Judges, Litigants, and the Design of Courts

Abstract

Two important perspectives on courts highlight fundamentally different elements of adjudication and yield distinct predictions about judicial outcomes. The Attitudinal Model of judicial voting posits judge ideology as a strong predictor of court outcomes. Alternatively, the Law and Economics perspective 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 1995–1998 to identify empirical evidence supporting both perspectives. While some state supreme courts have discretionary dockets allowing judges greater opportunities to exercise their ideology, others lack discretionary docket control, making dockets and outcomes largely litigant driven. Support for each perspective largely hinges on this fundamental feature of institutional design.

Competing Agendas and the Business of the American State Supreme Courts

“…Indeed, very liberal or conservative courts would send signals to potential appellants about likely outcomes. Faced with a conservative (liberal) court, conservative (liberal) litigants would have liberal (conservative) adversaries more willing to settle out of court to avoid additional expenses and a likely adverse outcome (Brace, Yates, & Boyea, 2012). Alternatively, courts with justices with a wide range of ideologies would create uncertainty among litigants.…”

Case selection and judicial decision-making: evidence from French labor courts

“…Both ideology and institutional features can combine their effects. With U.S. data, Brace et al (2012) show that state supreme courts having discretionary dockets allow judges greater opportunities to exercise their ideology. Brace and Hall (1997) show that Justices' support for death penalty is affected by competitive electoral conditions and institutional arrangements that create linkages with the political environment.…”

Perceptions of the Rule of Law: Evidence on the Impact of Judicial Insulation*

“…Prominent institutional structures described in the literature are electoral rules, rules that govern the interaction between the executive and legislature, democratization, and federalism (Lijphart, : Persson and Tabellini, ; Kunicova and Rose‐Ackerman, ). In the judicial context, a rich literature suggests that institutional considerations ranging from budgetary rules (Douglas and Hartley, ) to selection and retention methods (Hall, ; Helmke, ; Huber and Gordon, ) to court organization and administrative rules (Caldeira, ; Brace and Hall, ; Brace, Yates, and Boyea, ) can have an impact on judges’ behavior and independence of judgment (see also Epstein, Knight, and Shvetsova, ; Huber and Gordon, ). Yet, focusing on institutional rules neglects how those institutions actually operate in practice.…”