Download this Paper Open PDF in Browser

Legal Doctrine and Political Control

35 Pages Posted: 6 Jul 2005  

Multiple version iconThere are 2 versions of this paper

Date Written: June 21, 2005

Abstract

Much of American legal discourse is driven by concern over how judges should follow or create legal doctrines - decision-making rules established or endorsed by higher courts that stipulate, with varying degrees of specificity, outcomes that should follow from underlying fact patterns. In this Article, we model legal doctrine as an instrument of political control by higher courts over lower courts and the case outcomes they produce. Working out of a Law and Positive Political Theory framework, we focus on the amount of judicial political control exercised in the choice between creating determinate (highly specified) and indeterminate (weakly specified) doctrines within a hierarchy of courts. The model assumes that the creators of legal doctrine - higher courts - are policy seeking actors who, within the limitations of professionalism and public legitimacy, manipulate the structure of legal doctrine to maximize political-ideological policy objectives. The key determinants of doctrinal choice in our model are (1) the amount of political-ideological alignment between lower and higher courts, (2) the inherent control characteristics of doctrines themselves, and (3) how the choice of doctrines maps on to preferred litigant successes.

Keywords: Positive Political Theory, Legal Doctrine, Judicial Hierarchy

Suggested Citation

Jacobi, Tonja and Tiller, Emerson H., Legal Doctrine and Political Control (June 21, 2005). Northwestern Public Law Research Paper No. 05-11. Available at SSRN: https://ssrn.com/abstract=752284 or http://dx.doi.org/10.2139/ssrn.752284

Tonja Jacobi

Northwestern University - Pritzker School of Law ( email )

375 E. Chicago Ave
Chicago, IL 60611
United States

Emerson H. Tiller (Contact Author)

Northwestern University - Pritzker School of Law ( email )

375 E. Chicago Ave
Chicago, IL 60611
United States

Paper statistics

Downloads
331
Rank
74,960
Abstract Views
2,857