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文/Lewis A. Kornhauser

 APPEAL AND SUPREME COURTS

Lewis A. Kornhauser

Professor of Law, New York University School of Law

© Copyright 1999 Lewis A. Kornhauser

 

Abstract

This chapter surveys the economic literature on judicial appeals and collegiality

of courts. More general issues concerning judicial administration and court

organization are surveyed in a companion chapter.

JEL classification: K4

Keywords: Appellate Courts, Appeals, Adjudication, Supreme Courts

 

1. Introduction

 

This chapter reviews the literature concerning several issues raised in the

economic analysis of appeal and of supreme courts. These issues overlap those

considered in Chapter 7100, Judicial Organization and Administration.

Appellate courts in general and supreme courts in particular exist only in

hierarchically organized court systems.

 

Most of the literature has focused on courts in common law countries.

Indeed, most models that extend beyond the simplest features of adjudication

do so in the context of the political system of the United States. This review

consequently shares the parochial focus of the literature. Analyses of appeal in

civil law systems and in the context of different political systems would greatly

advance understanding of the subject as they often present different institutional

features. At least some civil law systems, for example, allow an appellate court

to make an independent assessment of the facts of the case, a judgment denied

common law courts. Similarly, the highest courts in some civil law jurisdictions

hear substantially more cases than the highest courts in common law countries,

a fact that may explain, or be explained by, differences in precedential practice

and in the style and content of judicial opinions.

 

2. Explanations of Hierarchy

 

Appeal, and supreme courts, only arise in court systems which are organized

hierarchically. Why does hierarchy occur? Posner (1985) suggested that the

primary function of a supreme court was law creation and the insurance of

uniformity of application of law among the lower courts. In addition, he argued

that, in the United States, concerns about unreviewable power implied that trial

courts would be subject to some supervision. These ideas have not been much

elaborated in the literature. Rather, two distinct research strategies have

emerged from two different models of adjudication. The ‘team’ model assumes

that all judges in the system share a common objective function - to maximize

the number of ‘correct’ decisions rendered by the system. Hierarchy emerges

because it somehow promotes the goal of error minimization. The ‘political’ (or

‘principal-agent’) model assumes that judges differ in their objective functions.

Hierarchy arises in this model so that the small set of politically dominant

judges can enforce their views on recalcitrant judges lower in the hierarchy.

 

Kornhauser (1995) provides an informal team model that explicitly

addresses the question of the optimal organization of n judges into a judicial

system. Judges share the goal of minimizing the number of errors; the

likelihood of a correct decision depends on the amount of effort the judge

invests in deliberation on the case. Moreover, deliberation on a specific case

also provides a signal about the correct resolution of ‘nearby’ cases. Because

the court faces a resource constraint, the question of optimal organization of

judges arises. Kornhauser argues that, in appropriate circumstances, a

hierarchy will emerge in which there is (a) division of labor between trial

judges who find facts and appellate judges who determine the law; and (b) strict

vertical stare decisis so that lower court judges will always adhere to the

decisions of higher court judges. Models of hierarchy that emphasize the need

for consistency as in Rogers (1995) and Dorf (1995) are team models in which

the ‘correct decision’ requires consistency.

 

3. Team Models of Error Correction

 

Shavell (1995) is the earliest formal model of error correction. Shavell assumes

that the state must decide first, whether to establish both trial and appellate

courts or trial courts only; and second, how many resources to devote to each

level of court that it establishes. The probability of correct decision by a court

increases with increased allocation of resources to that court. The state seeks

to minimize social costs which consist of the costs of the judicial system and the

costs created by wrongly decided cases. A trial court is characterized by the

probability (as a function of state resources) that it will render the wrong

decision. Litigants know for certain whether a court has correctly decided their

case. An appellate court is characterized by two probabilities (as functions of

state resources devoted to appeal): the probability q(y) that an incorrect trial

decision will be reversed on appeal and the probability r(y) that a correct trial

decision will be reversed on appeal. Litigants know with certainty whether the

court has rendered a correct decision. Litigants face a cost to appeal. It is

straightforward to see that, if q(y) > r(y) and if the court can impose fees or

give subsidies for appeal, then the state can insure that only cases wrongly

decided at trial will be appealed.

