Administrative Adjudication: A Study of the Adjudicatory Process (Book manuscript in progress during postdoctoral time at Princeton)
Administrative adjudication can take many forms and administrative agencies have differing internal processes in how they adjudicate cases. In this book/multiple article project, I look at how internal processes at agencies can dictate outcomes. In particular, I undertake a comprehensive examination of the adjudicatory processes of the National Labor Relations Board, the Patent and Trademark Office, the Environmental Protection Agency, the Securities and Exchange Commission and the Federal Trade Commission, examining labor, patent, securities, environmental and data privacy policies. I hope to offer insights into which institutional configuration of agencies can best effectuate congressional purpose.
"An Empirical Examination of Agency Statutory Interpretation," Forthcoming in Minnesota Law Review 103:5 (April 2019) (working draft)
How do administrative agencies interpret statutes? Despite the theoretical treatment scholars offer on how agencies construe statutes, far less is known empirically about administrative statutory interpretation even though agencies play a critical role in interpreting statutes. This Article looks behind the black box of agency statutory interpretation to review how administrative agencies use canons and other tools of statutory interpretation to decide cases. Surveying over 7,000 cases heard by the National Labor Relations Board (“NLRB”) from 1993-2016, I analyze the statutory methodologies the Board uses in its decisions in order to uncover patterns of how the Board interprets statutes over time. Overall, I find no ideological coherence to statutory methodology. Board members switch between textualist or purposive methods depending upon the partisan outcome sought. Indeed, Board members often use statutory methodologies to dueling purposes, with majority and dissenting Board members using the same statutory methodology to support contrasting outcomes. The Board has also changed how it interprets statutes over time, relying in recent years more on vague pronouncements of policy and less on precedent or legislative history. Moreover, despite scholars arguing that agencies should interpret statutes differently than courts, in practice, this study indicates that the NLRB interprets its governing statute in similar fashion to how courts do. After analyzing the empirical data, I set forth policy recommendations for how agencies should interpret statutes. The balance required—between policy coherence, stability and democratic accountability—is fundamentally different in the context of agency statutory interpretation than for interpretation by a judicial body. Rather than acting like a court, adjudicative agencies like the NLRB should leverage their expertise to arrive at an interpretation that best effectuates the purpose of the statute. For an agency like the NLRB that makes decisions almost exclusively through adjudication this may necessitate that the agency reveal its statutory interpretation in a more transparent fashion through rulemaking.
"Specialized Judges in Patent Law: A Review of the Patent Pilot Program's Impact on Appellate Reversal Rates at the Five-Year Mark" (forthcoming in Boston College Law Review, Volume 30:2) (Feb. 2019) (working draft)
Congress set up a ten-year pilot project to change the way patent cases are heard in the federal courts. In the new system, fourteen district courts act as specialized patent courts and decide more than their share of patent cases. Now that the five-year mark passed, my paper examines what impact the pilot project had in influencing patent law doctrine and court decision-making generally. I find that pilot judges do not differ from non pilot judges in reviewing cases nor are there differences between the two groups on how they are reviewed on appeal. I also find that judges who previously served as designated judges on the appeals court are less likely to be reversed, suggesting that personal connections matter. In line with my background in bureaucratic reform, I argue that instead of focusing on specialized trial courts, reformers of patent law should instead focus on making multi-institutional reforms to the way patent law is litigated, starting first with reforming the PTO by giving it rulemaking authority to make substantive rulings on patent law issues.
“How Do Judicial Elections Affect Low-Salience Decisions?” with Brandice Canes-Wrone and Thomas Clark (Revise & Resubmit, Journal on Empirical Legal Studies 15:4 (Dec. 2018) (special issue devoted to eight articles presented at 2017 Conference on Empirical Legal Studies)
Scholarship finds that in states with judicial elections, public opinion affects judges’ decisions on hot-button campaign issues such as the death penalty or marijuana legalization. Yet the literature leaves open the question of how public opinion affects judicial decisions on less salient issues, which not only dominate the dockets of state supreme courts but also encompass areas of major legal and policy significance. We consider one such issue that infrequently emerges in judicial campaigns, environmental law. Specifically, we collect an original dataset of over 5000 judicial votes on nearly 1,000 cases heard in 40 state supreme courts from 1990-2014. We find that for the dataset as a whole, there is not a significant effect of public opinion on judicial decisions in any of the major judicial selection systems. However, in the few states in which environmental issues have been the subject of campaign attack ads, we find evidence of such a relationship during the years following the ads. These results contribute to a growing literature that suggests elections can reduce judicial independence from public opinion.
"Predicting Deference in Appellate Court Cases" (working draft)
I use the case of the NLRB to set forth theoretical explanations of when the appellate courts will defer to an agency. Using a database of over 1,300 appellate court cases, I then evaluate my hypotheses statistically to assess the extent to which political, economic, sociological and legal characteristics of decisions impact the court’s decision whether or not to defer to the agency or whether to issue a counter-ideological ruling. I find that partisanship impacts outcomes but that there are other legal and sociological factors that also impact decision-making. In particular, I find that female judges are more likely to issue counter-ideological rulings even when controlling for other ideological, economic and sociological variables and that in some circuits, having a female colleague may actually decrease the propensity to vote in a counter-ideological fashion. The results contribute to important debates in bureaucratic politics about the amount of deference that the appellate courts should give to agency decisions.
