Explaining legal inconsistency
| Author | JBrandon Duck-Mayr |
| DOI | 10.1177/09516298211061159 |
| Date | 01 January 2022 |
| Published date | 01 January 2022 |
| Subject Matter | Articles |
Explaining legal inconsistency
JBrandon Duck-Mayr
Department of Political Science, Washington University in St. Louis
Abstract
Judges, scholars, and commentators decry inconsistent areas of judicially created policy. This could
hurt courts’policy making efficacy, so why do judges allow it to happen? I show judicially-created
policy can become inconsistent when judges explain rules in more abstract terms than they decide
cases. To do so, I expand standard case-space models of judicial decision making to account for
relationships between specific facts and broader doctrinal dimensions. This model of judicial deci-
sion making as a process of multi-step reasoning reveals that preference aggregation in such a con-
text can lead to inconsistent collegial rules. I also outline a class of preference configurations on
collegial courts (i.e., multi-member courts) in which this problem cannot arise. These results have
implications for several areas of inquiry in judicial politics such as models of principal-agent rela-
tionships in judicial hierarchies and empirical research utilizing case facts as predictor variables.
Keywords
Judicial politics, Judicial rule making, Stare decisis, Collegial decision making
A wide range of observers have noted particularly inconsistent rules being produced by
courts across several areas of the law. For example, legal scholars complain the U.S.
Supreme “Court’s numerous [federal] preemption cases follow no predictable jurispru-
dential or analytical pattern”(Dinh, 2000).
1
Political commentators criticize the
Court’s“Establishment Clause decisions that have been, in the words of Alice in
Wonderland, curiouser and curiouser,”and hope the Court will “leaven with clarity the
confusion it has sown”(Will, 2019). Supreme Court Justice Clarence Thomas bemoans
“an Establishment Clause jurisprudence in shambles,”claiming the Court’s“jurispru-
dence has confounded the lower courts and rendered the constitutionality of displays of
religious imagery on government property anyone’s guess…”(Utah Highway Patrol
Assoc. v. American Atheists Inc., 565 U.S. 994 (2011) at 994, Thomas, J., dissenting).
Corresponding author:
JBrandon Duck-Mayr, Department of Political Science, Washington University in St. Louis, MO 63130, USA.
Email: j.duck-mayr@wustl.edu
Article
Journal of Theoretical Politics
2022, Vol. 34(1) 107–126
© The Author(s) 2021
Article reuse guidelines:
sagepub.com/journals-permissions
DOI: 10.1177/09516298211061159
journals.sagepub.com/home/jtp
Courts’policies are implemented by others, from lower courts applying appellate
court rules, to outside actors enforcing judicially created policies (Maltzman et al.,
2000, 5). When courts’rulings are unpredictable, and their rules are confusing, it
impedes these actors’ability to implement judicial policies. Moreover, inconsistency
in legal doctrine reduces judicial legitimacy (Landa and Lax, 2009, 959). Why would
courts create confusing policies that endanger judicial legitimacy and their efficacy as
policymakers? Perhaps judges are free to act relatively unconstrained (e.g. Segal and
Spaeth, 2002), and current court members simply prefer outcomes inconsistent with
prior cases. Or perhaps courts’decisions are well explained by pronounced rules, even
when scholars and commentators believe an area of the law is in disarray (Segal,
1984). Maltzman et al. (2000) explain that bargaining over opinion content among jus-
tices may produce results inconsistent with what we might otherwise expect. However,
none of these accounts explain why courts’descriptions of their decision rules do not
provide clear guidance for lower court judges and other policy enforcers.
I use a social choice theoretic model to show preference aggregation on collegial
courts can result in inconsistent rules when judges communicate policy in terms of sub-
jective criteria that depend on objective facts.
2
That is, judges often explain rules using a
low number of abstract determinations that in turn are derived from specific facts of cases.
I show this kind of multi-step reasoning in appellate review can result in inconsistent col-
legial rules.
For example, in Fourth Amendment search and seizure cases, the constitutionality of
police conduct can depend on (1) the intrusiveness of the search or severity of the seizure,
and (2) whether the police had the requisite level of suspicion (e.g. probable cause)
required to support such conduct. The court must determine how intrusiveness and
police suspicion translate into outcomes, and further use the specific facts of cases to
determine the level of police suspicion: “As the Court recognizes, determinations of
probable cause and reasonable suspicion involve a two-step process. First, a court
must identify all of the relevant historical facts …and second, it must decide whether
…those facts would give rise to a reasonable suspicion justifying a stop or probable
cause to search”(Ornelas v. United States, 517 U.S. 690 (1996) at 700–701, Scalia, J.,
dissenting).
To make this even more concrete, consider the case Terry v. Ohio.InTerry, a police
officer observed Terry and two compatriots suspiciously “casing”a store. Although he
had no other information about the men, he believed a robbery was imminent, and
“feared ‘they may have a gun”’, so he approached them, stopped them, and frisked
them for weapons. He found weapons on Terry and one of the other men, and they
were convicted of weapons charges. These concrete events that happened, and the evi-
dence collected, are the specific facts of the case, or the “historical facts”as Justice
Scalia puts it. While the Court did not find these facts amounted to probable cause,
they said the evidence of criminal conduct amounted to “reasonable suspicion”. Again,
though the Court did not find these facts constituted an arrest, the seizure of Terry did
constitute an investigatory stop. These findings are the abstract determinations I men-
tioned above, which I will call doctrinal facts throughout the article. The Court
announced investigatory stops may be justified by reasonable suspicion; in other
words, the Court updated doctrine.
108 Journal of Theoretical Politics 34(1)
To continue reading
Request your trial