The authors are grateful for the invaluable research assistance of Christopher Morabito and Kevin Mulligan. They are also thankful for the insightful and helpful comments of the editors and reviewers.
Is Certiorari Contingent on Litigant Behavior? Petitioners' Role in Strategic Auditing
Article first published online: 18 JAN 2013
© 2013, Copyright the Authors. Journal compilation © 2013, Cornell Law School and Wiley Periodicals, Inc
Journal of Empirical Legal Studies
Volume 10, Issue 1, pages 54–75, March 2013
How to Cite
Mak, M., Sidman, A. H. and Sommer, U. (2013), Is Certiorari Contingent on Litigant Behavior? Petitioners' Role in Strategic Auditing. Journal of Empirical Legal Studies, 10: 54–75. doi: 10.1111/jels.12002
- Issue published online: 18 JAN 2013
- Article first published online: 18 JAN 2013
Complementing the burgeoning literature on agenda setting on the Supreme Court of the United States, this article addresses a key question heretofore overlooked—Is the justices' choice to review a decision independent of the selection of cases for review by the litigants? We argue that the certiorari process cannot be modeled as an independent one; rather, it is inextricably linked with and essentially contingent on the behavior of litigants who bring the case to the Supreme Court. This dependence of the Court is important both at the level of theory and at the empirical level and ignoring it entails bias in the estimation process. Using an original database, which includes the universe of religion free exercise cases decided at the courts of appeals from 1968–2006, we find significant selection effects. Factors that influence decisions on certiorari are dependent on the behavior of petitioners and should be modeled as such.