Date of Award

1-1-2010

Document Type

Campus Access Thesis

Department

Political Science

First Advisor

Donald R. Songer

Abstract

The attitudinal model has been the dominant explanation for judicial behavior for the last twenty years. However, political scientists have found that the attitudinal model is not adequate to explain the outcomes in cases involving foreign policy. Instead, it appears that other considerations, such as the interests of the United States, weigh more heavily on judges.

Legal scholars have anecdotally noted a similar trend in cases involving international law. This paper, part of a doctoral dissertation, wishes to put these anecdotal observations to the test. Utilizing a dataset of international law cases before the U.S. Supreme Court and the Courts of Appeals, it examines whether the attitudinal model holds sway in these cases.

It is my theory that the interests of the United States as expressed by the political branches, particularly the Executive branch, will prove to be the significant factor in explaining judicial decision-making in this area. Only in cases where the political branches have failed to state a preference will the attitudinal model prevail.

Using a logit analysis of case outcomes, I examine the decisions made by courts in cases involving international law. The presence of the United States as either a party or through filings of amicus briefs will be used to determine if the United States has an interest and what that interest is. I find that cases in which the government participates are decided in line with those expressed preferences. Where, however, the government takes no position, the attitudinal model prevails.

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