Rule Creation in a Political Hierarchy

46 Pages Posted: 18 May 2011

See all articles by Clifford Carrubba

Clifford Carrubba

Emory University - Department of Political Science

Tom S. Clark

Emory University - Department of Political Science

Date Written: April 26, 2010

Abstract

A considerable portion of the law is judge-made. Moreover, most law creation takes place in the judicial hierarchy, with the Supreme Court serving primarily as the overseer of the decisions made by lower courts. Despite the significance of the judicial hierarchy for law creation, there remain considerable gaps in our knowledge about the incentives and constraints facing lower court judges responsible for law creation. We model law creation in a judicial hierarchy characterized by principal-agent dilemmas. These models incorporate the empirical observations of previous research and outline a theoretical framework and testable predictions about the choices lower court judges will make when creating law. We also provide an empirical analysis of two of the model’s key predictions. While the paper is focused on courts, the implications of the analyses extend to other hierarchical rule-making structures.

Suggested Citation

Carrubba, Clifford and Clark, Tom S., Rule Creation in a Political Hierarchy (April 26, 2010). Emory Public Law Research Paper No. 11-161, Emory Law and Economics Research Paper No. 11-105, Available at SSRN: https://ssrn.com/abstract=1596304 or http://dx.doi.org/10.2139/ssrn.1596304

Clifford Carrubba

Emory University - Department of Political Science ( email )

Atlanta, GA 30322
United States
404-727-7915 (Phone)
404-727-4586 (Fax)

Tom S. Clark (Contact Author)

Emory University - Department of Political Science ( email )

Atlanta, GA 30322
United States
404-727-6615 (Phone)

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