104 Pages Posted: 4 Apr 2016 Last revised: 20 Apr 2016
Date Written: March 29, 2016
Commentators have explored the Supreme Court’s certiorari process in detail, examining the practice through doctrinal, historical, empirical, and even economic lenses. Similarly, a few commentators have attempted to analyze the relationship between the Supreme Court and the lower courts using tools from economics and political science. But no commentator has investigated the critical role played by transaction costs in the certiorari game, and no one has incorporated those costs into a model of court behavior. Until now.
Given the ubiquity of transaction costs in the Supreme Court’s case selection process, this is a serious oversight. The Supreme Court’s commitment to deciding only truly important cases (and then only when properly framed) generates myriad costs for the Court. Moreover, many of the characteristics that make a particular lower court opinion “high-cost” and thus unlikely to be reviewed on certiorari are themselves within the control of the lower court.
I present an intuitively understandable but subtle and sophisticated two-dimensional spatial model of the certiorari game using pivotal politics and game theoretical tools to incorporate both the coalitional nature of Supreme Court decision-making and transaction costs into the process. I find that lower courts have some small ability to leverage coalition dynamics to insulate themselves from Supreme Court review, but that transaction costs provide far more protection for lower court opinions with which a majority of the Supreme Court would be inclined to disagree.
I further demonstrate that the lower courts can not only leverage existing transaction costs, but can also increase Supreme Court transaction costs to provide still further insulation from certiorari review. The Article concludes with discussion of real-world evidence of the phenomena and some preliminary thoughts on the implications of the analysis.
Keywords: game theory, Supreme Court, political science, pivotal politics, law & economics, certiorari, economic modeling
JEL Classification: C71, C72, C73, C78, D71, D72
Suggested Citation: Suggested Citation