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Explaining legal inconsistency

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  • JBrandon Duck-Mayr

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 decision making as a process of multi-step reasoning reveals that preference aggregation in such a context 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 relationships in judicial hierarchies and empirical research utilizing case facts as predictor variables.

Suggested Citation

  • JBrandon Duck-Mayr, 2022. "Explaining legal inconsistency," Journal of Theoretical Politics, , vol. 34(1), pages 107-126, January.
    • Handle: RePEc:sae:jothpo:v:34:y:2022:i:1:p:107-126
    DOI: 10.1177/09516298211061159
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    References listed on IDEAS

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    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. List, Christian & Pettit, Philip, 2002. "Aggregating Sets of Judgments: An Impossibility Result," Economics and Philosophy, Cambridge University Press, vol. 18(1), pages 89-110, April.
    3. Jeffrey K. Staton & Georg Vanberg, 2008. "The Value of Vagueness: Delegation, Defiance, and Judicial Opinions," American Journal of Political Science, John Wiley & Sons, vol. 52(3), pages 504-519, July.
    4. Brandon L. Bartels & Andrew J. O'Geen, 2015. "The Nature of Legal Change on the U.S. Supreme Court: Jurisprudential Regimes Theory and Its Alternatives," American Journal of Political Science, John Wiley & Sons, vol. 59(4), pages 880-895, October.
    5. Chad Westerland & Jeffrey A. Segal & Lee Epstein & Charles M. Cameron & Scott Comparato, 2010. "Strategic Defiance and Compliance in the U.S. Courts of Appeals," American Journal of Political Science, John Wiley & Sons, vol. 54(4), pages 891-905, October.
    6. Nehring, Klaus & Puppe, Clemens, 2010. "Justifiable group choice," Journal of Economic Theory, Elsevier, vol. 145(2), pages 583-602, March.
    7. Segal, Jeffrey A., 1984. "Predicting Supreme Court Cases Probabilistically: The Search and Seizure Cases, 1962-1981," American Political Science Review, Cambridge University Press, vol. 78(4), pages 891-900, December.
    8. Richards, Mark J. & Kritzer, Herbert M., 2002. "Jurisprudential Regimes in Supreme Court Decision Making," American Political Science Review, Cambridge University Press, vol. 96(2), pages 305-320, June.
    9. Callander, Steven & Clark, Tom S., 2017. "Precedent and Doctrine in a Complicated World," American Political Science Review, Cambridge University Press, vol. 111(1), pages 184-203, February.
    10. Kornhauser, Lewis A, 1992. "Modeling Collegial Courts. II. Legal Doctrine," The Journal of Law, Economics, and Organization, Oxford University Press, vol. 8(3), pages 441-470, October.
    11. Lax, Jeffrey R., 2007. "Constructing Legal Rules on Appellate Courts," American Political Science Review, Cambridge University Press, vol. 101(3), pages 591-604, August.
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