Jamieson and Waldman, The Press Effect.
Pew Report “News Interest and Knowledge” http://people-press.org/report/?pageid=1356
Baumgartner, Jody, and Jonathan Morris. 2006. “The Daily Show Effect
American Politics Research, Vol. 34, No. 3, 341-367 (2006)
The first reading focuses on what key news audiences are, and how much the key audiences know. The truth is that the studies have been surprisingly consistent: Education and socio-economic status (in this report they are referred to as “Those with higher annual incomes”) are the two most important determinants of a person’s knowledge level about politics, both national and international. The second most important characteristic is gender, although this study (and the others) seem to indicate that gender is more about where someone gets their news from than whether they get news at all. Overall, there was nothing surprising in this report. It simply confirmed the prior readings that indicate better educated people with higher socio-economic status follow news, and are more knowledgeable about politics.
In light of the fact that people get their news from the news media – the press – The Press Effect’s conclusions are a little disturbing. The point of the book is to show how the press frames political events, and sometimes ignore the truth and ignores facts in order to “frame” the events in a manner that is consistent with the need to provide coherence to the stories that are being presented. In order to show how the press ignores facts, the authors have analyzed specific news media coverage, and shown how the press has ignored facts in order to provide coherence to a story. One of the instances cited in this book is when the young woman testified that she had seen young babies throw from incubators by Iraqi soldiers – when in fact this never happened. The story was adopted by the President who used it to symbolize the human rights needs of invading Iraq. However, the incident was later proven never to have happened, and the press ignored the falsehood in order to give coherence to the human rights story. The authors of The Press Effect see the main task of journalists as being the watchers of facts, not the reporters of stories. The authors conclude their book with a list of things that journalists should do to return to being fact-based, instead of story based. Is this distinction important for the average news viewer? There is no research about how the viewers and readers react to retractions and corrections in the news. It is possible that once the news reports a story, and it enters into the person’s mind, that something else will not correct it – even if the initial story is false. This type of fact rejection has been shown to be the case in the Kuklinski study where he shows that misinformed people, even when exposed to the facts, don’t change their opinion. Therefore, it would seem, if we are a society that values truth, that the authors of The Press Effect are correct – that the facts need to be presented the first time around, and that the press (since they are the people who give the news to others) need to be more conscious of the facts, and less conscious of telling a story.
However, there has been substantial research done that presentation of the facts in written form leads only to further the information gap between the socio-economic classes. Jerit et al showed that television increases all people’s levels of knowledge, while written information (which tends to be more fact heavy) only increases the knowledge of those with education and higher socio-economic status to begin with. Does this mean that television doesn’t relate facts, or that facts aren’t an effective communication tool across all classes? I hope not. That would be a sad state of commentary on the citizens: That only information in story form is acceptable to all classes, rather than facts. However, it is something to consider when focusing on the drive for facts balanced against the need to tell a story.
The article on The Daily Show seemed to show that, among young college students, watching The Daily Show increased cynicism and that increased cynicism leads to reduced political participation. The authors do not explicitly state the “therefore” of their argument: That watching The Daily Show decreases political participation, but it is a logical conclusion to their research. However, they measured cynicism by asking the participants if “I trust all the news media to cover political events fairly and accurately.” This seems to be too broad of a question, both for the definition of news media and because there is an emphasis on “all.” No one is going to answer yes to this question. This is the question that was used to measure cynicism, and it simply seems like too broad of a question to base an assumption on.
Wednesday, April 29, 2009
Saturday, April 25, 2009
Voter Turnout
Fowler, James (2006) “Altruism and Turnout” Journal of Politics 68 (3) 674-683.
Baldassare, Mark. 2006. “California’s Exclusive Electorate” http://www.ppic.org/content/pubs/atissue/AI_906MBAI.pdf
Blais, André. 2006. “What Affects Voter Turnout?”
Annual Review of Political Science. Vol. 9: 111-125
U.S. Elections Project. 2008 Unofficial Turnout. http://elections.gmu.edu/preliminary_vote_2008.html
The idea that people vote out of altruism makes a little bit of sense, there has to be something more than self-interest when people vote or they wouldn’t vote. However, the research doesn’t show that altruism is the variable that makes people turn out. The definition of altruism that was used in the paper, bearing costs so that someone else receives a benefit, seems to be a misnomer. Altruism is doing things selflessly, and unselfishly being concerned for the welfare of others. The definition of altruism used in the paper isn’t the common definition of altruism, and so is a bit misleading. Also, it is not clear from the research that people vote for the benefit of others. It may be that what the author sees as altruism is really a selfish act – people exercising their right to vote because they want to – rather than being unselfish. However, under the author’s definition of altruism, this behavior would fit into being altruistic. Therefore, I think his definition of altruism is too inclusive, and too off-the-charts to be helpful in defining a voting variable.
However, altruism plays no part in places where there is compulsory voting. The Blais article examines the current research on compulsory voting and determines that the research is unclear on the needed punishment to compel turnout. Blais looked at the research in voting patterns and decided that socioeconomic class matters in voting, which translates across nations so that poor nations have lower turnout that rich nations (although he was clear to make the distinction that it is at the ends of the spectrum this matters, and not as a matter of degree). However, he found that there was a large lack in understanding how compulsory voting and competitive systems matter in relation to voter turnout.
If the PEW research and the initial 2008 election turnout results are any indication, not having compulsory voting and not having competition in the U.S. doesn’t help turn out. In effect, we are proving the negative of Blais’ point: a country without competition and without compulsory voting has low turnout. This states the U.S.’ situation clearly. The turnout in the U.S. is very low. It has been put at 61.7% for the 2008 elections. In a year when the sitting President had the lowest approval ratings ever, where the candidate was the first African American candidate for President, and where the Republican Vice-Presidential nominee was so bad that people didn’t want her elected – there was still only 61.7% turnout. There wasn’t much competition. People knew before they went to the polls who would win. People who voted late – like the western states and some of the mid-west states, knew who was winning before they even voted. This could also be a cause of the low turnout: why turnout when you know the winner.
There’s one other point to make about Fowler’s research – he used primary votes, and a primary vote in which there was no Presidential primary. In California, which is where he did his research, primary turnout is notoriously low. This research was conducted before the Democrats opened their primary in California, and so the only people who turned out for a primary election were Republicans and Democrats – but California has a large “decline-to-state” group that votes in Presidential elections and state-wide elections but not in primaries. This is a drastic error in his research, and he didn’t show how to account for it. In effect, he was discounting thousands of votes because they don’t, or weren’t able to, cast a vote in a primary election.
Baldassare, Mark. 2006. “California’s Exclusive Electorate” http://www.ppic.org/content/pubs/atissue/AI_906MBAI.pdf
Blais, André. 2006. “What Affects Voter Turnout?”
Annual Review of Political Science. Vol. 9: 111-125
U.S. Elections Project. 2008 Unofficial Turnout. http://elections.gmu.edu/preliminary_vote_2008.html
The idea that people vote out of altruism makes a little bit of sense, there has to be something more than self-interest when people vote or they wouldn’t vote. However, the research doesn’t show that altruism is the variable that makes people turn out. The definition of altruism that was used in the paper, bearing costs so that someone else receives a benefit, seems to be a misnomer. Altruism is doing things selflessly, and unselfishly being concerned for the welfare of others. The definition of altruism used in the paper isn’t the common definition of altruism, and so is a bit misleading. Also, it is not clear from the research that people vote for the benefit of others. It may be that what the author sees as altruism is really a selfish act – people exercising their right to vote because they want to – rather than being unselfish. However, under the author’s definition of altruism, this behavior would fit into being altruistic. Therefore, I think his definition of altruism is too inclusive, and too off-the-charts to be helpful in defining a voting variable.
