\\server05\productn\N\NYU\82-2\NYU202.txt unknown Seq: 1 18-APR-07 7:59 LOWER COURT DISCRETION PAULINE T. KIM* Empirical scholars typically model the judicial hierarchy in terms of a principal- agent relationship in which the Supreme Court, the principal, sets policy and the lower federal courts, as agents, must faithfully implement that policy. The law is a signal—the means by which the Court communicates its preferences. This Article argues instead for recognizing the law as an independent normative force. Empir- ical scholars fail to take seriously the role of law because they reject as implausible formalistic accounts of its operation. This Article advances a more nuanced account of how law shapes the decisionmaking environment of the lower federal courts, one that focuses on the presence of discretion. It explores how different types of discretion afford distinct types of power over lawmaking and case out- comes, and how that discretionary power is allocated between district and appellate courts. Paying attention to discretion suggests features of the judicial hierarchy that are commonly overlooked in principal-agent models. For example, judges’ goals, and therefore their strategies, will vary depending upon whether they seek to influ- ence law development or merely to shape case outcomes. The Article also ques- tions the normative assumption, implicit in principal-agent models, that lower federal courts should decide cases in accordance with the policy preferences of the Supreme Court. Because judges inevitably have discretion when applying the law, a norm of compliance with superior court precedent does not necessarily require lower courts to follow the policy preferences of the Supreme Court. The reasons judicial discretion exists, such as allocating power within the judicial hierarchy, may argue against such a centralization of power in the Supreme Court. INTRODUCTION ................................................. 384 R I. LOWER COURT DECISIONMAKING ...................... 391 R A. The Judicial Hierarchy .............................. 391 R B. Empirical Evidence ................................. 394 R C. Law as a Signal ..................................... 396 R D. Law as a Normative Force .......................... 404 R II. LOWER COURT DISCRETION ............................ 408 R A. Law and Discretion ................................. 408 R B. Discretion and Power ............................... 417 R 1. Novel Legal Issues .............................. 420 R 2. Applying Law to Facts .......................... 423 R 3. Questions of Fact ............................... 424 R 4. Managerial Decisions ........................... 425 R * Copyright 2007 by Pauline T. Kim. Professor of Law, Washington University School of Law, St. Louis. My thanks to Nancy Staudt, Sam Bagenstos, Margo Schlanger, Barry Friedman, Barbara Flagg, and Ron Levin, who provided helpful feedback on earlier drafts of this Article. I also benefited from the comments of participants at Washington University’s Workshop on Empirical Research in the Law (WERL) and faculty workshops at Washington University School of Law and Duke Law School. Tom Clark and James Bloom provided invaluable research assistance. 383 \\server05\productn\N\NYU\82-2\NYU202.txt unknown Seq: 2 18-APR-07 7:59 384 NEW YORK UNIVERSITY LAW REVIEW [Vol. 82:383 III. REVISITING THE PRINCIPAL-AGENT MODEL ............ 426 R A. Positive Implications ................................ 426 R 1. Testing the Assumptions......................... 426 R 2. Law Matters .................................... 428 R B. Normative Implications ............................. 434 R CONCLUSION ................................................... 441 R INTRODUCTION Court decisionmaking has long been a subject of study for both legal theorists and political scientists. Despite the common focus of their efforts, several quite distinct approaches have developed. The dominant approach in traditional legal scholarship has been norma- tive, with scholars asking how judges should decide important ques- tions of law. Even when this work has taken a positive turn by asking how judges in fact decide cases, the work has emphasized the impor- tance of doctrine, focusing on court opinions as evidence of the rea- sons for their decisions. By contrast, social scientists who study the courts have usually emphasized positive explanations of court behavior and focused their attention on case outcomes rather than written opinions. One approach, dominant among political scientists for a time, relies on a social-psychological paradigm. Often referred to as the “attitudinal” model, it sees judicial decisionmaking as deter- mined by the attitudes or preferences of individual judges, whose votes in particular cases reflect their sincere policy preferences largely unconstrained by legal precedent.1 More prominent in recent years are positive political theories that emphasize strategic interactions among judges and between judges and other political actors.2 This approach shares the attitudinalists’ assumption that judges seek to advance their policy preferences; however, it posits that in doing so, they act strategically, taking account of the likely response of other 1 See generally JEFFREY A. SEGAL & HAROLD J. SPAETH, THE SUPREME COURT AND THE ATTITUDINAL MODEL (1993) (elaborating and defending “attitudinal model,” which holds that Supreme Court decisions reflect ideological attitudes and values of Justices). 