Stefanie A. Lindquist

Attorney Expertise, Litigant Success, and Judicial Decisionmaking in the U.S. Courts of Appeals

In the U.S. legal system, litigants frequently retain counsel to represent their interest in civil cases, particularly when the stakes are high. Scholarly work and anecdotal evidence suggest that variation in the quality of advocacy has the potential to affect litigant success. We examine the relationship between attorney characteristics, case outcomes, and judicial voting in products liability decisions of the U.S. Courts of Appeals. Our analysis found some differences in the levels of experience and specialization of counsel, representing defendants and plaintiffs and that counsel expertise was, at times, related to litigant success. In a multivariate model of decision making, judge were less likely to support the position of plaintiffs when they were represented by counsel appearing for the first time before the circuit. When defendants were represented by attorneys who did not specialize in relevant areas of the law, judges were more likely to decide in favor of the plaintiff. These finding suggest that those attorneys who do not meet a minimum threshold of expertise will be less likely to find judicial support for their client than other attorneys. Such attorneys may be less successful as a result of their lack of familiarity with the law and appellate process or because they make poor choices regarding the likelihood of success on appeal.

Separate Opinion Writing On The United States Courts Of Appeals

In this article, we set ourselves to the task of identifying the determinants of separate opinion writing on the U.S. Courts of Appeals. Utilizing a new institutional theoretical framework, we evaluate a series of hypotheses concerning the connection between separate opinion writing behavior and attitudinal, institutional, and legal factors. Within this broad theoretical framework, we are particularly sensitive to the manner in which judges may advance certain goals through authorship of separate opinions. We find that judges’ policy preferences, case salience, and collegiality norms all affect the likelihood that a judge will write a separate opinion. Our research provides additional support for integrated models of judicial decision-making that take into account institutional, attitudinal, and legal influences on judicial behavior.

Revealing the Feminist in Mary Parker Follett

In this article, the authors interpret the work of Mary Parker Follett, a well-known but underappreciated theorist of public administration. In a formal philosophical analysis organized around the traditional categories of ontology, epistemology, and ethics, they relate contemporary feminist theory to Follett slife experiences and writings, particularly those on democratic and organization theory. Besides making a case for the interpretation of Follett as a feminist thinker, the authors also relate her work to contemporary trends in theories of public administration and management. Finally, they argue that in addition to being a precursor to these trends, Folletts work may help scholars of public administration build a coherent theoretical foundation for public administration in general, a foundation that may find a strong theoretical link to contemporary feminism.

The Role and Impact of Chief Judges on the United States Courts of Appeals

We describe the role of the chief judge on the United States Courts of Appeals, provide a profile of past chief judges, and assess their influence on decision making by appellate panels. In particular, we analyze the chief judges influence on consensus within individual panels and between the appellate panel and the district court below. We model the likelihood of dissenting opinions from panel decisions and the likelihood of lower-court reversal and find little evidence that the chief judge is able to promote consensus in either case, although individual chief judges are less likely to dissent from panel decisions themselves.

Developments in Federal Whistleblower Protection Laws

This brief highlights several important developments in the area of whistleblower protection law. In particular, the brief describes the significance for whistleblowers of new federal laws enacted in 2002, including the Notification and Federal Employee Antidiscrimination and Retaliation Act, the Corporate Fraud and Accountability Act, and the Homeland Security Act.

The Multiple-Stage Process of Judicial Review: Facial and As-Applied Constitutional Challenges to Legislation before the U.S. Supreme Court

The Supreme Court’s decision to invalidate a legislative enactment involves both the choice to strike as well as the choice whether to invalidate the statute on its face or as applied. Both choices implicate the possibility of counteraction by the legislature. In this paper, we evaluate the justices’ choices to invalidate a state or federal enactment on its face or as applied and find that the justices are responsive to congressional preferences concerning the substance of the legal challenge at both stages of judicial review. Other factors systematically affect the justices’ decisions as well, including the legal basis for the challenge, the statutory scope of the constitutional challenge, the president (through the solicitor general), and interest groups’ amicus filings. These findings suggest that the Court’s exercise of judicial review is significantly influenced by Congress and by other contextual, legal, and political factors, both as to the choice to strike as well as to the method of constitutional enforcement.

