a1 Columbia University
When higher court judges attempt to assert control over lower-court decision making, do such hierarchical politics shape legal doctrine? Using a “case-space” model of choice between determinate doctrines (rules) and more flexible doctrines (standards), I argue that the structure of doctrine affects the application of and compliance with doctrine by lower courts, and this in turn affects choice among doctrinal structures. Doctrinal choice, legal complexity, lower court discretion, and the allocation of judicial resources are shown to depend on hierarchical conflict, the transparency of decisions, sensitivity to case facts, judicial expertise, salience of the issue area, and issue complexity. These incentives have counterintuitive effects on lower court discretion and on doctrinal specificity, and they create odd patterns of ideological and doctrinal alignment. Ignoring these incentives undercuts our understandings of lower court compliance, of judicial ideology, and of the effects of collegiality on law.
Jeffrey R. Lax is Associate Professor in the Department of Political Science at Columbia University, New York, NY 10027.