Volume 80, Number 4

October 2005

Empirically Testing Dworkin’s Chain Novel Theory: Studying the Path of Precedent

Stefanie A. Lindquist, Frank B. Cross

In this article, Professors Lindquist and Cross empirically study the effect of precedent on judicial decisionmaking. The framework for their analysis is Ronald Dworkin’s “chain novel” metaphor, an influential theory of the role of precedent whose validity has not previously been empirically tested. The chain novel metaphor suggests that the judicial use of precedent can be likened to a group of authors writing a novel seriatim, in which the accumulation of chapters increasingly constrains the choices and freedom of subsequent writers. Precedent is one of the most important areas of legal research, but currently there is no dominant working theory, and only limited empirical evidence, about its role in judicial decisionmaking.

The first part of the authors’ study examines cases of first impression using a statistical model of judicial voting data from four United States Courts of Appeals between 1984 and 1988. Examining the influence of ideology on judicial decisionmaking in cases of first impression, and controlling for a number of external factors such as regional effects and litigant identity, Lindquist and Cross find that judicial ideology plays a statistically more significant role in cases where judges acknowledge that they are not bound by precedent (as in cases of first impression) than in cases where prior precedent exists. These findings provide preliminary support for the chain novel theory, as the existence of prior precedent appears to limit the degree to which judges are free to decide cases based on their own ideological preferences.

The second part of this study tests the evolving role of precedent over time. Lindquist and Cross examine over seven hundred decisions from five United States Courts of Appeals interpreting the phrase “under color of’ state law from 42 U.S.C. § 1983. To test whether the gradual accretion of precedent increasingly constrains judicial behavior, the authors select cases over a thirty-year period subsequent to the Supreme Court’s liberalization of the § 1983 cause of action in 1961. Controlling for other factors, including potential agenda effects based on the kinds of cases brought before the courts, Lindquist and Cross find that the importance of precedent in judicial decisionmaking is initially stable or increasing over time. However, contrary to the chain novel hypothesis, as the number of prior decisions grows further, precedent plays a decreased role. Judges appear to be relatively more free to decide cases based on their ideological preferences as precedents accumulate, rather than (as Dworkin suggests) more constrained. The study thus provides only limited support for the chain novel theory of judicial decisionmaking, finding that judges are indeed more free to decide based on their ideological preferences where no prior precedents exist. However, the fact that judicial discretion expands with the gradual accretion of precedent suggests that the chain novel thesis does not describe fully the operation of U.S. law.

Girls! Girls! Girls!: The Supreme Court Confronts the G-String

Amy Adler

What is it about the nude female body that inspires irrationality, fear, and pandemonium, or at least inspires judges to write bad decisions? This Article offers an analysis of the Supreme Court’s nude dancing cases from a perspective that is surprising within First Amendment discourse. This perspective is surprising because it is feminist in spirit and because it is literary and psychoanalytic in methodology. In my view, this unique approach is warranted because the cases have been so notoriously resistant to traditional legal logic. I show that the legal struggles over the meanings and the dangers of the gyrating, naked female body can be fully understood only when placed within a broader context: the highly charged terrain of female sexuality. By rereading the cases as texts regulating gender and sexuality and not just speech, a dramatically new understanding of them emerges: The nude dancing cases are built on a foundation of sexual panic, driven by dread of the female body. Ultimately, this analysis reveals a previously hidden gender anxiety that has implications not only for the law of nude dancing, but for First Amendment law more broadly. By presenting the ways in which irrational cultural forces shape the Court’s supposedly rational analysis in the nude dancing cases, in the end I point toward an unusual conception of First Amendment law: Free speech law governs culture, yet in surprising ways, culture also governs free speech law.


Our 18th Century Constitution in the 21st Century World

The Honorable Diane P. Wood

Madison Lecture

In this speech delivered for the annual James Madison Lecture, the Honorable Diane Wood tackles the classic question of whether courts should interpret the United States Constitution from an originalist or dynamic approach. Judge Wood argues for the dynamic approach and defends it against the common criticisms that doing so allows judges to stray from the original intent of those who wrote the Constitution or take into consideration improper foreign influences. She argues the necessity of an “unwritten Constitution” since a literalist approach to interpretation would lead to unworkable or even absurd results in the modern context, and since restricting constitutional interpretation to literal readings would mean that the Constitution has outlived its usefulness. Judges may “find” unwritten constitutional rules by using evolving notions of a decent society to interpret broad constitutional language broadly; acknowledging that certain liberties are so fundamental that no governmental entity may deny them; acknowledging that much of the Bill of Rights applies to states through selective incorporation; and inferring principles from the structure of the Constitution and pre-constitutional understandings.


