Discretionary Review and Undesired Cases

37 Pages Posted: 26 Dec 2015 Last revised: 16 Feb 2020

See all articles by Shay Lavie

Shay Lavie

Tel Aviv University - Buchmann Faculty of Law

Date Written: December 24, 2015


Courts sometimes face cases that may result in adverse post-judgment official or public reactions. Such real-world repercussions — e.g., open defiance by public officials — can be more costly for the court than the benefit of hearing and deciding the case. In these situations the court may be better off not taking the case from the outset. This paper examines how courts deal with such cases when they can avoid adjudication — discretionary dockets. Using a stylized screening model, the paper examines the implications of such discretion. In particular, it shows that some undesired real-world outcomes are inevitable; and that broad control over their dockets should lead judges to take fewer cases in which the government is involved. Further, the paper discusses this logic from a comparative design perspective. The two prevalent models of judicial review, the American and the European, seem to take opposing stances on discretionary review; however, both narrow supreme courts’ control over their dockets, either by directly limiting their discretionary jurisdiction or by decentralizing judicial review.

Keywords: Judicial decisionmaking, Discretionary review, Supreme and constitutional courts

JEL Classification: K40, K41, K49

Suggested Citation

Lavie, Shay, Discretionary Review and Undesired Cases (December 24, 2015). 44 European Journal of Law and Economics 265 (2017), Available at SSRN: https://ssrn.com/abstract=2707975

Shay Lavie (Contact Author)

Tel Aviv University - Buchmann Faculty of Law ( email )

Ramat Aviv
Tel Aviv 69978, IL
972-3-6409146 (Phone)

HOME PAGE: http://www.law.tau.ac.il/Eng/?CategoryID=242&ArticleID=548

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