Strategic Citations to Precedent on the U.S. Supreme Court

Yonatan Lupu and James H. Fowler

The Journal of Legal Studies, 2013, vol. 42, issue 1, 151 - 186

Abstract: Common law evolves not only through the outcomes of cases but also through the reasoning and citations to precedent employed in judicial opinions. We focus on citations to precedent by the U.S. Supreme Court. We demonstrate how strategic interaction between justices during the Court's bargaining process affects citations to precedent in the Court's opinion. We find that the majority-opinion writer relies more heavily on precedent when the Court's decision is accompanied by separate opinions. We also show that diversity of opinion on the Court, a factor often overlooked, has a significant relationship with citations to precedent. Finally, our results indicate that the ideology of the median justice influences citation practices more than ideology of the majority-opinion writer.

Date: 2013
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