Students of judicial behavior debate whether justices time their retirement to allow for the nomination of like-minded judges. We formalize the assumptions of strategic retirement theory and derive precise hypotheses about the conditions that moderate the effect of partisan incentives on judicial retirements. The empirical implications are tested with evidence for Supreme Court members under democracies and dictatorships in six presidential regimes between 1900 and 2004. The theory of strategic retirement finds limited support in the United States and elsewhere. We conclude that researchers should emphasize “sincere” motivations for retirement, progressive political ambitions, and—crucial in weakly institutionalized legal systems—political pressures.

Recent research reveals judicial tendencies to decide cases more conservatively during times of war. Building on studies in political psychology, we use the observed movement in favor of increased security versus liberty in times of war on the courts to investigate differences in how liberals and conservatives are motivated by threat concerns. We find that war mainly conditions decision making by liberal judges in criminal and civil liberties cases. The results furthermore suggest that ideological differences play little role in wartime decision making for civil liberties cases.

Answering one question often begets another. We present a decision-theoretic model that describes how this affects the sequencing of decisions over time. Because answering an easy question may raise a more difficult one, a rational judge may delay resolution even if he has perfect information about the correct decision. Furthermore, because otherwise unrelated questions may raise similar follow-ups, he may optimally clump decisions together. Our theory thus generates an endogenous economy of scale in dispute resolution and contributes to the literature on punctuated equilibrium theory. We illustrate the results of our model with a case study from legal history in the United States.

This article challenges international criminal tribunals’ (ICTs) capacity to perform the socially constitutive work of transitional justice. Highlighting paradigmatic ICT jurisprudence, I show that both the “progress” and “justice” constructs central to the work and legitimacy of international criminal law are unrealizable under current ICT practice. This is due to international criminal law’s foundational, legitimizing basis in natural law rather than political liberalism. I call for a revision of ICT institutional accountability structures.

This article contributes to literature on legislative-court relations by incorporating the states. Pickerill (2004) examined congressional responses to court rulings declaring statutes unconstitutional, classifying responses into three categories—amending, repealing, or doing nothing. I assembled a list of all Minnesota, Michigan, and Wyoming statutes declared unconstitutional from 1940 to 2008 by state or federal courts. I then determined the legislature’s response. I find unexpected differences in state responsiveness, and between the states and Congress. Also, state legislatures are more likely to respond to a ruling of unconstitutionality from their own courts than from the federal courts.

Interest groups attempt to shape the content of law and policy in a variety of venues, including the legal system. Though the bulk of research dedicated to understanding interest group participation in litigation occurs in the context of the United States, there have been growing efforts to explore this important topic from a cross-national perspective. We contribute to this literature by investigating interest group amicus curiae and intervener activity across 11 English-speaking high courts during the 1969–2002 era. Our results support our theoretical argument that institutional features of courts and nations heavily shape levels of organizational litigation, including the power of judicial review, the rules governing third-party participation, and the presence of a bill of rights. This research informs our understanding of institutional design, social movement litigation, and the democratic nature of courts.

The Supreme Court sometimes chooses to use its limited time to revisit earlier decisions. In doing so, the justices signal the importance of reasserting, correcting, or reconsidering their arguments. We find that the likelihood of the Supreme Court revisiting a case in a given year increases significantly as the number of circuit courts critical of that opinion increases. These results suggest that an acknowledgment of the important role of the circuit courts influences the decision to revisit cases. Even if the Court merely clarifies or reinforces earlier opinions, criticism in the circuits prompts the Court to take some action. Though the Supreme Court’s word is final, barring a constitutional amendment or legislative override in nonconstitutional cases, the mechanism of criticism in the circuits allows reconsideration of many issues already decided by the Court and sheds light on the importance of institutional structures to the maintenance of the rule of law.