 

Shavell then characterizes the state’s optimal strategy by showing when

appellate courts should be created and how resources should be divided between

trial and appellate levels. He also shows that litigant selection of cases is

superior to the random review of trial court decision. When a court undertakes

random review of lower court cases, it unnecessarily uses resources to

reconsider some correctly decided cases; under litigant selection (with the

appropriate subsidies and fees), by contrast, only cases that should be

reconsidered are in fact reviewed.

 

Cameron and Kornhauser (1996) offer a more strategic model of error

correction that formalizes a portion of the argument in Kornhauser (1995).

Their paper divides into two distinct parts. First, they identify conditions under

which it would be desirable to add an additional level of appeal to a court

structure. They define the selectivity of a process as the ratio of the proportion

of wrongly decided cases that would be appealed to a new tier to the proportion

of correctly decided cases that would be appealed to a new tier. They define the

error correction ratio as the ratio of the probability that the new appellate court

would reverse a wrongly decided case on appeal to the probability that the new

appellate court would uphold a rightly decided case on appeal. They prove that

an additional tier of review is desirable if the appeals process is sufficiently

selective or sufficiently error correcting.

 

The second part of Cameron and Kornhauser’s argument considers a

particular technology of review. The correct decision of a case depends on the

defendant’s type which, initially, is known to the defendant but not to the

plaintiff. At trial, the plaintiff, but not the court, becomes fully informed about

the defendant’s type. A court’s ability to discriminate among defendant types

is a function of the effort it invests in the case. Litigants incur a cost each time

they appeal. Judges seek first to maximize the number of correct decisions; in

addition a judge prefers not to be reversed. Cameron and Kornhauser show

that, when litigants select cases for appeal, the hierarchy will have three tiers.

They also study the process when the appellate courts select cases for review.

 

4. Political Models of Review

 

4.1 Models of Pure Adjudication

Political models generally justify appellate review in terms of law making. They

do this in large part because the structure of the model requires that

interpretation. Each court usually has preferences over policy space. Thus, to

decide a case is to announce a policy, or, put differently, to announce a new

legal rule.

 

Cameron (1993) presents the political model of review in its starkest form.

There is one supreme court and n lower courts. Each court has spatial

preferences over a one-dimensional policy space. There is complete information

so that each lower court knows the supreme court’s ideal point and the supreme

court knows the location in policy space of the decision of each lower court.

Each lower court seeks to maximize its utility which depends only on the final

decision in the case it decides; the supreme court wants to maximize its utility

which is a function of the decisions in all cases. The game has two stages: in

stage 1, each lower court issues a decision; in stage 2, the supreme court selects

at most only one case for review. There is a unique equilibrium to this game in

which each lower court decides its case by announcing the ideal policy point of

the supreme court as its decision and the supreme court reviews no case because

it has already achieved its optimum utility. No other pattern of lower court

decisions is an equilibrium because, in any other pattern, the lower court that

will be reversed on appeal has an incentive to alter its strategy.

 

McNollgast (1995) offers a more elaborate political model, which focuses

on conflicts in the policy views of the supreme court, the legislature and the

lower courts. To enforce its views the supreme court must both induce lower

courts to adhere to its ‘doctrine’ and avoid reversal through legislation.

McNollgast extends the model of Cohen and Spitzer (1994). They consider a

three stage game in which the supreme court first identifies the range of

acceptable decisions in policy space. In stage 2, the lower courts decide whether

to adhere to supreme court ‘doctrine’. In stage 3, the supreme court reviews

some subset of the lower court decisions; the number of cases reviewed is

determined by the supreme court’s budget. Each case presents a single issue in

a K-dimensional policy space. Each judge has separable, spatial preferences

over this policy space, an assumption that reduces a decision in any given case

to the framework outlined in Cameron. That is, each judge’s preferences can

be represented by an ideal point in each dimension such that she prefers any

decision closer to that ideal point to one further away. The supreme court has

preferences defined over the outcomes of all cases decided within the system

but each lower court has preferences defined over its case load only. Moreover,

the supreme court does not know either the ideal point of any specific court nor

the actual decision rendered by a lower court. The supreme court does know the

distribution of ideal points of lower courts and it does know whether a lower

court has complied with supreme court doctrine. It will thus choose to review

some random sample of non-complying lower courts; upon review it will learn

their actual decisions. Several results flow from this model. First, in general,

some but not all lower courts will comply with supreme court doctrine;

compliance, however, results from the threat of enforcement. Second, the game

has a unique Bayesian equilibrium. Third, as the costs of enforcement rise, the

supreme court may expand the range of acceptable lower court decisions.

