Current Projects

This paper, with Evan Gerstmann, explores how the Supreme Court actually treats strict scrutiny in the context of racial discrimination. The typical presentation of strict scrutiny in the field of equal protection is that a racially discriminatory law requires a compelling state interest and must be narrowly tailored in order for it to be constitutional. In practice, we argue, the Court has different standards for different subject areas within equal protection. This is consistent with the Court's actions in areas such as the First Amendment, where advocacy of illegal action is treated differently from obscenity. In equal protection, we all too often assume that strict scrutiny is a static test applied across the board to all claims. Using case studies in racial redistricting, racial profiling, and affirmative action, we argue that a more accurate understanding of the test of strict scrutiny will allow for a more nuanced and compelling understanding of the Court's doctrine in the field of equal protection.

This paper considers how the political regime theory of courts works when applied to local courts rather than just to the U.S. Supreme Court. Recent scholarship on regime politics seeks to explain the actions of the judiciary by examining the interactions of courts with other political institutions and actors. This work, however, has focused exclusively on federal courts. I identify the ways in which city-level regimes use courts and discuss how a theory of political regimes needs to be adapted to account for these instances.

This project explores the relationship between immunity from the law and effective governance by the rule of law.  There are a number of areas such as sovereign immunity, judicial immunity, officer immunity, and executive immunity where the law formally recognizes areas where it cannot reach.  Why do these exceptions exist?  Are these necessary?  And what are the implications of their existence for our understanding of how the law functions in a system of limited government?  I am in the early stages of a manuscript on these questions.  It will review each of the areas where immunity exists and is applied, examining the relevant case law and underlying theoretical justifications.  I will then relate each of the immunities to its role in the larger political system- what political pressures and realities led to its development and continued existence.  The end result should be a theory explaining how politics shapes the limits of law in ways that actually permit law to be a meaningful limit on politics in other areas.  This contribution is consistent with a growing body of literature in political science that seeks to illuminate the complex relationship between politics and law.

This book chapter explores corruption in the courts, arguing that judicial corruption undermines the courts' ability to serve as neutral arbiters in triadic dispute resolution. In particular, I identify two different types of corruption that can be found in the courts. The first type, acute corruption, involves judges acting for their own personal benefit alone. This includes the most common bribery cases and instances of ruling in favor of friends. The other type, systemic corruption, occurs when judges act in ways intended to benefit not only themselves but also the political regime with which they are affiliated. For example, Boss Tweed in New York relied on "his" judges to naturalize tens of thousands of immigrants before an election so that he could boost the number of his supporters. This type of corruption, I argue, is actually far more corrosive for the legitimacy of the courts.

This book studies the impact of the doctrine of state sovereign immunity on both plaintiffs and the states that rely on the doctrine as defendants. I seek to move beyond disagreements about the proper interpretation of the Eleventh Amendment to consider the policy implications of the way that the doctrine has actually been used. Does state sovereign immunity herald a revived federalism, shifting the balance of power toward states and away from the federal government? What are the costs and implications of such an approach? I address these questions in three ways. I begin with a theoretical discussion of the relationship between sovereign immunity, democratic accountability, and the courts, emphasizing the important role that courts can play for plaintiffs who are otherwise disadvantaged in the political system. I also look back at the impact of the doctrine in three key time periods when it was used extensively by states using detailed historical case studies. The final part of the book applies those lessons to the contemporary cases and traces the effect of five recent major cases for both plaintiffs and defendants using Congressional hearings, administrative reports, state legislation, news articles, and court decisions. I find that the reach of sovereign immunity as a doctrine is severely limited by the political and economic influence of potential plaintiffs on other branches or levels of government. The use of sovereign immunity as a defense even presents the possibility of a backlash for the state, resulting in diminished authority. At the same time, the doctrine’s primary effect is to shut the weakest and most politically unpopular individuals out of courts, leaving them without a remedy. I conclude that state sovereign immunity is at best ineffective at achieving the goal of robust federalism while at the same time imposing substantial costs on those least capable of bearing them.

More info available here: http://www.sunypress.edu/details.asp?id=61649

This book chapter considers what makes an effective leader on the Supreme Court. Chief justices possess both formal and informal powers that must be exercised internally on the Court and externally in the broader political system. Some chief justices have managed the internal dynamics of the Court well, but failed to navigate the external arena. Others have exceled at boosting the external prestige of the Court at the same time that the Court became less efficiently run internally. The most effective chief justices have balanced both well. This framework provides a means for evaluating past chief justices and predicting future performance.

After the litigation of the  2000 presidential election, are parties, candidates, and interest groups more likely to utilize pre-election litigation as a part of the normal election strategy?  Our findings suggest this is the case, at least when a close election is anticipated.  The difference in the political landscape and logic after the 2000 litigation is that the political players now perceive the judiciary as a venue of first rather than last recourse. Using data from all fifty states and the District of Columbia, we show that courts are seen as one of the primary arenas for challenging the rules of the game before the election and that litigation by parties is used in a coordinated strategic manner. The political lesson from the 2000 election litigation is that restorative litigation, an attempt to right a wrong or return something to the status quo ante, is more uncertain than preventative litigation, an attempt to alter the course of events before they have occurred.  That is, pre-election litigation with potential for actually altering the outcome (preventative litigation) is a better strategy than post-election litigation that at some level seeks to change what has already occurred (restorative litigation).  Link to spreadsheet of cases.

This article addresses the question of whether, as a result of the terrorist attacks of September 11th, ordinary citizens face a contraction of their civil rights and liberties in criminal cases that were wholly unrelated to the threat of terrorism. We chose to operationalize the question of contraction of these civil rights and liberties by considering court rulings on specific evidentiary motions in non-immigration criminal cases in the United States District Court for the Southern District of California. After reviewing every motion ruled on over a seven-month period, we found that there was no statistically significant difference in outcomes before or after the attacks. The clearest implication of this research is that the federal judiciary was relatively impervious to the tragedy with respect to ordinary citizens embroiled in the federal criminal justice system. While we anticipated some systemic reaction, we simply found no evidence that the shock impacted the administration of justice for better or worse. In short, after the attack, the three competing forces in the administration of justice - the judiciary, the prosecution, and the defense bar - all held to a steady course of effort with no variation in outcome from the same efforts.

This chapter examines the centuries old struggle over the proper boundaries of executive immunity. We begin by laying out the history of executive immunity from the Founding through the infamous Clinton v. Jones lawsuit. We show how the law has evolved and what issues were still unresolved in the 1990's. We then show how the law changed and became clearer after Clinton and how protections for the President against lawsuits, whether for genuine injury or for baser political purposes, narrowed. We discuss what issues are still unresolved, review criticisms of the case and offer some of our own. Finally, we discuss the future. Will the Supreme Court reverse course in the wake of everything that happened as a result of the Clinton case and offer future presidents greater protection from civil suits? Will the lower courts more vigorously shield Presidents? Or will Congress decide to intervene--an approach apparently sanctioned by the Court in Clinton. We conclude that the future of this fascinating and important controversy lies as much with the political world as it does with the courts.