Game Theory, Legal History, and the Origins of Judicial Review: A Revisionist Analysis of Marbury v. Madison

Clinton, Robert

doi:10.2307/2111405

Cited by 71 publications

(14 citation statements)

References 12 publications

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“…On the other hand, there is some evidence that the SOP model may be applicable to the Court's constitutional decisions (Dahl 1957;Meernik and Ignagni 1997), and some case study-based analyses stand out as the primary examples (Clinton 1994;Gely and Spiller 1992;Knight and Epstein 1996). Recently, scholars have begun to examine more closely the extent to which the SOP model extends to constitutional interpretation and have found mixed evidence of the SOP mechanism at work in constitutional decisions (Epstein, Knight, and Martin 2001;Harvey and Friedman 2006;Sala and Spriggs 2004;Segal and Westerland 2005;Segal, Westerland, and Lindquist 2007;Spriggs and Hansford 2001).…”

Section: Separation-of-powers Theory and Court-congress Relationsmentioning

confidence: 99%

The Separation of Powers, Court Curbing, and Judicial Legitimacy

Clark

2009

American J Political Sci

226

206

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A major focus of judicial politics research has been the extent to which ideological divergence between the Court and Congress can explain variation in Supreme Court decision making. However, conflicting theoretical and empirical findings have given rise to a significant discrepancy in the scholarship. Building on evidence from interviews with Supreme Court justices and former law clerks, I develop a formal model of judicial‐congressional relations that incorporates judicial preferences for institutional legitimacy and the role of public opinion in congressional hostility towards the Supreme Court. An original dataset identifying all Court‐curbing legislation proposed between 1877 and 2006 is then used to assess the influence of congressional hostility on the Court's use of judicial review. The evidence indicates that public discontent with the Court, as mediated through congressional hostility, creates an incentive for the Court to exercise self‐restraint. When Congress is hostile, the Court uses judicial review to invalidate Acts of Congress less frequently than when Congress is not hostile towards the Court.

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Section: Separation-of-powers Theory and Court-congress Relationsmentioning

confidence: 99%

The Separation of Powers, Court Curbing, and Judicial Legitimacy

Clark

2009

American J Political Sci

226

206

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“…In the theoretical framework proffered here, legal path dependence and political accountability have differential effects on policy change emanating from courts of last resort compared with change originating in nonjudicial bodies. Courts, legislatures, and executives operate within a system where different institutions compete with one another over spheres of influence (Clinton ; Eskridge ; Spiller & Gely ). While the role of the elected branches of government in policymaking is relatively clear‐cut, debates in the literature still exist concerning the extent to which courts function in the capacity of policy changers (Keck ; Klarman ; Rosenberg ).…”

Section: Theory—alternative Paths To Policy Changementioning

confidence: 99%

“…Thus, it is the existence of sodomy laws, rather than their enforcement, that serves to diminish the societal status of gay men and lesbians, criminalize their behavior, and create an environment where violence, harassment, and discrimination against the LGBT community is tolerated and, in some instances, even encouraged. tives operate within a system where different institutions compete with one another over spheres of influence (Clinton 1994;Eskridge 1994;Spiller & Gely 1992). While the role of the elected branches of government in policymaking is relatively clear-cut, debates in the literature still exist concerning the extent to which courts function in the capacity of policy changers (Keck 2009;Klarman 2004;Rosenberg 2008).…”

Section: Theory-alternative Paths To Policy Changementioning

confidence: 99%

Institutional Paths to Policy Change: Judicial Versus Nonjudicial Repeal of Sodomy Laws

Sommer¹,

Asal²,

Zuber³

et al. 2013

Law Soc Rev

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What variables lead judicial and nonjudicial decision‐making bodies to introduce policy change? In the theoretical framework proposed, the path‐dependent nature of law has a differential impact on courts and legislatures. Likewise, certain political institutions including elections and political accountability lead those bodies to introduce policy change under dissimilar circumstances. Global trends, however, affect both institutional paths equally. We test this theory with data for the repeal of sodomy laws in all countries from 1972–2002. Results from two disparate multivariate models overwhelmingly confirm our predictions. The unique institutional position of courts of last resort allows them to be less constrained than legislatures by either legal status quo or political accountability. Globalization, on the other hand, has a comparable effect on both. This work is path breaking in offering a theoretical framework explaining policy change via different institutional paths, systematically testing the framework comparatively and with respect to a policy issue still on the agenda in many countries.

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“…In Israel, political coalitions both outside the courtroom as well as among the brethren determine the outcome of judicial decision making (Barzilai 2004). Political reality aff ects courts (Clinton 1994;Dotan and Hofnung 2005;Eskridge 1991;Frye 2004;Helmke 2002;Hofnung 1999;Iaryezower et al 2002;Vanberg 2001;Yadlin 2003). A Court deciding against a right-wing executive in national security cases would not win an impartial position and the legitimacy conferring capacity it entails (Adamany 1973).…”

Section: H2: Having Barak As the Opinion Author Should Decrease The Lmentioning

confidence: 99%

A Strategic Court and National Security: Comparative Lessons from the Israeli Case

Sommer¹

2010

Israel Studies Review

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Th is article analyzes decision making in national security cases on the Israeli Supreme Court and draws broader comparative conclusions. In the post-9/11 era, security has topped the national agendas in numerous established democracies, with repercussions involving their courts. Analyses of decision making on national security in Western judiciaries may benefi t from lessons from the Israeli Court, which has been a pivotal player in this domain. A formal model analyzes how internal court institutions plus the rationality of individual justices are conducive to strategic Court behavior. Predictions are tested empirically using an original database with security decisions from 1997 to 2004. Th e fi ndings indicate that constitutional design, Court leadership, ideology of the ruling coalition and interest group activity have infl uenced decisions of the Israeli Court on national defense. Th is study builds on and expands existing scholarship on the complex links among law, politics, and national security in Israel and beyond.

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Game Theory, Legal History, and the Origins of Judicial Review: A Revisionist Analysis of Marbury v. Madison

Cited by 71 publications

References 12 publications

The Separation of Powers, Court Curbing, and Judicial Legitimacy

The Separation of Powers, Court Curbing, and Judicial Legitimacy

Institutional Paths to Policy Change: Judicial Versus Nonjudicial Repeal of Sodomy Laws

A Strategic Court and National Security: Comparative Lessons from the Israeli Case

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