Legal doctrine and political control

Tonja Jacobi*, Emerson H Tiller

*Corresponding author for this work

    Research output: Contribution to journalArticlepeer-review

    43 Scopus citations

    Abstract

    We model legal doctrine as an instrument of political control by higher courts over lower courts and the case outcomes they produce. We focus on the choice between determinate and indeterminate doctrines within a hierarchy of courts where political-ideological alignment between lower and higher courts varies. We show that the choice over doctrinal determinacy depends on the distribution of cases, the distribution of litigants, judicial types, and the level of policy alignment between higher and lower court judges. The model suggests the optimal doctrinal choice for a high court, given the political-ideological alignment between the high court and the lower court, the control characteristics of doctrines themselves, and the matching of doctrines to litigant pools. This has implications regarding preference divergence within the judicial hierarchy, the interaction of different doctrines, and interplay between doctrinal specificity and doctrinal reach.

    Original languageEnglish (US)
    Pages (from-to)326-345
    Number of pages20
    JournalJournal of Law, Economics, and Organization
    Volume23
    Issue number2
    DOIs
    StatePublished - Jun 2007

    ASJC Scopus subject areas

    • Economics and Econometrics
    • Organizational Behavior and Human Resource Management
    • Law

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