Competing signals in the judicial hierarchy
| Author | Joshua A Strayhorn |
| Published date | 01 July 2019 |
| Date | 01 July 2019 |
| DOI | http://doi.org/10.1177/0951629819850626 |
| Subject Matter | Articles |
Article
Journal of Theoretical Politics
2019, Vol.31(3) 308–329
ÓThe Author(s) 2019
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DOI: 10.1177/0951629819850626
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Competing signals in the
judicial hierarchy
Joshua A Strayhorn
Department of PoliticalScience, University of Colorado at Boulder,USA
Abstract
Political principals often face information deficits. This is especially true of the US judicial hierar-
chy; extant theories of ideological monitoring in this setting have therefore explored informa-
tional cues such as lower court ideology or dissent. Canonical models of this setting, however,
have omitted litigants, implicity assuming they are not an important source of information. This
paper develops a formal model that considers whether litigants can credibly signal information
about noncompliance, and how litigants’ signals interact with the cues of ideology and dissent.
The model shows that litigant signals can be highly informative about doctrinal compliance, some-
times even crowding out the need for other signals. By contrast, litigants face difficulty communi-
cating information about case importance; dissent, however, can be highly informative on this
dimension. Accordingly, some informational cues may only influence limited aspects of the high
court’s case selectionprocess.
Keywords
Judicial hierarchy;litigants; principal-agent models; signaling
1. Introduction
An important example of a principal-agent setting with overwhelming informa-
tional asymmetries is the US judicial hierarchy. The US Courts of Appeals—the
immediate subordinates of the US Supreme Court—hear, combined, around
50,000 cases annually. By contrast, the Supreme Court hears roughly 80 cases each
year. Given the magnitude of these differences, it is natural to wonder if the
Supreme Court can exert principal-agent control, or if Courts of Appeals judges
Corresponding author:
Joshua A Strayhorn,Assistant Professor, Departmentof Political Science, University of Colorado at Boulder,
Boulder,333 UCB, Colorado, USA.
Email: joshua.strayhorn@colorado.edu
are free to pursue their own ideological goals. The answer to this question has enor-
mous ramifications for the rule of law—is the Supreme Court actually supreme, or
does it struggle to manage its hierarchical subordinates?
Research on this important question has naturally focused on the informational
efficiency of the Court’s case selection. If the Court’s ability to identify noncompli-
ance is poor, the deleterious effects on lower court incentives are obvious.
Alternatively, if the judicial hierarchy is informationally efficient, the Court could
achieve widespread compliance despite its caseload limits. As Cameron (1993) has
pointed out, the key metric is not caseload but rather the conditional probability of
review given noncompliance—if the Court can readily detect noncompliance and
keep this probability high, the disparity in caseload numbers is not problematic.
Given the importance of information, much research has explored the dynamics
of ideological or compliance auditing in the judicial hierarchy, under assumptions
of uncertainty. Theoretical work on ideological conflict within the judicial hierar-
chy has focused on two major informational cues available to higher courts: panel
ideology (Cameron et al., 2000) and the presence of ‘whistleblowing’ dissents that
signal noncompliance (Beim et al., 2014, 2016; Beim and Kastellec, 2014; Cross and
Tiller, 1998; Kastellec, 2007, 2011).
This paper explores a third source of information in the judicial hierarchy: liti-
gant behavior. I begin from the observation that these canonical models of ideolo-
gical auditing have, to date, ignored the potential informational impact of litigants.
This is a surprising omission for several reasons. First, litigants play a key discre-
tionary role in the legal process. Auditing is not automatic; cases are only appealed
when litigants decide to appeal them. Second, work considering the nonideological
error-correction function of appellate courts has argued that the strategic incen-
tives of litigants are critically important, and that informed litigant selection plays
a key role in ensuring the smooth functioning of a hierarchical legal system (e.g.,
Cameron and Kornhauser, 2006; Shavell, 1995).
1
Finally, appeal is costly, often
substantially so—thus ex ante it is likely to be informative. Indeed, existing evi-
dence suggests that litigants are typically very selective in the cases they choose to
appeal (Mak et al., 2013; Songer et al., 1994, 1995).
Yet because previous theoretical models of ideological auditing have not
included litigants, the answers to several important questions are unclear. Can liti-
gants provide the high court with useful information about compliance, or are their
motivations for pursuing appeals too disconnected from the Court’s concerns to
provide useful cues? Are some types of litigants more informative than others?
How do signals sent by litigants affect how high courts interpret other types of
information? What information can litigants credibly signal, and what can they
not?
To answer these questions, this paper develops a formal model of ideological
auditing in a judicial hierarchy that incorporates the informational mechanisms
from prior research, and also introduces strategic litigants. Litigants possess pri-
vate information about the likely outcome of high court review that may be par-
tially or fully accurate. To preview some results, the model shows that litigants are
highly credible signalers of compliance information. Moreover, as litigants grow
Strayhorn 309
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