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Strategic Judicial Decision Making

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  • Pablo T. Spiller
  • Rafael Gely

Abstract

This survey paper starts from the basic, and intuitive, assumption that judges are human and as such, can be modeled in the same fashion we model politicians, activists, managers: driven by well-defined preferences, behaving in a purposive and forward-looking fashion. We explore, then, the role politics play in judicial decision-making. We provide a brief overview of what is called the "strategic approach," compare it to alternative approaches to understand judicial behavior, and offer some concluding thoughts about the future of positive analyses of judicial decision-making.

Suggested Citation

  • Pablo T. Spiller & Rafael Gely, 2007. "Strategic Judicial Decision Making," NBER Working Papers 13321, National Bureau of Economic Research, Inc.
    • Handle: RePEc:nbr:nberwo:13321
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    References listed on IDEAS

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    1. Spiller, Pablo T., 1992. "Rationality, decision rules, and collegial courts," International Review of Law and Economics, Elsevier, vol. 12(2), pages 186-190, June.
    2. Morris Fiorina, 1982. "Legislative choice of regulatory forms: Legal process or administrative process?," Public Choice, Springer, vol. 39(1), pages 33-66, January.
    3. Tiller, Emerson H & Spiller, Pablo T, 1999. "Strategic Instruments: Legal Structure and Political Games in Administrative Law," The Journal of Law, Economics, and Organization, Oxford University Press, vol. 15(2), pages 349-377, July.
    4. Toma, Eugenia Froedge, 1991. "Congressional Influence and the Supreme Court: The Budget as a Signaling Device," The Journal of Legal Studies, University of Chicago Press, vol. 20(1), pages 131-146, January.
    5. Spiller, Pablo T & Spitzer, Matthew L, 1995. "Where Is the Sin in Sincere? Sophisticated Manipulation of Sincere Judicial Voters (With Applications to Other Voting Environments)," The Journal of Law, Economics, and Organization, Oxford University Press, vol. 11(1), pages 32-63, April.
    6. Ramseyer, J Mark & Rasmusen, Eric B, 1997. "Judicial Independence in a Civil Law Regime: The Evidence from Japan," The Journal of Law, Economics, and Organization, Oxford University Press, vol. 13(2), pages 259-286, October.
    7. Weingast, Barry R & Moran, Mark J, 1983. "Bureaucratic Discretion or Congressional Control? Regulatory Policymaking by the Federal Trade Commission," Journal of Political Economy, University of Chicago Press, vol. 91(5), pages 765-800, October.
    8. Spiller, Pablo T & Spitzer, Matthew L, 1992. "Judicial Choice of Legal Doctrines," The Journal of Law, Economics, and Organization, Oxford University Press, vol. 8(1), pages 8-46, March.
    9. Eskridge, William N, Jr & Ferejohn, John, 1992. "Making the Deal Stick: Enforcing the Original Constitutional Structure of Lawmaking in the Modern Regulatory State," The Journal of Law, Economics, and Organization, Oxford University Press, vol. 8(1), pages 165-189, March.
    10. Gely, Rafael & Spiller, Pablo T, 1990. "A Rational Choice Theory of Supreme Court Statutory Decisions with Applications to the State Farm and Grove City Cases," The Journal of Law, Economics, and Organization, Oxford University Press, vol. 6(2), pages 263-300, Fall.
    11. Spiller, Pablo T & Tiller, Emerson H, 1997. "Decision Costs and the Strategic Design of Administrative Process and Judicial Review," The Journal of Legal Studies, University of Chicago Press, vol. 26(2), pages 347-370, June.
    12. Garrett, Geoffrey & Kelemen, R. Daniel & Schulz, Heiner, 1998. "The European Court of Justice, National Governments, and Legal Integration in the European Union," International Organization, Cambridge University Press, vol. 52(1), pages 149-176, January.
    13. Gary S. Becker, 1983. "A Theory of Competition Among Pressure Groups for Political Influence," The Quarterly Journal of Economics, President and Fellows of Harvard College, vol. 98(3), pages 371-400.
    14. Toma, Eugenia F., 1996. "A contractual model of the voting behavior of the supreme court: The role of the chief justice," International Review of Law and Economics, Elsevier, vol. 16(4), pages 433-447, December.
    15. Shepsle, Kenneth A. & Weingast, Barry R., 1987. "The Institutional Foundations of Committee Power," American Political Science Review, Cambridge University Press, vol. 81(1), pages 85-104, March.
    16. de Figueiredo, Rui J P, Jr & Spiller, Pablo T & Urbiztondo, Santiago, 1999. "An Informational Perspective on Administrative Procedures," The Journal of Law, Economics, and Organization, Oxford University Press, vol. 15(1), pages 283-305, April.
    17. Ramseyer, J Mark, 1994. "The Puzzling (In)dependence of Courts: A Comparative Approach," The Journal of Legal Studies, University of Chicago Press, vol. 23(2), pages 721-747, June.
    18. Segal, Jeffrey A., 1997. "Separation-of-Powers Games in the Positive Theory of Congress and Courts," American Political Science Review, Cambridge University Press, vol. 91(1), pages 28-44, March.
    19. 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.
    20. 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.
    21. Ferejohn, John A. & Weingast, Barry R., 1992. "A positive theory of statutory interpretation," International Review of Law and Economics, Elsevier, vol. 12(2), pages 263-279, June.
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    Cited by:

    1. Carole M. Billiet & Thomas Blondiau & Sandra Rousseau, 2014. "Punishing environmental crimes: An empirical study from lower courts to the court of appeal," Regulation & Governance, John Wiley & Sons, vol. 8(4), pages 472-496, December.
    2. Escresa Laarni & Garoupa Nuno, 2012. "Judicial Politics in Unstable Democracies: The Case of the Philippine Supreme Court, An Empirical Analysis 1986-2010," Asian Journal of Law and Economics, De Gruyter, vol. 3(1), pages 1-39, April.
    3. Lambert-Mogiliansky, Ariane & Sonin, Konstantin & Zhuravskaya, Ekaterina, 2007. "Are Russian commercial courts biased? Evidence from a bankruptcy law transplant," Journal of Comparative Economics, Elsevier, vol. 35(2), pages 254-277, June.
    4. Nuno Garoupa & Marian Gili & Fernando Gómez‐Pomar, 2012. "Political Influence and Career Judges: An Empirical Analysis of Administrative Review by the Spanish Supreme Court," Journal of Empirical Legal Studies, John Wiley & Sons, vol. 9(4), pages 795-826, December.

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    More about this item

    JEL classification:

    • K0 - Law and Economics - - General
    • K4 - Law and Economics - - Legal Procedure, the Legal System, and Illegal Behavior

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