However, altruism plays no part in places where there is compulsory voting. The Blais article examines the current research on compulsory voting and determines that the research is unclear on the needed punishment to compel turnout. Blais looked at the research in voting patterns and decided that socioeconomic class matters in voting, which translates across nations so that poor nations have lower turnout that rich nations (although he was clear to make the distinction that it is at the ends of the spectrum this matters, and not as a matter of degree). However, he found that there was a large lack in understanding how compulsory voting and competitive systems matter in relation to voter turnout.
If the PEW research and the initial 2008 election turnout results are any indication, not having compulsory voting and not having competition in the U.S. doesn’t help turn out. In effect, we are proving the negative of Blais’ point: a country without competition and without compulsory voting has low turnout. This states the U.S.’ situation clearly. The turnout in the U.S. is very low. It has been put at 61.7% for the 2008 elections. In a year when the sitting President had the lowest approval ratings ever, where the candidate was the first African American candidate for President, and where the Republican Vice-Presidential nominee was so bad that people didn’t want her elected – there was still only 61.7% turnout. There wasn’t much competition. People knew before they went to the polls who would win. People who voted late – like the western states and some of the mid-west states, knew who was winning before they even voted. This could also be a cause of the low turnout: why turnout when you know the winner.
There’s one other point to make about Fowler’s research – he used primary votes, and a primary vote in which there was no Presidential primary. In California, which is where he did his research, primary turnout is notoriously low. This research was conducted before the Democrats opened their primary in California, and so the only people who turned out for a primary election were Republicans and Democrats – but California has a large “decline-to-state” group that votes in Presidential elections and state-wide elections but not in primaries. This is a drastic error in his research, and he didn’t show how to account for it. In effect, he was discounting thousands of votes because they don’t, or weren’t able to, cast a vote in a primary election.
Friday, April 10, 2009
Literature Review: Judicial behavior, game theory, and strategic behavior
The thrust of this research is to identify the circumstances under which the California Supreme Court is likely to declare a law unconstitutional. In order to identify these circumstances, the behavior of the California Supreme Court will be modeled using game theory. Specifically, the behavior of the California Supreme Court will be analyzed using an incomplete information game. In other words, the behavior of the California Supreme Court will be studied in a strategic fashion, as if the California Supreme Court is a rational and strategic actor. One of the effects of viewing the California Supreme Court in this matter is to declare that the institutions of the Court, and the institutions that exists around the Court, make a difference in the Court’s decisions.
For a lawyer arguing a case, the individual preferences of the judge making the decision matter in the outcome. A judicial scholar, studying judges in general, needs to determine when the preferences of the judge come into play, and when other things (stare decisis, institutions and legislative intent to name a few). Gibson notes that the decisions of judges are a function of what they “prefer to do, tempered by what they think they ought to do, but constrained by what they perceive is feasible to do” (1983, 7).
Determining how judges behave has been studied in two main approaches.
The attitudinal approach assumes that the focus is on the individual judge; that the personal values determine, to a significant degree, what the decision of a judge will be (Hall and Brace 1989, 391). This model assumes that the judges decide cases based on their personal ideological preferences and values, and are not constrained by outside actors (the Legislature, Congress, and the public to name a few) or internal restraints (Segal and Spaeth 2002, 86).
This is not the approach that this research takes. This research does not view the California Supreme Court as a group of individuals, where the preferences of the individual matter, but rather as an institution which makes decisions based on outside constraints. In fact, as this research will show, one of the most important constraints on judicial decision-making is whether or not the Court will have its decision overturned by other institutions. An approach, such as the attitudinal approach, which ignores the influence of other institutions, is not appropriate to model the research under.
Rather, the strategic approach is the model of judicial behavior which is used in this research. Judge Posner describes the role of the United States Supreme Court as a “political court” in which they have to accept certain limitations on their discretion…that they have to be seen as “doing law rather than doing politics” (Posner 2003). This description would suggest that the behavior of judges can be modeled strategically.
The strategic approach deals with what judges may feasibly do, or not do (Segal 2008, 20). This is because judges do not make decisions in isolation (id). Judges make decisions that may be overturned if other institutions feel that the decision goes too far, or is not the correct decision (i.e., the United States Supreme Court can have their decision overturned by Congress if Congress decides that the Court has not made a correct decision[1]). If judicial policy making occurs for a period of time, or over a long period of time, the chanced for a reversal to occur are real (Cross 2005).
Epstein and Knight summarize the strategic approach to judicial decision-making:
Justices may be primarily seekers of legal policy, but they are not unconstrained actors who make decisions based only on their own ideological attitudes. Rather, justices are strategic actors who realize their ability to achieve their goals depends on a consideration of the preferences of other actors, the choices they expect others to make, and the institutional context in which they act. (1998, 10).
Most of the literature on the strategic approach can be traced to C. Herman Pritchett, who compiled an analysis of the United States Supreme Court Justices that was based on the understanding that a Justice is much like a Congressman – they vote on issues and enjoy substantial discretion in their decision making (Pritchett 1942, 491). Marks, in 1988, furthers this approach by formalizing the effects of constraints on the courts. Marks evaluated the potential of Congress to overturn a judicial decision, focusing on when Congress could not modify a Court decision.
One of the early results of the research that used the strategic approach was the finding that, if everything else is equal, Congress tends to obey Supreme Court judicial rulings (Gely and Spiller 1990). Gely and Spiller found that the explanation for this behavior is simple: As long as the Justices’ personal preferences were policy based, the Justices were better off selecting policy decisions that are reversal proof. Therefore, the Justices would de facto select positions that were reversal proof (id). Wahlbeck and his co-authors conducted an analysis which led them to conclude that Supreme Court justices are rational actors who pursue their policy goals within constraints (1999, 507). These are some examples of the research that has led to the conclusion that judges are strategic actors.
Another early finding about how judicial decision making, under the strategic model, is influenced by other institutions is that the Supreme Court can act strategically when engaging in statutory interpretation based on how organized Congress was at the time they made the statute, which will result in the use of legislative history by the Court (McNollgast, 1992;1994).
Spiller and Spitzer (1992) analyzed the decisions of the Court based on whether the decisions were made on Constitutional or non-constitutional grounds. This research was conducted using a strategic representation that included not only the Court, but other institutions: Congress, the President, state legislatures and agencies.
Tiller and Spiller (1999) also recognized the importance of other institutions on judicial decision-making by showing how lower courts can raise the cost of having their decisions overturned by a higher court to make reversal less likely. Cross and Tiller (1998) also use strategic analysis to show how increasing transaction costs forces appeals courts to act less along ideological or political lines and more along strategic lines.
Spiller and Tiller (1997) also looked at how Congress, specifically rather than institutions in general, influence the Court through manipulation of the decision-making process, mainly through cost-benefit implications, or by changing the standard of review a court must use in various cases; the Bumper Amendment of 1975 is one such situation[2].
As a result of the strategic approach, a basic understanding of judicial independence (and all that it means) has been expanding (Spiller 1996). In environments characterized by a strong and unified polity, attempts to exercise judicial independence will trigger political retaliation. When it is difficult for the polity to overturn or retaliate against the judiciary, a doctrine of judicial independence will naturally evolve.
As a result of this basic understanding of judicial independence, using the strategic approach, it follows that when it is easier for the legislature to override the court and when there is a dominant political party, the discretion of the courts is limited (Cooter and Ginsberg 1996). These results have been tested, and proven, across multiple countries. The courts show deference to political branches when the political environment is stable and unified[3]. These findings are consistent with the strategic approach: Institutions, other than the court itself, plays a role in judicial decision-making.
Recent developments have shown that there are ranges in which the Court is constrained and ranges in which the Court is not (Spiller and Gely 1992). Bergara et al. (2003) found that the Court is often, but not always, constrained by Congress. They also found that when the Court is constrained by politics, it seems to respond strategically. Additionally, Stephenson (2003) was able to show, using the strategic approach, that a judiciary considers the behavior of others in its decisions and acts in a risk-adverse way.
