The Structure of Legal Doctrine in a Judicial Hierarchy

Abstract

Political scientists interested in the structure of legal doctrine are especially attuned to the impact of the judicial hierarchy. They generally frame the issue as whether a higher court will issue a rigid “rule” to prevent shirking or a vague “standard” to give more discretion to lower courts. This “rules versus standards” debate rests on two presumptions: jurists write doctrine, and doctrine varies in flexibility. Using the US Supreme Court, I offer an initial empirical evaluation of these presumptions. The findings reveal that the justices almost always adopt doctrine suggested to them and that these doctrines differ little in flexibility.

Congressional Constraint? The Review of In Absentia Immigration Removal Orders in Federal Circuit Courts

“…For judges, "law serves to structure the judicial decision-making process" (Clark 2018) and set limits on judicial freedom Maltzman 2008, 2011), so the effect of high specificity, low discretion laws is a decrease in room for them to decide cases based on their policy preferences-that is, attitudinally (Randazzo, Waterman, and Fine 2006;Randazzo, Waterman, and Fix 2011). A similar ideological constraining effect stemming from law (either legislative or stare decisis) has been observed in a variety of other judging contexts, from opinion or doctrine clarity resulting in more future court compliance (Black et al 2016;Corley 2009;Smith and Todd 2015;Wahlbeck 1997;Wofford 2019), 4 to legal doctrine-relevant case facts affecting case outcomes (George and Epstein 1992;Segal 1984;Segal and Spaeth 2002), to non-discretionary citation practices (Hinkle 2015), to clear efforts in legislation and from courts, via precedent, to strip discretion from the judicial review of administrative agency decisions and interpretations (Barnett, Boyd, and Walker 2018b).…”