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At the center of contentious debates concerning U.S. asylum policy are immigration judges, bureaucrats who decide life and death cases on a daily basis. Congress, the executive and the courts compete for influence over these key actors — administrative judges distinct from those examined in much of the bureaucratic control literature. They are hired, fired, promoted or demoted by executive officials; face congressional oversight; and must follow circuit law. We argue that, because of the fear of reversal, immigration judges will look most to the courts in the decision-making process. Our results support our theory. Examining over 900,000 immigration judges’ decisions, we find that, although IJs are influenced by a fear of pushback from the elected branches, the impact is conditional on circuit preferences. Our findings inform scholarly understanding of judicial behavior and bureaucratic accountability, and support the pursuit of judicial independence and due process in immigration courts.

We investigate when district judges stay litigation pending the resolution of parallel administrative proceedings. Leveraging unique aspects of patent litigation to create a robust test of the proposition, we consider how ideology conditions judicial behavior on this procedural judgment. We find that legal considerations guide stay decisions and that there is also an ideological dimension to that choice. Conservative district judges approach motions to stay consistent with conservative concerns regarding frivolous litigation even as they are influenced by case characteristics. This suggests a role for judicial discretion and implies that ideology’s influence in the district courts may be greater than frequently thought.

In this project, we employ original data on the future positions of United States Attorneys (USAs) to assess the influence of formal qualifications in structuring the post-service careers of a grou...

Chief judges stand as visible leaders of their courts. Analyses of the Supreme Court focus on the role of the chief justice as an institution-builder seeking out public-facing consensus to protect Court legitimacy. Studying the powers of chief judges and political leadership in general is difficult. Analyzing all 50 states over 16 years we find no evidence that the identity of chief judges explains consensus behavior any better than random chance. This is true even among the subset of chief judges with additional institutional powers like opinion assignment. We show that court structures explain consensus, while leader features do not. Being chief judge correlates with an elevated likelihood of being in the majority, particularly in cases decided by one vote. These results add to our understanding of leadership on courts and imply that the office of chief judge at the state level is more symbolic than uniquely powerful.

The inner workings of advisory commissions are opaque, which has frustrated inquiries about them. However, relying on data obtained via a Freedom of Information Act request from the Department of J...

We assess the influence professional background – specifically, having been a prosecutor or a public defender – exerts on decision making by federal district court judges. Focusing on search and seizure cases, we analyze nearly 1500 motions to suppress evidence from 2000 to 2022. In addition to controlling for judicial ideology and a judge’s prior experience as a prosecutor or public defender, we utilize matching to address endogeneity concerns related to one’s ability to self-select into one of these positions—which may itself be influenced by that individual’s ideological predispositions. We find that having been a former prosecutor, as well as the length of time that service spans, makes a judge significantly more likely to rule against a motion to suppress. Former public defenders are significantly more likely to grant that suppression motion, though their propensity to do so is not affected by the length of time served in that capacity.

The pervasiveness of their influence arguably makes prosecutors the most consequential actors in the American criminal justice system. Armed with discretion over which cases to pursue, what charges to file, and which issue areas to prioritize, prosecutors play a decisive role in determining what progresses from investigation to the courtroom. It is their charge to do justice in each case, but that obligation hardly forecloses the influence of politics on their decisions. Despite their centrality, however, prosecutors and their behavior have failed to garner even a fraction of the attention that scholars have directed toward law enforcement, correctional systems, or judges. The discretion of American prosecutors is theoretically immense; there are few formal constraints upon it. If a federal or state prosecutor declines to pursue a case that has been referred to him or her, that declination decision is essentially immune from judicial review. But these formalisms come with more practical limitations. At the federal level, United States Attorneys are appointed by the president and, therefore, are expected to carry out an administration’s general policy priorities. In the states, most district attorneys answer to the electorate, which imposes its own constraints on a prosecutor’s freedom of action. Chief prosecutors—state and federal—are simultaneously principals to their subordinates and agents of the people or the president. If those considerations were not enough, American prosecutors must be mindful of still other factors. How might their actions today impact their future career paths? What influence might legislative changes, public opinion, or judicial rulings have on how they operate? Scholarship on prosecutors has addressed some of these questions, but we still lack a good understanding of all the ways in which politics infects prosecutorial decision-making. As “progressive prosecutors”—many who are former public defenders—continue to win office, new questions will arise about how far prosecutors can push reform of the criminal justice system. A major looming question is how voters conditioned to law-and-order rhetoric will evaluate the new prosecutors. Some preliminary work shows that non-White prosecutors tend to reduce rates of incarceration, while Republican-affiliated prosecutors increase them.

