Administrative Adjudication: A Study of the Adjudicatory Process (Book manuscript in progress during postdoctoral time at Princeton)
Abstract: 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 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 and the Federal Trade Commission, examining labor, patent, environmental and data privacy policies. I hope to offer insights into which institutional configuration of agencies can best effectuate congressional purpose.
“Appellate Court Decision-Making in NLRB Cases”
Abstract: In this paper, I analyze over 1,000 cases and 3,048 judge-level votes of the appellate courts in National Labor Relations Board cases from 1994-2009. Specifically, I address two questions: First, I examine the extent to which partisan panel effects animate decisionmaking in the appellate courts in labor cases. Second, I explore what political, economic and case-specific factors impact how the appellate court panel rules on a specific case. Using both logistic regression and matching propensity score analysis, I code each case for legal issue and standard of review to ensure consistency between case types.
“Administrative Agency Statutory Construction”
How does an administrative agency actually interpret statutes? This Article looks behind the black box of statutory interpretation to review how administrative agencies use canons and other tools of statutory interpretation to decide cases. I analyze National Labor Relations Board (“NLRB”) cases from 1993-2016 to study what statutory methodologies the Board uses in its decisions. Board members largely devise a statutory construction that advances their policy agenda as they largely switch between methods depending upon the partisan outcome the Board member seeks. For instance, Republican Board members use textualist canons to narrowly construe the statute when the case involves a suit alleging wrongdoing by an employer, but the same Board member switches to a purposive method to find a violation when litigants argue that a labor union is in violation of law. Democratic Board members are no different in their selective use of statutory methodologies to arrive at the result most pleasing to labor. In addition, Board members use statutory methodologies to dueling purposes, with majority and dissenting Board members often using the same statutory methodology to support contrasting outcomes. Shifts in interpretive methods have changed over time at the NLRB. The Board has slowly adopted more policy-based opinions over time from the Clinton administration to the Obama administration, with the Board decreasing its use of legislative history over time. In addition to analyzing how the NLRB interprets statutes, the Article also looks at how reviewing appellate courts in turn rule on Board decisions interpreting statutes. I find that the largely conservative appellate courts often use textualist methods to overturn the Board’s decisions. After analyzing the empirical data, I then set forth policy recommendations for how agencies should interpret statutes as well as for how appellate courts should in turn review those interpretations. I argue that agencies should interpret statutes differently than courts, putting more emphasis on policy considerations and practical implications of the rulings rather than relying on legislative history of a 75 year old statute to inspire meaning to the text if indeed there it a gap in the law left by the clear import of the text and surrounding language of the statute. In turn, appellate courts should review agencies as it they are expert policymaking bodies as opposed to district courts. As such, this Article contributes to the normative debate on how the NLRB specifically and administrative agencies more generally should interpret statutes.
“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)
Abstract: Employing an original dataset of almost 3,000 NLRB decisions from the Clinton and Bush years (1993-2007), this article presents one of the few recent studies of voting patterns at the National Labor Relations Board 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)
Abstract: 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.
“How Do Judicial Elections Affect Decisions on Low-Salience Issues?” with Brandice Canes-Wrone and Thomas Clark (and possible follow up articles) (in preparation)
Abstract: In this article, we review environmental, search and seizure and abortion cases from the state supreme courts since 1990 to discern the impact that both public opinion and campaign contributions have in impacting whether an individual supreme court justice will vote in a liberal direction in environmental, search and seizure and abortion cases.
“The Role of Political Networks in Citation Counts in State Courts” (paper to be posted)
Abstract: This paper uses the tools of network analysis to discern the importance that legal doctrine plays in state supreme courts. Specifically, I explore citation patterns when one supreme court cites a sister supreme court in another state. Looking at citation patterns by issue as well as by reviewing case contents to assess exactly how the court uses the citation in the case yields important information on how legal doctrine diffuses across state boundaries in a federal system.
“Exploring the Role of Sectionalism in Congressional Roll Calls Votes, 1885-1907”
Abstract: This article 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.
“Profiling and Predicting Opinions on Gun Control: A Comparative Perspective on the Factors Underlying Opinion on Different Gun Control Measures,” with Stephen Ansolabehere (draft)
Presented at Conference on Empirical Legal Studies
Abstract: This article examines public opinion on four different types of gun control measures – handgun restrictions, assault weapons bans, concealed weapons permits and registration/background checks. It examines the differing demographic and ideological basis of support for each measure.