 

4.2 Models of Adjudication Embedded in a Constitutional System

Many if not most cases on the appellate docket do not present common law

issues; rather they raise issues of statutory or constitutional interpretation. The

decisions of the courts thus rely on, and affect, the decisions of other political

actors including administrative agencies, legislatures and the executive. Most

applications of the political model to adjudication have concerned these

institutional relations.

 

The two earliest applications to adjudication appear to be Ferejohn and

Shipan (1990) and Gely and Spiller (1990). They adopt similar but not

identical frameworks. Specifically, Ferejohn and Shipan assumed that all

political actors had preferences over a one-dimensional policy space while Gely

and Spiller assumed that institutional actors had preferences over a

multi-dimensional policy space. I set out the Ferejohn and Shipan model here

because of its simplicity and because most subsequent models exploit their

formulation. Gely and Spiller (1990) is discussed in Section 5 in the context of

its interesting model of doctrine.

 

Ferejohn and Shipan analyze the effects of judicial review on the activities

of administrative agencies. In addition to the assumption of a one-dimensional

policy space, their results depend critically on the sequence in which the

institutions act. In their model, the agency acts first. It is then subject to judicial

review. The court, in turn, is subject to potential legislative overrides. (They

study both the case of overrides that require a presidential veto and those that

do not.) They show that judicial review may shift the equilibrium policy

towards the policy preferred by the legislature.

 

Eskridge and Ferejohn (1992a, 1992b) use the model in Ferejohn and

Shipan to analyze the balance of powers in the US Constitution in general and

the effect of INS vs. Chadha, on that balance of power. Chadha ruled that

legislative vetoes of administrative action were unconstitutional. According to

Eskridge and Ferejohn this ruling shifted power to the agencies; put differently,

the decision made Congressional delegations of power to administrative

agencies less desirable.

 

The literature employing variants of this political model have proliferated.

For instance, Gely and Spiller (1992) present a three-stage game in which, in

the first stage, an administrative agency announces an interpretation of a

statute; in the second stage the court reviews the agency interpretation; and in

the third stage the legislature decides whether to overrule the Supreme court

and announce its own policy outcome. Note that in each stage the interpretation

is an announcement of a policy. Each actor has spatial preferences over a one

dimensional policy space. The model predicts that the court will always pick

that policy that is best for it and just avoids legislative overruling. Gely and

Spiller investigate several variants of this structure in which the legislature is

modeled somewhat differently. They then test their model on data from the

United States National Labor Relations Board and subsequent review.

 

Cohen and Spitzer (1994) apply this political model to the analysis of the

effects of another Supreme Court decision, Chevron U.S. A. Inc. v. Natural

Resources Defense Council Inc, which required courts to grant more deference

to an administrative agency’s own interpretation of statutes it implemented.

They assume political actors have preferences over policy-deference pairs. They

then show that the Supreme Court’s rulings on deference respond to the relative

pattern of policy preferences among the other institutional actors: president,

congress, and the appellate court.

 

Toma (1991, 1996) has argued that the congressional budgetary process

serves as a means to control the decisions of the Supreme Court by signaling

approval or disapproval of the Court’s behavior. Again, both justices and

Congress have spatial preferences over policy space. She examines two times

series of decisions of the Supreme Court of the United States: one consists of

civil liberties cases decided from 1946 through 1988 and the other of economic

liberties cases decided over the same time period. She determines the ‘average

degree of liberality’ of each of these two yearly portfolios of decision and

similarly takes the average ADA rating of the members of the judiciary

subcommittee of the Senate and House appropriations committees. For each

group of cases, she then regresses the size of the yearly Supreme Court budget

on the divergence between the judicial and congressional liberality ratings; she

finds a statistically significant pattern with the budget rising when Supreme

Court opinions conform more closely to the views of Congress. She then

regresses the liberality of the judicial portfolio against the Supreme Court

budget, the parameter of which is also statistically significant.

 

4.3 Some Other Empirical Studies

There is a vast American political science literature that seeks to determine the

effects of the ‘ideological’ views of the judges on judicial decisions. This

literature in general implicitly accepts the political model of adjudication and

it generally finds at least some influence of ‘ideology’ on outcome, where the

judge’s ideology is measured either by her political affiliation or the affiliation

of the appointing president. In this section, I consider three recent studies

within the legal-economic framework.