In 2006, the Bush administration directed nine US attorneys to resign. This decision was a partial cause of the attorney general’s departure from the administration, and it prompted investigations and congressional hearings. Seen as largely ad hoc, we argue that theory predicts a more systematic decision-making process. We investigate this empirically and find, consistent with literature on principal-agent theories and bureaucracy, that performance on easily monitored metrics and adverse-selection concerns predict the firings. We explore the implications of these findings for efforts to centralize decision-making in the Department of Justice and to exert political control over US attorneys.

There is some evidence that judges who specialize in particular legal areas vote in more ideologically consistent ways than do nonspecialists. Upon replicating those individual results across multiple legal areas in the US courts of appeals, we assess how this increasing reliance on ideology by specialists affects decision making by others on a three-judge panel. We find that judges who serve with a specialist are especially likely to vote in a manner consistent with the ideological position of the specialist with whom they serve. These results suggest that specialization has the potential to facilitate panel effects across numerous legal policy areas.

United States Attorneys (USAs), the chief federal prosecutors in each judicial district, are key in determining how the federal government uses coercive force against its citizens. How much control do national political actors exert over the prosecutorial decisions of USAs? In this book, the authors investigate this question using a unique data set of federal criminal prosecutions between 1986 and 2015 that captures both decisions by USAs to file cases as well as the sentences that result. Utilizing intuitions from principal-agent theory, work on the career ambition of bureaucrats and politicians, and selected case studies, they develop and advance a set of hypotheses about control by the President and Congress. Harnessing variation across time, federal judicial districts, and five legal issue areas—immigration, narcotics, terrorism, weapons, and white-collar—Miller and Curry find that USAs are subject to considerable executive influence in their decision making, supporting findings about the increase of presidential power over the last three decades. In addition, they show that the ability of the President to appoint USAs to higher-level positions within the executive branch or to federal judgeships is an important mechanism of that control. This investigation sheds light on how the need to be responsive to popularly elected principals channels the enormous prosecutorial discretion of USAs. Clearly written and empirically sophisticated, the authors’ study has important cross-disciplinary implications and engages salient questions for students of politics, law, and criminal justice.

This chapter revisits key findings presented throughout the book. The results indicate a clear pattern of executive influence on the work of U.S. Attorneys (USAs). Additional results suggest that Congress has more influence than previously considered. The models in Chapter 6 show that Booker increased the influence of the President as well as the discretion of federal prosecutors. This naturally leads to questions about how future administrations will attempt to influence USAs and, more directly, how the Trump administration’s focus on narcotics and immigration will alter the priorities of USAs. Beyond this short-term speculation, the final chapter grounds the results in the rich empirical literature on the control of agents, prosecutorial discretion, and the imperial presidency.

This chapter considers the relationship between performance as a U.S. Attorney (USA) and subsequent career prospects. Results indicate that adherence to presumed partisan preferences relates to the likelihood of both promotion within the executive branch and nomination to the federal bench. USA performance is less likely to matter for positions such as entering private practice, over which national principals have little control. These results underscore an alternative mechanism under which shirking by federal prosecutors may be punished. Additionally, we find that ideological distance from the President is a potent predictor of the probability of nomination to the federal courts but has no association with elevation within the executive branch.