Most of the study has been focused on those who study the behavior of the Supreme Court[4]. However, this approach as also been applied to judges on the U.S. Court of Appeals[5] and state Supreme Court Justices[6]. Brace and Hall (1992; 1993) found that state Supreme Court Justices choose not to follow their ideological preferences in certain situations in anticipation of decisions by external actors and institutions. Therefore, the approach of this research will not be the first to use the strategic approach to analyze the judicial decision-making behavior of state Supreme Court Justices.
The strategic model accounts for forces other than personal preferences that influence judicial decision-making. The strategic model is rooted in the belief that judicial decision-making is a rational decision making process that can be modeled (Spiller P.T. and Gely R. 2008, 42).
Game theory can help political scientists study, and create model for action, of the way various actors, such as judges, make decisions. Game theory can be used to explain how decisions are interrelated, and how decisions are made. Game theory works as a way to formalize structures and possibilities to allow for study and modeling (Morrow 1994, 1-3). Game theory and the strategic model of judicial decision-making are well suited for each other. Both require an assumption of rationality and strategy (Morrow 1994, 7).
Game theory can provide models that will demonstrate under which circumstances justices on a constitutional court are likely to be constrained by strategic considerations and when this will not be the case (Carrubba 2000, Rogers 2001). This occurs by creating a model game that addresses legislative anticipation of judicial review, legislative reactions to judicial rulings and the political environment in which the court must act (Vanberg 2001).
Some of the most current game-theoretic models use games of complete information[7]. These models, as games of complete information, require that all the players’ payoffs be common knowledge (Morrow 1994, 63). A payoff is the outcome which a player wishes to achieve (Morrow 1994, 61). The separation-of-powers game that models judicial decision-making in relation to the rest of the branches of government (Epstein and Walker 1995), is one of these perfect information games. Almost every step of this game requires that the judges have perfect and complete information about the preferences of Congress, especially in terms of Congress’ ideal law (Knight and Epstein 1996). The separation-of-powers game begins with the assumption that judges are interested in imposing their policy preferences on society. Then the game goes on to model judicial decision-making behavior that will allow the courts to reach as close as possible to their ideal point without being overturned by Congress (Spiller and Gely 1992).
Game theory in judicial decision-making studies is becoming more prominent. Perino (2005) has used game theory to model strategic decision-making in Federal District Courts. He uses evidence from securities fraud actions to prove his point. This research showed, using a linear decision model, that judicial decision-making is a function of the likelihood of appeal and reversal. Sala and Spriggs (2004) also used a game theory model – spatial voting model – to show where the attitudinal and separation-of-powers models of judicial behavior have diverged. Stanton (2006) uses a simultaneous equations model to show how case promotion is linked to judicial choice.
However, games that include judicial decision-making and the institutions involved are not complete information games where each player’s outcome is known to all the other players (Vanberg 2001, 348). Instead judicial decision-making of constitutional courts is modeled best by a game of incomplete and imperfect information (Vanberg 2001 and Rogers 2001).
An imperfect information game is one in which all the players do not know the desired payoffs for the other players. A player in this game has private information- their desired payoff - that remains private throughout the game, or until their last possible point of participation. However, throughout the game a player can signal their private information – the player’s desired payoff – through their moves (Morrow 1994, 219). In Vanberg’s imperfect information game, the imperfect information is that the Legislature does not know what type of court it is dealing with or the policy environment it is acting in, and the court does not know what type of policy environment it is acting in (Vanberg, 348).
Regardless of the model chosen, it is clear that the strategic approach to judicial decision making is a valid approach. From the authors and articles listed above, as well as those in the references (who have helped shape the ideas of others) it is apparent that the strategic approach has many benefits over the attitudinal approach. One benefit is the ability to consider outside actors and other institutions, and their influence on judicial decision-making. A second benefit is that the strategic approach assumes the courts are acting in a rational manner (supra) and thus their positions and choices during the judicial decision-making process can be modeled using game theory.
In a more comprehensive research proposal, this literature review would then lead to a discussion of the specific model that Vanberg proposed in his paper, and how that model applies and will be adapted to the California Supreme Court in order for the analysis to take place.
[1] See, Robertson v. Seattle Audubon Society, 112 S.Ct. 1407 (1992), concerning the constitutionality of a law overturning decisions by a district court applying the Endangered Species Act to Pacific Northwest logging and the spotted owl. The eleventh amendment overturned Chisholm v. Georgia, 2 Dall. (2 U.S.) 419 (1793). Constitution of the United States of America -- Analysis and Interpretation, S. Doc. 99-16, 99th Cong., 1st sess. (1987)(hereinafter Constitution Annotated) pp. 1427-1448. The fourteenth amendment overturned that part of Scott v. Sandford, 19 How. (60 U.S.) 393 (1857), which stated that national citizenship was derivative of state citizenship. Constitution Annotated, pp. 1467-1469. The sixteenth amendment overturned Pollock v. Farmers Loan & Trust Co., 157 U.S. 429, modified on rehearing, 158 U.S. 601 (1895), holding that income taxes on certain income were direct taxes and invalid because not apportioned. The nineteenth amendment conferred suffrage regardless of sex and thus overturned Minor v. Happersett, 21 Wall. (88 U.S.) 162 (1875), which had held that denial of the ballot to women did not violate the fourteenth amendment's privileges or immunities clause. The twenty-sixth amendment set aside the result in Oregon v. Mitchell, 400 U.S. 112 (1970), which had upheld a congressional reduction of the voting age in Federal elections but voided it for State elections. Constitution Annotated, p. 1881.
[2] De Figueiredo and Tiller (1996; 2000) show that Congress influences the courts through establishment of judgeships. Toma (1991; 1996) shows that Congress influences the courts through the budget appropriations in the same way that Congress influences executive agencies.
[3] See Epstein et al (2001) that shows when the political environment in Russia became more stable and unified, the Russian Constitutional Court showed more deference to the political branches: Garrett et al (1998( which identifies the conditions when member governments are likely to respond to the European Court of Justice: Ginsberg (2003) showed that when there is political uncertainty, judicial review is put into place to protect constitutional rights: and Ramseyer and Rasmusen (1997) who find that politicians in Japan seek to influence who is a judge so that their opinion of an “ideal judge” is conformed to.
[4] See Epstein and Knight 1998; Maltzman, Spriggs and Wahlbeck 2000; and all previous literature in this literature review.
[5] For example: Cross and Tiller 1998; Songer, Segal and Cameron 1994.
[6] For example: Hall and Brace 1992; Langer 1997.
[7] See Ferejohn and Weingast 1992; Clinton 1994; Epstein and Knight 1996; Barzilai and Sened 1997.
For a lawyer arguing a case, the individual preferences of the judge making the decision matter in the outcome. A judicial scholar, studying judges in general, needs to determine when the preferences of the judge come into play, and when other things (stare decisis, institutions and legislative intent to name a few). Gibson notes that the decisions of judges are a function of what they “prefer to do, tempered by what they think they ought to do, but constrained by what they perceive is feasible to do” (1983, 7).
Determining how judges behave has been studied in two main approaches.
The attitudinal approach assumes that the focus is on the individual judge; that the personal values determine, to a significant degree, what the decision of a judge will be (Hall and Brace 1989, 391). This model assumes that the judges decide cases based on their personal ideological preferences and values, and are not constrained by outside actors (the Legislature, Congress, and the public to name a few) or internal restraints (Segal and Spaeth 2002, 86).
This is not the approach that this research takes. This research does not view the California Supreme Court as a group of individuals, where the preferences of the individual matter, but rather as an institution which makes decisions based on outside constraints. In fact, as this research will show, one of the most important constraints on judicial decision-making is whether or not the Court will have its decision overturned by other institutions. An approach, such as the attitudinal approach, which ignores the influence of other institutions, is not appropriate to model the research under.
