Political Constraints on Legal Doctrine: How Hierarchy Shapes the Law

Lax, Jeffrey R.

doi:10.1017/s002238161200045x

Cited by 42 publications

(41 citation statements)

References 21 publications

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“…For example, conflict between appellate courts over the establishment of a new legal rule will occur in the shadow of trial courts' distortion of de facto law (see Lax 2012). If trial judges are routinely making noncompliant decisions that are affirmed by appellate courts, as shown in the model, then the law as written on paper may differ from the law as experienced by individuals in society.…”

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confidence: 99%

“…This has potentially large implications for how we understand judicial politics. For example, conflict between appellate courts over the establishment of a new legal rule will occur in the shadow of trial courts' distortion of de facto law (see Lax 2012). The model therefore makes explicit a set of concerns about lower court compliance that have preoccupied judges sitting on higher courts (as well as scholars; e.g., Boyd and Spriggs 2009;Westerland et al 2010).…”

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confidence: 99%

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Getting Their Way: Bias and Deference to Trial Courts

Hübert

2019

American J Political Sci

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How much do trial judges influence the law in the United States? I analyze a model of adjudication by a trial judge who engages in fact finding before deciding a case, but whose decision may be reversed. The model makes three broad points. First, it provides an informational rationale for ex post deference to biased trial judges that does not require an ex ante commitment by an appellate court to a standard of review. Second, it shows how procedural discretion can bring biased trial judges' rulings closer to appellate doctrine despite enabling trial judges to "get their way" more often. Third, de facto law as represented by trial judges' case-by-case adjudication will differ substantially from de jure law. As long as there are not too many extremist trial judges, de facto law will reflect the predispositions of trial judges, not legal doctrine.

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confidence: 99%

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confidence: 99%

Getting Their Way: Bias and Deference to Trial Courts

Hübert

2019

American J Political Sci

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“…However, with the rise of the casespace model as a powerful analytic tool for analyzing rule making in the courts, students of judicial politics have developed increasingly sophisticated models of rules and rule making (for a review, seeLax 2011).…”

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confidence: 99%

Rule Creation in a Political Hierarchy

Carrubba

Clark

2012

Am Polit Sci Rev

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P rincipal-agent relations are replete in politics; politicians are agents of electorates, bureaucrats are agents of executives, lower courts are agents of upper courts, and much more. Commonly, principals are modeled as the rule-making body and agents as the rule-implementing body. However, principals often delegate the authority to make the rules themselves to their agents. The relationship between the lower federal courts and the Supreme Court is one such example; a considerable portion of the law (rules) is made in the lower federal courts with the Supreme Court serving primarily as the overseer of those lower courts' decisions. In this article, we develop and test a principalagent model of law (rule) creation in a judicial hierarchy. The model yields new insights about the relationship among various features of the judicial hierarchy that run against many existing perceptions. For example, we find a non-monotonic relationship between the divergence in upper and lower court preferences over rules and the likelihood of review and reversal by the Supreme Court. The empirical evidence supports these derived relationships. Wider implications for the principal-agent literature are also discussed.

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“…Gennaioli and Shleifer, 2007;Lax, 2007Lax, , 2012Staton and Vanberg, 2008). As noted above, the Court's announced legal rule is most binding in the most factually similar future cases, and less so in less similar cases.…”

Section: Judicial Rules and Policy Communicationmentioning

confidence: 95%

Scope and precedent: judicial rule-making under uncertainty

Clark

2015

Journal of Theoretical Politics

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I develop a formal model of Supreme Court opinion-writing in an environment of uncertainty. In particular, the model captures how the Supreme Court will optimally design the specificity of its legal rules. The model focuses on the tradeoff between more precise rules which are controlling in a smaller subset of cases against less precise rules, which have wider applicability but yield less certain outcomes. When the basic model is considered in a dynamic world in which the Court is able to hear multiple cases, it yields insights about how the factual representativeness of a case and the clarity of existing precedent jointly affect its optimal opinion-writing and willingness to hear new cases. These last implications provide theoretical foundations for theoretical and empirical questions about rule-making, case selection, and the construction of doctrine.

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Political Constraints on Legal Doctrine: How Hierarchy Shapes the Law

Cited by 42 publications

References 21 publications

Getting Their Way: Bias and Deference to Trial Courts

Getting Their Way: Bias and Deference to Trial Courts

Rule Creation in a Political Hierarchy

Scope and precedent: judicial rule-making under uncertainty

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