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Legal Process, Legal Realism and the Strategic Political Effects of Procedural Rules


Frank B. Cross


University of Texas at Austin - Department of Information, Risk and Operations Management; University of Texas at Austin - School of Law; University of Texas at Austin

October 2005

U of Texas Law, Public Law Research Paper No. 80
U of Texas Law, Law and Econ Research Paper No. 065

Abstract:     
While decisions on procedural requirements in litigation might be considered the most purely legal decisions made by courts, realists have contended that even procedures are tools of ideological decisionmaking. Realists argue that the apparently neutral procedural requirements are created or applied precisely for their ideological implications. There are several forms of realism, though, that have not been distinguished. In absolute realism, each judge can justify his or her preferred outcome in the case, while a more sophisticated realism accepts that lower court judges' decisions are restrained by legal doctrines created for the very purpose of manipulating their ideological outcomes. In this study, the effects of certain procedures are tested via a large database of circuit court decisions, using threshold requirements such as jurisdiction and standing. The direct effect of the threshold procedures by dismissing actions is a consistently conservative one, as projected by the realists, and the procedures serve as a legal doctrine that produces systematically conservative consequences. The quantitative empirical results demonstrate that procedural threshold requirements have a profoundly conservative effect on judicial outcomes, especially in federal statutory cases. A study of the precedential effect of these decisions shows that it is self-multiplying, such that decisions on procedural threshold issues have considerable precedential impact on later court rulings.

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Date posted: November 6, 2005  

Suggested Citation

Cross, Frank B., Legal Process, Legal Realism and the Strategic Political Effects of Procedural Rules (October 2005). U of Texas Law, Public Law Research Paper No. 80; U of Texas Law, Law and Econ Research Paper No. 065. Available at SSRN: http://ssrn.com/abstract=837665 or http://dx.doi.org/10.2139/ssrn.837665

Contact Information

Frank B. Cross (Contact Author)
University of Texas at Austin - Department of Information, Risk and Operations Management ( email )
CBA 5.202
Austin, TX 78712
United States
512-471-5250 (Phone)
512-471-0587 (Fax)
University of Texas at Austin - School of Law ( email )
727 East Dean Keeton Street
Austin, TX 78705
United States
University of Texas at Austin
2300 Red River St., Stop E2700
PO Box Y
Austin, TX 78713
United States
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