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Lower Court Discretion

60 Pages Posted: 12 Oct 2006  

Pauline T. Kim

Washington University in St. Louis - School of Law


Empirical scholars typically model the judicial hierarchy in terms of a principal-agent relationship in which the Supreme Court, the principal, sets policy and the lower federal courts, as agents, must implement that policy faithfully. The law is a signal - the means by which the Court communicates its preferences. This article argues instead for recognizing the law as an independent normative force. Empirical scholars fail to take seriously the role of law because they reject as implausible formalistic accounts of its operation. This article advances a more nuanced account of how law shapes the decision-making environment, one that focuses on the presence of discretion. It explores how different types of discretion afford distinct types of power over law-making and case outcomes, and how that discretionary power is allocated between district and appellate courts. Paying attention to discretion suggests features of the judicial hierarchy that are commonly overlooked in principal-agent models. For example, judges' goals and therefore their strategies will vary depending upon whether they seek to influence law development or merely to shape case outcomes. The article also critiques the normative assumption, implicit in principal-agent models, that lower federal courts should follow the preferences of the Supreme Court. Because law inevitably creates discretion for lower courts, a norm of compliance with superior court precedent does not necessarily require following the preferences of the Supreme Court. Many of the reasons judicial discretion exists - for example, to allocate power within the judicial hierarchy - argue against such a centralization of power in the Supreme Court.

Keywords: courts, judicial decision-making, judicial politics

Suggested Citation

Kim, Pauline T., Lower Court Discretion. New York University Law Review, Vol. 82, No. 2, pp. 383-442; Washington University School of Law Legal Studies Research Paper Series No. 06-10-01. Available at SSRN:

Pauline T. Kim (Contact Author)

Washington University in St. Louis - School of Law ( email )

Campus Box 1120
St. Louis, MO 63130
United States
314-935-8570 (Phone)
314-935-5356 (Fax)

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