 

The first study, Eisenberg and Johnson (1991), examined 118 federal

district court opinions and 66 federal circuit court opinions in racial

discrimination cases decided under the fourteenth amendment to the US

Constitution. These opinions constituted all opinions on this issue published

between 7 June 1976 and 6 February 1988. Eisenberg and Johnson found no

effect of ideology, measured either by party of judge or of appointing president,

on outcomes at either the district or appellate level. They attempted to evaluate

the effects of the selection of cases for trial on their results by comparing trial

success rates and success rates on appeal in the class of cases that they studied

to these success rates in other classes of cases.

 

Ashenfelter, Eisenberg and Schwab (1995) (‘AES’) also found no effects of

ideology. In a clever research design, they studied 2258 federal civil rights and

prisoner cases filed in three federal districts courts in fiscal 1981. Unlike most

prior studies, AES examined the effects of ideology not only on cases with

published opinions but on all case dispositions. AES determined whether a case

settled and, if it did not settle, which party prevailed. They also collected data,

including party and party of appointing president, on each of the 47 different

judges who sat on some case in the sample. AES then analyzed this data by

district. This district analysis permitted them to exploit the federal practice of

random assignment of cases to judges. Any observed differences in behavior

across judges could be attributed to differences in judges rather than differences

in cases. They found that judges had relatively little effect on case disposition.

Moreover, ‘ideological’ variables did not explain the small effects observed.

 

Revesz (1997) studied the industry and environmental challenges to EPA

rulemaking in the 1970s and the late 1980s through early 1990s. This sample

of cases has two features that make it a nearly ideal sample for analysis. First,

all such challenges were heard in the Court of the Appeals for the District of

Columbia. Second, virtually all challenges to EPA rulemaking are appealed.

Given the legal context, there is no opportunity for the agency to settle with

dissatisfied litigants. Following AES, Revesz focused on time periods in which

a large number of judges had continuous tenure on the Circuit; he restricted his

analysis to these judges. He measured the judge’s policy preferences by the

party of the appointing president, assuming that Republicans would favor

industry challenges and disfavor environmental challenges relative to

Democrats. For the late 1980s through early 1990s, he observed that ideology

had a clear effect on industry challenges and a more ambiguous effect on

environmental challenges. (A different statistical test, however, would likely

reveal a stronger ideological effect in environmental challenges.)

 

5. Modeling Doctrine

 

Courts in common law systems do more than announce an outcome ‘upheld’

or ‘reverse’ to an appeal. An opinions offers a rationale for the decision and it

is this rationale which guides the decisions of lower courts. To study appeal,

then, the analyst must model this ‘doctrinal’ structure. The literature reveals

two distinct approaches to modeling doctrine, approaches that have already

been alluded to in the prior discussion. The importance of the issue, however,

merits a brief exposition of the two approaches.

 

One approach, first set forth in Kornhauser (1992b), describes a case as a

vector of fact characteristics. Kornhauser then defines a cause of action as a

pair (S,f) where S is a class of subsets S of the fact space and f is a collection

of functions fS from each subset S into a two-element set that might be

interpreted as (proven, unproven) or (for plaintiff, for defendant). Each S in S

is an issue. A case is then a collection of causes of action. For plaintiff to

prevail on a case, she must prevail on at least one cause of action; to prevail on

a cause of action, the plaintiff must prevail on every issue. The approach

models doctrine essentially in terms of a partition on the fact space and sees the

development of the law in terms of changes in this partition. The approach has

been followed in Kornhauser (1995), Cameron and Kornhauser (1996) and

Cameron, Siegel, and Songer (1996).

 

The second approach, which adapts the framework of Ferejohn and Shipan

and has been employed by Schwartz (1992), Cohen and Spitzer (1994) and

McNollgast (1995), assumes that the Supreme Court has preferences over a

two-dimensional space. One dimension remains the policy space in the original

political model. The second dimension, variously called ‘deference’ or

‘precedent’, explicitly measures the judge’s level of tolerance for deviation from

her optimal policy choice. In one sense, this modeling strategy parallels that of

the first approach; it also yields a partition of the policy space. More

fundamentally, however, this second approach remains inherently ‘political’

and non-legal; it makes no reference to the facts of a case or features of legal

discourse that appear in an opinion.

