Law, Fact, and the Threat of Reversal From Above

Published date01 March 2014
Date01 March 2014
American Politics Research
2014, Vol. 42(2) 226 –256
© The Author(s) 2013
Reprints and permissions:
DOI: 10.1177/1532673X13488997
Law, Fact, and the
Threat of Reversal
From Above
Joseph L. Smith1
This article argues that the threat of review and reversal by supervising
courts affects circuit court judges differently in disputes focusing on law
compared to disputes focusing on facts. Because fact-bound cases are less
likely to be reviewed than law-bound cases, lower court judges are freer
to indulge their policy preferences in fact-bound cases. I test this argument
using computer-assisted content analysis to measure the extent to which
legal disputes are based on interpretations of facts and interpretations of
relevant legal standards, respectively. The results of this content analysis are
then used as independent variables in a model predicting the outcomes of
legal challenges to the actions of administrative agencies. The results indicate
that highly fact-bound decisions amplify the effects of judicial ideology while
highly law-bound decisions constrain the effects of ideology.
courts, law, content analysis, strategic behavior
“If the facts are against you, argue the law. If the law is against you, argue the facts.
If the law and the facts are against you, pound the table and yell like hell.”
—quoted by, Carl Sandburg, in The People, Yes (1936)
1The University of Alabama, Tuscaloosa, AL, USA
Corresponding Author:
Joseph L. Smith, The University of Alabama,
Box 870213, 356 ten Hoor Hall Tuscaloosa, AL 35487, USA.
488997APR42210.1177/1532673X13488997American Politics Research X(X)Smith
Smith 227
Carl Sandberg’s aphorism suggests that there are at least two possible bases
for resolving legal disputes, and that these different bases can point toward
different outcomes. Litigants can present arguments based on interpretations
of relevant legal standards (i.e., law) or on interpretations of the relevant
facts, or both, and judges can explain their resolution of the dispute on either
of these bases. It may be, however, that one of these bases constrains the
judges more than the other, and that the fact-bound or law-bound nature of
the case influences how judges decide these cases.
The question of whether and to what extent law constrains judges has been
at the center of scholarly debates in the judicial politics field for the last five
decades and has animated countless research projects. The question is impor-
tant because the policymaking role of judges in our political system only
makes sense if judges’ decisions are guided by law. A great deal of scholarly
research has demonstrated that policy preferences play a significant role in
judicial decisions. This effect is strongest at the Supreme Court level (Segal
& Spaeth, 1993) but is also significant at the Federal Courts of Appeals
(Goldman, 1966, 1975; Sunstein, Sawicki, Schkade, & Ellma, 2006) and,
less so, at the Federal District Courts (e.g., Songer & Johnson, 2002). This
research has pushed scholars of judicial politics to view the role of law skep-
tically. An important question is the circumstances under which the law is
more or less influential in the outcomes of court decisions.
I advance this area of study by exploring whether the nature of a legal
dispute, the extent to which it focuses on disagreement over facts or dis-
agreement over law, systematically increases or decreases the influence of
judges’ policy preferences. I find that the more a dispute focuses on facts,
the more influence the judges’ policy preferences have on the outcome of the
case. Conversely, the more a dispute centers on the proper meaning and
application of legal standards, the less influence judges’ policy preferences
have on the outcome of the case. In disputes focused almost exclusively on
law, liberal judges and conservative judges act very much alike. The likeli-
hood of review by higher courts is the most plausible explanation for this
In order to determine the bases of the courts’ decisions, I dig into judicial
opinions. Judicial scholars have long acknowledged that the content of
judicial opinions is important,1 but have rarely tackled the task of incorpo-
rating opinion content into their models (but see Corley, Howard, & Nixon,
2005, Owens & Wedeking, 2011).2 Computer-assisted content analysis
(CACA) offers a reliable and economical tool for measuring the content of
opinions. CACA overcomes the problems of inconsistency in human cod-
ing of texts and has the benefit of transparency because it allows the
researcher to specify exactly what features of the texts are utilized. This

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