Publication

We study the incentives for writing dissenting opinions that try to shape the law. We model the interaction between a minority and majority in a collegial court setting. Dissenting judges calculate how much effort to put into a dissenting opinion with an expectation that their work can probabilistically affect how the law is applied in the future. That calculus can influence how a majority opinion author writes an opinion and the dynamics of collegial decision-making and coalition formation. We evaluate comparative statics about the content of opinions and the conditions under which dissenting opinions should emerge from collective choice. The results help rationalize both differences in dissenting behavior across levels of the judicial hierarchy and how separate opinion-writing shapes the extremity of judicial opinions.

Working Papers

How Does Agenda Order Matter? Evidence From Qualified Immunity

A primary concern for scholars of political institutions centers on how institutional arrangements affect outcomes. One such arrangement that is fundamental for courts involves judges asking (1) whether the relief-seeking party was harmed and (2) whether the court can do anything about it. The order in which judges decide these two issues affects both opinion content and which party prevails. I develop a formal model to demonstrate how this agenda-order discretion affects who wins and loses in court. The model clarifies how granting courts the power to determine which issue to decide first decreases relief in equilibrium. Analyzing a novel dataset of U.S. Circuit Courts of Appeals cases, I proffer empirical evidence that corroborates the model’s result: The U.S. Supreme Court’s switch from a rights-first-remedies-second framework in qualified immunity cases to one in which judges are permitted discretion to determine which issue to decide first lowered significantly the relief rate. Thus, power over agenda order alters the majority formation process which, in turn, can change who wins and who loses.

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Rights, Remedies, and Relief

Judicial decision-making often involves determining both whether someone’s rights have been violated and what to do to remedy such a violation. Existing theory gives short shrift to how this bifurcated process complicates decision-making, which I account for in a model in which judges on a multi-member court vote explicitly over two interdependent policy dimensions and implicitly over a case’s outcome. Analysis reveals how a commitment to an ordered agenda resolves all social preference cycling. Additionally, I demonstrate this straightforward rights-remedies framework can incorporate of another feature of judicial decision-making—not deciding more issues than necessary to dispose of a case—and show how this feature alters both opinion content and outcomes. Findings contribute to our understanding of collective decision-making’s rule-sensitivity, illustrate how courts may resolve a well-known paradox using common judicial procedures, and suggest an untapped potential in treating cases as about more than one issue.