 

Gely and Spiller (1990) offer a variant of this political model of doctrine

that acknowledges some of the structure captured in the legal model. In their

model, justices (and other political actors) have preferences over a

multidimensional policy space. They seek to explain the Court’s choice of

grounds - constitutional or non-constitutional - for the Court’s review of agency

action. They argue that a constitutional decision restricts the discretion of the

agency (or of other political actors) by lowering the dimensionality of the policy

space from which the agency may choose a policy. This ingenious idea captures

the effect of doctrine without requiring that one model the legal attention to

facts and explicit doctrinal structure.

 

In political models, ‘doctrine’ generally serves to explain the extent of

discretion granted to lower courts (or administrative agencies). Thus, Cohen

and Spitzer (1994) argue that the amount of discretion is a function of the

ideological alignment of the Supreme Court relative to other political actors.

McNollgast (1995) prove that, as the number of cases in a particular area

increases, the amount of discretion granted lower courts never decreases and

it may increase.

 

6. Collegiality

 

Generally, an appeal is decided by a panel of judges rather than a single judge.

In the United States, the three judge panels that sit on federal intermediate

appeals courts are drawn from a larger bank of judges while the nine justices

of the Supreme Court sit en banc. The inverted pyramidal structure of the

federal hierarchy in the United States in which the size of the panel deciding

a case increases as the case rises through the system is a nearly universal

feature of court systems. The highest courts in some civil law countries (for

example, the Cour de Cassation in France), however, function similarly to the

federal intermediate courts, with each case decided by a panel drawn from a

larger bench.

 

Collegiality presents several puzzles. First, why are appellate courts

collegial and why does the number of judges increase as one proceeds up the

hierarchy? Second, what consequences for adjudication does collegiality have?

The economic literature began with Easterbrook (1982) which addressed the

second question.

 

6.1 Why Are Appellate Courts Collegial?

Posner (1985, p. 12) offered several reasons for the existence of collegiality on

the Supreme Court: (a) multiple judges reduce the costs of poor appointments;

(b) a multiplicity of judges reduces the power of any single judge on a court

which has vast power; (c) a multiplicity of judges allows the court to benefit

from deliberation; and (d) a multiplicity of judges permits the division of the

labor of opinion drafting and hence increases the productivity of the court.

 

Kornhauser and Sager (1986) provided a more systematic analysis of the

reasons for collegiality. First, they distinguished two conceptions of

adjudication: the rendering of judgment and the expression of preferences.

They then suggested three different models of collegial adjudication, each of

which identified a distinct standard against which to measure judicial

performance. (1) One might view collegial courts as engaged in the aggregation

of the preferences of the judges on the court and one would measure the quality

of the court by its authenticity, the extent to which the court’s judgment

correctly reflects the preferences of the judges. (2) One might view collegial

courts as engaged in the aggregation of judgments and one would evaluate the

court’s procedures in terms of their accuracy, that is, their ability to ‘get the

right answer’ however one defines the right outcome. (3) One might view

collegial courts as representative institutions that seek to reach the outcome that

the represented body would have reached had they deliberated and voted. This

representative model suggests two different evaluative measures: fit, which is

simply the tendency to arrive at results that the represented group would have

reached and reliability, which is the absence of bad surprises.

 

Kornhauser and Sager reject preference aggregation as an appropriate

understanding of adjudication. This eliminates authenticity as an evaluative

measure. They then argue that increasing the numbers of judges improves

accuracy, fit and reliability. They focus specifically on accuracy and rely on the

Condorcet Jury Theorem.

 

Good and Tullock (1984) offers a representation model of Supreme court

collegiality. The Justices of the Supreme Court are treated as a representative

sample of the population of competent lawyers. Good and Tullock calculate the

probability p(r,s) that a case decided by a vote of r to s will fit the decision of

the represented group. They determine that p(5,4) = 0.62304 and p(9,0) =

0.99902.

 

6.2 Consistency and Coherence

In the first model of collegiality, Easterbrook (1982) relied on simple social

choice arguments to argue that one could not expect the Supreme Court of the

United States to generate a consistent body of case law. Easterbrook assumed

that each case presented the Court with a choice between two legal rules to

govern a particular doctrinal realm. When more than two legal rules were

possible and no rule was a Condorcet winner, the Court’s case law would cycle

as successive cases challenged the prevailing rule with an alternative that a

majority of the Court preferred.

 

Kornhauser and Sager (1986) distinguished between consistent and

coherent patterns of decisions. A court that decides cases consistently will

decide identical cases identically. The definition of coherence was less clear;

a court that decides coherently creates a body of law that exhibits the quality of

conceptual unity. They then argued that a panel of judges, each of whom had

a consistent view of the law would produce a consistent body of law; but a panel

of judges, each of whom had a coherent conception of the law, need not yield

a coherent body of decisions.

