The Strategic Analysis of Judicial Behavior

Description

The past decade has witnessed a worldwide explosion of work aimed at illuminating judicial-behavior: the choices judges make and the consequences of their choices. We focus on strategic accounts of judicial-behavior. As in other approaches to judging, preferences and institutions play a central role but strategic accounts are unique in one important respect: They draw attention to the interdependent - i.e., the strategic - nature of judicial decisions. On strategic accounts, judges do not make decisions in a vacuum, but rather attend to the preferences and likely actions of other actors, including their colleagues, superiors, politicians, and the public. We survey the major methodological approaches for conducting strategic analysis and consider how scholars have used them to provide insight into the effect of internal and external actors on the judges' choices. As far as these studies have traveled in illuminating judicial-behavior, many opportunities for forward movement remain. We flag four in the conclusion. Cover Title page Copyright page The Strategic Analysis of Judicial Behavior Contents 1 Introduction 2 Building Strategic Accounts 2.1 Preferences 2.1.1 Policy 2.1.2 Personal Preferences 2.1.3 Institutional Preferences 2.2 Interdependent (Strategic) Decision Making 2.3 Institutions 3 Conducting Strategic Analysis 4 Strategic Analysis in Action I: Internal Accounts 4.1 Judicial Colleagues (The “Collegial Court”) 4.1.1 Selecting Cases 4.1.2 Deciding Cases 4.2 Judicial Superiors (The “Hierarchy of Justice”) 5 Strategic Analysis in Action II: External Accounts 5.1 Why the Need for Strategic Behavior? 5.2 Anticipate the Reactions of Current External Actors 5.2.1 Interpret Dynamically 5.2.2 Write Vague Opinions 5.2.3 Uncover Preferences and Likely Actions 5.3 Anticipate the Reactions of Incoming External Actors 5.4 Time Decisions 5.5 Cultivate Public Opinion 5.5.1 Go Public 5.5.2 Develop (Popular) Rights 6 Moving Forward References Acknowledgments