Legislating From the State Bench

Abstract

This article considers the institutional and environmental factors that influence the degree of countermajoritarian judicial activism among state supreme courts. In our analysis, we consider two indicators of such activism: the tendency of each state court to overturn acts of the legislature and the extent to which each court engages in tort innovation. We find, contrary to much conventional wisdom, that courts in states where judges are most insulated from local partisan politics are the least likely to exhibit activist behavior. Rather, the most activist courts are in states where justices reach office through district-based electoral systems. We discuss the implications of these findings for our understanding of judicial activism and judicial behavior.

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