Hard Cases Make Bad Law? A Theoretical Investigation

Abstract

I use formal models to probe the aphorism “hard cases make bad law.” The analysis illuminates important features of the common law process, especially the influence of case characteristics on lawmaking and the role of strategic litigators. When a case raises concerns that are not reflected in doctrine, the court might distort the law to avoid a hardship. Distortion is more likely when the case is important or the facts are close to the border of legality. Litigators may exploit courts’ attention to extra-doctrinal concerns by strategically selecting cases for litigation. Surprisingly, though, a strategic litigator improves lawmaking relative to random case selection--even when her preferences are far from the ideal rule--if her influence over case selection is modest. The effect is more nuanced when the strategic litigator has greater selection power. Finally, the analysis incorporates a judicial hierarchy with asymmetric information and factfinding discretion.

Keywords: hard cases, hard cases make bad law, strategic litigators, cause lawyers, common law process, judicial hierarchy, jurisprudence, formal models of litigation, formal models of jurisprudence

JEL Classification: K41, K40, D02, D78, H12