Judges, Litigants, and the Design of Courts


  • Paul Brace,

  • Jeff Yates,

  • Brent D. Boyea

  • An earlier version of this article was presented at the 2006 Annual Meeting of the American Political Science Association and the 2009 Annual Meeting of the Society for Empirical Legal Studies. This research was supported in part by the National Science Foundation. Please direct all correspondence to Paul Brace, Department of Political Science, Rice University, 6100 Main Street, Houston, TX 77005; e-mail: pbrace@rice.edu.


Two important perspectives on courts highlight fundamentally different elements of adjudication and yield distinct predictions about judicial outcomes. The Attitudinal Model of judicial voting posits judge ideology as a strong predictor of court outcomes. Alternatively, the Law and Economics perspective focuses on the settlement behavior of litigants and reasons that while judges may vote ideologically, litigants adapt to these ideological proclivities, nullifying the effect of judge ideology. This analysis focuses on reconciling expectations about the effects of judge ideology and litigant strategies by examining their contingent nature and the conditioning effects of institutional design. The analysis examines state supreme courts from 1995–1998 to identify empirical evidence supporting both perspectives. While some state supreme courts have discretionary dockets allowing judges greater opportunities to exercise their ideology, others lack discretionary docket control, making dockets and outcomes largely litigant driven. Support for each perspective largely hinges on this fundamental feature of institutional design.