My research field is Public Law with a focus on the Rule of Law that spans across two inter-related tracks that significantly inform each other: 1) Global Human Rights and Comparative Courts and 2) the United States Judiciary (the U.S. Supreme Court and Immigration Courts). My research is interdisciplinary and extends beyond the traditional boundaries of Public Law, into International Relations, Comparative Politics, and International Law.

Rule of Law Research Track One: Global Human Rights and Comparative Courts

My first research area is cross-national and global in nature, and while it has largely focused on the issue of global human rights and the role of formal law, it has expanded to include the broader question of domestic institution building, specifically judicial independence and the judiciary in general. This research has been a significant part of the growing body of rigorous and systematic empirical work in human rights. My first participation in the field was a co-author to Steve Poe and Neal Tate’s article published in the International Studies Quarterly in 1999 which examined factors that affect the probability of personal integrity abuse. In the same year, I published my first solo-authored article in the Journal of Peace Research, which is one of the earliest empirical tests of the impact of international human rights treaties. In 2000 Steve Poe and I published a chapter in David Forsythe’s edited volume on foreign policy published by the University of Nebraska Press; the research was one of the first to test and demonstrate the harmful effect of IMF structural adjustment programs, findings which have been confirmed by the recent and more extensive book by Abouharb and Cingranelli (2008).

In 2002 I co-authored with Poe and Tate and one of my Supreme Court co-authors, Drew Lanier a chapter in Christian Davenport’s book on human rights and contentious politics; this research presented new measures of domestic threat, an analysis of types and levels of domestic threat and their subsequent impact on personal integrity abuse. In 2002 I published two articles, both of which present my primary research that has built upon the earlier work of David Cingranelli and Christian Davenport, examining the effect of constitutional promises. My article in the Political Research Quarterly examines whether constitutional provisions for basic freedoms and rights have an impact on state respect for human rights and finds that despite the increasing levels of constitutional promises globally, the provisions have only a limited impact, with the significant exception of provisions for public and fair trials. My article in Judicature examines the impact of seven formal provisions for judicial independence on state protection of a broad range of civil rights and liberties, and demonstrates that, at least in regard to this set of rights, a formally independent judiciary, in particular four of the internationally recognized elements of judicial independence (separation of powers, guaranteed terms of office, fiscal autonomy, and a ban against exceptional courts) does increase the likelihood of state provision of rights. In 2004 Steve and I published an article in Human Rights Quarterly in which we demonstrated that certain provisions for states of emergencies, which have been promoted by international organizations such as the International Lawyers Association and International Commission of Jurists, have unintended consequences and are associated with increased levels of human rights abuse during most types of internal threat.

In 2004 I authored a chapter in Sabine Carey and Steve Poe’s edited volume on empirical studies of human rights published by Ashgate; the chapter demonstrated that the effectiveness of constitutional provisions in preventing human rights abuses was conditioned by regional and colonial influences. This research has led recently to a further examination of colonial legacies (and legal system types in particular) in Sub Saharan African in a Human Rights Quarterly article which I co-author with Ayo Ogundele in 2007. Most recently I have co-authored a manuscript which has been accepted at the Journal of Politics (forthcoming January or April 2009) and which is the culmination of much of this research, integrating the various pieces of the model.

In partnership with Neal Tate (and funded in part by USAID) we have expanded my original constitutions dataset forward in time another decade, along with expanding our measures of internal threat and various control data as well. At the same time, we have also created a measure of de facto judicial independence. A significant portion of these data are currently available to general scholarly community and we get almost weekly requests for the data, especially judicial independence. This work is at various different stages. We have submitted a manuscript on conceptualization and measurement of judicial independence, for which we are targeting a broad comparative and U.S. public law audience in one of the top specialized journals in public law, the Journal of Empirical Legal Studies. We have been awarded an advance contract for a book with the University of Pennsylvania Press for their Human Rights Series edited by Bert Lockwood. The goal of this book is to build upon scholarly work in political science (both comparative politics and international relations) and international law, examining in the global set of states over a thirty year period of time the impact of 1) democratization, 2) constitutional provisions for fundamental freedoms and rights typically associated with bills of rights and now promised in international law, 3) the impact of constitutional provision for judicial independence and actual levels of judicial independence, 4) the impact of constitutional states of emergency provisions and the impact of various forms of threat. We seek to enhance our current understanding of the circumstances and ways in which these formal provisions and institutional design prevent states from abusing or failing to provide for the fundamental rights and freedoms of their citizens. We will examine these influences across regime type, during a variety of domestic and international threats, and across a variety of international, transnational, and domestic factors regarding economic development and the socialization toward human rights norms. We will also seek to understand the selection effects of constitutional writing and democratization and seek to control its relationship in our some of our models as well. Our expectation is that this research should provide a more robust theoretical framework of understanding state human rights behavior that is relevant to both scholars and policy makers alike. We will be presenting one of the chapters at the International Studies Association meeting in New York in February.