2 See generally Frank B. Cross & Emerson H. Tiller, Judicial Partisanship and Obedi- ence to Legal Doctrine: Whistleblowing on the Federal Courts of Appeals, 107 YALE L.J. 2155 (1998) (arguing that policy-oriented court of appeals judges follow legal doctrine stra- tegically in order to avoid reversal); William N. Eskridge, Jr., Overriding Supreme Court Statutory Interpretation Decisions, 101 YALE L.J. 331 (1991) (describing establishment of statutory policy as dynamic game among Court, Congress, and President in which each tries to impose its policy preferences in light of expected responses of other players); McNollgast, Politics and the Courts: A Positive Theory of Judicial Doctrine and the Rule of Law, 68 S. CAL. L. REV. 1631 (1995) (modeling judicial decisionmaking as product of stra- tegic interactions between upper and lower courts); Donald R. Songer, Jeffrey A. Segal & Charles M. Cameron, The Hierarchy of Justice: Testing a Principal-Agent Model of Supreme Court-Circuit Court Interactions, 38 AM. J. POL. SCI. 673 (1994) (same). \\server05\productn\N\NYU\82-2\NYU202.txt unknown Seq: 3 18-APR-07 7:59 May 2007] LOWER COURT DISCRETION 385 actors and the institutional context in which they operate. Although this approach is more closely associated with political science, a number of legal scholars have also embraced strategic accounts of judicial decisionmaking. Scholars have undertaken empirical studies to test these com- peting theories of decisionmaking.3 With an emphasis on quantitative analysis, these efforts have produced a great deal of data about what judges do—or at least how they vote—in a wide variety of situations. What these large-scale studies of judicial decisionmaking generally lack, however, is a satisfactory account of the law. Typically, they measure judicial output in terms of ideological outcome, focusing on whether a case was decided in a liberal or conservative direction and largely ignoring the legal reasoning set forth in the written opinion. For scholars ascribing to social-psychological explanations, the lack of attention to law is not surprising, given that their theoretical approach presumes that law is irrelevant. Positive political theorists have been more willing to recognize law as operative, but they account for it in instrumental terms. For example, a recent study sought to demon- strate that judicial adherence to legal principles is “explained by . judges’ concerns with the external policy effects of their rulings.”4 In other words, the theory goes, “judges care about precedent because they care about policy.”5 On this view, the law is merely a cipher—a stand-in for the real motivations behind a decision. This Article challenges that perspective, arguing that the law has independent normative force that cannot be reduced to purely stra- tegic explanations. In other words, it takes the position that law mat- ters in its own right and that both theoretical and empirical efforts to understand how judges make decisions will be enhanced by paying more attention to legal doctrine and legal norms. Other scholars have 3 See generally Gregory A. Caldeira, John R. Wright & Christopher J.W. Zorn, Sophisticated Voting and Gate-Keeping in the Supreme Court, 15 J.L. ECON. & ORG. 549 (1999) (empirically testing whether Supreme Court Justices engage in strategic voting in certiorari decisions); Forrest Maltzman & Paul J. Wahlbeck, Strategic Policy Considerations and Voting Fluidity on the Burger Court, 90 AM. POL. SCI. REV. 581 (1996) (empirically testing whether Supreme Court Justices act strategically in changing their votes between initial conference and final vote); Richard L. Revesz, Environmental Regulation, Ideology, and the D.C. Circuit, 83 VA. L. REV. 1717 (1997) (empirically testing whether D.C. Circuit judges are strategically ideological when reviewing environmental regulations); Songer et al., supra note 2 (empirically testing extent of courts of appeals’ responsiveness to and R congruence with Supreme Court policy); Paul J. Wahlbeck, James F. Spriggs II & Forrest Maltzman, Marshalling