Patterns of Adoption of Tort Law Innovations: An Application of Diffusion Theory to Judicial Doctrines

Canon, Bradley C.; Baum, Lawrence

doi:10.2307/1962297

Cited by 127 publications

(118 citation statements)

References 24 publications

Supporting

Mentioning

113

Contrasting

Unclassified

Order By: Relevance

“…Just as [32] suggests that simply having a high proportion of adopting neighbors does not guarantee that a state will adopt a policy innovation, regional influence does not appear to have a significant impact on the likelihood that an innovation will be adopted by a given court [17]. This is likely due to two factors.…”

Section: Policy Diffusion In the Judiciarymentioning

confidence: 99%

“…While most studies of policy diffusion are conducted at the state level and focus on a legislature's decision to adopt a particular policy innovation, there exists a substantial body of literature on the ways in which policy innovations-defined more specifically as new rules or doctrines-spread across court systems. Like studies of legislative policy adoption, most studies of judicial diffusion investigate the transmission of precedent across state court systems [17][18][19][20], although scholars are increasingly interested in explaining the same process at the federal appellate level [21,22]. In general, theories of policy diffusion center around three sets of determinants: internal, external, and policy specific characteristics.…”

Section: Policy Diffusion In the Judiciarymentioning

confidence: 99%

“…Judicial diffusion appears to depend largely on internal determinants such as communication networks (e.g., legal reporting districts, citing doctrine in written opinions), cultural similarities (i.e., shared demographic profiles), and institutional structures and characteristics (e.g., level of court professionalism, caseload, and court prestige) of the courts in question [17][18][19][20]30,31].…”

Section: Policy Diffusion In the Judiciarymentioning

confidence: 99%

“…This is likely due to two factors. First, the courts' ability to adopt a precedent is dependent upon opportunity, or the actual supply of cases [17]. No applicable case on the docket?…”

Section: Policy Diffusion In the Judiciarymentioning

confidence: 99%

“…No adoption. Second, the idea of regional neighborhood influence is too narrow for judicial diffusion; the legal system has well-established channels of communication that do not rely on geographical proximity [17,20]. In fact, it is this system of written opinions and legal reporting that may be most responsible for the transmission of legal doctrine.…”

Section: Policy Diffusion In the Judiciarymentioning

confidence: 99%

See 4 more Smart Citations

Is Anyone Listening? The Politicization of the Judiciary and the Loss of Authority: An Initial Assessment

Peter¹,

Gregory²

2016

J Pol Sci Pub Aff

View full text Add to dashboard Cite

Our study initiates an effort to determine if the recent politicization of the U.S. Supreme Court had meant its opinions have less impact on the lower courts who are expected to follow its direction and on the impacted parties upon which its ruling are applied. It is our contention that the court has become increasingly politicized and this politicization has reduced the Courts influence in lower courts and affected parties. We begin our study with the examination of how a recent Supreme Court opinion, Fisher v. Univ. of Texas (570 U.S., 2013) has been applied in the lower and appellate federal courts. This opinion strengthened the application of strict scrutiny in affirmative action cases. It was a wellpublicized opinion and its directives were clearly stated in Justice Kennedy's majority opinion. It called on courts to apply a 'strong' version of strict scrutiny not only to the objectives being sought but also to the means being utilized. Our initial examination of the diffusion of this precedent shows no influence on lower or appellate courts. But the opinions of the Court are not for the judiciary alone. Our second examination involves how affected parties are reacting to the dictates of the Court. Staying with Fisher, we conducted a survey of public university admission staffs to determine if they have adjusted their admissions processes in response to the Court. We were surprised to discover no reaction. It is clear, the message of Fisher has been lost. We conclude with a brief discussion of where this leaves the Court.Of the three branches of government, the American public has traditionally held the judiciary in the highest esteem. Unlike the two 'political' branches, Americans, even if they disagree with the Court, have respected its authority to render decisions that overturn a properly elected legislature or a executive operating under his official authority. But what if this were not the case? Instead, what if the American public and the officials in government viewed the Court as a third 'political' branch?Our research begins with an assumption: the judiciary, in general, and the U.S. Supreme Court, in specific, is undergoing a politicization process that has not been witnessed since at least the Court Packing Era of the 1930s. By politicization, we mean that the Court, in perception or reality, is basing its judgments not solely on the facts before the Court and the objective application of the law but instead ideological or partisan influence is having a significant impact on the rulings of the Court, irrespective of the facts or the law. This is a highly controversial assumption but we accept this as a given. In this work, instead of demonstrating the veracity of his assumption, our focus is on how such a politicization impacts both the diffusion of Court precedent throughout the judicial branch and also whether the politicization of the Court lessons its ability to influence the behavior of impacted parties within society. We believe that as the Court has become politicized its ability t...

show abstract

Section: Policy Diffusion In the Judiciarymentioning

confidence: 99%

Section: Policy Diffusion In the Judiciarymentioning

confidence: 99%

Section: Policy Diffusion In the Judiciarymentioning

confidence: 99%

“…This is likely due to two factors. First, the courts' ability to adopt a precedent is dependent upon opportunity, or the actual supply of cases [17]. No applicable case on the docket?…”

Section: Policy Diffusion In the Judiciarymentioning

confidence: 99%

Section: Policy Diffusion In the Judiciarymentioning

confidence: 99%

See 3 more Smart Citations