Tonja Jacobi

The Senatorial Courtesy Game: Explaining the Norm of Informal Vetoes in Advice and Consent Nominations

Despite the contentiousness of advice and consent nominations, the Senate usually rejects a candidate to whom a home senator objects. Using game theory, this article explains the persistence of senatorial courtesy and maps its effects on which candidates succeed. The greater salience of a home nomination allows retaliation and reciprocity in a repeated game to elicit support for a veto, even under adverse conditions. Comparative statics indicate the range of the presidents feasible nominees and show which players gain and lose from the practice. Most notably, the president can benefit from an exercise of senatorial courtesy.

The Role of Politics and Economics in Explaining Variation in Litigation Rates in the U.S. States

This article develops and empirically tests two theories of the causes of variation in levels of litigation in the United States: that litigation rates are affected by political structure and by economic strength. Fragmented political power results in less detailed legislation and a more powerful judiciary, which increases the demand for judicial action. Economic strength is positively associated with high rates of litigation, rather than being stymied by it. This article tests these claims using state‐level civil filings data over 25 years and finds both political and economic factors to be highly determinative of litigation rates.

Ideology and exceptionalism in intellectual property: An empirical study

This article investigates the relationship between ideology and judicial decision-making in the context of intellectual property. Using data drawn from Supreme Court intellectual property cases decided in between 1954 and 2006, we show that ideology is a significant determinant of cases involving intellectual property rights: the more conservative a judge is, the more likely he or she is to vote in favor of an intellectual property claim. However, our analysis also shows that there are significant differences between intellectual property and other areas of the law with respect to the effect of ideology. This analysis has important implications for the study of intellectual property. It also contributes to the broader judicial ideology literature by demonstrating the effect of ideology in economic cases.

Competing Models of Judicial Coalition Formation and Case Outcome Determination

Forming a coalition on a multi-judge panel involves an inherent trade-off between coalition maximization and ideological outcome optimization. Much scholarship is premised on assumptions about how judges make that trade-off; these assumptions have consequences for how we view and measure judicial decision-making. Specifying these assumptions, formally modeling their effects, and basing measures of judicial behavior on these results offers the potential to improve analysis of judicial decision-making. This article formally explores three commonly posited modes of judicial decision-making: a minimum winning coalition model, representing attitudinalist views of judicial decision-making; a maximum winning coalition, capturing the effect of norms of joint opinion writing and collegiality; and a strategic model, incorporating the concept of the credibility of a marginal justices threat to defect from a majority coalition. Each model yields comprehensive predictions of case outcome positions and coalition sizes under given court compositions; the Rehnquist Court is examined here. The models are then operationalized as measures for empirical use. The different impact of the three measures is illustrated by re-running Baird and Jacobis analysis of judicial signaling on case outcomes using each measure.

Judicial Choice Among Cases for Certiorari

How does the Supreme Court choose among cases to grant cert? In the context of a model that considers a strategic Supreme Court, a continuum of rule-following lower courts, a set of cases available for revision, and a distribution of future lower court cases, we show that the Court grants cert to the case that will most significantly shape future lower court case outcomes in the direction that the Court prefers. That is, the Court grants cert to the case with maximum salience. If the Court is rather liberal (conservative) then the most salient case is the one that moves the discretionary range of the legal standard as far left (right) as possible. But if the Court is moderate, then the most salient case will be a function of the skewedness of the distribution of ideologies of the lower courts and the likelihood that future cases will fall within the part of the discretionary range that is adjusted if the case is granted cert. Variations take place when the ideology of the Court is moderately liberal, moderately conservative or fully moderate. Extensions of the model allow us to identify the sensitivity of the results to the number of petitions for revision; the variety of legal topics covered by the petitions; and anticipation of whether the Court will confirm or reverse.

Communicating judicial retirement

Justices can strategically shape perceptions of their likely retirements, and so influence the President and Senate in choosing an ideologically compatible replacement. Relatively new justices can vote insincerely to affect how their ideologies are perceived, but their strategies are shaped by older justices’ expected retirement probabilities. We show that “strong messages” of retirement are likely when new justices vote insincerely and the new and retiring justices’ ideologies are aligned. “Weak messages” are more likely when new justices vote sincerely or, if they do vote insincerely, the old and new justices’ ideologies are unaligned.

A strategy of increasing judicial power in NFIB v. Sebelius

Although the individual mandate was upheld and the Commerce Clause may have been cabined, the decision to strike down a significant element of the “Medicaid expansion” may prove to be the most significant aspect of the Supreme Court’s decision in NFIB v. Sebelius. Under the Affordable Care Act (ACA), States were required to extend Medicaid coverage to all individuals under the age of 65 with incomes below 133 percent of the poverty line, a new “essential health benefits” package was required for all new Medicaid recipients, and the increased costs due to the expansion would be entirely covered by the Federal government through 2016, with the Federal payment gradually decreasing to a minimum of 90 percent of the total cost from the expanded coverage. The element found to be unconstitutional was § 1396c of the ACA, which permitted the withdrawal of all Federal Medicaid funds from those States that did not comply with the ACA’s requirements for Medicaid expansion. The effect on access to health care may be significant: roughly half of those expected to gain coverage under the ACA were going to gain it through the Medicaid expansion; it is unclear how many States will choose to opt into that expansion in the absence of § 1396c. Additionally, the argument offered by the Court to strike down that provision might be used to attack other federal programs — concerning transportation, social services, environmental protection, and others — that have a similar structure. This paper will demonstrate that the argument rests on a theoretical mistake concerning the relationships between coercion, compulsion, and political accountability and that, further, this mistake is not one legally forced upon the Court.

Why Judges Always Vote

This paper provides the first account of the practice of universal voting on the Supreme Court. Full participation among justices is explained using models of spatial competition, showing that two features particular to the Court encourage full participation. First, the doctrine of stare decisis makes the resolution of future cases in part dependent on the resolution of present ones. This raises the cost of abstention, particularly to risk-averse justices. Second, the so-called narrowest grounds or Marks doctrine enforces the logic of the median voter theorem in cases presenting more than two options. This makes voting by otherwise indifferent or alienated justices rational, where it otherwise would not be.