Speaking up: A Model of Judicial Dissent and Discretionary Review

Abstract

We employ information economics to model the decision by a dissenting appeals court judge to strategically (but truthfully) promote cases as worthy of reconsideration by a higher court, 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). Discretionary decisions incur opportunity costs, borne both by judges and justices, that reflect foregone chances to promote and review (respectively) other 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 jurisprudential orientation may Speaking Up: A Model of Judicial Dissent and Discretionary Review choose to communicate and influence a justice (or justices) with different jurisprudential views in order to persuade the justice(s) to vote to review the case in question. In the first type of equilibrium we find communication by dissenters which primarily suggests a high likelihood that the supreme court will overturn the appeals court's decision (the case is likely to be a "good bet" for reversal), while the second type of equilibrium primarily involves communication by a minority judge suggesting that the supreme court's decision is likely to be a "close call, " but that the case is deserving of reconsideration at the highest level. We show that by setting a high hurdle for discretionary review (e.g., by restricting access), 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. Furthermore, we show that, given the opportunity costs in the system, the set of promoted cases is larger when jurisprudential preferences are more majoritarian.