Understanding Adjudication
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Description
A theory of adjudication begins with two sets of three questions: The first set asks about the behavior of courts. The second asks about the behavior of judges. We thus have: What do courts and judges do? What do courts and judges want? What constraints do courts and judges face? Attitudinalism, the predominant social science account of adjudication, has simple answers to these questions: Courts and judges choose policies; they have preferences over policies, and, at least on apex courts, they are unconstrained. These answers, even for apex courts, seem incomplete and misleading. Constitutional drafters, legislators, and treaty signatories devote substantial resources to devising complex institutional structures, a meaningless effort if the structure of institutions does not constrain the court. Judges typically deny that courts are political bodies engaged in the naked articulation of policy. They justify their decisions with long and complex opinions. Thus, sustained attention to judicial activity suggests that these six questions require more complex answers. Attitudinalism, in recognition of this apparent gap in its explanations, frequently posits a legal model with which to challenge its more realist explanation. The legal model, however, is poorly specified and not adequately tested against attitudinalism. Indeed, we require richer theories than attitudinalism both to approximate a legal model and to illuminate the processes of adjudication generally and of decision-making on apex courts in particular. Economists and political scientists have begun to develop these richer models. This essay introduces this theoretical literature. I focus on models of collegial courts in which a panel of judges decides cases together. Apex courts typically are collegial. The study of apex courts, however, also implicates issues of hierarchy because apex courts generally sit atop a hierarchy or may hear cases in panels that are subject to plenary review. This essay has two aims. First, it sketches the diverse universe of apex courts in an effort to identify features that theory should incorporate and illuminate. Second, it outlines some richer theoretical structures that, with substantial work, might provide a more robust theory of courts and adjudication. I begin this exploration of theory by discussing first what judges do, then what constraints judges face, and finally what judges want. I then examine some models to illustrate these formal structures. I focus on formal models because they yield sharp predictions that can be brought to data. The formal literature that I review largely studies federal or state courts in the United States. This focus, though explicable by the relative accessibility of data (and the national origins or residency of the authors), is unfortunate because apex courts elsewhere have significantly different internal structures and institutional settings. The extant literature reveals the importance of these institutional features on the behavior of courts and judges.
Source Publication
High Courts in Global Perspective: Evidence, Methodologies, and Findings
Source Editors/Authors
Nuno Garoupa, Rebecca D. Gill, Lydia B. Tiede
Publication Date
2021
Recommended Citation
Kornhauser, Lewis A., "Understanding Adjudication" (2021). Faculty Chapters. 1014.
https://gretchen.law.nyu.edu/fac-chapt/1014
