Judicial Innovation

• In Event: Judicial Decisions

Abstract

Do judges interpret the law, or make the law? While rich evidence exists for the effects of ideology on judicial voting, less is known about when and how judges innovate and introduce novel doctrine. Citations to precedent form the primary evidentiary and rhetorical device used to advance and promulgate legal doctrine. Judges may choose from an array of possible precedents for any reasonably complex case, while the probability that the Supreme Court will review any given circuit court decision is quite small. As such, judges may in fact cite precedents to legitimate extralegal policy goals, innovating doctrinally rather than seeking out some objective “best” precedent and constraining their decisionmaking accordingly. We analyze original data on over 1.2 million citations on Supreme Court precedent in the circuit courts 1947-2007. We study the hypergraphs of citation clusters in circuit court opinions, focusing on the relative rarity of elements of each hypergraph. Thus, certain citations are more informative than others, and the appearance of a relatively rare node (citation) in a cluster may signify the judge’s desire to advance legal doctrine in a new or ideologically extreme manner. We then explore how judge and case characteristics influence the emergence of innovative judicial lawmaking.

Authors

• Matthew P. Hitt, Colorado State University

• Bailey Fosdick, Colorado State University

• Alex Fout