Law, Fact, and the Threat of Reversal From Above

• DOI: 10.1177/1532673X13488997
• Published date: 01 March 2014
• Author: Joseph L. Smith
• Date: 01 March 2014
• Subject Matter: Articles

American Politics Research

2014, Vol. 42(2) 226 –256

© The Author(s) 2013

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DOI: 10.1177/1532673X13488997

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Article

Law, Fact, and the

Threat of Reversal

From Above

Joseph L. Smith1

Abstract

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.

Keywords

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.

Email: josmith@as.ua.edu

488997APR42210.1177/1532673X13488997American Politics Research X(X)Smith

research-article2013

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

difference.

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