Strategic Defiance and Compliance in the U.S. Courts of Appeals

Authors


  • Chad Westerland is Assistant Professor of Political Science, School of Government and Public Policy, University of Arizona, 315 Social Sciences Building, Tucson, AZ 85721-0027 (cwesterl@email.arizona.edu). Jeffrey A. Segal is Chair of Political Science and SUNY Distinguished Professor at Stony Brook University, Stony Brook, NY 11794-4392 (jeffrey.segal@stonybrook.edu). Lee Epstein is the Beatrice Kuhn Professor of Law and Political Science at Northwestern University, 357 East Chicago Ave., Chicago, IL 60611-3069 (lee-epstein@northwestern.edu). Charles M. Cameron is Professor of Politics and Public Affairs, Princeton University, 030 Corwin Hall, Princeton, NJ 80544, and visiting Professor of Law at New York University School of Law (ccameron@princeton.edu). Scott Comparato is Associate Professor of Political Science, Southern Illinois University, 1000 Faner Drive, Mailcode 4501, Carbondale, IL 62901-4501 (scompara@siu.edu).

  • We presented earlier versions of this article at the 2006 annual meeting of the Midwest Political Science Association and the 2006 Empirical Legal Studies conference. We thank Raffaele Engle, Justina Geraci, Scott Graves, Nicole Liguori, Collin Hitt, Marinus van Kuilenberg, Jason Markley, Matthew Newton, Jody Pennington, and Vanessa Maldonado for research assistance. We also thank Donald Songer, Tom Hansford, Andrew D. Martin, Jim Spriggs, and Nancy Staudt for supplying valuable insights and the National Science Foundation [SES-007996] for its support. A full replication archive is available on the project's website: http://epstein.law.northwestern.edu/research/defiance.html.

Abstract

Why do lower courts treat Supreme Court precedents favorably or unfavorably? To address this question, we formulate a theoretical framework based on current principal-agent models of the judiciary. We use the framework to structure an empirical analysis of a random sample of 500 Supreme Court cases, yielding over 10,000 subsequent treatments in the U.S. Courts of Appeals. When the contemporary Supreme Court is ideologically estranged from the enacting Supreme Court, lower courts treat precedent much more harshly. Controlling for the ideological distance between the enacting and contemporary Supreme Courts, the preferences of the contemporary lower court itself are unrelated to its behavior. Hence, hierarchical control appears strong and effective. At the same time, however, a lower court's previous treatments of precedent strongly influence its later treatments. The results have important implications for understanding legal change and suggest new directions for judicial principal-agency theory.

Ancillary