Appellate Court Adherence to Precedent

Why do lower courts follow precedent, or any law? Traditional rational choice theories that rely on presumptions of ideological decision making have struggled to explain the power of judicial hierarchy. This article addresses the issue in three components. The first two sections examine the conventional positive political theory explanations for circuit court adherence to Supreme Court preferences based on a risk of reversal by the Court. These sections explain how these conventional theories cannot be theoretically sustained under prevailing resource constraints. The next two sections set forth an alternative explanation that considers the possibility of judges who possess both political and legal preferences. Using linguistic theory, these sections explain how the two types of preference could interact to produce partial adherence to precedent. The final section empirically examines circuit court decision making. This analysis shows that both political and traditional legal considerations have a significant effect on circuit court decision making, while contemporaneous Supreme Court preferences exert no discernible influence. The theoretical and empirical evidence support a conclusion that lower courts adhere to the law out of an affirmative judicial preference for such adherence rather than out of a fear of reversal by a higher court.