Informational Need, Institutional Capacity, and Court Receptivity: Interest Groups and Amicus Curiae in State High Courts

• Author: Jenna Becker Kane
• Published date: 01 December 2018
• Date: 01 December 2018
• DOI: 10.1177/1065912918770045
• Subject Matter: Articles

https://doi.org/10.1177/1065912918770045

Political Research Quarterly

2018, Vol. 71(4) 881 –894

© 2018 University of Utah

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DOI: 10.1177/1065912918770045

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Article

Introduction

Strategic behavior by interest groups is pervasive in the

fragmented American political system. In pursuit of pol-

icy influence, interest groups are forced to make strategic

decisions when selecting the policy venues within which

to focus their resources. While much is known about how

interest groups lobby Congress, federal administrative

agencies, and the state-level counterparts, much less is

known about the lobbying strategies of interest groups

when engaging the judiciary. This oversight has been

acknowledged with regard to the lobbying of the U.S.

Supreme Court, and a growing literature now exists

regarding interest group lobbying in the U.S. Supreme

Court through direct sponsorship of litigation (Epp 1998;

Epstein and Kobylka 1992; Gonen 2003; Kobylka 1991;

O’Connor 1980; Olson 1984; Samuels 2004; Vose 1958,

1959; Wasby 1995), through the filing of amicus curiae,

or friend-of-the-court, briefs (Box-Steffensmeier,

Christenson, and Hitt 2013; Caldiera and Wright 1988;

Collins 2004, 2007, 2008; Kearney and Merrill 2000;

Songer and Sheehan 1993; Spriggs and Wahlbeck 1997),

and the strategic calculations interest groups make when

deciding to lobby the nation’s highest court (Caldeira and

Wright 1990; Hansford 2004a, 2004b; Salzman, Williams,

and Calvin 2011; Solberg and Waltenburg 2006; Spill

2001). Despite this recognition that interest groups act

strategically to pursue policy goals in the federal courts,

attention to the litigating strategies of interest groups at

the state court level is virtually nonexistent.

This dearth of knowledge about interest group lobby-

ing strategies in state courts is concerning for several rea-

sons. First, state supreme courts decide tens of thousands

of cases each year, with a very small portion of these

cases ever reaching the U.S. Supreme Court on appeal.

This gives state high courts far-reaching policy influence

on most matters of state law including constitutional

interpretation, commercial law, property rights, family

and estate law, tort liability, criminal law, and also the

interpretation of federal law as applied to the states.

Understanding how interest groups make decisions about

when and where to file amicus curiae briefs deepens our

knowledge about interest group strategies to influence

770045PRQXXX10.1177/1065912918770045Political Research QuarterlyKane

research-article2018

1West Chester University, PA, USA

Corresponding Author:

Jenna Becker Kane, Department of Political Science, West Chester

University, 50 University Avenue, Ruby Jones Hall 101, West Chester,

PA 19383, USA.

Email: jbeckerkane@wcupa.edu

Informational Need, Institutional

Capacity, and Court Receptivity:

Interest Groups and Amicus Curiae

in State High Courts

Jenna Becker Kane1

Abstract

Interest group participation in state courts of last resort has increased substantially over the past four decades, and

the scope of this litigation activity has expanded to include a wider range of group participation. Despite the fact that

organized interests increasingly recognize state high courts as legitimate policy venues, little is known about how

interest groups choose the specific cases in which they participate. Beginning with the assumption that interest groups

seek policy influence, this paper tests the hypothesis that groups strategically target cases that will best serve the policy

and institutional interests of the group, while focusing group resources on cases and courts where they are most

likely to be successful. Using an original dataset assembled from content analysis of more than 2,300 state supreme

court decisions handed down between 1995 and 2010 and spanning three distinct areas of law—products liability,

environmental law, and free speech and expression—this paper investigates the case-level and court-level factors that

attract interest group participation as amicus curiae in state high courts.

Keywords

amicus curiae, state supreme courts, interest groups, lobbying