Legal Doctrine and Political Control

Posted: 23 Jun 2008  

Multiple version iconThere are 2 versions of this paper

Date Written: June 2007

Abstract

We model legal doctrine as an instrument of political control by higher courts over lower courts and the case outcomes they produce. We focus on the choice between determinate and indeterminate doctrines within a hierarchy of courts where political-ideological alignment between lower and higher courts varies. We show that the choice over doctrinal determinacy depends on the distribution of cases, the distribution of litigants, judicial types, and the level of policy alignment between higher and lower court judges. The model suggests the optimal doctrinal choice for a high court, given the political-ideological alignment between the high court and the lower court, the control characteristics of doctrines themselves, and the matching of doctrines to litigant pools. This has implications regarding preference divergence within the judicial hierarchy, the interaction of different doctrines, and interplay between doctrinal specificity and doctrinal reach.

Suggested Citation

Jacobi, Tonja and Tiller, Emerson H., Legal Doctrine and Political Control (June 2007). The Journal of Law, Economics, & Organization, Vol. 23, Issue 2, pp. 326-345, 2007. Available at SSRN: https://ssrn.com/abstract=1150027 or http://dx.doi.org/10.1093/jleo/ewm022

Tonja Jacobi (Contact Author)

Northwestern University - Pritzker School of Law ( email )

375 E. Chicago Ave
Chicago, IL 60611
United States

Emerson H. Tiller

Northwestern University - Pritzker School of Law ( email )

375 E. Chicago Ave
Chicago, IL 60611
United States

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