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Constructing Legal Rules on Appellate Courts

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  • LAX, JEFFREY R.

Abstract

Appellate courts make policy, not only by hearing cases themselves, but by establishing legal rules for the disposition of future cases. The problem is that such courts are generally multimember, or collegial, courts. If different judges prefer different rules, can a collegial court establish meaningful legal rules? Can preferences that take the form of legal rules be aggregated? I use a “case-space” model to show that there will exist a collegial rule that captures majoritarian preferences, and to show that there will exist a median rule even if there is no single median judge. I show how collegial rules can differ from the rules of individual judges and how judicial institutions (such as appellate review and the power to write separate opinions) affect the stability and enforceability of legal rules. These results are discussed in light of fundamental debates between legal and political perspectives on judicial behavior.

Suggested Citation

  • Lax, Jeffrey R., 2007. "Constructing Legal Rules on Appellate Courts," American Political Science Review, Cambridge University Press, vol. 101(3), pages 591-604, August.
    • Handle: RePEc:cup:apsrev:v:101:y:2007:i:03:p:591-604_07
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    Cited by:

    1. Adam B. Badawi & Scott Baker, 2015. "Appellate Lawmaking in a Judicial Hierarchy," Journal of Law and Economics, University of Chicago Press, vol. 58(1), pages 139-172.
    2. Udi Sommer, 2011. "How rational are justices on the Supreme Court of the United States? Doctrinal considerations during agenda setting," Rationality and Society, , vol. 23(4), pages 452-477, November.
    3. JBrandon Duck-Mayr, 2022. "Explaining legal inconsistency," Journal of Theoretical Politics, , vol. 34(1), pages 107-126, January.
    4. Emerson H. Tiller, 2015. "The Law and Positive Political Theory of Panel Effects," The Journal of Legal Studies, University of Chicago Press, vol. 44(S1), pages 35-58.
    5. Jonathan P. Kastellec, 2010. "The Statistical Analysis of Judicial Decisions and Legal Rules with Classification Trees," Journal of Empirical Legal Studies, John Wiley & Sons, vol. 7(2), pages 202-230, June.
    6. Miller, Alan D., 2013. "Community standards," Journal of Economic Theory, Elsevier, vol. 148(6), pages 2696-2705.
    7. Tom S Clark, 2016. "Scope and precedent: judicial rule-making under uncertainty," Journal of Theoretical Politics, , vol. 28(3), pages 353-384, July.
    8. Ryan C. Black & James F. Spriggs, 2013. "The Citation and Depreciation of U.S. Supreme Court Precedent," Journal of Empirical Legal Studies, John Wiley & Sons, vol. 10(2), pages 325-358, June.
    9. Joshua A Strayhorn, 2019. "Competing signals in the judicial hierarchy," Journal of Theoretical Politics, , vol. 31(3), pages 308-329, July.
    10. Justin Fox & Georg Vanberg, 2014. "Narrow versus broad judicial decisions," Journal of Theoretical Politics, , vol. 26(3), pages 355-383, July.
    11. Sean Farhang & Jonathan P. Kastellec & Gregory J. Wawro, 2015. "The Politics of Opinion Assignment and Authorship on the US Court of Appeals: Evidence from Sexual Harassment Cases," The Journal of Legal Studies, University of Chicago Press, vol. 44(S1), pages 59-85.

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