Judges, Litigants and the Design of Courts

Abstract

Two important perspectives on courts highlight fundamentally different elements of the process of adjudication and yield distinct predictions about judicial outcomes. The Attitudinal Model of judicial voting (AM) posits judge ideology as a strong predictor of court outcomes. Alternatively, the Law and Economics perspective (LE) focuses on the settlement behavior of litigants and reasons that while judges may vote ideologically, litigants adapt to these ideological proclivities, nullifying the effect of judge ideology. This analysis focuses on reconciling expectations about the effects of judge ideology and litigant strategies by examining their contingent nature and the conditioning effects of institutional design. The analysis examines state supreme courts from 1995 through 1998 to identify strong empirical evidence supporting both perspectives. While some state supreme courts have discretionary dockets allowing judges to select cases they want to decide, others lack discretionary control, making outcomes largely litigant driven. The empirical support for each perspective largely hinges on this fundamental feature of institutional design.

Keywords: state supreme courts, law, economics, ideology, politics, political torts, tort, rational choice, selection society, empirical statistical regression