IDEAS home Printed from
MyIDEAS: Login to save this paper or follow this series

Speaking Up: A Model of Judicial Dissent and Discretionary Review

  • Andrew F. Daughety


    (Department of Economics and Law School, Vanderbilt University)

  • Jennifer F. Reinganum


    (Department of Economics and Law School, Vanderbilt University)

We draw together concepts from political science, law, and economics to model discretionary actions by agents in a weak hierarchical system, wherein agents at a higher level cannot directly discipline those at a lower level. In particular, we model the decision by an appeals court judge to communicate information to justices on a supreme court (via a written dissent) that a case is worthy of reconsideration, and discretionary decisions by justices on that supreme court to choose whether to formally review the case. In our model, judges and justices receive utility both from the outcome of the case in question and from the breadth of application of the outcome to jurisdictions besides the original source of the case (that is, the precedential value of the case). Action is costly for judges and for justices: for the appeals court judge, producing the dissenting opinion involves effort and may even preclude being able to so promote other cases; for the justices on the supreme court, there are too many such cases to consider, so the decision to review a case implies foregone opportunities to review other cases, cases through which they could also influence the evolution of the law. One very plausible equilibrium in our model predicts that an appeals court judge will find it valuable to communicate information to like-minded supreme court justices. However, a more unexpected type of equilibrium can exist that can best be summarized as an equilibrium with "strange bedfellows:" a judge with a particular ideological orientation may choose to communicate and influence a justice (or justices) with different ideological views in order to persuade the justice(s) to vote to review the case in question. Furthermore, we show that by setting a high hurdle for discretionary review, the supreme court justices can capitalize on the desire of appeals court judges to influence law, thereby encouraging enhanced informational effort by the appeals court judges: judges act as screeners of the cases most likely to be of interest to justices.

If you experience problems downloading a file, check if you have the proper application to view it first. In case of further problems read the IDEAS help page. Note that these files are not on the IDEAS site. Please be patient as the files may be large.

File URL:
File Function: Revised version, 2003
Download Restriction: no

Paper provided by Vanderbilt University Department of Economics in its series Vanderbilt University Department of Economics Working Papers with number 0209.

in new window

Date of creation: Mar 2002
Date of revision: Jan 2003
Handle: RePEc:van:wpaper:0209
Contact details of provider: Web page:

No references listed on IDEAS
You can help add them by filling out this form.

This item is not listed on Wikipedia, on a reading list or among the top items on IDEAS.

When requesting a correction, please mention this item's handle: RePEc:van:wpaper:0209. See general information about how to correct material in RePEc.

For technical questions regarding this item, or to correct its authors, title, abstract, bibliographic or download information, contact: (John P. Conley)

If you have authored this item and are not yet registered with RePEc, we encourage you to do it here. This allows to link your profile to this item. It also allows you to accept potential citations to this item that we are uncertain about.

If references are entirely missing, you can add them using this form.

If the full references list an item that is present in RePEc, but the system did not link to it, you can help with this form.

If you know of missing items citing this one, you can help us creating those links by adding the relevant references in the same way as above, for each refering item. If you are a registered author of this item, you may also want to check the "citations" tab in your profile, as there may be some citations waiting for confirmation.

Please note that corrections may take a couple of weeks to filter through the various RePEc services.

This information is provided to you by IDEAS at the Research Division of the Federal Reserve Bank of St. Louis using RePEc data.