Explaining Difference in the Quantity of Supreme Court Revisions: A Model for Judicial Uniformity
Pablo, B. H., & Bustos, Á. (2019). Explaining Difference in the Quantity of Cases Heard by Courts of Last Resort. American Law and Economics Review, 21(2), 346-393.
46 Pages Posted: 16 Dec 2016 Last revised: 20 Feb 2020
Date Written: December 16, 2016
While civil law supreme courts (e.g., Italy, France, Chile) hear up to 90% of the petitions for revisions, common law supreme courts (e.g., U.S., U.K, Canada) hear as low as 1% of the same type of cases. In this study we postulate that these different commitments towards revisions are each consistent with different approaches by which the legal system provides judicial uniformity.
We formulate a theoretical model that shows that a given level of uniformity in lower (or appeal) court decisions can be achieved either by fixing a given probability of judicial revision or a given monetary/non-monetary dis-utility associated with a reversal. Hence, despite the fact that common law legal systems are characterized by a lower probability of case revision, we cannot state a priori that judicial uniformity is greater in civil law systems, as this will depend upon the magnitude of the dis-utility associated with a reversed decision. Indeed, with the exception of the impact upon career concerns (which net effect is not clear) in terms of ideology, reputation and legal standards, reversal dis-utility seems to be much higher in common law systems than in civil law systems. In addition, we demonstrate that in an efficient legal system the optimal number of revisions increases with the size of the reversal dis-utility, but decreases with the probability that the supreme court makes erroneous decisions; the total number of cases soliciting revision and the intrinsic utility obtained by a lower court which enforces its desired rule. We also show that in an efficient legal system it is the judicial law-making role of a common law supreme court that explains why that Court revises fewer cases than a civil law supreme court.
Keywords: Supreme court caseload, Common law vs civil law, Legal uniformity
JEL Classification: K10, K40, K41
Suggested Citation: Suggested Citation