Hard Cases Make Bad Law? A Theoretical Investigation

Journal of Legal Studies (Forthcoming)

Fordham Law Legal Studies Research Paper No. 3964820

58 Pages Posted: 28 Nov 2021 Last revised: 12 May 2022

Date Written: November 16, 2021

Abstract

I use formal models to probe the aphorism that “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

Suggested Citation

Shahshahani, Sepehr, Hard Cases Make Bad Law? A Theoretical Investigation (November 16, 2021). Journal of Legal Studies (Forthcoming), Fordham Law Legal Studies Research Paper No. 3964820, Available at SSRN: https://ssrn.com/abstract=3964820 or http://dx.doi.org/10.2139/ssrn.3964820

Sepehr Shahshahani (Contact Author)

Fordham University School of Law ( email )

140 West 62nd Street
New York, NY 10023
United States

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