When did ideology become the major fault line of the California Supreme Court? To answer this question, we use a two-parameter item response theory (IRT) model to identify voting patterns in non-unanimous decisions by California Supreme Court justices from 1910 to 2011. The model shows that voting on the court became polarized on recognizably partisan lines beginning in the mid-1900s. Justices usually did not vote in a pattern that matched their political reputations and party affiliation during the first half of the century. This began to change in the 1950s. After 1959 the dominant voting pattern is partisan and closely aligns with each justice’s political reputation. Our findings after 1959 largely confirm the conventional wisdom that voting on the modern court is on political lines. But our findings call into question the usual characterization of the Lucas court (1987–1996) as a moderately conservative court. Our model shows that the conservatives dominated the Lucas court to the same degree the liberals dominated the Traynor court (1964–1970).
More broadly, this Article confirms that an important development occurred in American law at the turn of the half-century. A previous study used the same model to identify voting patterns on the New York Court of Appeals from 1900 to 1941 and to investigate whether those voting patterns were best explained by the justices’ political reputations. That study found consistently patterned voting for most of the 40 years. But the dominant dimension of disagreement on the court for much of the period was not political in the usual sense of that term. Our finding that the dominant voting pattern on the California Supreme Court was non-political in the first half of the 1900s parallels the New York study’s findings for the period before 1941. Carrying the voting pattern analysis forward in time, this Article finds that in the mid-1900s the dominant voting pattern became aligned with the justices’ political reputations due to a change in the voting pattern in criminal law and tort cases that dominated the court’s docket. Together, these two studies provide empirical evidence that judicial decision-making changed in the United States in the mid-1900s as judges divided into ideological camps on a broad swath of issues.
This Introduction summarizes the twelve articles presented in the “Symposium on Convergence and Divergence in Private Law,” which are now being published subsequently in the Southern California Law Review in 2019. One group of articles proposes theories (roughly consistent with one another) to explain convergence of torts, contract, property, unjust enrichment, among other fields, across jurisdictions, within and beyond the United States. These articles offer theories to explain why the divergence of private law systems continues to persist today. Many articles in this issue draw their inspiration from a wide range of substantive areas, including patent law, civil procedure, property, torts, and contract from the United States, the United Kingdom, continental Europe, and China. Indeed, two contributions to the symposium amass information about the evolution of property doctrines from more than one hundred countries in order to demonstrate their points. The following two Parts of this Introduction weave the themes of the twelve articles together in more detail.
It is an honor to write about my friend Charles Whitebread. To me, Charlie was always larger than life. Living and working here in Los Angeles, I have had the opportunity to work with many people whose image has preceded them: professional athletes, musicians, actors . . . Charlie. However, once I got to know the person, invariably they could not live up to the image that preceded them—they were just people—with the exception of Charlie.
The judicial appointments process has grown increasingly frustrating in recent years. Both sides claim that their candidates are the “most meritorious” and yet there is seldom any discussion of what constitutes merit. Instead, the discussion moves immediately to the candidates’ likely positions on hot-button political issues like abortion, gun control, and the death penalty. One side claims that it is proposing certain candidates based on merit, while the other claims that the real reason for pushing those candidates is their ideology and, in particular, their likely votes on key hot-button issues. With one side arguing merit and the other side arguing ideology, the two sides talk past each other and the end result is often an impasse. To get past this impasse, we propose placing judges in a tournament based on relatively objective measures of judicial merit and productivity. A tournament allows the public to test the politicians’ claims of merit. Being able to test these claims helps make transparent the occasions in which the real debate is over ideology. It is harder to disguise a purely ideological candidate as the best from a “merit” standpoint when the candidate performs poorly relative to many other judges based on objective factors. Once merit-based arguments have been isolated (or at least reduced in scope) to factors related to the tournament, it should be possible to have a transparent and meaningful debate over ideology.
In Choosing the Next Supreme Court Justice: An Empirical Ranking of Judicial Performance, Professors Stephen Choi and G. Mitu Gulati present an imaginative and well-timed challenge to the current judicial nominations culture, which insists in maintaining that nominees are selected for their excellence when they are actually chosen for their ideology.
In their provocative article, Professors Choi and Gulati make various claims advocating the selection of the next Supreme Court Justice on the basis of “merit.” The ingenious statistical tournament (the “Tournament”) they have designed purports to identify a set of judges-“a merit-worthy pool”‘ of candidates, as they put it-who should be given privileged consideration for future vacancies on the Court.
Professors Stephen Choi and G. Mitu Gulati are ambitious: they seek to quantify great legal minds. This interesting endeavor has both descriptive and normative components. Choi and Gulati hope not only to offer objective measures of what makes a judge great but also to affect the choices that presidents and senators make when appointing individuals to the U.S. Supreme Court.
The goal of this Article is to establish a new area of research exploring the connection between corporate governance and the well-being of children. Admittedly, at first glance, the relationship between the hard-nosed world of corporate law and the welfare of our nation’s most vulnerable citizens is far from obvious. We must step back to see the bigger picture – using the knowledge that we are at a historical transition from an industrial society to a knowledge-based economy. With this wide-angled lens, we can see connections among our most basic institutions of family, work, and corporation. Specifically, each institution is simultaneously in the midst of dramatic social and economic turmoil. Yet, these disruptions are not isolated events. Rather, crucial patterns of relationships emerge across time and among nations.
To explore how the transformations in family, work, and corporation are interwoven, we must start with the premise that human capital is the crucial factor for this nation’s success in the new economy. Even for low-level jobs, the so-called knowledge worker needs math and computer literacy to problem solve and cooperate in teams. The United States has experienced remarkable economic prosperity in the past decade, but when we look into the future, a different picture begins to surface. Compared to other advanced economies, the skill proficiency of our youngest generation of workers is lacking. Given this skills deficit, a wide variety of policymakers have begun to consider the topic of human capital formation. A general consensus exists that there is a danger that America’s children will be unable to meet the needs of tomorrow’s flexible labor markets.
Our law has no mind of its own. In times past, we have fancied law a product of the Deity, and we are still apt to depict it as something transcendent, or even broodingly omnipresent, if not divine. Some of our lawmakers maintain a tradition of donning garments befitting oracles when they utter their pronouncements.
There has been a recent resurgence of interest in class in legal scholarship. This development might have been predictable. Inequality in America has grown sharply over the past two decades. Working people face job tenure insecurity, massive shifts in work structures, and heavy debt. Indigent families have begun experiencing the termination of assistance from the state. Revelations of corporate wrongdoing highlight the power of wealth. But the new interest in class is not rooted primarily in concern with the conditions of low wage workers or the unemployed. Rather, it is a new twist on the topic of race. Out of social discomfort and legal challenges to affirmative action, judges and scholars are seeking a way to confront inequality without confronting race.
Class is important in its own right, but in the United States people usually do not talk much about it. The term is unfamiliar, packed with many different meanings, and uncomfortably radical. In law and popular discourse, the figure of the white working class person has appeared in recent years as the symbol for the need to end or change affirmative action. A searching examination of interest in white working people requires a closer look at class and the social construction of race. The concept of class seems tame only in comparison to the volatility of the discourse on race. It only remains tame if it is understood through a simplistic notion of individual status and divorced from conflict and from consciousness of shared interest among oppressed people – in other words, from groups and relationships of power.