There is a plethora of studies examining whether or not judges engage in strategic behavior, yet many important questions remain about the motivations that encourage judges to behave strategically and how institutional rules shape these motivations. In his book, Scott A. Comparato asks whether institutional rules encourage strategic behavior by state supreme courts, litigants, and amici participants. His work is motivated by the idea that information provided by interest groups in amicus briefs is an important reference point for state supreme court justices.

The crux of Comparato's argument is that interest groups tailor the information in amicus briefs depending on the state's judicial selection mechanism and the existence of a ballot initiative procedure. These institutional rules force interest groups to lobby courts differently, which has implications on judicial decision making. The author's argument challenges the belief that interest groups behave the same when lobbying Congress and the courts. The author also raises the possibility that the information judges seek depends on the environment within which decisions are made. These theoretical insights are the major strengths of the book and the author's most significant contributions to the field. This book not only advances our understanding of strategic behavior but also offers valuable information about group behavior and the vital role amicus briefs play in this regard.

Comparato adopts an institutional approach. He examines the impact of method of judicial selection and ballot initiative on group and judicial behavior. Using original data from more than 600 court cases, he estimates an impressive number of models to test his hypotheses about the role of amicus briefs in shaping strategic behavior. The enormous amount of data collection requires that he focus on seven American states, which are selected to represent five methods of judicial selection. Some of these states have a ballot initiative process and other states do not.

The author arrays the seven states along a continuum that ranges from most to least judicial accountability to the public and most to least judicial accountability to other branches of government. Method of selection in five states tie justices to the public—Alabama, Colorado, Kansas, Michigan, and Wisconsin. In the other states, New Jersey and South Carolina, the judicial selection method ties justices to the governor and legislature, respectively. Where justices are accountable to the public, Comparato expects that interest groups will provide more policy/public preference arguments in the amicus briefs. Strategic behavior by interest groups should be evident in all five states where justices are retained by elections; however, Comparato expects strategic behavior will be most pronounced in partisan election systems (i.e., Alabama), relatively high in nonpartisan election states (i.e., Michigan and Wisconsin) and least evident in merit selection states (i.e., Colorado and Kansas). Where justices are accountable to the other branches of government, the author expects interest groups to make more institutional arguments.

Comparato's approach is refreshing and the data collection effort is impressive; however, I was more convinced by the argument than the conclusions. One conclusion is that “[l]itigants and amici appear to be behaving in strategic ways, while state supreme court justices are not” (p. 143). Yet results from the analysis in Chapter 4 provide only marginal support for the hypothesis that amici tailor arguments according to method of judicial selection. In Chapter 5, the author examines decision-making behavior by state supreme court justices. Here he tests the idea that justices utilize information from amicus briefs that best advances judicial goals. He also examines whether litigants tailor their arguments to advance judicial goals and if doing so increases the likelihood of winning. Lastly, he tests the hypothesis that greater amici participation on behalf of a litigant should increase the likelihood that the litigant will win. Comparato's models perform poorly, providing very little empirical support for his expectations. Overall, he concludes that state supreme court justices do not behave strategically. He also concludes that amici behave differently than litigants do and interest groups behave differently than other actors that participate as amici curiae. The theoretical arguments that motivated this chapter are more convincing than the conclusions.

Ultimately, many of the author's conclusions are based on null results and contradictory findings. Problems with the research design might explain the poor performance of the models as well as some of the unexpected results. One concern with the research design is the selection of states. The theory forwarded builds from the belief that judges face retention pressures from the public or other institutions. However, justices on the New Jersey Supreme Court had life tenure during the time frame of the study. It is not surprising that the results for this variable are contrary to expectation.

Another concern is that the author overlooks rules governing amicus brief submission and content. These rules dictate the degree and type of amici participation as well as the arguments contained in the amicus briefs. For example, some state courts permit amici participation only in certain cases (e.g., Kansas), whereas other states allow amici participation only by leave of court granted on motion or by request of court (e.g., Colorado, Michigan, Wisconsin). Consider also that the Alabama Supreme Court during the time frame of the study required consent by all participants for amici participation. Here it is not surprising that the results for partisan election method were unexpected and “puzzling.”

Another confounding factor is that some states in the study restrict the type and length of arguments made by amici or prohibit amici participation in oral arguments. The fact that amici in some states can submit briefs and participate in oral arguments likely influences the content of the amicus briefs; it might also impact who wins. Fundamentally, limits on the type and length of arguments could impact the presence or absence of strategic behavior. New Jersey, for example, requires amici participants to emphasize the public implications of court decisions. South Carolina, Michigan, and Colorado restrict arguments to only those raised by the litigants in the attorney briefs; yet Alabama requires amicus briefs to contain new information. Wisconsin, on the other hand, does not impose restrictions. These rules are not included in the models.

The research-design issues raise questions about the analysis and cast doubt on the conclusions drawn. Despite my concerns, I strongly recommend Amici Curiae and Strategic Behavior in State Supreme Courts to scholars studying judicial behavior, interest groups, and American institutions. The theoretical contributions are quite impressive; the book introduces us to the possibility of other strategic incentives that shape not only judicial decisions but group behavior. The author also alerts us to the vital role of information in amicus briefs and how this information might induce strategic behavior by groups and judges. Lastly, Comparato makes important theoretical linkages between strategic behavior and winning in court.