Rather, the strategic approach is the model of judicial behavior which is used in this research. Judge Posner describes the role of the United States Supreme Court as a “political court” in which they have to accept certain limitations on their discretion…that they have to be seen as “doing law rather than doing politics” (Posner 2003). This description would suggest that the behavior of judges can be modeled strategically.
The strategic approach deals with what judges may feasibly do, or not do (Segal 2008, 20). This is because judges do not make decisions in isolation (id). Judges make decisions that may be overturned if other institutions feel that the decision goes too far, or is not the correct decision (i.e., the United States Supreme Court can have their decision overturned by Congress if Congress decides that the Court has not made a correct decision[1]). If judicial policy making occurs for a period of time, or over a long period of time, the chanced for a reversal to occur are real (Cross 2005).
Epstein and Knight summarize the strategic approach to judicial decision-making:
Justices may be primarily seekers of legal policy, but they are not unconstrained actors who make decisions based only on their own ideological attitudes. Rather, justices are strategic actors who realize their ability to achieve their goals depends on a consideration of the preferences of other actors, the choices they expect others to make, and the institutional context in which they act. (1998, 10).
Most of the literature on the strategic approach can be traced to C. Herman Pritchett, who compiled an analysis of the United States Supreme Court Justices that was based on the understanding that a Justice is much like a Congressman – they vote on issues and enjoy substantial discretion in their decision making (Pritchett 1942, 491). Marks, in 1988, furthers this approach by formalizing the effects of constraints on the courts. Marks evaluated the potential of Congress to overturn a judicial decision, focusing on when Congress could not modify a Court decision.
One of the early results of the research that used the strategic approach was the finding that, if everything else is equal, Congress tends to obey Supreme Court judicial rulings (Gely and Spiller 1990). Gely and Spiller found that the explanation for this behavior is simple: As long as the Justices’ personal preferences were policy based, the Justices were better off selecting policy decisions that are reversal proof. Therefore, the Justices would de facto select positions that were reversal proof (id). Wahlbeck and his co-authors conducted an analysis which led them to conclude that Supreme Court justices are rational actors who pursue their policy goals within constraints (1999, 507). These are some examples of the research that has led to the conclusion that judges are strategic actors.
Another early finding about how judicial decision making, under the strategic model, is influenced by other institutions is that the Supreme Court can act strategically when engaging in statutory interpretation based on how organized Congress was at the time they made the statute, which will result in the use of legislative history by the Court (McNollgast, 1992;1994).
Spiller and Spitzer (1992) analyzed the decisions of the Court based on whether the decisions were made on Constitutional or non-constitutional grounds. This research was conducted using a strategic representation that included not only the Court, but other institutions: Congress, the President, state legislatures and agencies.
Tiller and Spiller (1999) also recognized the importance of other institutions on judicial decision-making by showing how lower courts can raise the cost of having their decisions overturned by a higher court to make reversal less likely. Cross and Tiller (1998) also use strategic analysis to show how increasing transaction costs forces appeals courts to act less along ideological or political lines and more along strategic lines.
Spiller and Tiller (1997) also looked at how Congress, specifically rather than institutions in general, influence the Court through manipulation of the decision-making process, mainly through cost-benefit implications, or by changing the standard of review a court must use in various cases; the Bumper Amendment of 1975 is one such situation[2].
As a result of the strategic approach, a basic understanding of judicial independence (and all that it means) has been expanding (Spiller 1996). In environments characterized by a strong and unified polity, attempts to exercise judicial independence will trigger political retaliation. When it is difficult for the polity to overturn or retaliate against the judiciary, a doctrine of judicial independence will naturally evolve.
As a result of this basic understanding of judicial independence, using the strategic approach, it follows that when it is easier for the legislature to override the court and when there is a dominant political party, the discretion of the courts is limited (Cooter and Ginsberg 1996). These results have been tested, and proven, across multiple countries. The courts show deference to political branches when the political environment is stable and unified[3]. These findings are consistent with the strategic approach: Institutions, other than the court itself, plays a role in judicial decision-making.
Recent developments have shown that there are ranges in which the Court is constrained and ranges in which the Court is not (Spiller and Gely 1992). Bergara et al. (2003) found that the Court is often, but not always, constrained by Congress. They also found that when the Court is constrained by politics, it seems to respond strategically. Additionally, Stephenson (2003) was able to show, using the strategic approach, that a judiciary considers the behavior of others in its decisions and acts in a risk-adverse way.
Most of the study has been focused on those who study the behavior of the Supreme Court[4]. However, this approach as also been applied to judges on the U.S. Court of Appeals[5] and state Supreme Court Justices[6]. Brace and Hall (1992; 1993) found that state Supreme Court Justices choose not to follow their ideological preferences in certain situations in anticipation of decisions by external actors and institutions. Therefore, the approach of this research will not be the first to use the strategic approach to analyze the judicial decision-making behavior of state Supreme Court Justices.
The strategic model accounts for forces other than personal preferences that influence judicial decision-making. The strategic model is rooted in the belief that judicial decision-making is a rational decision making process that can be modeled (Spiller P.T. and Gely R. 2008, 42).
Game theory can help political scientists study, and create model for action, of the way various actors, such as judges, make decisions. Game theory can be used to explain how decisions are interrelated, and how decisions are made. Game theory works as a way to formalize structures and possibilities to allow for study and modeling (Morrow 1994, 1-3). Game theory and the strategic model of judicial decision-making are well suited for each other. Both require an assumption of rationality and strategy (Morrow 1994, 7).
Game theory can provide models that will demonstrate under which circumstances justices on a constitutional court are likely to be constrained by strategic considerations and when this will not be the case (Carrubba 2000, Rogers 2001). This occurs by creating a model game that addresses legislative anticipation of judicial review, legislative reactions to judicial rulings and the political environment in which the court must act (Vanberg 2001).
Some of the most current game-theoretic models use games of complete information[7]. These models, as games of complete information, require that all the players’ payoffs be common knowledge (Morrow 1994, 63). A payoff is the outcome which a player wishes to achieve (Morrow 1994, 61). The separation-of-powers game that models judicial decision-making in relation to the rest of the branches of government (Epstein and Walker 1995), is one of these perfect information games. Almost every step of this game requires that the judges have perfect and complete information about the preferences of Congress, especially in terms of Congress’ ideal law (Knight and Epstein 1996). The separation-of-powers game begins with the assumption that judges are interested in imposing their policy preferences on society. Then the game goes on to model judicial decision-making behavior that will allow the courts to reach as close as possible to their ideal point without being overturned by Congress (Spiller and Gely 1992).
Game theory in judicial decision-making studies is becoming more prominent. Perino (2005) has used game theory to model strategic decision-making in Federal District Courts. He uses evidence from securities fraud actions to prove his point. This research showed, using a linear decision model, that judicial decision-making is a function of the likelihood of appeal and reversal. Sala and Spriggs (2004) also used a game theory model – spatial voting model – to show where the attitudinal and separation-of-powers models of judicial behavior have diverged. Stanton (2006) uses a simultaneous equations model to show how case promotion is linked to judicial choice.
However, games that include judicial decision-making and the institutions involved are not complete information games where each player’s outcome is known to all the other players (Vanberg 2001, 348). Instead judicial decision-making of constitutional courts is modeled best by a game of incomplete and imperfect information (Vanberg 2001 and Rogers 2001).
An imperfect information game is one in which all the players do not know the desired payoffs for the other players. A player in this game has private information- their desired payoff - that remains private throughout the game, or until their last possible point of participation. However, throughout the game a player can signal their private information – the player’s desired payoff – through their moves (Morrow 1994, 219). In Vanberg’s imperfect information game, the imperfect information is that the Legislature does not know what type of court it is dealing with or the policy environment it is acting in, and the court does not know what type of policy environment it is acting in (Vanberg, 348).
