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Reversal, Dissent, and Variability in State Supreme Courts: The Centrality of Jurisdictional Source

42 Pages Posted: 6 Jan 2008 Last revised: 17 Mar 2008

Theodore Eisenberg

Cornell University, Law School (Deceased)

Geoffrey P. Miller

New York University School of Law

Date Written: January 2008


State Supreme Courts (SSCs) exercise two major sources of authority: mandatory and discretionary jurisdiction. This article assesses 7,055 SSC cases decided with written opinions in 2003 to provide the first comprehensive study of the relation between jurisdictional source and SSC performance. Approximately half the cases were discretionary and half were mandatory. Jurisdictional source is associated with several important aspects of SSC behavior. Aggregated across states, 51.6 percent of discretionary jurisdiction cases resulted in reversal compared to 28.1 percent for mandatory cases. Dissent rates also vary by jurisdictional source: 26.7 percent of discretionary cases generated at least one dissenting opinion compared to 18.8 percent of mandatory cases. Striking interstate variation overlays the mandatory-discretionary distinction. Reversal rates in SSC discretionary jurisdiction cases ranged from 88 percent in Texas to 31 percent in Ohio. Across courts with substantial mandatory jurisdiction, reversal rates ranged from 68 percent in Arizona to 13 percent in Florida and 9 percent in the Texas Court of Criminal Appeals. These results are robust to models that account for state and case category effects. Surprisingly, after controlling for state and case category, discretionary case opinions are short than mandatory case opinions. Our evidence suggests that studies of SSC outcomes, dissent patterns, judicial policy preferences, and other characteristics should take account of jurisdictional source.

Keywords: courts, jurisdiction, selection effects

JEL Classification: K10, K20, K30, K40

Suggested Citation

Eisenberg, Theodore and Miller, Geoffrey P., Reversal, Dissent, and Variability in State Supreme Courts: The Centrality of Jurisdictional Source (January 2008). NYU School of Law, Public Law & Legal Theory Research Paper No. 08-01; NYU School of Law, Law and Economics Research Paper No. 08-01; Cornell Law School Legal Studies Research Paper Series. Available at SSRN: or

Theodore Eisenberg (Contact Author)

Cornell University, Law School (Deceased) ( email )

Myron Taylor Hall
Cornell University
Ithaca, NY 14853-4901
United States

Geoffrey Miller

New York University School of Law ( email )

Center for the Study of Central Banks
40 Washington Square South
New York, NY 10012-1099
United States
212-998-6329 (Phone)
212-995-4590 (Fax)

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