Recent years have seen a recognition of the importance of government action to business and a rapidly developing path of research on business and politics, but this research has focused overwhelmingly on the legislative and executive branches and too often ignored the judiciary.1 A failure to consider a role for the courts is a substantial lacuna in the research. The judicial branch plays a substantial role in politics and governance. In most cases, the passage of a statute or even the promulgation of a regulation has legal effect only through the courts. A business's success (or failure) in lobbying the legislative or executive branches for a particular policy program may be entirely counteracted in the courts. At the extreme, such an action might be declared unconstitutional, making it legally null and ineffective, and perhaps eliminating the possibility of any future attempt to revive the action.

State Supreme Courts have grown in importance during the last thirty years in the formation of public policy. Their judgements determine many aspects of constitutional law, tort reform, judicial selection, and campaign finance reform, among others. A vast body of literature has been developed that analyzes State Supreme Court decision making, which emphasizes the conditioning effects of the legal and institutional environment. This article expands on this previous work by incorporating the interaction of the judiciary with other government institutions, and applies the Positive Political Theory approach to law and legal institutions to the State Supreme Court. In addition, the neo-institutionalist literature of the selection process is incorporated to defend a systematic approach towards decision making. Towards that end, this article explores how judicial decisions are conditioned by institutional rules, resulting in a formal modeling of how the State Supreme Courts interact with political actors to form constitutional interpretation. This model includes the judicial selection process'retention or competitive reelection—and is extended to constitutional amendment rules, explaining how these two interact rather than acting independently. Finally, the hypothesis is tested that when State Supreme Court judges face retention elections and political preferences are homogeneous, the probability increases of observing constitutional amendment prosposals.

This paper addresses the intersection of coalition formation, judicial strategies, and regulatory politics. Coalitions are a low-cost means for assembling minority interests into more powerful blocs. However, in most cases in regulatory politics, judicial strategies are high cost efforts. I argue that coalitions among interests form one basis for judicial participation, but that participation manifests in an array of coalition “microstructures.” For any one event, the microstructure of the interest group coalition varies, but across events the coalitions take on general forms. The paper offers evidence for a variety of coalition microstructures in interest group participation as amici curiae (“friends of the court”) in cases before the United States Supreme Court. The evidence is drawn from the case of the Group of Ten, a stable, long-term coalition of environmental interest groups that operated from 1981 to 1991.

Although the pluralist theory of politics predicts that the focus of organizational activity should shift to the judicial arena whenever the expectations of government as regulator and the demands of regulated interests fail to converge, there has been little systematic research focusing on the question of business litigation as a specific form of interest mobilization. This article develops an integrated organizational choice model of interest mobilization to explain corporate litigation against the United States government. I argue that a company's decision to proceed with litigation is predicated upon the company's (1) resource capacity, (2) constraints of the regulatory environment, and (3) perception of procedural unfairness of the government in the administrative process. The argument is tested with data from a survey of top U.S. business executives whose companies unsuccessfully petitioned the government for administered protection between 1990 and 1995. The argument receives strong empirical support, and suggests that U.S. corporations facing import competition consider litigation an important component of their overall political strategy for obtaining nonmarket benefits.

This paper discusses the problems in the effective implementation of tort reform policy, focusing on several different areas that seek to review both the fundamental problems associated with punitive damages as well as the legal arguments in favor of tort reform. The limitations against the creation of a truly efficient system lie in the fact that strategic actors have the ability to anticipate the effects of reforms, and act to create feedback loops that diffuse the impact of the reform attempt. To implement effective tort reform policy one must understand how these strategic actors behave within the civil justice system, as well as how feedback loops limit the overall effectiveness of the tort reform policy. The findings suggest that the system of “decoupling” liability is the most efficient of all the current reform attempts or proposals, while the system can also be improved by adopting policies that isolate the incentive structures of plaintiff's attorneys.