Decision making in the U.S. courts of appeals: The determinants of reversal on appeal

Part I: Selecting Judges 1. Selecting Justice: Strategy and Uncertainty in Choosing Supreme Court Nominees Christine L. Nemacheck 2. The Role of Public Opinion in Supreme Court Confirmations Jonathan P. Kastellec, Jeffrey R. Lax, and Justin Phillips 3. Campaign Contributions and Judicial Decisions in Partisan and Nonpartisan Elections Damon M. Cann, Chris W. Bonneau, and Brent D. Boyea Part II: Trial Courts 4. Race and Death Sentencing Isaac Unah and John Charles Boger 5. Under-Estimating and Over-Estimating Litigation: How Activist Plaintiffs May Advance Their Causes Even As They Lose Their Cases William Haltom and Michael McCann Part III: Appellate Courts 6. Patterns of Policy Making across State Supreme Courts Scott A. Comparato, Scott D. McClurg, and Shane A. Gleason 7. Decision Making in the U.S. Courts of Appeals: The Determinants of Reversal on Appeal Virginia A. Hettinger and Stefanie A. Lindquist 8. Supreme Court Agenda Setting: Policy Uncertainty and Legal Considerations Ryan C. Black and Ryan J. Owens 9. The Origin and Development of Stare Decisis at the U.S. Supreme Court Timothy Johnson, James F. Spriggs, II, and Paul. J. Wahlbeck 10. Bargaining and Opinion Writing on the U.S. Supreme Court Tom S. Clark Part IV: Courts and Their Political Environments 11. Goldilocks and the Supreme Court: Understanding the Relationship between the Supreme Court, the President, and the Congress Michael A. Bailey and Forrest Maltzman 12. Interest Groups and Their Influence on Judicial Policy Paul M. Collins, Jr. 13. Public Opinion, Religion, and Constraints on Judicial Behavior Kevin T. McGuire Part V: Implementation and Impact 14. Lower Court Compliance with Precedent Sara C. Benesh and Wendy L. Martinek 15. Why Strict Scrutiny Requires Transparency: The Practical Effects of Bakke, Gratz, and Grutter Richard Sander

Privatization Through Related Corporations Liability Considerations

What are the legal implications for personnel management of governmental privatization through incorporation of a subsidiary or related entity to perform public functions? The manner in which a governmental entity establishes or interacts with a private corporation performing public services can be crucial to answering that question. Entanglement between government and private corporations can lead a court to apply certain personnel laws and rights that would otherwise not apply in the private context. Using various court cases as examples, this legal brief highlights some issues worthy of further consideration.

Ex Interim Voting: An Experimental Study of Referendums for Public-Good Provision. Comment

Fischer and Nicklisch [2007] present a fascinating experimental design aimed at evaluating the consequences of ex interim voting mechanisms on the efficient provision of public goods under conditions of unanimity rule, majority and no referendum (automatic provision). The authors find that (1) initial contributions are the same under both unanimity and majority rule; (2) over the course of the experiment, the average number of yes votes is essentially the same for both majority rule and unanimity, with the consequence that the public good is provided more often under majority rule; (3) over the period of the experiment, average contributions are higher under the unanimity provision, but the variance among contributions is also higher under unanimity; and (4) with respect to efficiency and group profits, the unanimity condition produces the least efficient outcome, with majority rule more efficient and automatic provision the most efficient. The authors find that players did not coordinate to produce efficient results but rather exhibited a form of path dependence in their behavior. In particular, players who voted against the good in the previous round tended to decrease their contributions, while rejection of the public good led to increased contributions. This path dependence was most pronounced under conditions of majority rule, suggesting that majority rule is the least stable voting mechanism over time. The authors express surprise that no meaningful coordination took place between the players and that unanimity voting mechanisms decreased efficiency the most. Their expectation was that majority rule would be least efficient because of unstable voting coalitions, making coordination more difficult. Yet the result may be a function of the experimental design. In the real world, majority voting mechanisms produce the problem of unstable coalitions because meaningful bargaining can take place between the players. Under the experiments conditions, the players had full information but there is no indication that communication took place between them, limiting bargaining and negotiating opportunities that arguably create problems with systems operating under majority rule. Second, it would be interesting for the authors to explore in more detail the path dependent nature of the decision making process over repeated rounds. As noted

Defining Free Speech Protections for Public Employees

Agovernment employee is discharged, purportedly for poor performance, but shortly after making a statement on a controversial topic or a “whistle-blowing” report about misconduct within the employee’s agency. Agency officials insist that the employee’s statements had nothing to do with the discharge or claim that the employee’s actions disrupted the workplace, thus undermining governmental efficiency. Believing it was the discomfort the speech caused within the agency that led to his termination, the employee sues for improper termination under a “whistle-blower protection” statute or for violation of his First Amendment rights of free speech. Most such cases involve instances in which the employee has made statements in public, either to the media or in settings where the statements become widely disseminated. The federal judge deciding the case often rejects the employee’s free speech claim, finding that the employee did not speak on a matter of “public concern,” that the discharge was not made in retaliation for the employee’s speech, or that the employee’s interests in free expression are outweighed by the government’s interest in agency morale and an efficient workplace. It is therefore particularly interesting to encounter a case in which the court upholds the employee’s right to free speech even when the statements at issue are not made for public consumption but rather stem from internal reports prepared by the employee as part of his job requirements. Baldassare v. New Jersey (2001) is such a case. As an investigator for a county prosecutor, Baldassare was directed to investigate potential criminal misconduct by police officers in connection with a “car scam” involving the purchase at below-market prices of cars previously leased to the county. Baldassare rec-