This introductory chapter provides background on the working environment of U.S. Attorneys (USAs), including the formation of the Department of Justice and the recent expansion of federal criminal law. Chapter 1 briefly introduces Assistant U.S. Attorneys (AUSAs) and the concept of prosecutorial discretion. We explore the expansion of the U.S. criminal code and growth in the number of AUSAs employed in USA’s offices, focusing on how the increasing scope of the criminal code has made control of U.S. Attorneys potentially valuable and how civil service protections may have made AUSAs more difficult to control. Lastly, we discuss the potential future careers of USAs and how these careers relate to the possibility of political control.

This chapter explores three periods in the development of the relationship between U.S. Attorneys (USAs) and the Department of Justice. The first case study considers the executive branch’s use of USAs in attempts to rein in racial violence during Reconstruction. The second case study centers on the savings and loan crisis of the late 1980s and highlights the efforts of national principals to focus federal prosecutors on politically salient crimes. The final case study examines the USA firing scandal of 2006, an ultimately failed attempt by the George W. Bush administration to control USAs. Throughout, we emphasize the ways in which centralized control of the USAs has evolved over time.

This chapter offers an analysis of variations in sentence length across the study’s issue areas of interest. That assessment incorporates the changes in sentencing law wrought by United States v. Booker, which many suggest increased the influence of local actors and U.S. Attorneys (USAs) themselves at the potential expense of national principals. In addition, the chapter contains a thorough discussion of the role of mandatory minimums in structuring sentence length in narcotics and weapons prosecutions. It also considers how USAs might cabin the discretion of their subordinates. Model results confirm that the discretion of USAs increased after Booker, but that executive branch influence was also strengthened.

This chapter explores two theories central to understanding the behavior of federal prosecutors. First, principal-agent theory is introduced to frame the relationship between national political actors, or principals, in the executive and legislative branches and their agents—U.S. Attorneys (USAs). In that exploration, the chapter focuses on problems of adverse selection and the monitoring of agents by principals. Second, the chapter considers career ambition theory as it pertains to the post-service employment opportunities of USAs. That discussion focuses on the potential of USAs to ascend to higher positions in the administration or secure nomination to the federal bench, both of which require the approval of principals in the executive branch.

This chapter thoroughly describes the data we use to test our hypotheses. Included in that description is a discussion of the five issue areas we study: immigration, narcotics, terrorism, weapons, and white-collar. The chapter considers the salience and complexity of these substantive areas and characterizes partisan preferences in each as they relate to case filings and sentence length. It also explores how trends in both filings and sentencing have changed over time and provides descriptive evidence about changes in the centralization of priorities across issue areas within the DOJ. Additionally, the chapter contains an overview of the post-service careers of U.S. Attorneys (USAs).

This chapter investigates whether partisan control of the presidency and Congress is associated with how U.S. Attorneys (USAs) allocate their resources in filing cases across the issue areas we study. Empirical evidence is presented which suggests that partisan control of the presidency is a particularly potent predictor of prosecutorial discretion at the filing stage in four of the five issue areas we study. Findings from the investigation also indicate that divided government mitigates the association between partisan control of the White House and changes in case filings. In addition, the empirical models show that presidential and congressional attention to an issue area also conditions the extent to which federal prosecutors prioritize that issue.

How much does attorney quality influence the outcome of cases in which one litigant is significantly more capable than the other? Using a unique dataset of all asylum merits decision from 1990 to 2010, we find that high quality representation evens the odds for asylum applicants and that not being represented by legal counsel is actually better than being represented by a poor lawyer. In this analysis, we draw on a modified party capability theory and create new measures of attorney capability. We find that variation in attorney capability is a primary driver of the disparity in asylum outcomes in U.S. immigration courts and that a likely causal mechanism for this influence is the judge-specific reputation of an attorney.

How have recent changes to US asylum law altered who gets asylum? We investigate whether the changes wrought by the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA) and the Real ID Act changed the decision making of immigration judges in asylum cases. We find, contrary to much of the commentary surrounding both IIRIRA and Real ID, that immigration judges became more likely to grant applicants asylum. Furthermore, we find that those applicants who are most at-risk of persecution in the countries they are fleeing are also the applicants most likely to be granted relief—a fact that became increasingly true with the implementation of IIRIRA and Real ID.