In Bed with the Military: First Amendment Implications of Embedded Journalism

Elana J. Zeide

This Note explores the First Amendment implications of embedded journalism and its alternatives. Despite its media-friendly stance, embedding imposes limitations on press access and substantive coverage that raise First Amendment concerns about governmental distortion of the news—most significantly, a substantive and structural tendency to promote pro-military coverage. Despite these concerns, this Note finds that embedding does not facially violate the First Amendment. It further argues that the embed structure promotes free speech principles better than alternative methods of regulating wartime reporting. Unlike a complete ban on press access or the removal of restrictions, embedding at least allows for an abundance of intimate coverage, increases the transparency of governmental discretion, and promotes clear standards for military accountability. Accordingly, this Note concludes that the embed program’s sanctioned supervision is the most supportive of First Amendment values and offers some policy suggestions to mitigate worries about distorted coverage.

Facilitating Informed Medical Treatment Through Productions and Disclosure of Research into Off-Label Uses of Pharmaceuticals

Mitchell Oates

Pharmaceutical manufacturers must conduct extensive research to prove the safety and efficacy of a new drug before it can be sold to the public. However, once the Food and Drug Administration (FDA) approves a drug for one use, doctors may prescribe it to patients for any purpose for which they believe it may be beneficial. Because manufacturers are not required to prove the efficacy of a product for these “off-label” uses, research upon which physicians might base treatment decisions involving novel uses of approved drugs is likely to be lacking. In this Note, Mitchell Oates addresses two interrelated problems: a lack of research into off-label uses of pharmaceutical products and a failure, when such research is undertaken in the first place, to ensure that the findings are made public. He argues that there are limited incentives for pharmaceutical manufacturers to conduct research into the efficacy of off-label uses of their approved products. Furthermore, even when a manufacturer does conduct such research, the public benefit that results is uncertain because the manufacturer is under no obligation to publish or otherwise disseminate the data, and it is unlikely to voluntarily release research findings that might be damaging to sales. While manufacturers must submit summaries of post-approval research to the FDA, public access to these data is blocked by various legal provisions that protect against the release of trade secrets and confidential commercial information. Oates argues that the application of such provisions to data pertaining to off-label uses is inappropriate because the release of such data is unlikely to cause competitive harm to the manufacturers whose research is disclosed. In light of the problems identified and the lack of legitimate objections based on competitive harm, manufacturers should be required to conduct research into some off-label uses of their products and to disclose the data in a form useful to practitioners. Oates concludes by outlining a potential solution, modeled after an existing legislative scheme, the Best Pharmaceuticals for Children Act.

New Frontiers in Fair Lending: Confronting Discrimination Against Ex-Offenders

Taja-Nia Y. Henderson

The dramatic increase in the number of people leaving the nation’s prisons and jails has contributed to a renewed interest in safe community reentry strategies. While issues surrounding housing, employment, and recidivism have dominated the scholarly landscape in this area, far less attention has been paid to those collateral consequences which affect ex-offender access to credit and financial services. For example, government financial assistance agencies and the private lenders that participate in government-sponsored lending programs routinely inquire into borrowers’ criminal histories, and one federal court has held that criminal exposure bears a direct relationship to creditworthiness. In this Note, the author weaves fair lending principles (as expressed in the Equal Credit Opportunity Act) with the goals of effective reentry policies and argues that despite the possible existence of a correlation between criminal exposure and likelihood of default, the use of criminal history in any determination of creditworthiness should be prohibited or at least curtailed. Given the practice’s serious implications for both the ability of individual ex-offenders to reenter society effectively, as well as for the ability of receiving communities to effectuate crime prevention and community development initiatives, the author argues that the federal government ought to take the lead in developing statutory and administrative solutions that effectively fill the “advocacy gap” in credit and financial services where recourse to the courts is not available.

Using Customary International Law to Identify “Fetishistic” Claims to Cultural Property

Tanya Evelyn George

Margaret Jane Radin’s personality theory of ownership posits that property that is bound up with the identity of its holder deserves the highest level of protection, so long as there is an objective moral consensus that the holder’s attachment to the property is healthy. In recent years scholars have relied on Radin’s theory to claim that objects like the Parthenon Marbles are so tied to the identity of a particular cultural community that group ownership of them is justified. Furthermore, they argue that the group whose identity is bound up with an object has a stronger claim to it than a rival with no such connection or a rival whose connection has been deemed unhealthy by an objective moral consensus. Yet neither Radin nor scholars extending her theory to the cultural property context have explained how to determine when such an objective moral consensus exists. This Note argues that jus cogens norms of customary international law should be considered a source of “objective moral consensus” for the purpose of distinguishing healthy from unhealthy group property claims under Radin’s theory. Jus cogens norms are valued by so many people across different cultures that there is an objective moral consensus—or the closest thing to it—that violating them is wrong. If an object is bound up with the identity of a cultural group in a way that violates one of these norms, promotes practices that violate one of these norms, or purposefully expresses adherence to contrary beliefs, then that claim to the property is unhealthy and should not be protected against the healthy claims of other groups.