Lee Epstein
Lee Epsteing Ethan A.H. Shepley Distinguished University Professor
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Under contract, Cambridge University Press.

Lee Epstein
Jeffrey A. Segal
Harold J. Spaeth

Below is Section 2 our prospectus; for the entire proposal, click here. For docket sheets and cert pool memos we have collected from the Blackmun collection, click here.

2. Our Plan for Setting the Nation’s Legal Agenda

With information amassed from the papers of Justice Harry A. Blackmun—along with other sources we plan to tap—our overarching goal in Setting the Nation’s Legal Agenda is to provide a comprehensive, sophisticated yet accessible and colorful, treatment of agenda setting on the U.S Supreme Court. We do not intend to rely exclusively on descriptive analyses and stylized facts culled from interviews and judicial papers on the one hand, but neither do we intend to produce a drab technical report on the other.

To achieve these diverse ends, we have divided Setting the Nation’s Legal Agenda into three parts. First, out of the belief that we must understand the case-selection process before we can explain it, we provide a comprehensive account of how it has worked—and works today. Since the chapter-by-chapter outline in Section 4 provides the details, we need only note here that we plan to collect the data and other information for this Part from, among other sources, interviews with Court members and former clerks, extant published and publicly available materials, and, most especially, the justices’ private papers. 

The second and chief Part of the book explores explanations for the decision over cert, and assesses those explanations against qualitative and quantitative data amassed from interviews, the collections of the justices, and published Court records. We devote six chapters to this task. Five explore the various accounts we outlined in Section 1 above; the sixth integrates and enhances them by formulating, operationalizing, and assessing a global and thoroughly specified model of cert voting on the Court. Critical features of our design include examinations using both the Court and the individual justice as the unit of analysis, data on grants and denials, measurements of the preferences of each justice and the institution as a whole, full specification, and the ability to accommodate a variety of institutional changes—all with the goal of elaborating a compelling and fully interrogated theory of agenda setting. Our emphasis throughout is on contemporary Courts, though we make some use of historical materials (including numerical data) to detect changes over time.

In the third part of the book we develop the implications of our study. The first set pertains to the future study of agenda setting—both for U.S. courts of last resort and constitutional courts abroad. As for further analyses of American courts, we emphasize the relationship between gatekeeping decisions and those the justices reach on the merits of cases. We stress, in particular, that the enterprise of developing a comprehensive model of agenda setting, which we undertake in Setting the Nation’s Legal Agenda, is important in its own right; but—to the extent that cases decided on their merits are a non-random sample of the universe of filings—it is also an essential first step for properly modeling the outcomes of cases on the merits. As for agenda setting on constitutional courts abroad, this is a topic of considerable interest to judicial specialists but it is seriously understudied. While we do not undertake a full-blown analysis, it seems a worthwhile and important task to consider the extent to which our results transport to other societies. A second set of implications pertains to various policy proposals designed to revamp the agenda-setting process. Some—most notably plans to establish a court to screen some or all cert petitions— came in the 1970s in response to the Court’s rising workload. None of these attracted sufficient support but since the 1980s commentators have shifted their focus to the Court’s internal cert procedures and offered a number of specific proposals for change. By assessing how these may affect the Court’s work—both its preliminary and merits decisions—we hope our volume will contribute to on-going legal and policy debates.

keywords: certiorari, agenda-setting, Supreme Court, Rule of Four