One of my current research projects overlaps both research tracks as delineated here—my asylum and immigration courts research. Because the focus resides in the U.S. decision making realm, I have included the complete description of these projects in research track two; however, it could just as easily fit in this research track, as much of the work on asylum is strongly linked to the human rights literature, especially the compliance literature, and much of the work in progress will draw upon international relations theory more broadly, as well as the judicial behavior literature. I believe this theoretical synergy makes this work important to a broad scholarly audience, and enhances the policy relevance of the work as well. More details on the substance of the project and the status of papers and manuscripts are provided in the section below.

Finally, I am in the initial stages of a new project (with Karl Ho) on women’s rights that was somewhat inspired by the findings below in regard to women’s decreased odds of gaining asylum. In some ways this project is a continuation of my interest in the connection or lack of connection between the law and actual state behavior. Specifically, we are interested in examining the effects of international human rights instruments, such as the Convention on the Elimination of All Forms of Discrimination against Women and the Declaration on the Elimination of Violence against Women, and their impact on domestic law (both constitutional and statutory) and ultimately on state behavior. For this fall we have developed a plan for working with three of our bright new Masters-degree students on a feasibility study to explore possible measurements and sources of information regarding state protection and provision of women’s rights that allow us to make the necessary formal and behavioral distinctions that we cannot with current data. We plan to create and gather data for a thorough initial statistical examination of the appropriateness of the new measurements; we will publish these analyses as a first step. Simultaneously, we plant to prepare an NSF grant application to seek external funding to gather and create data for the global set of countries for the period of 1993-2008 and perhaps as far back as 1981, depending on the results of our feasibility study. 

Rule of Law Research Track Two: U.S. Courts (U.S. Supreme Court and Immigration Courts)

My second area of research focuses on U.S. courts and much of this research falls clearly within the standard judicial behavior literature, particularly my research on the U.S. Supreme Court; however, my newer research on immigration courts expands beyond this narrower literature because of the administrative courts’ placement within an executive agency rather than in the judicial branch. The latter research also overlaps with my human rights research above, and intersects with the compliance literature in international relations and international law. My earliest work on the U.S. Supreme Court focuses on an early period of the Court’s history that had been largely ignored in the judicial behavior literature, in part due to a lack of readily available data. For example, Spaeth’s U.S. Supreme Court Judicial Data Base extends only back to the Vinson Court. Thus the subfield’s theoretical understanding of the Supreme Court’s behavior remained untested in a rigorous and systematic way for these earlier periods of time. Three of my colleagues (Sandra Wood, Drew Lanier, and Ayo Ogundele) and I engaged in an extensive data creation project replicating much of the Spaeth data backwards in time through 1888. We have co-authored three publications with this unique dataset. The first appeared in the American Journal of Political Science in 1998; it was as a cross-validation of previous studies of the “freshman” or acclimation effect demonstrating that these effects, which have been observed on the modern court, were much more attenuated on the earlier Supreme Court. Also, in 1998 we published an article in Social Science History which presented an empirical overview of the Fuller, White, Taft and Hughes Courts, confirming that the earlier Court was more consensual than the modern Court but that while its agenda was largely dominated by economic issues, the Court was considerably less conservative than assumed, even in non-unanimous decisions. The third publication appeared in Social Science Quarterly in 2000 and it tested the dominant theories about the chief justices’ opinion assignment behavior. In an unrelated piece in 1999 I co-authored a publication with Ayo Ogundele in Political Research Quarterly which was one of the first empirical examinations of the effect of Bork’s nomination. We demonstrated that while the Bork nomination did lead to an increased level of constitutional questioning of Supreme Court nominees, that pattern actually began with Rehnquist’s first confirmation hearing. This work was supported by Epstein et al.’s Journal of Politics article in 2006 which found that the Bork nomination increased the influence of the nominee’s ideology on the individual member of the Senate’s vote, although they find that the effect of the ideological distance had begun in the Warren Court. In their conclusion they suggest our work as a starting point for understanding why the shift occurred. I have continued the early Supreme Court research with one of my co-authors, Ayo Ogundele, and we have an article under revise-and-resubmit with Social Science History; however, the revisions, which are still in progress, have led us into a more substantive and historical examination of the Court’s agenda from 1789 forward.

