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25 April 2006

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Sean Wilson

Rob:

Excellent points indeed. But let me demonstrate something key: what you have said is that conservatives and liberals sometimes act INSTRUMENTALLY -- that they play games with doctrine. They want a victory in a certain case not for its own sake, but so they can score a wedge for another day. What you are saying is that Kelo is not really about the size of its economic contestants.

My answer to this is very simple: we cannot confuse data CODING with data ANALYSIS. Coding does not purport to capture this behavior; analysis of the data does. Indeed, one of the very reasons why career liberal ratings fail in certain voting domains may be precisely because of strategic considerations as well as the legitimate force that "law" has upon the judicial mind. However, we cannot have as our coding rule a secret plan of analysis. We would no more say that Kelo is "conservative" in this respect than say that Scalia's votes supporting huge punitive damage awards in substantive due process cases is "conservative" because all he really wants to do is keep his anti-abortion and anti-gay doctrine as strong as possible. That's probably true, but the vote is still "liberal" for purposes of data coding.

By the way, I do not disagree that this coding business has problem. I am somewhat of a critic of the enterprise. But I don't want to throw the baby out with the bathwater -- I'd like to see the problems with the attitudinal model fixed, plain and simple. Everyone agrees it needs reigned in. In fact, I no longer think that a majority of political scientists disagree with this. Five or ten years ago, the story was different. The Midwest was full of papers that have put the original attitudinal model on the run.

You want the truth? There is no attitudinal model. There is only an ideology model, a legal model and a juristic model. We're all juristic now. Ideology is a player, not a governor. Long live Ronald Dworkin.

Rob Robinson

Sean,

In the big picture, however, Kelo can be seen as a strategy of a property-rights movement that seeks to curtail the power of the regulatory state (esp. on environmental movements). Property-rights interest groups got Kelo to the USSC--I don't think one usually thinks of them as a "liberal" interest group. The property-rights groups hoped a ruling in favor of Kelo would serve as a linchpin for reinvigorating the property rights movement and reshaping regulatory takings law. Even in defeat, Grover Norquist, nobody's liberal, called the decision "manna from heaven," anticipating the backlash that would come. Meanwhile, many liberal groups that might have felt sympathetic to the "little guy/big guy" frame nevertheless supported New London for just that reason--a fear of a weakened state. Liberals want that state to solve collective action problems that require federal solutions; conservatives don't want it because it violates personal property and federalism (and business interests). I see several parallels to Gonzales v. Raich, actually.

That's not to say I think your frame is wrong--I just believe there are multiple frames in play here. That is why here (as with campaign finance), I agree that the liberal/conservative coding for Court decisions--especially a coding system that is ahistorical--is bound to have serious problems. Incidentally, that's why I think the work that Howard Gillman does is so important for the field.

Sean Wilson

Frank:

Whose property are you talking about? Kelo involves big money versus small money. In that sense, it is like Charles River Bridge or Slaughterhouse (property v. property). It is finance development battling the fee simple. If you code a choice to protect small property over finance development as "conservative," you are going to have to code the philosophies of Donald Trump (development), Richard Posner (utility) and David Stockman (growth) as "liberal."

It is true, of course, that Ralph Nader and Willie Nelson might see Kelo the same. So would Jefferson and Jesse Jackson. It is not true, however, that in the post FDR world that Willie Nelson's view on Kelo is "conservative." The only way you could impose a left/right dichotomy that supports your view is if agrarian hegemony still ruled America. It is no coincidence, by the way, that conservatism changed from being agrarian-based to laissez faire at the turn of the century. As the new form of power asserted itself as the new hegemony, what was once on the right became on the left. Hence, that is why Jefferson and Ralph Nader sound the same, yet are considered opposites in their respective time period.

Kelo is a "conservative" vote because empowers finance development over the little guy's fee simple and because it allows a local majoritarian government to make this decision, not a federal court.

Rob Robinson

Jason,

I would some following citations on unpublished cases, since I deal with the problem in my work.

Gerkin, Joseph, "A Librarian's Guide to Unpublished Opinions," 96 Law Library Journal 3 (2004) provides a useful discussion of how different appellate circuits deal with unpublished opinions.

