980s and, from the 1990s, the Republican‐proposed imposition of cost‐benefit analysis on agency decision making.

The Strategy of Judging: Evidence From Administrative Law

Recent theories of judicial decision making suggest that federal judges are likely to exploit the structure of law to protect decisions that implement their policy preferences. One perspective asserts that judges, when making decisions that move policy toward their preferred policy outcomes, will be more likely to choose legal grounds—or judicial instruments—that are difficult for other political actors to reverse than when making decisions that move policy away from their preferred outcomes. We test this “strategic instrument” perspective and compare our results with those expected from other models of judicial decision making. Using federal circuit court cases reviewing the decisions of the Environmental Protection Agency from 1981 to 1993, we conduct both bivariate analysis and multinomial logit regression to measure the effect of policy goals on the legal instruments chosen by judges. Our results support the conclusion that strategic considerations systematically influence judicial decision making.

A modest proposal for improving American justice

In this piece, Professors Tiller and Cross suggest that the federal justice system could be improved by limiting the practice of randomly assigning cir? cuit court judges to panels and by acknowledging the partisan component of judging. Complete random assignment, they argue, creates political imbalance on panels when three judges from the same political orientation are chosen. In those situations, judges mayfeel less constrained in closely following established legal doctrines when doing so conflicts with their policy preferences. Tiller and Cross propose that no more than two members on each panel be selectedfrom the same political party (as determined by the political party of each judges appointing President). The presence of a minority judge on the panel constrains the political behavior of the majority and enhances the credibility of the judging enterprise. The practical implications of implementing the proposal are also discussed.

Citation to Legislative History: Empirical Evidence on Positive Political and Contextual Theories of Judicial Decision Making

We present empirical evidence suggesting that political context—judicial hierarchy and judicial panel dynamics—influences an authoring judge’s use of legislative history. Specifically, we find that to the extent that political ideology matters, a district court judge’s choice of legislative history is influenced, albeit modestly, by (1) the political makeup of the overseeing circuit court and (2) the political characteristics of a judge’s panel colleagues, as well as by the circuit court as a whole. These factors matter more than the authoring judge’s own political‐ideological connection to the legislators. Put differently, an authoring judge will have a greater tendency to cite legislative history by legislators who share political party affiliation with the colleagues and superiors of the authoring judge than legislators sharing the same political party affiliation as the authoring judge himself. These findings are consistent generally with positive political and contextual theories of judicial persuasion, collegiality, and strategic decision making.

Resource-Based Strategies in Law and Positive Political Theory: Cost-Benefit Analysis and the Like

While the notion of decision costs and limited resources as constraints on law and policy making have found their way into recent legal analyses, few scholars have described the broader political control strategies available to institutions using such resource-based approaches. The political control exercised by Congress, the President, and courts through cost-benefit analysis, and similar strategy-laden instruments, allows one or more policy makers to force a competing policy maker to expend valuable, and limited, resources thereby preventing, or greatly compromising, policies desired by the competing policy maker. Resource-based strategies can be exercised horizontally through separated powers games or vertically (upstream and downstream) in court-agency hierarchies. These strategies are revealed in legislation and agency design by Congress, executive orders by the President, and doctrine and other instruments of legal reasoning by the judiciary. Positive Political Theory offers a framework for thinking about these resource-based strategies and the implications are profound. This article solidifies the current understanding of resource-based strategies from the Positive Political Theory (PPT) perspective and presents extensions, including analyses of (1) the differential resource impacts on policy players from the various types of regulation that may be imposed on agencies (benefits statutes and cost-benefit statutes), and (2) the introduction of regulated targets as resource strategizers with public institutions.

Patent Litigation and the Internet

Using both univariate comparisons and multiple regression techniques, we find that: (1) Internet patents and their two subtypes, broad Internet business models and narrower Internet business techniques, were litigated at a far higher rate than other (non-Internet patents, or NIPs) — they were between 7.5 and 9.5 times more likely to end up in infringement litigation, depending on the model we used. (2) Within the category of Internet patents, those on business models were litigated at a significantly higher rate than those on business techniques. (3) Across both Internet patents and NIPs, patents issued to small entities, especially individuals and small businesses, were much more likely to be litigated than those issued to large entities. (4) Patents of all kinds with more independent claims were significantly more likely to be litigated than those with fewer independent claims. (5) Including both Internet patents and NIPs, litigated patents received many more forward citations — citations received from later patents — than did unlitigated patents. (6) Patents issued to foreign entities were significantly less likely to be litigated than patents issued to U.S. entities. (7) The more time that an application for an Internet patent or NIP had spent in the PTO prior to issuance, the more likely it was that the patent granted from that application was to be involved in infringement litigation. (8) There was no difference in the ages of Internet patents and NIPs when they became the subject of litigation — both kinds were about 4.5 years old. (9) Once patent infringement litigation was initiated, the owners of litigated Internet patents were significantly more likely to settle before judgment than the owners of litigated NIPs (especially when probable settlements were taken into account along with obvious settlements, which we believe is the more accurate metric). (10) Across both sets of patents, the larger the number of potential infringers involved in a case (defendants in infringement actions and plaintiffs in declaratory judgment actions), the less likely the case was to settle. (11) Internet patents and NIPs went to trial at about the same rate. (12) When failing to settle, the owners of NIPs won on the merits at a significantly higher rate than did owners of Internet patents — although the win rate for NIP owners was quite low at around 16%, the win rate of Internet patents was even lower by a substantial margin. This finding did not hold up in regression analysis, however; when the effects of other variables were taken into account in a logistic regression analysis, there was no significant difference in the win rate for accused infringers between Internet patents and NIPs. Accused infringers did win more often when Internet patents were asserted against them than win they defended against NIP complaints, but the relatively small number of observations prevented the difference from being statistically significant. (13) Surprisingly, owners of both kinds of patents were significantly more likely to win as the number of inventors on the patents increased. (14) The longer that applications for Internet patents and NIPs had spent in the PTO before issuance, the less likely accused infringers were to win. (15) Accused infringers were less likely to win on the merits when the Internet patents or NIPs asserted against them had been litigated previously. (16) Across both sets of patents, the larger the number of potential infringers involved in a case, the more likely these potential infringers were to win a judgment on the merits. That is, the more infringement defendants per case, they more likely these defendants were to win. (17) There was no difference between the different types of patents in the percentage of cases that were terminated for procedural reasons. We also discussed several other findings of interest.

The Law and Positive Political Theory of Panel Effects

This article presents a robust theory of panel effects by integrating the key “law” components of judicial decision making—doctrines and decision instruments—with the judicial hierarchy (principal-agent) components that dominate much of the panel effects literature. The refined model illustrates how doctrines, instruments, and the level of decision transparency between lower and higher courts condition the impact of panel effects on judicial decision making. The implications of recent empirical findings of panel effects are reevaluated through this more refined perspective.