“Political Decision Making at the National Labor Relations Board: An Empirical Examination of the Board’s Decisions through the Clinton and Bush Years,” Berkeley Journal of Employment and Labor Law 37:2 (Spring 2016)
Employing an original dataset of almost 3,000 NLRB decisions from the Clinton and Bush years (1993-2007), this paper presents one of the few recent studies of voting patterns at the NLRB on unfair labor practice disputes. I find that the propensity of a panel reaching a decision that favors labor increases monotonically with each additional Democrat added to the panel during much of the time frames under study. Homogenous Republican panels – increasingly prevalent in recent years –behave in especially partisan ways. I further find that political actors – such as the Congress, the President and the appellate courts – fail to have a direct impact on NLRB unfair labor practice decisions; rather, the decision of the lower court Administrative Law Judge (“ALJ”) and the partisan ideology of the Board have the most impact in influencing whether the NLRB rules for or against labor.
“Bush v. Gore in the American Mind: Reflections and Survey Results on the Tenth Anniversary of the Decision Ending the 2000 Election Controversy” (with Nathaniel Persily and Stephen Ansolabehere), published in ELECTION REFORM IN THE UNITED STATES AFTER BUSH V. GORE, edited by R. Michael Alvarez and Bernard Grofman (Cambridge University Press 2014) (peer-reviewed)
This book chapter of a peer reviewed book from Cambridge University Press examines public opinion on the Bush v. Gore case ten years later, finding that both the respondent’s race as well as their feelings toward President George Bush motivate their lingering feelings on the Bush v. Gore decision The article also concludes that opinion on Bush v. Gore also impacts approval of and confidence in the Supreme Court overall.ese results contribute to a growing literature that suggests elections can reduce judges’ independence from public opinion.
"An Empirical Analysis of Politicization in Immigration Adjudications" (with Catherine Kim, UNC Law) (data collection in progress)
In this article, Catherine Kim and I examine immigration adjudications from 2003 onward to assess the impact that politicization has in impacting how immigration cases are processed in the United States.
“An Empirical Analysis of Private Law in Patent Law Cases” (data collection in progress)
In this article, I explore both descriptively and statistically how courts use private law concepts, such as property, contracts and torts, in deciding cases. I also look at how
“An Empirical Analysis of District Court Decision-making in Patent Law Cases” (data collection in progress)
Using an original database of over 20,000 cases heard by the district courts from 2011-2017, I analyze what factors influence the district court’s decision to find infringement or invalidity in patent law cases.
“Diffusion in Intellectual Property Law Cases” (working draft)
Using network analysis, I explore how precedent in intellectual property law cases diffuses between and among the district and appellate courts, particularly in the use of private law concepts. Certain district courts, such as the Eastern District of Texas or the Northern District of California, hear a disproportionate number of cases. Using network analysis, I map out whether district courts hearing many patent cases influence patent law doctrine to a greater degree than would be expected by chance.
“Specialized Appellate Courts in Trademark and Copyright Law” (data collection in progress)
Using network and text analysis, I analyze the extent to which certain appellate courts have a disproportionate influence in copyright and trademark law.
"District Court Compliance with Appellate Court Rulings" (paper to be posted shortly)
Judicial politics scholars have generally paid scant attention to empirically examining the inner workings of the lower level federal district courts. This paper attempts to contribute to the debate concerning district court decision-making by analyzing how district courts comply with rulings made by appellate courts. Specifically, scholars in recent years have used advances in textual analysis to come up with theories on how opinion content and clarity can induce compliance in lower level judicial bodies. Most of these studies analyze how opinion clarity of the United States Supreme Court decisions can induce compliance among appellate courts. I apply these research techniques to ascertain the process at the step below at the district court level. As part of my data collection, I analyze cases from the district courts that are later heard by the appellate courts using a random sample of 740 cases from 2005 to 2015. My preliminary findings indicate that just as with the Supreme Court, in a limited way appellate courts too use opinion clarity as a tool to encourage compliance with their rulings. This research lends insight into the mechanism by which courts achieve legitimacy in the separation of powers system by clearly setting forth the roadmap by which appellate courts can serve as political principals guiding lower court decision-making so as to ensure uniformity and accountability.
“Exploring the Role of Sectionalism in Congressional Roll Calls Votes, 1885-1907”
This paper is an historical piece that examines how sectionalism impacted Congressional roll call votes in the late nineteenth century. Using a unique dataset breaking down roll call votes by subject matter, I examine roll call votes during three Congresses in the late nineteenth century and conclude that sectionalism only impacted decision-making with respect to certain subject areas.