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Is Certiorari Contingent on Litigant Behavior? Petitioners' Role in Strategic Auditing

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  • Maxwell Mak
  • Andrew H. Sidman
  • Udi Sommer

Abstract

Complementing the burgeoning literature on agenda setting on the Supreme Court of the United States, this article addresses a key question heretofore overlooked—Is the justices' choice to review a decision independent of the selection of cases for review by the litigants? We argue that the certiorari process cannot be modeled as an independent one; rather, it is inextricably linked with and essentially contingent on the behavior of litigants who bring the case to the Supreme Court. This dependence of the Court is important both at the level of theory and at the empirical level and ignoring it entails bias in the estimation process. Using an original database, which includes the universe of religion free exercise cases decided at the courts of appeals from 1968–2006, we find significant selection effects. Factors that influence decisions on certiorari are dependent on the behavior of petitioners and should be modeled as such.

Suggested Citation

  • Maxwell Mak & Andrew H. Sidman & Udi Sommer, 2013. "Is Certiorari Contingent on Litigant Behavior? Petitioners' Role in Strategic Auditing," Journal of Empirical Legal Studies, John Wiley & Sons, vol. 10(1), pages 54-75, March.
    • Handle: RePEc:wly:empleg:v:10:y:2013:i:1:p:54-75
    DOI: 10.1111/jels.12002
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    References listed on IDEAS

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    1. Udi Sommer, 2011. "How rational are justices on the Supreme Court of the United States? Doctrinal considerations during agenda setting," Rationality and Society, , vol. 23(4), pages 452-477, November.
    2. Keren Weinshall‐Margel, 2011. "Attitudinal and Neo‐Institutional Models of Supreme Court Decision Making: An Empirical and Comparative Perspective from Israel," Journal of Empirical Legal Studies, John Wiley & Sons, vol. 8(3), pages 556-586, September.
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    5. 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.
    6. McGuire, Kevin T. & Caldeira, Gregory A., 1993. "Lawyers, Organized Interests, and the Law of Obscenity: Agenda Setting in the Supreme Court," American Political Science Review, Cambridge University Press, vol. 87(3), pages 717-726, September.
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    Cited by:

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    2. Joshua A Strayhorn, 2019. "Competing signals in the judicial hierarchy," Journal of Theoretical Politics, , vol. 31(3), pages 308-329, July.

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