 

Kornhauser (1992a) extended this analysis. Kornhauser identified three

different bases of judicial decision: result-bound, rule-bound, and reason-bound

decision. In a result-bound decision process, the court is obligated to respect the

results of the prior decisions of the court; in a rule-bound process the court is

obligated to respect the rule announced in prior cases while a reason bound

court respects the reasons provided in prior decisions. He then argued that, with

a rule of strict stare decisis, law in a result-bound judicial system will generally

be path dependent and consistent.

 

Stearns (1995) offered an analysis of the development of the law in a

collegial court that contained elements of both Easterbrook’s and Kornhauser

and Sager’s analysis. Stearns, like Easterbrook, viewed adjudication as

rule-bound though he abandoned Easterbrook’s assumption that a case

presented only two rules. Stearns, however, emphasized the role of both stare

decisis and standing doctrine in ameliorating any cycling problems.

 

6.3 Voting on Collegial Courts

The doctrinal paradox Kornhauser and Sager (1986) noted a paradoxical

feature of collegial adjudication which later attracted extensive comment.

Specifically, they considered a case that presented two distinct issues for

decision. Legal doctrine determines the relation between the decisions on each

issue and the decision on the case. In some circumstances, the procedure the

court adopts for aggregating votes will determine the outcome of the case. They

discussed two procedures: case-by-case adjudication in which each judge

registers her view of how the case should be decided and the court aggregates

these votes to reach a majority judgment. Alternatively, each judge may register

her view on each issue in the case should be decided; the court then aggregates

the votes on each issue and applies the legal doctrine to the issue-by-issue

results to reach a judgment in the case.

 

Kornhauser (1992b) named this conflict ‘the doctrinal paradox’ and

extended this analysis in several ways. Recall the formalization of doctrine in

this article that was summarized in Section 5. A single judge decides a case by

deciding each legal issue in each cause of action. To prevail on a cause of

action, the plaintiff must prevail on each issue; to prevail in the case, she must

prevail on at least one cause of action. On a multi-member court, the two

different aggregation methods may lead to different results. Kornhauser showed

that the doctrinal paradox was distinct from the Condorcet cycle. When the

judges’ orderings of outcomes (described as the vector of outcomes on each

issue) yield a Condorcet cycle issue-by-issue and case-by-case voting might not

conflict. Conversely, when the judges’ orderings produced a Condorcet winner

over outcomes, the issue-by-issue result might differ from the case-by-case

result. Finally, he analyzed several actual instances in which the doctrinal

paradox arose.

 

Rogers (1991) examined and classified all plurality opinions of the United

States Supreme Court. He counted approximately 150 such cases. Of these he

identified only eight cases in which the vote of one or two justices effectively

resulted in a court aggregation of votes on an issue-by-issue, rather than a

case-by-case, basis. He argued further that the limited doctirnal incoherence of

case-by-case aggregation was normatively preferable to the inconsistency and

indeterminacy that may result from issue-by-issue adjudication. Leonard (1984)

found a similar paucity of instances of issue-by-issue aggregation in a study of

decisions in criminal cases by the highest courts of Alabama, California,

Indiana, and New York. Rogers based his argument for case-by-case voting on

the grounds that issue-by-issue adjudication may lead to unfair results.

 

Post and Salop (1992) argued that collegial courts should always aggregate

votes issue-by-issue. They did so on several grounds. First, they disputed the

unfairness of case-by-case aggregation. Second, they argued that case-by-case

aggregation led to path-dependent decision making; framed more positively,

they argued that an aggregation procedure should yield the same results

regardless of the order in which cases arrive before the court. Third,

issue-by-issue aggregation promotes collegial deliberation by inducing the

judges to join issue. Post and Salop (1996) expand and clarify their argument

in favor of issue-by-issue voting. They note that issue-by-issue voting clarifies

the law more quickly than case-by-case voting. Kornhauser and Sager (1993)

then extended their earlier analysis of the doctrinal paradox. They emphasized

the peculiar nature of actual Supreme Court practice which permitted each

judge to count votes as he wished and which suppressed discussion of the

aggregation procedure. they argued that the Court should justify its decision on

whether to resolve case issue-by-issue or case-by-case because the appropriate

decision procedure was context-dependent.