Regardless of the model chosen, it is clear that the strategic approach to judicial decision making is a valid approach. From the authors and articles listed above, as well as those in the references (who have helped shape the ideas of others) it is apparent that the strategic approach has many benefits over the attitudinal approach. One benefit is the ability to consider outside actors and other institutions, and their influence on judicial decision-making. A second benefit is that the strategic approach assumes the courts are acting in a rational manner (supra) and thus their positions and choices during the judicial decision-making process can be modeled using game theory.
In a more comprehensive research proposal, this literature review would then lead to a discussion of the specific model that Vanberg proposed in his paper, and how that model applies and will be adapted to the California Supreme Court in order for the analysis to take place.
[1] See, Robertson v. Seattle Audubon Society, 112 S.Ct. 1407 (1992), concerning the constitutionality of a law overturning decisions by a district court applying the Endangered Species Act to Pacific Northwest logging and the spotted owl. The eleventh amendment overturned Chisholm v. Georgia, 2 Dall. (2 U.S.) 419 (1793). Constitution of the United States of America -- Analysis and Interpretation, S. Doc. 99-16, 99th Cong., 1st sess. (1987)(hereinafter Constitution Annotated) pp. 1427-1448. The fourteenth amendment overturned that part of Scott v. Sandford, 19 How. (60 U.S.) 393 (1857), which stated that national citizenship was derivative of state citizenship. Constitution Annotated, pp. 1467-1469. The sixteenth amendment overturned Pollock v. Farmers Loan & Trust Co., 157 U.S. 429, modified on rehearing, 158 U.S. 601 (1895), holding that income taxes on certain income were direct taxes and invalid because not apportioned. The nineteenth amendment conferred suffrage regardless of sex and thus overturned Minor v. Happersett, 21 Wall. (88 U.S.) 162 (1875), which had held that denial of the ballot to women did not violate the fourteenth amendment's privileges or immunities clause. The twenty-sixth amendment set aside the result in Oregon v. Mitchell, 400 U.S. 112 (1970), which had upheld a congressional reduction of the voting age in Federal elections but voided it for State elections. Constitution Annotated, p. 1881.
[2] De Figueiredo and Tiller (1996; 2000) show that Congress influences the courts through establishment of judgeships. Toma (1991; 1996) shows that Congress influences the courts through the budget appropriations in the same way that Congress influences executive agencies.
[3] See Epstein et al (2001) that shows when the political environment in Russia became more stable and unified, the Russian Constitutional Court showed more deference to the political branches: Garrett et al (1998( which identifies the conditions when member governments are likely to respond to the European Court of Justice: Ginsberg (2003) showed that when there is political uncertainty, judicial review is put into place to protect constitutional rights: and Ramseyer and Rasmusen (1997) who find that politicians in Japan seek to influence who is a judge so that their opinion of an “ideal judge” is conformed to.
[4] See Epstein and Knight 1998; Maltzman, Spriggs and Wahlbeck 2000; and all previous literature in this literature review.
[5] For example: Cross and Tiller 1998; Songer, Segal and Cameron 1994.
[6] For example: Hall and Brace 1992; Langer 1997.
[7] See Ferejohn and Weingast 1992; Clinton 1994; Epstein and Knight 1996; Barzilai and Sened 1997.
Wednesday, April 8, 2009
Legislators, Initiatives and Representation
There was an article entitled, “Legislators, Initiatives, and Representation,” written by E. Gerber which we read in preparation for this class. This article looked at the differences between direct legislation and legislation developed through the legislative process. Specifically this article analyzed the effects of the how people respond to measures versus how the legislative body responds to measures.
This article used two different test cases to illustrate the differences between direct legislation and the legislative process. One case was the cigarette tax in Proposition 99, and the other was the transportation bond defeating in Proposition 74.
These two cases were good illustrations of what the difference is. The Proposition 74 case was stronger because the wording of the Proposition and the legislation was the same. Additionally, the vote in the Legislature and the vote by the people occurred relatively close together.
This article made me think of various other measures which have been, or might be, developed by direct legislation and through the legislative process. Two instances which immediately come to mind are the bond packages of 2006 and Proposition 200 (marriage is only between a man and a woman). In both cases legislation was passed – either through the legislative process (the bonds) or through direct legislation (Proposition 200). Then the opposite body was presented with the problem and tried to create a solution.
The solution in the bonds was that the voters agreed and passed them. This presents a situation where both the legislative process and the direct legislation presented the same outcome. This would, according to the article, mean that there were certain factors in alignment. In the legislative process, party leadership, committee membership, lobbyists, and campaign funding would have to align with the votes. However, I worked in the Legislature at this time and know what did and didn’t align. The reason that party leadership aligned was that Asm. Plesica, the minority leader before Villines, gave in to the Democrats. He had stated that the republicans wanted 36 hours to look over the bond proposal – they were given less than 1 hour. Then Plesica came out in support of the bonds, and provided cover for any Republicans who wanted to vote for them. Some did, and some did not. However, this provided enough cover that the bonds passed from the Legislature. Additionally, in the direct legislation process, there was little to no opposition to the bonds. The majority of the opposition was written in the press and based on the amount that these bonds would cost us in the long term. However, people are not interested in that. Therefore, the direct legislation passed without a lot of opposition as well. So it is possible that this series of events is not indicative of the differences or similarities between the legislative process and direct legislation because there were several deviations from the norm in the system.
Proposition 200 is an illustration of where the differences between the legislative process and direct legislation are reaffirmed. If the sole indicator of a legislators vote was the manner in which the majority of his/her district’s constituents voted – then there would not be the difference between Proposition 200 and the legislative process. However, the theory in this article states that there are other things at work in the legislative process. Nothing illustrates this more clearly than the Proposition 200 argument.
Proposition 200 was a proposition which was passed to “defend marriage,” or state that marriage is between a man and a woman only. The majority of the citizens of California voted for this. Therefore, since the legislative process routinely delivers something different then what the majority of voters want, there must be other factors at play in the legislative process. The Legislature routinely votes for bills which would allow same-sex marriage. This is because there is strong party leadership among the Democrats – who are the majority needed to pass these bills – as well as a strong and vocal lobby of minority citizens who want this.
However, like the example of the cigarette tax, there are problems with this example. The direct legislation and the legislative process do not turn out bills worded the same – in fact they are opposites. There has also been a significant amount of time between the passage of the two items.
However, the fact that I can take 2 other situations and apply this theory to them, means that there is some truth to the theory. Although the theory may not take into account all factors, it does do a basic job of explaining the differences in outcome among the two manners of legislation.
This article used two different test cases to illustrate the differences between direct legislation and the legislative process. One case was the cigarette tax in Proposition 99, and the other was the transportation bond defeating in Proposition 74.
These two cases were good illustrations of what the difference is. The Proposition 74 case was stronger because the wording of the Proposition and the legislation was the same. Additionally, the vote in the Legislature and the vote by the people occurred relatively close together.
This article made me think of various other measures which have been, or might be, developed by direct legislation and through the legislative process. Two instances which immediately come to mind are the bond packages of 2006 and Proposition 200 (marriage is only between a man and a woman). In both cases legislation was passed – either through the legislative process (the bonds) or through direct legislation (Proposition 200). Then the opposite body was presented with the problem and tried to create a solution.