My two research areas have tended to inform each other well, especially my interests in comparative judicial independence and the U.S. Supreme Court. One of the consistent findings my human rights co-authors and I have found is that the judicial review has tended to have a harmful, rather than beneficial effect as many scholars and activists would expect. This contra finding led me back to some work I originally began on the Supreme Court in my Master’s thesis as I realized we have the experience of one “case study” of over two hundred years in the U.S. Supreme Court. However, we could not empirically say whether the power of judicial review in the U.S. high court had been used primarily to protect or to curb rights for there no available datasets. So while I continued my human rights research stream I began to slowly identify cases and creating an original database of all Supreme Court decisions that reviewed congressional statutes (both those that nullify and those that uphold). I was able to get a small summer research grant at my two-year institution in the summer 2002 and then was awarded a sabbatical in the fall of 2004 to create this dataset. While working as a visiting professor at the University of Iowa I was able to get a book contract with Peter Lang AG--International Academic Publishers. My first publication with the dataset, however, was in Judicature (2007) which presented the dataset and provided an historical examination of the Court’s exercise of judicial review over two centuries. I then followed this initial work with the full length book examination, The U.S. Supreme Court and the Judicial Review of Congress: Two Hundred Years in the Exercise of the Court's Most Potent Power, which was published June 2008. The work uses rigorous quantitative analysis to systematically test key theoretical assumptions in regard to the counter-majoritarian nature of the power and in light of the competing explanatory theories of judicial behavior. The work provides a more descriptive historical analysis of the Court’s and the individual justices’ voting behaviors than is typically possible in political science journals. The work demonstrates that the power is not exercised in as counter-majoritarian manner as scholars might expect and demonstrates that political preferences are stronger explanators of the justices’ behavior than strategic considerations. I have begun a times series analysis of the Court’s exercise of judicial review over time, but have run into a data quandary in that I really need the equivalent of the Martin-Quinn scores backwards in time to cover Court periods prior to the years Martin-Quinn cover. I plan to explore the possibility of joining with a methodologist, and in cooperation with Ogundele, replicating the Martin-Quinn scores back to 1789. These scores would also allow to us extend our empirical examinations of the dominant theories in judicial behavior backwards in time.

This year I have engaged in a new research project after being asked to join EPPS’ Asylum Research Team (ART) led by Jeff Dumas, which is pursuing various individual and collective research projects independently and in part, in cooperation with (and funded) by Human Rights Initiative, a North Texas NGO that assists asylum seekers with legal representation, and the Overbrook Foundation. I am involved in several projects currently which are in various stages. First, I have joined Jennifer Holmes in an examination of the factors which increase or decrease the likelihood of a decision to grant asylum by the immigration. We have expanded Jennifer’s original analysis of a rich set of client and evidentiary factors to include a variety of factors that may serve as decision-making cues to overworked and perhaps under-qualified immigration judges; these factors include economic, human rights and threat conditions in country of origin, from which the asylum seekers fear persecution. We currently have a manuscript under review at the Journal of Refugee Studies, a multidisciplinary peer-reviewed journal that is published in association with the Refugee Studies Centre, University of Oxford and that is dedicated to the advancement of understanding forced migration in terms of theory, policies and practice, and thus reaches an audience of both scholars and practitioners. This manuscript demonstrates that asylum grants in our set of cases were not influenced by evidentiary factors as we might expect under the law, but rather appear to be influenced by a combination of applicant personal characteristics such as gender and the ability to speak English and by country of origin factors such as the level of democratization, the presence of terrorist or guerrilla activity, and economic development. The evidence suggests that the decisions are influenced more by a fear of allowing bogus asylum seekers, such as a terrorist, a terrorist sympathizer, or an economic opportunist, into the U.S. We demonstrate that high levels of human rights abuse did not affect the outcomes when controlling for a variety of factors. The results have important policy implications, especially for female applicants, who all things being equal, have a much lower chance of asylum. Congressional controls do not allow access to much of the data scholars and policy makers need in order to further study these adjudications, so our dataset offers a rare opportunity for scholarly examination.

Several subsequent projects are in progress, including 1) an analysis of all immigration decisions in the U.S. immigration courts, testing competing international relations theory (realism and ideational theory), 2) an application of the dominant judicial behavior theories to the national set of immigration judges’ decisions, and 3) a comparison of factors that affect the HRI clients with those of other NGO clients in different geographical locations around the country. We are currently exploring external funding through the ART and UTD’s development office to reach out to other NGOs and establish a similar research project to the one at HRI. Eventually, we would also like to expand our analyses to asylum officers, the Board of Immigration Appeals, and the Circuit Courts as well. Upon fulfillment of our most recent FOIA request this summer, we should be able to immediately move forward on these next two analyses.

I am engaged in a second component of the asylum project with an additional ART team member Doug Dow, who is exploring the origins of the unitary executive philosophy and movement in U.S. politics. We are in the process of gathering judge-specific data with a summer intern that will allow us to examine the influence of this philosophy and the role of different DOJ officials in the selection of the immigration judges and perhaps on the structure of the Board of Immigration Appeals and the selection of its members. Immigration judges, as administrative adjudicators rather than Article I or III judges, offer a unique opportunity to examine separation of powers issues, to test theories of judicial behavior on quasi-judicial actors, and to explore the judicialization of politics. This project clearly overlaps with and informs Jennifer’s and my project on immigration judges as well. The three of us plan to interview retired judges who have indicated a willingness to do so and to interview leaders of the judges association as well.