While cause lawyering has attracted abundant scholarly attention, the factors contributing to such movements in nondemocratic environments remain understudied. This article evaluates existing explanations of strategic litigation and finds that emphases on legal opportunity structure and resource mobilization overlook cases where litigation is used to expose and challenge existing constraints. This inductive study of revolutionary Ukraine shows that litigation is pursued despite unfavorable legal opportunity structure and may be triggered by state repression, rather than constrained by it. I argue that a democratic revolutionary movement in the country offered the necessary social resources for cause lawyers to succeed.

The Brazilian Supreme Court has developed an informal mechanism of timing control: each justice has the power (pedido de vista) to request more time to study the files of a given case. In this article, we use a database of over 1.5 million cases to calculate vista request duration and compare vista behavior to other activities in which caseload and the justice’s efficiency play a role. Our results show that vistas can function as an individual power, unconstrained by the Court’s internal rules of procedure, to indefinitely remove cases from the agenda, in ways that cannot be explained by the Court’s workload. We also find initial evidence of the vistas being used for strategic purposes, when justices wait for a case to be decided in a more favorable composition or political context. These results suggest that comparative analyses of courts should look beyond formal rules of docket control to study informal means of delay.

The austerity policies pursued in several countries during the Eurozone crisis began to call attention to the role played by courts as relevant actors in the context of budgetary and financial stress. The case of the Portuguese Constitutional Court has often been singled out in national and international forums as one characterized by particularly intense activism in this respect. Allegedly, political conflict around austerity policies and the demand for their judicial review had fundamentally changed the role of the Portuguese Constitutional Court and the behavior of its judges. However, after examining these claims empirically, we find that, when properly assessed with scrutiny of comparable legislation in other periods, the judicial behavior on austerity policies exhibits a much less exceptional pattern than often argued. Constitutional review in Portugal seems to respond to institutional arrangements (i.e., those fostering a central role for ideological preferences and party loyalty) and not to specific business cycles.

Scholars have observed that federal circuit judges’ voting behavior can be influenced by even a single colleague on a three-judge panel. I explore whether such forces extend beyond voting to affect how circuit judges use binding precedent to develop circuit law, by examining whether the role of ideology is dampened when a judge writes for a panel that includes one or two colleagues from a different party. Using an original data set of published search-and-seizure opinions from 1953 to 2010, I uncover evidence that panel effects do extend beyond voting to influence opinion drafting as well.

Understanding how attorneys’ perceptions of “insider” and “outsider” status affect negotiations is of both theoretical and practical importance for understanding the judicial system. We utilize a comprehensive survey of attorneys from one state to explore views of trustworthiness and negotiations. Overall, as attorneys become more embedded in their in-group, they increasingly report lower trust levels and less effective negotiations with outsiders. These relationships do vary somewhat by the scope and location of the attorney’s practice. Our findings provide insight into one possible causal mechanism underlying the “repeat player” advantage; they also suggest new directions for research on case outcomes.

We examine gender bias in political institutions through a novel lens: oral arguments at the US Supreme Court. We ask whether female lawyers are afforded less speaking time during oral arguments compared to male lawyers. We posit that justices, while highly educated and more aware than most of laws requiring equal treatment, may be influenced by gender schemas that result in unconscious biased treatment of male and female lawyers. Applying automated content analysis to the transcripts of 3,583 oral arguments, we find that female lawyers are interrupted earlier, allowed to speak for less time between interruptions, and subjected to more and longer speeches by the justices compared to their male counterparts. However, this pattern is reversed during oral arguments involving gender-related cases. Our most novel and significant theoretical finding is that gender negates the well-documented positive effect of being on the winning side of a case.

This article looks at the appointment and confirmation politics of President Obama’s nominees during the 114th Congress in which unprecedented obstruction and delay of Obama's nominees including the Supreme Court nomination of Merrick Garland occurred. This is placed within the overall context of Obama’s impact on the judiciary. The demographic portrait of the Obama judiciary is sketched with special attention to the historic record of diverse nontraditional appointees. We conclude with a look at what lies ahead with the Trump administration and judicial appointments/confirmation.