Robel, Lauren K. "The Myth of the Disposable Opinion: Unpublished Opinions and Government Litigants in the United States Courts of Appeals." 87 Michigan Law Review(1989): 940-62. Robel makes an interesting argument that a Galanter-like phenomenon occurs in published cases, where repeat players push for publication in favorable decisions.

Siegelman, Peter, and Donohue, John J. III, "Studying the Iceberg from its Tip?: A Comparison of Published and Unpublished Employment Discrimination Cases," 24 Law and Society Review (1990).

Taha, Ahmed E, "Publish or Paris? Evidence of How Judges Allocate Their Time," 6 American Law and Economics Review 1 (2004). Taha found that judges who have held political office, received higher ABA ratings, had lighter caseloads, had longer tenures, or had a greater chance of promotion were more likely to publish.

Swenson, Karen, "Federal District Court Judges and the Decision to Publish," Paper presented at Midwest Political Science Association, 2003. Swenson examines the effect of publication guidelines on publishing. She finds that the guidelines are influential, as well as the presence of powerful litigants. She did not find attitudinal differences to be important. The conclusion she draws from this is that the goal of publication is achieving legal accuracy and clarity, rather than advancing policy prefences.

Jason, I hope this provides some proof that I wasn't blowing smoke in our panel when I said I read the blog.

Jason Czarnezki

For scholarship related to questions of published v. unpublished opinions, the process by which judges of the U.S. courts of appeals decide whether or not to publish or to produce instead "unpublished" dispositions, and compliance with publication guidelines, see:

Stephen L. Wasby, "Unpublished Decisions in the Federal Courts of Appeals: Making the Decision to Publish," 3 J. App. Pract. & Proc. 325 (2001).

Stephen L. Wasby, "Unpublished Court of Appeals Decisions: A Hard Look at the Process," 14 So. Cal. Interdiscip. L. J. 67 (2004).

Stephen L. Wasby, "Unpublished Dispositions: Are the Criteria Followed" 2 Seton Hall Cir. Rev. 41 (2005).

frank cross

Kelo certainly illustrates the difficulty of coding. But I disagree with the conclusion. The criticism of Kelo has come from both sides but been much stronger from the right. And pro-property rights is certainly conservative in the greater culture.

Sean Wilson

Jason:

I do not think that even political scientists (some, at least) have a good understanding of the coding PHILOSOPHY that lies behind the labeling of votes as "liberal" or "conservative." This is because the philosophy is poorly expressed and often contradicts the actual markings scholars make for some of the votes.

Let me offer this: the coding philosophy uses two levels of analysis. The one level is straight forward: a vote is "conservative" if the issue manifests itself in the larger political culture that way. For example, voting for a reverse-discrimination plaintiff is "conservative." So is voting for an anti-abortion protester or a Christian-speech plaintiff.

However, there is a back-up criterion that is used to code the vast majority of cases. This criterion essentially says that a vote is conservative if it defers to other policy organs to set policy outcomes instead of the courts. That is, judicial restraint is conservative, activism liberal. (This is why Rehnquist comes out the most conservative member).

Hence, takings cases should be coded as liberal/conservative only if the issue in the takings case aligns that way in the larger culture, and, if not, only according to whether the judicial policy outcome intrudes upon another policy organ or not. In short, anytime federal judicial power is imposed upon the pluralistic process by overturning the judgments of another policy organ -- a city council, state government, Congress -- that should always be "liberal," unless the issue in the case clearly indicates otherwise by virtue of the larger political culture (reverse-discrimination plaintiff, bush v. gore, etc.). I like to think of the latter cases as "overrides."

Although at times Harold Spaeth supports this idea, at other times the coding is unfortunately deviant. It needs cleared up. Kelo is a good example. The deference accorded to the city council in the name of corporate prerogative should have been marked as a conservative result. The other view -- the little guy against the banks and developers -- is a Ralph Nadar view. The only way that can be "conservative" is if we roll back the clock to the days of Jefferson against Hamilton. In the post New Deal world, the Jefferson view of individual landowners defeating the corporate development prerogative (and implicitly, finance capitalism) is clearly on the left.

My dissertation and upcoming works deal with these coding problems. I'm recoding some cases right now. (By the way, Harold Spaeth's code book encourages researchers to change coding marks if they do not like the editorial judgments made by attitudinal scribes).

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