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New Professor Unites Study of Public Law, Economics

by Rob Seal

Michael Gilbert

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The question of whether judges show political bias in their decisions is one of the most pressing issues in the legal system, and Michael Gilbert is approaching it in a new way.

“My research suggests that politics matters, but that law matters more, at least in the specific circumstance that I examined” said Gilbert, who joined the Law School faculty this fall. “Most of the time, judges are doing a pretty good job of applying the rule I studied.”

Gilbert, who received his Ph.D. from the University of California, Berkeley’s Jurisprudence and Social Policy Program and graduated first in his law school class at Boalt Hall, has been examining the intersection between law and economics and public law.

“I am interested broadly in legislation and issues in election law and administrative law,” Gilbert said. “More specifically I have written about direct democracy and judicial decision-making in legislative processes.”

“Mike is a first-rate lawyer who combines theoretical sophistication, empirical skills, and an informed understanding of legal institutions,” said Professor Barry Cushman ’86. “His dissertation has the virtue of focusing with analytic care and rigor on a very important topic in the neglected field of state constitutional law. We were impressed by its intelligence, thoughtfulness, thoroughness, and lucidity. We’re delighted that he’ll be joining the faculty.”

Gilbert’s scholarship has focused on the “single-subject” rule in state constitutional law, a widespread state-level constitutional provision limiting constitutional amendments, legislation and ballot propositions to one subject. The single-subject rule, while not widely studied, is important because almost every state constitution has it, Gilbert pointed out. “It has generated hundreds or even thousands of cases,” he said.

In the past few years voters have, for example, passed several propositions on statewide ballots across the country banning same-sex marriage and same-sex civil unions. Elected state judges have to decide whether a proposition that forbids both of those practices covers one subject or two.

“The question, in other words, is whether marriage and civil unions are the same subject,” Gilbert said. “A lot of people think judges are deciding these cases based on their politics.”

Gilbert conducted a series of surveys of law students to evaluate the comparative effects of law and politics on outcomes in single-subject cases. He asked the students, who did not know the results of the cases, whether a proposition involved more than one subject. He then compared their responses to the decisions of the judges, who did know the policy consequences of their ruling.

Gilbert’s survey results suggested that judges adhere to outcome-neutral principles in cases involving the single-subject rule. From this, Gilbert suggested that judges probably follow such principles in other areas of the law involving clearer rules and less-controversial topics. “It raises interesting institutional questions about the role of courts in a democracy, which makes it an interesting topic to study,” Gilbert said. “I’m trying to make a contribution there with this survey technique.”

A Montana native, Gilbert studied at Tulane University as an undergraduate and worked for the Federal Reserve for three years before pursuing a teaching career. His doctoral degree combines his interest in economics and political science. He is currently clerking for Judge William Fletcher on the 9th U.S. Circuit Court of Appeals.

Gilbert said he is thrilled to join Virginia’s faculty. He is teaching legislation this fall and election law and a seminar on judicial decision-making in the spring. “I’ve never taught law students before and I expect to be somewhat intimidated by it,” joked Gilbert, who has taught his share of undergraduates. “I’m looking forward to taking this next step with law students.”