 

Rogers (1996), Stearns (1996) and Post and Salop (1996) then recapitulated

the debate over the appropriate aggregation method. Rogers noted importantly

that issue-by-issue voting required the Court to identify a set of issues on which

each judge should vote and illustrated the complexity of this task. Stearns

(1996) argues that in fact agreement on issues is not as difficult as Rogers

suggests. Post and Salop (1996) also argue that the identification of issues is

less problematic than Rogers asserts.

 

Sincere vs. sophisticated voting Analysis of the doctrinal paradox assumed that

each judge voted ‘sincerely’ on each issue regardless of the method of

aggregation of the votes on the court. (Defining ‘sincerity’ in the context of

multiple issue cases presents difficulties that are addressed in a different voting

context in Benoit and Kornhauser (1995).) An assumption of sincerity comports

well with a team model; it does not easily fit into a political model. In a

political model, a self-interested, rational judge should foresee the results of

sincere votes that might be detrimental to the realization of her interests.

 

Spiller and Spitzer (1995) ask whether judges are voting sincerely or with

sophistication. They assume a court with one sincere judge and show how that

judge can be manipulated by sophisticated judges. In their model, the judges

and the legislature play a two-stage game. In stage 1, the Court interprets a

statute and in stage 2, the legislature decides whether to overrule the court’s

interpretation. All judges and legislators have preferences over a onedimensional

policy space. The model predicts that (1) the legislature will

frequently overrule the court and (2) coalitions of extremes will often form.

They then contend that, as these phenomena are not observed, one should

assume that all judges vote with sophistication.

 

Revesz (1997), in his study of environmental decisions by the DC circuit,

tested for effects of panel composition on the voting behavior of individual

judges. In particular, he asked whether the reversal rate of a judge depended on

whether she was in the minority or a majority on the panel. He identified

judicial policy preferences with the party of the appointing president and found

substantial differences between the voting behavior of judges in an ideological

minority on a panel from those in an ideological majority.

 

Schwartz (1992) does not explicitly address the question of sincere vs.

sophisticated voting. He does, however, present a political model of ‘doctrine’

in which each justice acts in a strategic manner. As discussed in Section 4,

‘doctrine’ here refers to a feature of vertical precedent: the probability that a

lower court will respect the Supreme Court’s policy announcement in the case.

Thus, in this model, justices have preferences over a two-dimensional space.

Each justice has an ideal policy; the second dimension measures the degree of

precedent that the justice attaches to the policy. The justice’s preferences are

for less strict precedent the more distant the announced policy is from his ideal

policy.

 

Each case presents the Court with a choice between two policy alternatives.

The sequence of the game is as follows. First, the justices vote in reverse order

of seniority for one of the two policy alternatives. Second, the senior member

of the majority designates an opinion writer who voted for that alternative; the

senior member of the minority also designates an opinion writer. Third, each

opinion writer drafts an opinion that specifies a level of precedent for the

proposed policy. In the fourth stage, the Justices vote between the two

policy/precedent pairs represented by the two opinions. The majority vote

determines the outcome.

 

Schwartz restricts his analysis to the case in which the Court initially

divides five to four between the two policy alternatives. He calculates the range

of precedent that is invulnerable to invasion by the minority. The senior

member of the majority can then pick an opinion writer that will draft an

opinion with the optimal level of precedent from the senior members point of

view. Schwartz then illustrates his analysis through a discussion of some

reapportionment cases.

 

7. Discretionary Review

 

The United States Supreme Court has a largely discretionary jurisdiction. This

discretion cannot be explained in a team model of error correction when

litigants select which cases to appeal, for, as Cameron and Kornhauser (1996)

show, the optimal hierarchy will have only three tiers and the highest tier will

hear no cases. Discretionary review, however, might be explained in a team

model in which the Supreme Court has lawmaking powers.

 

Cameron, Siegal and Songer (‘CSS’) (1996) use a political model to study

the Supreme court’s certiorari procedure. They assume that the Supreme Court

serves only to correct error. As is typical in political models, both higher and

lower courts have preferences over a one-dimensional policy space. As in

Cameron and Kornhauser (1996), each case is characterized by a single

parameter and each court is characterized by an ideal point so that defendant

should prevail if the value of the case parameter is less than the court’s ideal

point. For ease of exposition, CSS assume that the ideal point of the Supreme

court lies to the right of the lower court’s ideal point. Consequently, the two

courts disagree about the appropriate resolution of the case if its parameter lies

in the interval between the two ideal points. The Supreme court has

discretionary authority to review but it decides to review the lower court

decision on the basis of an index of the parameter rather than the true value

which is both known to the lower court and would be revealed to the Supreme

Court in the course of a review on the merits. Each court wants to maximize the

number of correct decisions (from its point of view); lower courts get disutility

from reversal and the Supreme court incurs cost in the event it decides to

review a case on the merits. CSS characterize the equilibrium strategies of both

lower court and Supreme court. They then present an exploratory analysis of

Supreme Court certiorari practice in search and seizure cases between 1972 and

1986.

