A summary of the project is below. Click here for the grant proposal (.pdf), and here for the first paper from the project.

Click here for a paper presenting a measurement strategy for placing judges of lower courts and justices of the Supreme Court in the same policy space.

Project Summary

In recent years, scholars and journalists alike have spilt much ink over dramatic instances of outright circuit court defiance of U.S. Supreme Court precedent-including the Fifth Circuit's apparent overruling of Regents of the University of California v. Bakke (1978) and the Fourth's of Miranda v. Arizona (1966). But the general phenomenon- deviation from stare decisis-can take far subtler forms (e.g., distinguishing, limiting, or avoiding precedents).

This phenomenon raises a question that, depending on one's perspective, may be posed two different ways: Why do lower courts defy higher courts, or, given the minute percentage of lower court cases that are heard and reversed, why do lower courts comply with higher courts?

Recent scholarly efforts to address these questions have focused on the structural incentives created by the design and operation of organizations. In broad terms, this focus is part of the "new institutionalism" that has swept the social sciences in the last decade. But scholars adopting a new institutional perspective have failed to converge on a singular model of lower court behavior in the hierarchy of justice. Quite the opposite: They have elaborated four distinct and, to some extent, competing models. The first, recently suggested by prominent legal scholars, is a model based on the theory of teams. The remaining three are "principal-agent models" that assume heterogeneous policy preferences among judges and examine the incentives and opportunities created by various institutional features of the modern judicial hierarchy.

The goal of the research is to advance the new judicial institutionalism, empirically and theoretically, by invoking the various models to answer our primary research question- why do lower courts defy (comply with) higher courts? In the Project Description we lay our plans for accomplishing this end. Sections 2 and 3-the first devoted to the theory of teams and the second to the principal-agent approach-provide overviews of the different models and of the various hypotheses they generate. Section 4 turns to matters of research design, measurement, and data, explaining the procedures we will use to test the hypotheses. In general terms, our plan is as follows: (1) generate a random sample of U.S. Supreme Court decisions; (2) track the responses of lower courts to these decisions (the dependent variable for all the hypotheses); (3) collect data necessary to animate the independent variables; and (4) implement statistical models, testing for the influence of theoretically-critical variables. Data will come from a variety of sources, including biographical materials, NSF-supported databases, judicial decisions, and periodical guides-with the final data base archived on our web site and with the ICPSR.

Since we conclude with a discussion of the importance and implications of our proposed endeavor, suffice it to note here that we believe its empirical findings-both on the prevalence and causes of doctrinal deviation (conformity)-will deepen our factual knowledge and prove interesting to scholars of the judiciary. Perhaps even more important, by showing, both theoretically and empirically, how specific features of the design of the federal judiciary advance or retard vertical stare decisis, we will be able to uncover, at least partially, the institutional foundations of the rule of law in American courts. While these results too should be of interest to students of the American judiciary, we also believe they will hold value for all social scientists concerned with the effect of various structural incentives created by the design and operation of organizations.