Notes bibliogr., bibliogr. (p. [251]-271), index.

Each year the public, media, and government wait in anticipation for the Supreme Court to announce major decisions. These opinions have shaped legal policy in areas as important as healthcare, marriage, abortion, and immigration. It is not surprising that parties and outside individuals and interest groups seeking to impact these rulings invest an estimated $25 million to $50 million a year to produce roughly one thousand amicus briefs to communicate information to the justices. Despite the importance of the Court and the information it receives, many questions remain unanswered regarding the production of such information and its relationship to the Court’s decisions. Persuading the Supreme Court leverages the very written arguments submitted to the Court to shed light on both their construction and impact. Drawing on more than 25,000 party and amicus briefs filed between 1984 and 2015 and the text of the related court opinions, as well as interviews with former Supreme Court clerks and attorneys who have prepared and filed briefs before the Supreme Court, Morgan Hazelton and Rachael Hinkle have shed light on one of the more mysterious and consequential features of Supreme Court decision-making. Persuading the Supreme Court offers new evidence that the resource advantage enjoyed by some parties likely stems from both the ability of their experienced attorneys to craft excellent briefs and their reputations with the justices. The analyses also reveal that information operates differently in terms of influencing who wins and what policy is announced. Using those original interviews and quantitative analyses of a rich original dataset of tens of thousands of briefs, with measures built using sophisticated natural language processing tools, Hazelton and Hinkle investigate the factors that influence what information litigants and their attorneys provide to the Supreme Court and what the justices and their clerks do with that information in deciding cases that set legal policy for the entire country.

A wealth of scholarship indicates that rational individuals should modify their actions to maximize benefits as conditions change. Participants in litigation are faced with a multitude of opportunities to make decisions regarding if and how they will engage the legal system. Despite this fact, the potential for strategic behavior by litigants is often ignored by researchers due to difficulties in capturing such activity. To the extent that existing studies have focused on outcomes to the exclusion of litigant behavior, they have potentially produced biased results in considering the impact of changes in law, such as Supreme Court decisions. Thus, in order to properly understand the decisions judges make and the impact of such decisions, it is important that we study the extent to which litigants are acting based on goals and expectations in light of changes in the litigation environment. I address these questions in the context of two seminal Supreme Court cases: Bell Atlantic Corp. v. Twombly (2007) and Ashcroft v. Iqbal (2009). These decisions pertain to the pleading standard in federal court: they help define the types of information that plaintiffs must provide in their complaints at the outset of cases to avoid early dismissal and be allowed to proceed to the information sharing stage of litigation and beyond. First, I explore the impact of the cases via qualitative methods based on interviews of federal judges and attorneys practicing in federal court. Their responses identify complex calculations and responses in regards to the decisions. Next, using natural language processing tools and quantitative methods, I test the hypothesis that changes in the federal pleading standards influenced the ways in which litigants pursue and communicate claims. I find evidence that litigants became more specific in their complaints in torts cases, but not civil rights cases. This pattern is in keeping with concerns that the new standard has unduly impacted litigants who are unlikely to have specific details in the absence of information sharing as part of litigation. Finally, I consider if the generalization of the new standard to all cases via the Iqbal decision affected motions to dismiss and the outcomes of such motions in light of the specificity of the allegations. Though my hypotheses are not confirmed, the chapter offers several empirical contributions.