 

Discretionary review in the US Supreme Court employs a submajority rule

of four of the nine justices to trigger review. This submajority review raises

interesting legal and strategic questions concerning the behavior of the Justices

themselves. Revesz and Karlan (1988) presented a largely legal analysis of this

rule (and a ‘Rule of Three’ governing the granting of stays) but their analysis

raises a number of issues for economic analysis. They argue that the rule of four

creates a legal process with less stable precedent than a process in which

discretionary review required a majority.

 

8. Stare Decisis

 

Stare decisis refers to a set of practices peculiar to Anglo-American courts in

which one court adheres to its own prior decisions or to the decisions of a

higher court. For a fuller discussion of the legal aspect of these practices,

references to the legal literature and the modeling questions they present, see

Kornhauser (1998).

 

Several models of horizontal and vertical stare decisis have appeared in the

literature. In this section, I shall focus primarily on models of horizontal stare

decisis in which a court follows its own prior decisions. Discussions of vertical

stare decisis are implicit or explicit in most political models of hierarchy

because these models pose as one of the key questions the extent to which lower

courts comply with the rulings of higher courts. Vertical stare decisis in a team

model is discussed in both Kornhauser (1995) and Cameron and Kornhauser

(1996). Kornhauser (1995) argues that vertical stare decisis arises because of

the benefits presented by specialization of labor between fact finding and law

making and for error-correction reasons. Cameron and Kornhauser (1996)

investigates the error-correction justification in detail.

 

Heiner (1986) argues that stare decisis arises because courts only observe

the ‘correct’ answer to specific cases with error. A judge might then do better

to announce a decision that is best ‘on average’ (for some class of cases) and

adhere to that decision rather than to make a series of errors on a case-by-case

basis.

 

Kornhauser (1989) characterized horizontal stare decisis as a practice in

which a court adheres to a decision it believes to be wrong. He offers two

informal models based on two distinct justifications for the practice. The first

model applies to a ‘panel court’ in which each case is decided by one or more

judges drawn from a larger bench. If judges have different views of the law then

stare decisis serves to reduce legal uncertainty faced by actors governed by the

legal rule. The second model assumes a unitary court with an unchanging

social objective; the court however faces a world in which the optimal behavior

(as viewed from its perspective) changes because some underlying parameters

change. Kornhauser’s model modifies that in Blume and Rubinfeld (1982) in

which the court, through its announcement of standards of care, seeks to

minimize the costs of accidents and the costs of adjustment to new standards.

In the Blume and Rubinfeld model, the court does not adopt a practice of stare

decisis; rather, as the technology of care shifts, the court adjusts gradually

towards the standards that would be optimal in an unchanging world with the

new technology. In Kornhauser’s version, a court must announce standards of

care in a world in which the technology of accident care is improving at a

known rate. The court adheres to stare decisis as long as the standards of care

optimal under the new technology are not too far from the old standards.

Otherwise it announces new standards that overshoot those currently optimal.

 

Rasmusen (1994) presents a political model for horizontal stare decisis.

Rasmusen’s model provides a formal justification for an argument implicit in

O’Hara (1993). The court consists of a single judge who decides n + 1 cases

and is then replaced by another judge who also decides n + 1 cases. Each judge

has preferences over the outcomes of all cases and these preferences differ.

Assume that only one of these n + 1 cases is a case of first impression. Under

a practice of stare decisis each judge would adhere to the n prior decisions

governing n of his cases and n subsequent judges would adhere to the decision

he announces in his case of first impression. Rasmusen shows that a practice

of stare decisis is an equilibrium to this game.

 

9. Concluding Remarks

 

The study of judicial organization in general and the nature and function of

appeal in particular is in its infancy. Though analysts have begun to investigate

the reasons for hierarchy, the nature of the interaction among courts and other

political branches, and the internal workings of the courts themselves, most

questions remain open or even unaddressed.

 


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