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Minority will? A model of influential dissenting opinions

Author

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  • Sam England
  • Tom S Clark

Abstract

We study the incentives for writing dissenting opinions that try to shape the law. We model the interaction between a minority and majority in a collegial court setting. Dissenting judges calculate how much effort to put into a dissenting opinion with an expectation that their work can probabilistically affect how the law is applied in the future. That calculus can influence how a majority opinion author writes an opinion and the dynamics of collegial decision-making and coalition formation. We evaluate comparative statics about the content of opinions and the conditions under which dissenting opinions should emerge from collective choice. The results help rationalize both differences in dissenting behavior across levels of the judicial hierarchy and how separate opinion-writing shapes the extremity of judicial opinions.

Suggested Citation

  • Sam England & Tom S Clark, 2026. "Minority will? A model of influential dissenting opinions ," Journal of Theoretical Politics, , vol. 38(1), pages 56-84, January.
    • Handle: RePEc:sae:jothpo:v:38:y:2026:i:1:p:56-84
    DOI: 10.1177/09516298251349164
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    References listed on IDEAS

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    1. Parameswaran, Giri & Cameron, Charles M. & Kornhauser, Lewis A., 2021. "Bargaining and Strategic Voting on Appellate Courts," American Political Science Review, Cambridge University Press, vol. 115(3), pages 835-850, August.
    2. Chad Westerland & Jeffrey A. Segal & Lee Epstein & Charles M. Cameron & Scott Comparato, 2010. "Strategic Defiance and Compliance in the U.S. Courts of Appeals," American Journal of Political Science, John Wiley & Sons, vol. 54(4), pages 891-905, October.
    3. Nicola Gennaioli & Andrei Shleifer, 2007. "The Evolution of Common Law," Journal of Political Economy, University of Chicago Press, vol. 115(1), pages 43-68.
    4. Murphy, Walter F., 1959. "Lower Court Checks on Supreme Court Power," American Political Science Review, Cambridge University Press, vol. 53(4), pages 1017-1031, December.
    5. Deborah Beim & Alexander V. Hirsch & Jonathan P. Kastellec, 2016. "Signaling and Counter‐Signaling in the Judicial Hierarchy: An Empirical Analysis of En Banc Review," American Journal of Political Science, John Wiley & Sons, vol. 60(2), pages 490-508, April.
    6. Alexander V. Hirsch & Kenneth W. Shotts, 2015. "Competitive Policy Development," American Economic Review, American Economic Association, vol. 105(4), pages 1646-1664, April.
    7. Jonathan P. Kastellec, 2007. "Panel Composition and Judicial Compliance on the US Courts of Appeals," The Journal of Law, Economics, and Organization, Oxford University Press, vol. 23(2), pages 421-441, June.
    8. Hadfield, Gillian K., 1992. "Incomplete contracts and statutes," International Review of Law and Economics, Elsevier, vol. 12(2), pages 257-259, June.
    9. Clark, Tom S. & Montagnes, B. Pablo & Spenkuch, Jörg L., 2022. "Politics from the Bench? Ideology and Strategic Voting in the U.S. Supreme Court," Journal of Public Economics, Elsevier, vol. 214(C).
    10. Matias Iaryczower & Matthew Shum, 2012. "The Value of Information in the Court: Get It Right, Keep It Tight," American Economic Review, American Economic Association, vol. 102(1), pages 202-237, February.
    11. Carrubba, Clifford J. & Clark, Tom S., 2012. "Rule Creation in a Political Hierarchy," American Political Science Review, Cambridge University Press, vol. 106(3), pages 622-643, August.
    12. Callander, Steven & Clark, Tom S., 2017. "Precedent and Doctrine in a Complicated World," American Political Science Review, Cambridge University Press, vol. 111(1), pages 184-203, February.
    13. Lax, Jeffrey R., 2007. "Constructing Legal Rules on Appellate Courts," American Political Science Review, Cambridge University Press, vol. 101(3), pages 591-604, August.
    14. Joshua A Strayhorn, 2019. "Competing signals in the judicial hierarchy," Journal of Theoretical Politics, , vol. 31(3), pages 308-329, July.
    15. 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.
    16. Matthew C. Stephenson, 2009. "Legal Realism for Economists," Journal of Economic Perspectives, American Economic Association, vol. 23(2), pages 191-211, Spring.
    17. 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.
    18. Cliff Carrubba & Barry Friedman & Andrew D. Martin & Georg Vanberg, 2012. "Who Controls the Content of Supreme Court Opinions?," American Journal of Political Science, John Wiley & Sons, vol. 56(2), pages 400-412, April.
    19. Deborah Beim & Alexander V. Hirsch & Jonathan P. Kastellec, 2014. "Whistleblowing and Compliance in the Judicial Hierarchy," American Journal of Political Science, John Wiley & Sons, vol. 58(4), pages 904-918, October.
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