This paper develops a model of judicial decision-making based on a judge's concern for reputation and the interdependence of judges' decisions through precedent. The audience of judges plays a crucial role in the analysis. In general, we show that reputation can both restrain judicial discretion, but also inspire it if future judges are expected to be persuaded by a decision and follow it, thereby enhancing the authoring judge's reputation.

Reputation and judicial decision-making

Legal philosophers have long debated the question, what is law? But few in social science have attempted to explain the phenomenon of legal order. In this paper we build a rational choice model of legal order in an environment that relies exclusively on decentralized enforcement, such as we find in human societies prior to the emergence of the nation state and in many modern settings. We begin with a simple set of axioms about what counts as legal order. We then demonstrate that we can support an equilibrium in which wrongful behavior is effectively deterred by exclusively decentralized enforcement, specifically collective punishment. Equilibrium is achieved by an institution that supplies a common logic for classifying behavior as wrongful or not. We demonstrate that several features ordinarily associated with legal order such as generality, impersonality, open process and stability can be explained by the incentive and coordination problems facing collective punishment.

https://papers.ssrn.com/sol3/Delivery.cfm/SSRN_ID1800413_code20450.pdf?abstractid=1707083&rulid=51048&mirid=2

What is Law? A Coordination Account of the Characteristics of Legal Order

Why do lower courts treat Supreme Court precedents favorably or unfavorably? To address this question, we formulate a theoretical framework based on current principal-agent models of the judiciary. We use the framework to structure an empirical analysis of a random sample of 500 Supreme Court cases, yielding over 10,000 subsequent treatments in the U.S. Courts of Appeals. When the contemporary Supreme Court is ideologically estranged from the enacting Supreme Court, lower courts treat precedent much more harshly. Controlling for the ideological distance between the enacting and contemporary Supreme Courts, the preferences of the contemporary lower court itself are unrelated to its behavior. Hence, hierarchical control appears strong and effective. At the same time, however, a lower court's previous treatments of precedent strongly influence its later treatments. The results have important implications for understanding legal change and suggest new directions for judicial principal-agency theory.

https://www.jstor.org/stable/pdfplus/20788776.pdf

Strategic Defiance and Compliance in the U.S. Courts of Appeals

olitical scientists have long recognized the importance of courts as political actors. However, while an extensive literature examines the judiciary's strategic interaction with the other branches of government (e.g., Ferejohn and Weingast 1992; Gely and Spiller 1992), less attention has been paid to the effects of the institutional structure of the courts themselves on patterns of judicial decision-making. Yet models of the judiciary's unique institutional dynamics are essential to understanding the courts, just as analyses of congressional committees (e.g., Gilligan and Krehbiel 1990; Shepsle and Weingast 1987) or the bureaucracy (e.g., Moe 1982) are essential to understanding the legislative and executive branches. We develop a formal model that demonstrates how the problem of communication between different levels of a hierarchical court system,

/pdf/informative-precedent-and-intrajudicial-communication-2tqxb1wdro.pdf

Informative Precedent and Intrajudicial Communication

A significant limitation in the empirical analysis of judicial politics has been the difficulty of measuring judicial policy. Theories of bargaining and opinion writing make predictions about where an opinion will fall in policy space, but empirical tests of those theories have not benefited from direct measures of opinion location. This paper develops a scaling model to estimate opinion locations and justice ideal points along a common, continuous dimension using the citations between opinions as data. We assume that each opinion has a fixed location in this unidimensional doctrine space and that the probability of a citation that affirms rather than disputes the doctrine of the precedent decreases as the doctrinal distance between them increases. This proximity citation model is applied to original datasets of citations in search and seizure and freedom of religion opinions written by the Warren, Burger and Rehnquist Courts. We use the resulting estimates of opinion content to evaluate median and non-median voter theories of Supreme Court bargaining and opinion writing. We find striking empirical support for theoretical models that predict the majority opinion will fall at the ideal point of the median member of the majority coalition as opposed to the court's median or the opinion author's ideal point. Given the centrality of theories of judicial policymaking to various substantive problems in political science, the method of scaling opinions developed in this paper can facilitate a variety of future research.

Lewis A. Kornhauser

Papers

An Ecomomic Perspective on Stare Decisis

Governance Structures, Legal Systems, and the Concept of Law