A Theory of Opinion Writing in a Political Hierarchy

Abstract

We develop a model of opinion-writing in the judicial hierarchy. The model adopts a case-space approach to judicial decision-making and exploits informational asymmetries across levels of the hierarchy. In the model, a lower court writes an opinion with two features: a legal rule and a level of quality. An upper court must then decide whether to review the decision. The model yields new insights about the strategic incentives created by the judicial hierarchy. Empirical predictions are derived which demonstrate that several common tests employed in the literature may not discriminate among competing sets of first principles. Additional implications for rule-making in a bureaucratic hierarchy are also considered.