Informative Precedent and Intrajudicial Communication

Mesquita, Ethan Bueno de; Stephenson, Matthew C.

doi:10.1017/s0003055402000436

Cited by 75 publications

(57 citation statements)

References 21 publications

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“…Thus, our analysis is consistent with a recent trend in the literature that seeks to enrich the dialogue between formal political economy and traditional legal scholarship by illustrating how long-standing debates about controversial features of the legal system, including some thought to be "internal" to legal doctrine, might be illuminated by formal analysis of judges' strategic interaction with other actors (e.g., Bueno de Mesquita and Stephenson 2002;Lax n.d.) Beyond these contributions, the larger objective of this article is to help lay the groundwork for a research program that would rigorously analyze the effect of judicial review on democratic performance in a political agency framework. Although we analyze judicial review as a response to one particular sort of political agency problem--posturing--future work might examine judicial review as a possible response to other pathologies that may arise, including the incentive of elected leaders to "pander" by selecting popular policies, or to adopt policies that adversely affect certain vulnerable minorities or are overly responsive to other minorities ("special interests").…”

Section: Resultssupporting

confidence: 81%

Judicial Review as a Response to Political Posturing

Fox

Stephenson

2011

Am Polit Sci Rev

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(Friedman 2002), and has assumed increasing salience internationally as the power and influence of courts around the world has grown (Hirschl 2004). Many have defended judicial review as a way to reduce or correct systematic failures in legislative and executive decision making--thereby reducing the divergence between actual policy choices and those that would prevail in an ideally functioning representative democracy. Appropriately designed judicial review, on this view, can be justified on democratic grounds, even if judicial review is not itself a democratic institution. Critics, however, argue that judicial review tends to exacerbate rather than ameliorate the pathologies of representative democracy, and that the costs of judicial review typically exceed whatever benefits it may have.We analyze judicial review as a potential response to a particular problem: The incentive of elected officials to "posture" by taking bold but unwarranted action in response to a perceived emergency in order to appear competent to the voters. We begin by providing a brief overview of this potential problem and the debates over whether judicial review is an appropriate remedy. We then turn to presenting a model of political agency, without judicial review, to show how this sort of posturing may arise. We then modify this model by introducing judicial review.We show that judicial review has two main effects on the frequency of posturing. First, judicial reviewWe are grateful to

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Section: Resultssupporting

confidence: 81%

Judicial Review as a Response to Political Posturing

Fox

Stephenson

2011

Am Polit Sci Rev

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“…Thus, while the norm of stare decisis, on one hand, is a constraining legal factor for courts, it may also, on the other hand, be a tool for strategically minded judges to protect their decisions toward critical audiences (de Mesquita & Stephenson, 2002;Hansford & Spriggs, 2006).…”

Section: Judicial Independence and Effectivenessmentioning

confidence: 98%

Speaking Law to Power: The Strategic Use of Precedent of the Court of Justice of the European Union

Larsson

Naurin

Derlén

et al. 2016

Comparative Political Studies

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We argue that courts may increase their autonomy and effectiveness by persuading governmental actors, who have powers over the societal impact of judicial decisions, of the legal quality of their rulings. This view combines a strategic perspective on judicial decision making with a conception of persuasion that allows courts to widen their zone of discretion. We support our argument with data from the European Union, where we find that the Court of Justice improves its legal justifications-by embedding its decisions in case law-when it faces a more adverse political environment. Our findings suggest both that the limits of judicial independence are set largely by political preferences, and that legal rhetoric may be an opportunity for courts to extend their room for maneuver. They also indicate that political audiences may indirectly influence the development of case law, by triggering courts to engage in precedent.

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“…5 Either because doctrine is binding through its inherent legal or moral authority, or because doctrine is functionally influential-see for example Bueno de Mesquita and Stephenson (2002), who demonstrate how the use of legal precedents by higher Courts alleviates difficulties in communication between different levels of a hierarchical Court system.…”

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confidence: 99%

Competing Models of Judicial Coalition Formation and Case Outcome Determination

Jacobi

2009

Journal of Legal Analysis

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Forming a coalition on a multi-judge panel involves an inherent trade-off between coalition maximization and ideological outcome optimization. Much scholarship is premised on assumptions about how judges make that trade-off; these assumptions have consequences for how we view and measure judicial decision-making. Specifying these assumptions, formally modeling their effects, and basing measures of judicial behavior on these results offer the potential to improve analysis of judicial decision-making.This article formally explores three commonly posited modes of judicial decision-making: a minimum winning coalition model, representing attitudinalist views of judicial decision-making; a maximum winning coalition, capturing the effect of norms of joint opinion writing and collegiality; and a strategic model, incorporating the concept of the credibility of a marginal justice's threat to defect from a majority coalition. Each model yields comprehensive predictions of case outcome positions and coalition sizes under given Court compositions; the Rehnquist Court and Roberts Courts are examined here. The models are then operationalized as measures for empirical use. The different impact of the three measures is illustrated by re-running Baird and Jacobi's analysis of judicial signaling on case outcomes using each measure.

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Informative Precedent and Intrajudicial Communication

Cited by 75 publications

References 21 publications

Judicial Review as a Response to Political Posturing

Judicial Review as a Response to Political Posturing

Speaking Law to Power: The Strategic Use of Precedent of the Court of Justice of the European Union

Competing Models of Judicial Coalition Formation and Case Outcome Determination

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