Scholars have found that citizens tend to evaluate European institutions in light of how they feel about their own domestic institutions (second-order evaluations). We argue that this approach is more appropriate for understanding international courts than is the legitimacy approach of the law and courts literature. While studies applying the second-order evaluations approach have overwhelmingly focused on EU institutions, here we seek to determine whether second-order evaluations are also characteristic of citizens’ opinions about the European Court of Human Rights. We evaluate our hypotheses using a sample of the British population and find strong support for the general second-order evaluation.

We investigate the influence of subject matter expertise, opinion specialization, and judicial experience on the role of ideology in decision making in the courts of appeals in a generalized, as opposed to specialized, setting. We find that subject matter experts and opinion specialists are significantly more likely to engage in ideological decision making than their nonspecialist counterparts and that opinion specialization is a particularly potent factor in ideological decision making. Further, increased judicial experience has no effect on the conditional use of ideology. We discuss the potentially wide‐ranging implications of our findings for both theory and policy.

How do the preferences of political elites shape humanitarian immigration to the United States? Focusing on the asylum and refugee systems, we trace the ways that the preferences of political elites affect the number and characteristics of migrants who receive relief. Our findings suggest that presidential preferences remain crucial in determining who is admitted in the U.S. refugee system and that congressional preferences are important in determining the number admitted. The preferences of both appear to matter considerably less on asylum decisions. These results highlight the difficulty of eliminating or reducing the role of the executive branch in American immigration policy, and suggest the importance of the design of the immigration enforcement bureaucracy in limiting the role of elite preferences in determining humanitarian immigration outcomes.

In seeking to understand the variation in asylum grant rates by immigration judges (IJs), we apply a variation of the attitudinal model that we modify by incorporating a cognitive model of decision making, arguing that some pieces of information before IJs are treated objectively while others are treated subjectively. This model allows us to account for informational cues that influence decisions while assessing the impact of national interests and human rights conditions. We find that IJ policy predispositions play a dominant role, and that liberal IJs respond to applicant characteristics differently than conservatives, but also that the law constrains decision making.

What role does judicial subject matter expertise play in the review of agency decisions? Using a data set of decisions in which the Board of Patent Appeals and Interferences (BPAI) is reviewed by the Court of Appeals for the Federal Circuit, we investigate this question and find that greater subject matter expertise does make it more likely that a judge will vote to reverse an agency decision.

What roles do prior expertise and accumulated experience play in shaping ideologically consistent voting on a specialized court? Using a dataset of obviousness patent cases from the Court of Appeals for the Federal Circuit spanning 1997-2007, we show that prior expertise enhances the influence of ideology on judicial decisionmaking, but that accumulated experience does not. In addition, we build on previous work and show that ideology is a factor in decisionmaking in technical areas of law, contrary to the received wisdom on patent cases.

References to foreign legal judgments in several recent Supreme Court decisions have given rise to substantial legal and political controversy. While those debates have largely focused on normative matters, we utilize an experimental design that presents media portrayals of Court decisions to assess the possible implications of this issue for the Court and its legitimacy with the public. Our results suggest that, should the Court continue to utilize this practice, it could result in some erosion of public support for the Court as an institution. Further, we find that this effect has the potential to be particularly powerful in structuring the opinions of citizens who are less knowledgeable about government and the Court.

Only twenty-five years after its founding, the Federalist Society today boasts a nationwide membership including renowned attorneys, politicians, policy makers, and jurists. Although the Society maintains that it is not a political organization, liberal political activists claim the Society has long pursued an ambitious—and extremely conservative—political agenda. In this article we ask: do members of the Federalist Society decide cases in a more conservative manner than other nonmember jurists? Using data on decision making in the U.S. Courts of Appeals, we find Federalist Society members are significantly more conservative than nonmembers and examine the long-term implications of our study.