Scope and precedent: judicial rule-making under uncertainty
| Published date | 01 July 2016 |
| Date | 01 July 2016 |
| DOI | 10.1177/0951629814568397 |
| Subject Matter | Articles |
Article
Journal of Theoretical Politics
2016, Vol.28(3) 353–384
ÓThe Author(s) 2015
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DOI: 10.1177/0951629814568397
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Scope and precedent: judicial
rule-making under uncertainty
Tom S Clark
Department of PoliticalScience, Emory University, Atlanta, GA, USA
Abstract
I develop a formal model of Supreme Court opinion-writing in an environment of uncertainty. In
particular, the model captures how the Supreme Court will optimally design the specificity of its
legal rules. The model focuses on the tradeoff between more precise rules which are controlling
in a smaller subset of cases against less precise rules, which have wider applicability but yield less
certain outcomes. When the basic model is considered in a dynamic world in which the Court is
able to hear multiple cases, it yields insights about how the factual representativeness of a case
and the clarity of existing precedent jointly affect its optimal opinion-writing and willingness to
hear new cases. These last implicationsprovide theoretical foundations for theoretical and empiri-
cal questions about rule-making, case selection, and the construction of doctrine.
Keywords
Judicial rule making; judicial hierarchy; opinion writing
1. Introduction
The study of judicial decision-making has been undergoing a sea change. In moving
away from simple ‘‘attitudinal’’ approaches, scholars have begun to take seriously
the role of legal rules and doctrine (see Lax, 2011, for a review). The key compo-
nent that distinguishes this contemporary development from debates in recent
decades is the shift from perceiving law as a constraint on judges’ pursuit of their
policy goals (e.g. Gillman and Clayton, 1999; Bailey and Maltzman, 2011; Segal
Corresponding author:
TomS Clark, Department of Political Science, Emory University, 327 Tarbutton Hall, 1555 DickeyDrive,
Atlanta, GA 30322, USA.
Email: tom.clark@emory.edu
and Spaeth, 2002) to law as an instrument that judges use to achieve their policy
goals (e.g. Friedman, 2006; Sunstein, 1999). Central to this development has been
the formal modeling of legal rules, which serve to partition cases, according to the
facts of the case, into discrete outcomes. Intended to capture the nature of adjudi-
cation in most common law jurisdictions, this theoretical apparatus, known as the
case space model, considers the two functions courts serve: to apply (or create) legal
rules and use them to dispose cases into discrete dispositions (Kornhauser, 1992b).
A recent trend in this literature has been to consider how high courts communicate
legal rules to lower courts, charged with applying those rules in future cases (e.g.
Fox and Vanberg, 2011; Jacobi and Tiller, 2007; Lax, 2012; Staton and Vanberg,
2008; Sunstein, 1999).
An often overlooked, but nevertheless critical, aspect of the task facing high
courts is the difficulty of clearly and completely communicating with lower courts
(see, for example, Jordan, 2011). Scholars have grown increasingly interested in the
Court’s decision to craft a more or less clear rule (e.g. Owens and Wedeking, 2011;
Staton and Vanberg, 2008), and this paper pushes that line of inquiry in a new
direction. When judges write opinions that contain instructions for how lower
courts must decide cases, they face an inherent, unavoidable tension. Opinions that
are closely and thoroughly embedded in the factual specifics of a case are relatively
more able to articulate a clear, unambiguous statement of precisely the way to
resolve that case and similar future cases than are opinions that seek to announce
principles that are broader and more far-reaching than the specific factual circum-
stances of the instant case. However, precisely because a less ambiguous rule
requires greater embedding in factual specifics, such precedents are more easily dis-
tinguished from future cases (future layers and courts can more effectively argue
the precedent is not dispositive and ‘‘controlling’’) than are precedents that are per-
haps more ambiguous in their meaning but are more broadly applicable because
they are not tightly connected to particular factual scenarios. In other words, there
exists a continuum where opinions at one end are more narrowly tailored, which
clearly and precisely communicate their authoritative interpretation of the law. At
the other end are more principle-based opinions, which are less precise. Any opin-
ion a court might write entails a particular balancing of the benefits of narrowly
tailored and principle-based opinions. Simply put, the tradeoff is one between pre-
cise instructions that have limited future applicability and less precise instructions
with wider future applicability.
The decision about how best to communicate a legal rule through a series of
related opinions, doctrine, goes to the heart of the function high courts serve.
While there is variation in the types of jobs supervisory courts perform, high courts
in many jurisdictions are primarily concerned with overseeing the law applied by
lower courts, with a particular emphasis on ensuring the law is consistently applied
by lower courts. For example, this is the stated main function served by the US
Supreme Court. In essence, then, high courts serve as managers of massive bureau-
cracies, which interpret and implement the high court’s instructions, as communi-
cated through their opinions. This paper studies a challenge that is especially
important in the judiciary but is also a more general issue in rule- and opinion-
354 Journal of Theoretical Politics 28(3)
writing. In particular, once one writes down a rule, there is inherent uncertainty in
how it will be applied in the future. Importantly, that uncertainty is itself a func-
tion of how precisely written a rule is and how closely tied it is to the specific fac-
tual context in which it was originally developed. That tension is, more generally, a
fundamental feature of policy-making in the form of case-by-case individual dis-
pute resolution.
I develop a formal model of Supreme Court rule-making that captures the ten-
sion created by this relationship. I model a court’s decision about how best to write
an opinion, knowing that future applications of the opinion will be variable. Future
courts and actors subject to the court’s rule must interpret how to apply the rule in
future cases. The analysis proceeds in three stages.First, I analyze the optimal opin-
ion to write in a single-shot decision. Second, I consider how the existence of past
precedent and optimal opinion-writing drive the court’s decision about which cases
are best to hear in order to best communicate doctrine to lower courts and external
actors. Finally, I consider how the prospect of future cases affects opinion-writing
in the first instance. Together, these analyses provide novel insights into the nature
of doctrine creation and management by a supervisory court and the optimal strat-
egy to pursue in order to effectively manage those who interpret and apply judicial
doctrine. As I describe below, those insights have implications for a number of the-
oretical and empirical questions in the literature, including how non-ideological fea-
tures of law affect the incentives judges face, how non-ideological features of law
influence case selection, and how judges can use a sequence of cases to construct a
line of doctrine. Because such questions are central to what Lax (2011) calls ‘‘the
new judicial politics of legal doctrine,’’ their implications go to the core of a grow-
ing line of inquiry in the study of law and courts.
2. Judicial rules and policy communication
One of the most notable features of judicial decision-making in the American sys-
tem is the extensive written records that are produced by courts. The Supreme
Court, which sits at the apex of a large, complex bureaucracy of courts is charged
with maintaining legal clarity and consistency throughout the country and relies
heavily on that body of written records. Independent judicial systems in each state
work along with the federal judiciary to apply law in the hundreds of thousands of
cases (those that do not settle to begin with) each year. In doing so, courts look to
the authoritative interpretations of the law that are contained in the written opi-
nions handed down by superior courts. As a consequence, perhaps the single most
difficult problem facing higher courts, especially the Supreme Court, is communi-
cating its authoritative interpretation of the law for applications in a wide variety
of cases, within the confines of a single legal dispute.
Scholars have long been interested in the process by which a superior court,such
as the US Supreme Court, can communicate its interpretation of the law through a
series of opinions written in individual cases, and recent research has sought to for-
malize the tradeoffs and mechanisms at play in that process. For example, Bueno
de Mesquita and Stephenson (2002) develop a formal model in which lower court
Clark 355
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