Coordination and Innovation in Judiciaries: Correct Law vs. Consistent Law

Abstract

We identify the coordination consideration among judges who do not have formal authority over each other, and investigate its consequences for their decisions and legal innovations. Coordination concerns arise because judges value the consistent application of law. To mitigate their strategic uncertainty, judges overweight interpretations that are visible throughout the judiciary (e.g., prominent judges' opinions) because their visibility facilitates coordination. This creates a tradeoff between the consistent and correct application of law--the two desiderata of judicial decisionmaking. In particular, anticipating overreactions to their opinions, some prominent judges refrain from expressing their informed opinions. Paradoxically, the propensity to refrain is strongest in prominent judges who care most about the correct application of law. From their perspective, excessive concern for uniformity in the judiciary overrides the informational value of expressing informed opinions. We explore the implications for issuing narrow or broad opinions, the stickiness of precedent, and the practice of stare decisis. We provide concrete examples from contract, property, tort, and constitutional law that support our theoretical mechanisms.

Keywords: Non-hierarchical judiciary, judicial decision making, legal innovation, coordination, public information, MacPherson, Escola, Javins

JEL Classification: K4, K12, K13, D82