Legal Doctrine and Political Control

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