Scope and precedent: judicial rule-making under uncertainty

Abstract

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.

To Revoke or Not Revoke? The Political Determinants of Executive Order Longevity

“…Other studies consider how uncertainty surrounding the preferences of future coalitions influences the actions of current policy makers (Clark ; de Figueiredo ; Farhang and Yaver, forthcoming; Horn ; Horn and Shepsle ; Moe , ; Lewis ; Shepsle ; Staton and Vanberg ). However, these studies mostly examine this question through the lens of congressional control over the bureaucracy, with little attention given to uncertainty in presidential unilateralism.…”

Narrow versus broad judicial decisions

“…5.In addition to the normative literature on judicial minimalism, scholars have recently begun to focus on positive accounts of the choice between narrow and broad opinions. For example, Clark (2012) investigates how high courts can use broad and narrow rules to guide decision-making by lower courts.…”

Executive Absolutism: A Model

“…All of these observations suggest that a richer elaboration of precedent may yield results that differ from the conclusions we draw. Indeed, they raise deep issues about why courts so strenuously rely on a relatively strict adherence to precedent in the first place (Clark 2016, Fox and Vanberg 2014, Bueno de Mesquita and Stephenson 2002. By adopting an uncompromising view of precedent, however, the model on offer clarifies its implications for judicial behavior when conjoined with an equally uncompromising need for flexibility.…”

“…As in Gennaoili and Shleifer (2008), Fox and Stephenson (2011, Almendares and Le Bihan (2015), Gailmard and Patty (2017), among others, court decisions, anticipated or issued, impose constraints on other political actors. As in Baker and Mezzetti (2012), Fox and Vanberg (2012), Beim (2017), Clark and Kastellec (2013), and Clark (2016), the court makes decisions while uncertain of their long term consequences. With some important exceptions, including Fox and Vanberg (2015) and Beim, Clark, and Patty (2017), the literature assumes that cases exogenously arise before the courts.…”