The solution in the bonds was that the voters agreed and passed them. This presents a situation where both the legislative process and the direct legislation presented the same outcome. This would, according to the article, mean that there were certain factors in alignment. In the legislative process, party leadership, committee membership, lobbyists, and campaign funding would have to align with the votes. However, I worked in the Legislature at this time and know what did and didn’t align. The reason that party leadership aligned was that Asm. Plesica, the minority leader before Villines, gave in to the Democrats. He had stated that the republicans wanted 36 hours to look over the bond proposal – they were given less than 1 hour. Then Plesica came out in support of the bonds, and provided cover for any Republicans who wanted to vote for them. Some did, and some did not. However, this provided enough cover that the bonds passed from the Legislature. Additionally, in the direct legislation process, there was little to no opposition to the bonds. The majority of the opposition was written in the press and based on the amount that these bonds would cost us in the long term. However, people are not interested in that. Therefore, the direct legislation passed without a lot of opposition as well. So it is possible that this series of events is not indicative of the differences or similarities between the legislative process and direct legislation because there were several deviations from the norm in the system.
Proposition 200 is an illustration of where the differences between the legislative process and direct legislation are reaffirmed. If the sole indicator of a legislators vote was the manner in which the majority of his/her district’s constituents voted – then there would not be the difference between Proposition 200 and the legislative process. However, the theory in this article states that there are other things at work in the legislative process. Nothing illustrates this more clearly than the Proposition 200 argument.
Proposition 200 was a proposition which was passed to “defend marriage,” or state that marriage is between a man and a woman only. The majority of the citizens of California voted for this. Therefore, since the legislative process routinely delivers something different then what the majority of voters want, there must be other factors at play in the legislative process. The Legislature routinely votes for bills which would allow same-sex marriage. This is because there is strong party leadership among the Democrats – who are the majority needed to pass these bills – as well as a strong and vocal lobby of minority citizens who want this.
However, like the example of the cigarette tax, there are problems with this example. The direct legislation and the legislative process do not turn out bills worded the same – in fact they are opposites. There has also been a significant amount of time between the passage of the two items.
However, the fact that I can take 2 other situations and apply this theory to them, means that there is some truth to the theory. Although the theory may not take into account all factors, it does do a basic job of explaining the differences in outcome among the two manners of legislation.
Monday, April 6, 2009
A review of The Race Card
This book was somewhat of a cross between an easy read and a research book. The main point of the book is that if there is an implicit appeal to race, that type of appeal will be far more effective in activating stereotypes than an explicit appeal to race. As an example, the author uses Willie Horton and the 1998 election. In this example, the image of Willie Horton was talked about simultaneously with issues of crime and poverty. Never was it mentioned that Horton was black, however the pictures were shown and the message was conveyed implicitly.
In truth, Mendelberg is examining political communication. She’s examining what implicit communication about race, by elites to the public, is about. She concludes that implicit racial appeals activate racial stereotypes, resentments and fear. The author declares that these factors shape our decisions when they are least discussed – by implicit appeals. This is a way for the elite to activate norms and beliefs in the voters regarding race, without having the voters recognize or respond negatively.
Mendelberg’s view of political communication is top-down. She sees the communication being done by the elites to the masses. This coincides with the views of Zaller, who also believes that the elites drive communication. However, both of these points of view do not indicate how the racial stereotypes were conceived in the first place. Rather, they assume that the stereotypes are driven from the top down, and will continue to be driven from the top down because it is the elites who benefit from keeping the stereotypes alive so that they can use them in implicit communication appeals.
This also ties neatly with Lakoff. Implicit communications, using key words or images, can be used to activate one family structure or the other, and then depending on which structure is activated, the person responds differently to the message. In Mendelberg’s view, the implicit racial appeals are activating the strict father model – with the attendant fear, resentment and “protect myself and my family from outsiders” feelings that she argues are activated with implicit racial appeals. However, on the flip side, when an explicit racial appeal is made, it seems to activate the nurturing parent model, where equality is key, because people react negatively to the explicit appeals.
Mendelberg sees these appeals as a harm to democracy. She views them as a slippery slope that can be used to argue gender or sexual orientation. Instead, she wants people to recognize the implicit appeal and react as negatively to it as they do to the explicit model. However, this type of implicit appeal almost seems to fall within the realm of heuristics – and there is some (slight) evidence to show that heuristics lead people to the same votes they would’ve made otherwise. What I mean is that an implicit appeal activates certain pathways and ways of thinking (according to Mendelberg). This is what happens in heuristics as well – a message, idea or concept activates a certain pathway of thoughts, that leads to a conclusion without the person ever having to think about it. So in some ways, implicit racial appeals are similar to heuristics. However, this doesn’t make the good, it simply links them to a shortcut.
However, does this really matter? Implicit racial appeals tend to be made on policy areas that the common people have very little, if anything, to do with. Most people do not get to vote on welfare, parole reform, prison spending, and other issues where implicit racial appeals can communicate a message. In fact, Mendelberg found that it is those who are most educated that are least likely to succumb to an implicit appeal. It is also those who are most educated that are likely to be involved in politics to such a degree as to make decisions on matters where race can communicate values, or where racial stereotypes matter. Therefore, if the people involved in the issues are the ones most likely to reject implicit racial appeals, does it matter that they are made?
Additionally, Mendelberg showed a fake newscast of a welfare reform proposal in order to evaluate the feelings about race in different people. The problem is, most people cannot separate their views on poverty and whether people should be self sufficient from race. If we were to examine this experiment using Lakoff’s models, then this experiment wouldn’t show anything about race relations, but would rather show which people on the panel are a strict-father type and which are the nurturing-parent type. I believe Lakoff wouldn’t have anything to say about race, but rather about how a person views the world. Also ,welfare reform is an issue where people have polarized racial opinions because there are very high numbers of African-Americans on welfare compared to all other races. Welfare reform isn’t an implicit racial appeal issue – the appeal is explicit due to the very nature of the subject. This might cause a conflation of opinions in the people who were interviewed and participated in the study.
In truth, Mendelberg is examining political communication. She’s examining what implicit communication about race, by elites to the public, is about. She concludes that implicit racial appeals activate racial stereotypes, resentments and fear. The author declares that these factors shape our decisions when they are least discussed – by implicit appeals. This is a way for the elite to activate norms and beliefs in the voters regarding race, without having the voters recognize or respond negatively.
Mendelberg’s view of political communication is top-down. She sees the communication being done by the elites to the masses. This coincides with the views of Zaller, who also believes that the elites drive communication. However, both of these points of view do not indicate how the racial stereotypes were conceived in the first place. Rather, they assume that the stereotypes are driven from the top down, and will continue to be driven from the top down because it is the elites who benefit from keeping the stereotypes alive so that they can use them in implicit communication appeals.
This also ties neatly with Lakoff. Implicit communications, using key words or images, can be used to activate one family structure or the other, and then depending on which structure is activated, the person responds differently to the message. In Mendelberg’s view, the implicit racial appeals are activating the strict father model – with the attendant fear, resentment and “protect myself and my family from outsiders” feelings that she argues are activated with implicit racial appeals. However, on the flip side, when an explicit racial appeal is made, it seems to activate the nurturing parent model, where equality is key, because people react negatively to the explicit appeals.
Mendelberg sees these appeals as a harm to democracy. She views them as a slippery slope that can be used to argue gender or sexual orientation. Instead, she wants people to recognize the implicit appeal and react as negatively to it as they do to the explicit model. However, this type of implicit appeal almost seems to fall within the realm of heuristics – and there is some (slight) evidence to show that heuristics lead people to the same votes they would’ve made otherwise. What I mean is that an implicit appeal activates certain pathways and ways of thinking (according to Mendelberg). This is what happens in heuristics as well – a message, idea or concept activates a certain pathway of thoughts, that leads to a conclusion without the person ever having to think about it. So in some ways, implicit racial appeals are similar to heuristics. However, this doesn’t make the good, it simply links them to a shortcut.
However, does this really matter? Implicit racial appeals tend to be made on policy areas that the common people have very little, if anything, to do with. Most people do not get to vote on welfare, parole reform, prison spending, and other issues where implicit racial appeals can communicate a message. In fact, Mendelberg found that it is those who are most educated that are least likely to succumb to an implicit appeal. It is also those who are most educated that are likely to be involved in politics to such a degree as to make decisions on matters where race can communicate values, or where racial stereotypes matter. Therefore, if the people involved in the issues are the ones most likely to reject implicit racial appeals, does it matter that they are made?
