Explaining legal inconsistency

JBrandon Duck-Mayr

Journal of Theoretical Politics, 2022, vol. 34, issue 1, 107-126

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.

Keywords: Judicial politics; Judicial rule making; Stare decisis; Collegial decision making (search for similar items in EconPapers)
Date: 2022
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Persistent link: https://EconPapers.repec.org/RePEc:sae:jothpo:v:34:y:2022:i:1:p:107-126

DOI: 10.1177/09516298211061159

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