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

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  • Yonatan Lupu
  • James H. Fowler

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.

Suggested Citation

  • Yonatan Lupu & James H. Fowler, 2013. "Strategic Citations to Precedent on the U.S. Supreme Court," The Journal of Legal Studies, University of Chicago Press, vol. 42(1), pages 151-186.
    • Handle: RePEc:ucp:jlstud:doi:10.1086/669125
    DOI: 10.1086/669125
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    1. Bailey, Michael A. & Maltzman, Forrest, 2008. "Does Legal Doctrine Matter? Unpacking Law and Policy Preferences on the U.S. Supreme Court," American Political Science Review, Cambridge University Press, vol. 102(3), pages 369-384, August.
    2. Harnay, Sophie & Marciano, Alain, 2003. "Judicial conformity versus dissidence: an economic analysis of judicial precedent," International Review of Law and Economics, Elsevier, vol. 23(4), pages 405-420, December.
    3. Michael A. Bailey & Brian Kamoie & Forrest Maltzman, 2005. "Signals from the Tenth Justice: The Political Role of the Solicitor General in Supreme Court Decision Making," American Journal of Political Science, John Wiley & Sons, vol. 49(1), pages 72-85, January.
    4. Nicola Gennaioli & Andrei Shleifer, 2007. "The Evolution of Common Law," Journal of Political Economy, University of Chicago Press, vol. 115, pages 43-68.
    5. Bartels, Brandon L., 2009. "The Constraining Capacity of Legal Doctrine on the U.S. Supreme Court," American Political Science Review, Cambridge University Press, vol. 103(3), pages 474-495, August.
    6. Charles M. Cameron, 2007. "Bargaining and Opinion Assignment on the US Supreme Court," The Journal of Law, Economics, and Organization, Oxford University Press, vol. 23(2), pages 276-302, June.
    7. Lupu, Yonatan & Voeten, Erik, 2012. "Precedent in International Courts: A Network Analysis of Case Citations by the European Court of Human Rights," British Journal of Political Science, Cambridge University Press, vol. 42(2), pages 413-439, April.
    8. Anderson Iv, Robert & Tahk, Alexander M., 2007. "Institutions and Equilibrium in the United States Supreme Court," American Political Science Review, Cambridge University Press, vol. 101(4), pages 811-825, November.
    9. Martin, Andrew D. & Quinn, Kevin M., 2002. "Dynamic Ideal Point Estimation via Markov Chain Monte Carlo for the U.S. Supreme Court, 1953–1999," Political Analysis, Cambridge University Press, vol. 10(2), pages 134-153, April.
    10. Landes, William M & Posner, Richard A, 1976. "Legal Precedent: A Theoretical and Empirical Analysis," Journal of Law and Economics, University of Chicago Press, vol. 19(2), pages 249-307, August.
    11. Stephen J. Choi & G. Mitu Gulati, 2008. "Bias in Judicial Citations: A Window into the Behavior of Judges?," The Journal of Legal Studies, University of Chicago Press, vol. 37(1), pages 87-129, January.
    12. Anthony Downs, 1957. "An Economic Theory of Political Action in a Democracy," Journal of Political Economy, University of Chicago Press, vol. 65, pages 135-135.
    13. Chris W. Bonneau & Thomas H. Hammond & Forrest Maltzman & Paul J. Wahlbeck, 2007. "Agenda Control, the Median Justice, and the Majority Opinion on the U.S. Supreme Court," American Journal of Political Science, John Wiley & Sons, vol. 51(4), pages 890-905, October.
    14. Tom S. Clark & Benjamin Lauderdale, 2010. "Locating Supreme Court Opinions in Doctrine Space," American Journal of Political Science, John Wiley & Sons, vol. 54(4), pages 871-890, October.
    15. Landes, William M & Lessig, Lawrence & Solimine, Michael E, 1998. "Judicial Influence: A Citation Analysis of Federal Courts of Appeals Judges," The Journal of Legal Studies, University of Chicago Press, vol. 27(2), pages 271-332, June.
    16. Segal, Jeffrey A. & Cover, Albert D., 1989. "Ideological Values and the Votes of U.S. Supreme Court Justices," American Political Science Review, Cambridge University Press, vol. 83(2), pages 557-565, June.
    17. Scott E. Page, 2007. "Prologue to The Difference: How the Power of Diversity Creates Better Groups, Firms, Schools, and Societies," Introductory Chapters, in: The Difference: How the Power of Diversity Creates Better Groups, Firms, Schools, and Societies, Princeton University Press.
    18. Emerson H. Tiller, 2007. "Legal Doctrine and Political Control," The Journal of Law, Economics, and Organization, Oxford University Press, vol. 23(2), pages 326-345, June.
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    2. Kazutaka Takechi, 2023. "How are the precedents of trade policy rules made under the World Trade Organization?," Economics and Politics, Wiley Blackwell, vol. 35(3), pages 806-821, November.

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