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Home arrow Economics arrow Commitment and cooperation on high courts : a cross-country examination of institutional constraints on judges


Although courts generally select cases for review based on some sense of whether they raise issues of public or legal significance, the vagueness of this threshold allows judges considerable scope in their choice. Before we discuss how judges decide, however, it is important to point out that not only do the judges screen out cases they do not want to hear but the parties themselves decide whether to appeal to the high court or not.[1] As a result, neither the petitions to be heard by a court nor the set of cases actually heard by the court is random. The parties will decide to appeal or not in part based on the probability of succeeding on appeal. which, following the Priest-Klein hypothesis, should in general mean that cases with a very high (or very low) probability of success should not actually result in a hearing on the merits. We do not consider this private screen of cases coming before high courts but instead focus on the public screen of the judge selection of cases to hear.

We will consider four main theories of how judges make this choice, each of which may be partially true and operate along with the others:[2]

  • • Workload—judges decide on cases to hear at least in part with a view to ensuring they control the amount of work they have to do;
  • • Cue Theory—judges decide based on easily identified signals from the case that it raises important legal issues;
  • • Simple Ideology—judges vote to hear cases based solely on their own personal views about the outcome; and
  • • Sophisticated Ideology—judges vote to hear cases not simply on their own personal views but whether their views will win out when the case is heard by the court.

We start with the simplest premise—that judges consider their overall workload when deciding whether to hear an appeal.

  • [1] For a good examination of this connection between how the parties decide whether toappeal and ideological voting on a court, see Jeff Yates & Elizabeth Coggins, “The Intersectionof Judicial Attitudes and Litigant Selection Theories: Explaining U.S. Supreme Court DecisionMaking” (2009) 29 Wash. U. J. L. & Poly 263 [Yates & Coggins].
  • [2] For example, Epstein, Martin, and Segal propose a “bounded discretion” model under whichsome petitions to be heard should obviously be granted and some obviously denied, but there are
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