Additionally, Mendelberg showed a fake newscast of a welfare reform proposal in order to evaluate the feelings about race in different people. The problem is, most people cannot separate their views on poverty and whether people should be self sufficient from race. If we were to examine this experiment using Lakoff’s models, then this experiment wouldn’t show anything about race relations, but would rather show which people on the panel are a strict-father type and which are the nurturing-parent type. I believe Lakoff wouldn’t have anything to say about race, but rather about how a person views the world. Also ,welfare reform is an issue where people have polarized racial opinions because there are very high numbers of African-Americans on welfare compared to all other races. Welfare reform isn’t an implicit racial appeal issue – the appeal is explicit due to the very nature of the subject. This might cause a conflation of opinions in the people who were interviewed and participated in the study.
Saturday, April 4, 2009
Harmless error: a judicial doctrine
If the court has reached the merits of a petitioner’s claims, in a habeas or direct appeal proceeding, and had found constitutional error, then the court subjects that error to a “harmless error” analysis. The state can argue that a finding of constitutional error does not warrant relief because the error was harmless. Although there are some errors that the Court considers per se prejudicial, or per se reversible, apart from prejudice, the court subjects most constitutional errors to a harmless error analysis.[1] This harmless error analysis has gone through subtle, but important changes, beginning with Chapman v. California in 1967 (see below), through the decision of the Brecht court in 1993, to the enactment of the Antiterrorism and Effective Death Penalty Act in 1996.
The standard under the rule is that constitutional violations required relief unless the government proved that the error was harmless beyond a reasonable doubt.[2] The Supreme Court adopted this standard, formally, in Chapman v. California, 386 U.S. 18 (1967), to fulfill the federal courts’ responsibility to “protect people from infractions by the States of federally guaranteed rights,” in habeas law.[3]
However, this standard changed in 1993, when the Court decided Brecht v. Abrahamson.[4] A majority of the Court ruled that there was a new and different measure of harmless error that should apply in federal habeas proceedings. The applicable standard now is the one the Court fashioned in 1946 in Kotteakos v. United States[5] for assessing the harmlessness of non-constitutional errors. At the present time, an error may be deemed harmless if the reviewing court fins that “the error did not influence the jury, or had but very slight effect”[6] and that “the judgment was not substantially swayed by the error.”[7] The phrase that the Brecht court borrowed form the Kotteakos opinion was, “the standard for determining whether habeas relief must be granted is whether… the error had substantial and injurious effect or influence in determining the jury’s verdict.”[8] When “the matter is so evenly balanced that [the federal judge] feels himself in virtual equipoise as to the harmlessness of the error,” the court should find that the error is not harmless and rule in favor of the petitioner.[9]
In 1996, the Antiterrorism and Effective Death Penalty Act (hereinafter “AEDPA”), Pub. L. 104-32, 110 Stat. 1214 (1996), which otherwise made substantial changes in habeas corpus practice procedure, is silent on harmless error questions. This is apparently leaves intact the rule of Brecht and its progeny.[10] However, although AEDPA’s enactment did not overrule the Brecht court standard of harmless error, it did complicate the standard. The courts have since had to grapple with whether to employ the Chapman or Brecht standards of harmless error when assessing under 28 U.S.C. § 2254(d) whether a state court’s analysis of harmless error was “contrary to” or an “unreasonable application” of Chapman. [11] This means that the state court will apply Chapman, and the federal court will apply Brecht, in its analysis of harmless error. This leaves a distinct disparity between the standards of review of the state and federal courts, which are supposed to review the collateral attack in a manner that assures fairness and justice. Split standards do little to assure that the goals of fairness and justice are reached.
However, the Brecht rule has survived all challenges, to be at the forefront of habeas litigation, if the petitioner can get the court to the merits of the claims. This rule is extremely important now, because the Brecht court has drawn a fine distinction between the rule of error which applies on direct appeal, and the rule of harmless error which applies on habeas review. To justify this distinction, the Brecht majority pointed to “the State’s interest in the finality of convictions that have survived direct review within the state court system.” And concerns of “comity and federalism.”[12] The Brecht court majority apparently premised these justification on an assumption that a finding of harmlessness by the state court under the more stringent Chapman rule will precede habeas corpus review of the harmlessness question under the less stringent Brecht rule. However, these rationales do not seem to justify Brecht’s departure from over 200 years of direct appeal and habeas corpus parity in the scope and standard of review of constitutional issues.[13]
With these standards, what does it mean for the practitioner today? It means that the federal practitioner benefits from the less stringent standard of Brecht. It means that the federal courts are reviewing a state court decision at a lower standard than the state court applied. However, state courts rarely, if ever, grant a habeas petition. It is more common for the federal courts to grant the habeas petition. This might be because the state court has a harder time finding that its own courts have committed error, while the federal courts review these decisions independent of the concerns of “their courts” committing error, but rather concerned with whether, “a court” committed an error. This means that the standard in State court is higher now, using the Chapman standard, and the federal court uses the less stringent, Brecht standard. It might behoove the petitioner to fail in state court habeas proceedings and wait until federal court, if the constitutional error is clear enough that the court will reach the merits of the petition, rather than dismiss on procedural grounds.
[1] See, e.g., Brecht v. Abrahamson, 507 U.S. 619, 648 (1993) (White, J. dissenting) (trial errors are … subject to harmless error analysis… and… most constitutional errors are of this variety (citations omitted)); id at 653 (O’Conner, J., dissenting) (By now it goes without saying that harmless error review is of almost universal application: there are few errors that may not be forgiven as harmless) (discussing the standard adopted in Arizona v. Fulimante, 499 U.S. 279 (1991), for determining whether constitutional errors are or are not subject to harmless error rule).
[2] See e.g. Yates v. Evatt, 500 U.S. 381, 402-03 (1991); Rose v. Clark, 478 U.S. 570 (1986)
[3] Chapman at 21 (Chapman standard protects those rights that are “rooted in the Bill of Rights, offered and championed in Congress by James Madison, who told the Congress that the ‘independent’ federal courts would be the ‘guardians of those rights’”).
[4] 507 U.S. 619 (1993)
[5] 328 U.S. 750 (1946)
[6] Kotteakos, 328 U.S. at 764
[7] Id. at 765
[8] Brecht, supra, 507 U.S. at 623; quoting Kotteakos, supra, 328 U.S. at 776)
[9] O’Neal v. McAninch, 513 U.S. 432, 435 (1995). O’Neal, which resolved a question left open in Brecht by making it clear that the state bears the burden of proving harmlessness.
[10] See, e.g, Penry v. Johnson, 121 S. Ct. 1910, 1919-20 (2001) (Court first applies s 2254(d)(1) to state court’s ruling on the merits and, after concluding that state court opinion was not objectively unreasonable, and that petitioner therefore is not entitled to relief, observes that relief would not be available in any event because claimed error was harmless under Brecht.)
[11] See, Nevers v. Killinger, 169 F.3d 352, 370-72 (6th Cir. 1999) and Mangus v. Edwards, 40 F. Supp 2d 908, 920 (N.D. Ohio 1999) (determining whether to apply the Chapman standard of the Brecht standard under § 2254(d) analysis).
[12] Brecht, supra, 507 U.S. at 635.
[13] See Brecht, supra, 507 U.S. at 649 (White, J., dissenting) (Our habeas jurisprudence is taking on the appearance of a confused patchwork in which different constitutional rights are treated according to their status, an in which the same constitutional right is treated differently depending on whether its vindication is sought on direct or collateral review).
