Bargaining and Strategic Voting on Appellate Courts

Giri Parameswaran,Lewis A Kornhauser,Charles M Cameron

doi:10.1017/s0003055421000083

Giri Parameswaran, Lewis A Kornhauser + Show 1 more

Open Access

https://doi.org/10.1017/s0003055421000083

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Abstract

Many appellate courts and regulatory commissions simultaneously produce case dispositions and rules rationalizing the dispositions. We explore the properties of the American practice for doing this. We show that the median judge is pivotal over case dispositions, although she and others may not vote sincerely. Strategic dispositional voting is more likely when the case location is extreme, resulting in majority coalitions that give the appearance of less polarization on the court than is the case. The equilibrium policy created in the majority opinion generically does not coincide with the ideal policy of the median judge in either the dispositional majority or the bench as a whole. Rather, opinions approach a weighted center of the dispositional majority but often reflect the preferences of the opinion author. We discuss some empirical implications of the American practice for jointly producing case dispositions and rules.

Highlights

In strong contrast to existing results, our analysis shows that the equilibrium policy will generically not coincide with either the median judge on the bench,12 or the median judge in the dispositional majority
We present a new model of decision making on multimember bodies that simultaneously dispose of cases and formulate a rule that rationalizes the case disposition
We focus on one procedure, the “American procedure,” for joint production of judgments and policies

Summary

INTRODUCTION

Judges face an incentive to vote strategically on case dispositions in order to join the bargainers who determine policy. Justice Kennedy would have reversed the state supreme court as he believed the confession was not coerced He voted insincerely on the disposition, upholding the decision below. Kornhauser not intense (i.e., when the discount parameter δ in the sequential bargaining subgame is far from 1) In these circumstances, the opinion author, though constrained by the case location, will be able to set policy at or near her ideal policy. We further characterize the limit equilibria of such bargaining games as the discount parameter δ approaches 1 We interpret this limit as the bargaining result when the cost of proposing alternative majority opinions becomes arbitrarily small—that is, as bargaining becomes intense. We believe this situation is relevant given the institutional setting of an apex court

Literature Review

M1 None

DISCUSSION

CONCLUSION