STATE SUPREME COURTS AS CONSEQUENTIAL GOVERNING INSTITUTIONS:
THE IMPACT OF EXCLUSIVELY "JUDGE-MADE" LAW
Daniel R. Pinello
An enduring research topic in democratic politics is the nature and functions of governmental institutions. The impact of Congress and of the Presidency upon the polity, for instance, is a standard theme among Americanists. Few observers dispute that legislatures and executives generally are powerful and consequential foundations of the state.
The political-science literature, however, reveals a conspicuous absence of consensus over whether American courts are important governing institutions with their own distinct power. On the one hand, Dahl (1957), in a seminal article, argued that, despite popular belief about the United States Supreme Court's checking other branches of government, the Court in fact is an integral part of the political regime and often assists in imposing majority will on minorities. But, Dahl noted, "[b]y itself, the Court is almost powerless to affect the course of national policy." More recently, Rosenberg (1991) concluded the Supreme Court is structurally incapable of producing significant social reform, with the implication that courts generally are inconsequential as actively governing institutions.
On the other hand, McCann (1994) and various authors in Schultz (1998), as rejoinders to Rosenberg, offered alternative perspectives and methodologies for inquiry about how courts can effect social reform. Hattam (1992) and Skowronek (1982), focusing primarily on federal courts in the 19th and early 20th centuries, assess the judiciary's impact to have been substantially more influential earlier in the nation's history. Most of the empirical evidence cited in the latter two works consists of judicial interpretation and application of federal and state statutes.
Indeed, do courts, stripped of auras of legitimacy conferred by the Constitution or other authority, have significant impact in governing? Can judges influence society in pivotal ways based merely on their judicial status? I propose to examine the nature of courts in our polity by focusing on empirical data in a framework different from earlier investigations. I intend to inspect several areas of tort (or "private") law and ask the question: What impact, if any, does exclusively judge-made policy have upon the larger society? By concentrating only on legal remedies wholly created by courts, shorn of the legitimacy conferred through interpreting constitutions and statutes, I hope to filter out legislative or executive effects on the law-making process (keeping in mind, nevertheless, the means necessary for enforcement of these private remedies).
For example, the celebrated opinion of Judge (later Justice) Benjamin N. Cardozo in MacPherson v. Buick Motor Co. (1916), where the New York Court of Appeals first held a manufacturer of a defective product directly liable in negligence to a remote consumer, has been the focus of extensive analysis in the legal literature. However, no one has studied the impact MacPherson had upon manufacturers and the larger society. As a result of the case, for instance, did auto makers extend their insurance coverage to include liability arising from future defective cars sold in New York State or elsewhere? Did the auto industry or other manufacturers institute safety checks or other quality-control guidelines in production? Did design or other research-and-development changes occur in the industry as a result of MacPherson? These are the kinds of questions I shall ask in my research. Although MacPherson itself ultimately may prove unsuitable for the study I propose, its example serves well to illustrate the method.
A second broad field of inquiry will analyze what forces prompted the creation of the policies studied. Courts do not act in a vacuum; litigants bring them cases. By examining the identity of parties to the lawsuits, the arguments made by counsel, and other indices of interest in a case (such as amicus briefs), I hope to address the question of who or what motivated the tort remedies I survey.
A third aim is to explore innovation in state courts through the prism of diffusion theory pioneered by Walker (1969) and Gray (1973).
In addition to the analytic appeal of tort law, I believe state courts have gone ignored for far too long in the political-science literature. As Johnson and Canon (1984, 237) observed in the first edition of their book on the implementation and impact of court decisions:
. . . virtually no one has studied the policy impact of state supreme courts. Researchers have looked at other features of these institutions, such as how justices are recruited, how they vote once on the bench, and how they react to U.S. Supreme Court decisions, but no one has examined what their policies are and how much impact these policies have. [In a footnote, the authors note but three exceptions to this general statement: Croyle (1979); Canon and Jaros (1979); and Caldeira (1981). More recently, Canon and Johnson (1999, 200) noted, “[n]o one has studied the general policy impact of state supreme courts, and only a few scholars have focused on a particular court.”]
Notes on Methodology
The quality of available data necessarily will determine (and limit) my research design. For instance, I prefer focusing on causes of action created during the 19th and early 20th centuries since that was the heyday of American common law, long before legislative ascendance with its attendant codifications of law. Because the principal analytic appeal of tort law is its purity of judicial action, I opt for not worrying about exogenous factors arising in our modern age of statutes.
After reading the pertinent economic, legal, political-science, and historical literature, I intend to choose three or four tort remedies for which sufficient impact data are available. Returning to MacPherson as an example, I initially would evaluate, for instance, the availability of information about liability-insurance expenditures by corporations during the time, and in the states, of interest, before finally deciding upon that common-law policy as one in my sample.
In a survey of the judicial-impact literature, Croyle (1979) discussed some obstacles to empirical analysis:
Malcolm Feeley  has identified three categories of problems which result from the policy and contextual complexity of judicial doctrines: (1) the comparability problem, which focuses on the difficulty of comparing court impact in different kinds of cases and implies that the courts are participating in different policy systems; (2) the causal analysis/spurious correlation problem, which seems to plague judicial impact scholars more than others because of the common reliance on a single independent variable — a court decision; and (3) the law of anticipated reactions problem, which presents the problem of multiple institutions making policy in one area. The behavior of actors in one institution, and thus its policies, may be adjusted in anticipation of the likely behavior of actors in another institution. Such influence is difficult to measure.
Through careful selection of policies, I believe many of these problems can be overcome. First, and most importantly, judges unquestionably are the primary actors in my study, unlike the circumstance where courts interpret and enforce statutes. Moreover, unless state legislatures affirmatively act later to abrogate common-law doctrine, judges are the only actors at issue.
Second, focusing on discrete private-law remedies simplifies the research design and methodology. I will use multivariate regression to analyze results. In this regard, Levine (1970) suggested a typology of dependent variables as a focus for impact studies: (1) legal consequences, (2) political consequences, and (3) social consequences, the last itself being subdivided into (a) regulation of behavior, (b) allocation of costs and benefits, (c) symbolic effects, (d) second-order consequences, and (e) feedback. In my investigation, I hope to operationalize and observe at least (a), (b) and (d).
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