The development of a legal rule : The federal common law of public nuisance

Scholars from across disciplinary lines are interested in understanding legal development. One impediment to the quest for a systematic explanation has been measures of legal change. Indicators like whether a court overturns an earlier ruling capture one facet of legal change but fail to capture the full range of courts' actions to develop legal doctrine. I introduce an alternative measure of legal change here-one based on Levi's (1949) focus on whether factual circumstances are or are not encompassed by the law. I use the U.S. Courts of Appeals decisions on the federal common law of public nuisance to illustrate this measure. Utilizing a multinomial logit model to explore the appellate judiciary's decisions to develop this legal doctrine, I find that the judges' decisions to develop the federal common law are explained by the judges' policy preferences; the litigation environment consisting of party resources, attorney experience, and amicus support; as well as the broader political context of public opinion and Supreme Court rulings. Judicial scholars have not often systematically examined changes in the courts' policy product-legal rules (Epstein & Kobylka 1992; Walbeck 1997). While Spaeth (1965) and others (Peltason 1955; Schubert 1965) state their preference for moving away from doctrinal analysis, imbued as it often is in normative issues, the policy significance of legal rules adopted by courts has not been ignored. Indeed, Segal and Spaeth (1993:261) recognize that the Supreme Court's opinion "constitutes the core of the Court's policy-making process." This is because court opinions affect more than the parties to the current litigation. The rules articulated bv courts, like other institutions, guide behavior by providing information about mutual expectations and providing sanctions for noncompliance (Knight 1992). Hurst (1956), in discussing the development of law governing the institution of private property, maintained that "legal procedures and tools and legal compulsions. . . create a framework of reasonable expectations within which rational decisions could be taken for the future" (pp. 10-11). As Justice Holmes put it, a person's compliance with his or her legal duty is based on "a prophecy that if [that person] does certain things he will be subjected to disagreeable consequences by way of imprisonment or compulsory payment of money" (1897:461). In this respect, court decisions derive significance from the impact of their rules on expected patterns of behavior and their sanctions for violations of those patterns. If the policy significance of court decisions lies in the legal rules they contain, it is important to understand what influences the law's development. Although there are numerous accounts of events surrounding important court decisions (see, e.g., Faux 1988; Friendly 1981; Kluger 1975; Lewis 1964), few systematic attempts have been made to examine legal development. Some scholars have studied the Supreme Court's decision to overturn past decisions (Brenner & Spaeth 1992; Kemper 1997; Spriggs & Hansford 1998). These studies examine explanations for whether the Court overturns a particular decision. Epstein and Kobylka (1992) examine doctrinal change in the Supreme Court's abortion and capital punishment decisions, exploring the influence of the Court's composition, the political environment, and the arguments presented to the Court by the litigants and amici. I have developed a measure of legal change and applied it to the Supreme Court's search and seizure decisions to test the influence of judicial preferences, the litigation environment, and the political environment (Wahlbeck 1997). These studies all investigate legal development in the Supreme Court but overlook the substantial role played by lower federal courts in the formation of legal doctrines. As reflected in the judicial impact literature, much of legal development occurs in the lower courts. The judicial impact literature reveals that lower courts often have substantial authority to modify the law (Mather 1995; Murphy 1959). …