The standard under the rule is that constitutional violations required relief unless the government proved that the error was harmless beyond a reasonable doubt.[2] The Supreme Court adopted this standard, formally, in Chapman v. California, 386 U.S. 18 (1967), to fulfill the federal courts’ responsibility to “protect people from infractions by the States of federally guaranteed rights,” in habeas law.[3]
However, this standard changed in 1993, when the Court decided Brecht v. Abrahamson.[4] A majority of the Court ruled that there was a new and different measure of harmless error that should apply in federal habeas proceedings. The applicable standard now is the one the Court fashioned in 1946 in Kotteakos v. United States[5] for assessing the harmlessness of non-constitutional errors. At the present time, an error may be deemed harmless if the reviewing court fins that “the error did not influence the jury, or had but very slight effect”[6] and that “the judgment was not substantially swayed by the error.”[7] The phrase that the Brecht court borrowed form the Kotteakos opinion was, “the standard for determining whether habeas relief must be granted is whether… the error had substantial and injurious effect or influence in determining the jury’s verdict.”[8] When “the matter is so evenly balanced that [the federal judge] feels himself in virtual equipoise as to the harmlessness of the error,” the court should find that the error is not harmless and rule in favor of the petitioner.[9]
In 1996, the Antiterrorism and Effective Death Penalty Act (hereinafter “AEDPA”), Pub. L. 104-32, 110 Stat. 1214 (1996), which otherwise made substantial changes in habeas corpus practice procedure, is silent on harmless error questions. This is apparently leaves intact the rule of Brecht and its progeny.[10] However, although AEDPA’s enactment did not overrule the Brecht court standard of harmless error, it did complicate the standard. The courts have since had to grapple with whether to employ the Chapman or Brecht standards of harmless error when assessing under 28 U.S.C. § 2254(d) whether a state court’s analysis of harmless error was “contrary to” or an “unreasonable application” of Chapman. [11] This means that the state court will apply Chapman, and the federal court will apply Brecht, in its analysis of harmless error. This leaves a distinct disparity between the standards of review of the state and federal courts, which are supposed to review the collateral attack in a manner that assures fairness and justice. Split standards do little to assure that the goals of fairness and justice are reached.
However, the Brecht rule has survived all challenges, to be at the forefront of habeas litigation, if the petitioner can get the court to the merits of the claims. This rule is extremely important now, because the Brecht court has drawn a fine distinction between the rule of error which applies on direct appeal, and the rule of harmless error which applies on habeas review. To justify this distinction, the Brecht majority pointed to “the State’s interest in the finality of convictions that have survived direct review within the state court system.” And concerns of “comity and federalism.”[12] The Brecht court majority apparently premised these justification on an assumption that a finding of harmlessness by the state court under the more stringent Chapman rule will precede habeas corpus review of the harmlessness question under the less stringent Brecht rule. However, these rationales do not seem to justify Brecht’s departure from over 200 years of direct appeal and habeas corpus parity in the scope and standard of review of constitutional issues.[13]
With these standards, what does it mean for the practitioner today? It means that the federal practitioner benefits from the less stringent standard of Brecht. It means that the federal courts are reviewing a state court decision at a lower standard than the state court applied. However, state courts rarely, if ever, grant a habeas petition. It is more common for the federal courts to grant the habeas petition. This might be because the state court has a harder time finding that its own courts have committed error, while the federal courts review these decisions independent of the concerns of “their courts” committing error, but rather concerned with whether, “a court” committed an error. This means that the standard in State court is higher now, using the Chapman standard, and the federal court uses the less stringent, Brecht standard. It might behoove the petitioner to fail in state court habeas proceedings and wait until federal court, if the constitutional error is clear enough that the court will reach the merits of the petition, rather than dismiss on procedural grounds.
[1] See, e.g., Brecht v. Abrahamson, 507 U.S. 619, 648 (1993) (White, J. dissenting) (trial errors are … subject to harmless error analysis… and… most constitutional errors are of this variety (citations omitted)); id at 653 (O’Conner, J., dissenting) (By now it goes without saying that harmless error review is of almost universal application: there are few errors that may not be forgiven as harmless) (discussing the standard adopted in Arizona v. Fulimante, 499 U.S. 279 (1991), for determining whether constitutional errors are or are not subject to harmless error rule).
[2] See e.g. Yates v. Evatt, 500 U.S. 381, 402-03 (1991); Rose v. Clark, 478 U.S. 570 (1986)
[3] Chapman at 21 (Chapman standard protects those rights that are “rooted in the Bill of Rights, offered and championed in Congress by James Madison, who told the Congress that the ‘independent’ federal courts would be the ‘guardians of those rights’”).
[4] 507 U.S. 619 (1993)
[5] 328 U.S. 750 (1946)
[6] Kotteakos, 328 U.S. at 764
[7] Id. at 765
[8] Brecht, supra, 507 U.S. at 623; quoting Kotteakos, supra, 328 U.S. at 776)
[9] O’Neal v. McAninch, 513 U.S. 432, 435 (1995). O’Neal, which resolved a question left open in Brecht by making it clear that the state bears the burden of proving harmlessness.
[10] See, e.g, Penry v. Johnson, 121 S. Ct. 1910, 1919-20 (2001) (Court first applies s 2254(d)(1) to state court’s ruling on the merits and, after concluding that state court opinion was not objectively unreasonable, and that petitioner therefore is not entitled to relief, observes that relief would not be available in any event because claimed error was harmless under Brecht.)
[11] See, Nevers v. Killinger, 169 F.3d 352, 370-72 (6th Cir. 1999) and Mangus v. Edwards, 40 F. Supp 2d 908, 920 (N.D. Ohio 1999) (determining whether to apply the Chapman standard of the Brecht standard under § 2254(d) analysis).
[12] Brecht, supra, 507 U.S. at 635.
[13] See Brecht, supra, 507 U.S. at 649 (White, J., dissenting) (Our habeas jurisprudence is taking on the appearance of a confused patchwork in which different constitutional rights are treated according to their status, an in which the same constitutional right is treated differently depending on whether its vindication is sought on direct or collateral review).
Thursday, April 2, 2009
Revolving Gridlock
The theory is this: That you can array on a line, which represents the major policy area, from liberal to conservative, all the members of Congress. On each line there will be a variety of pivotal voters – those at which point there can be no conservative filibuster/one will be supported, and the same for the liberal side. There is also a pivotal voter at the point at which the presidential veto will be supported/overturned. Also on this line. You can place the current policy and the desired policy. If you are in the gridlock area between the filibuster and the veto, then no change can be made.
Does this theory help explain recent votes in Congress such as the SCHIP vote? Why or why not?
What does this theory mean for future votes such as the environmental legislation in Congress? Is it possible that the conservative California Senators and Representatives will be pivotal voters?
The theory also takes into account personal preferences, uncertainty and extraneous factors when placing members on the line between liberal and conservative. Is there anything this theory does not take into account? How would this theory account for natural disasters or states of emergency?
The theory argues that it is only important to place members of congress along the main policy line, and that you can ignore other policies where vote-trading might be done, because those are independent policy lines. What would happen to this theory if a bill had riders which made the bill include two completely separate policy areas? Does this theory still work to explain policy gridlock then?
Does this theory help explain recent votes in Congress such as the SCHIP vote? Why or why not?
What does this theory mean for future votes such as the environmental legislation in Congress? Is it possible that the conservative California Senators and Representatives will be pivotal voters?
The theory also takes into account personal preferences, uncertainty and extraneous factors when placing members on the line between liberal and conservative. Is there anything this theory does not take into account? How would this theory account for natural disasters or states of emergency?
The theory argues that it is only important to place members of congress along the main policy line, and that you can ignore other policies where vote-trading might be done, because those are independent policy lines. What would happen to this theory if a bill had riders which made the bill include two completely separate policy areas? Does this theory still work to explain policy gridlock then?
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