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Journal of Law, Economics, and Organization Advance Access originally published online on May 12, 2007
Journal of Law, Economics, and Organization 2007 23(2):326-345; doi:10.1093/jleo/ewm022
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© The Author 2007. Published by Oxford University Press on behalf of Yale University. All rights reserved. For Permissions, please email: journals.permissions@oxfordjournals.org

Legal Doctrine and Political Control

Tonja Jacobi*

Northwestern University School of Law

Emerson H. Tiller**

Northwestern University School of Law

* Assistant Professor of Law, Northwestern University School of Law. Email: t-jacobi{at}law.northwestern.edu.

** Stanford Clinton Sr. Research Professor of Law, Northwestern University School of Law. Email: tiller{at}northwestern.edu.

We model legal doctrine as an instrument of political control by higher courts over lower courts and the case outcomes they produce. We focus on the choice between determinate and indeterminate doctrines within a hierarchy of courts where political–ideological alignment between lower and higher courts varies. We show that the choice over doctrinal determinacy depends on the distribution of cases, the distribution of litigants, judicial types, and the level of policy alignment between higher and lower court judges. The model suggests the optimal doctrinal choice for a high court, given the political–ideological alignment between the high court and the lower court, the control characteristics of doctrines themselves, and the matching of doctrines to litigant pools. This has implications regarding preference divergence within the judicial hierarchy, the interaction of different doctrines, and interplay between doctrinal specificity and doctrinal reach.


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