How can a centrist president or governor best influence law through the appointment of judges? Imagine that there are two sitting judges and one of the positions becomes vacant. The other, veteran judge is on the extreme right, from the perspective of the executive, and the executive prefers centrist outcomes. Should the executive appoint a centrist or, instead, appoint a left-wing extremist who might offset the sitting, right-wing judge? Conventional wisdom holds that judges counteract, or balance, one another; that is, a left-wing appointment carries the best hope offsetting the existing, right-wing judge. Following this intuition, a moderate appointment would simply cause judicial outcomes to converge to a rule about halfway between the moderate and the right-wing position. There is, however, good reason to think that this conventional wisdom is misguided and that extremists do not necessarily offset one another.
We have strong intuitions that the views of judges balance one another. Our intuitions suggest that the path of the law takes the middle ground if judges are selected to offset one another. Our intuitions suggest that this balancing is likely to be stronger when judges decide cases narrowly, in a case by case manner, because the views of all judges are more likely to be heard. In this paper, I suggest that our intuitions, however strong, may not necessarily be correct. I illustrate, using a model of case-by-case adjudication, that the law will not likely reflect the middle ground between judges’ different viewpoints. When judges are randomly selected to hear disputes—in, for example, federal courts of appeals—the law disproportionately reflects the biases of judges who are chosen to decide cases of first impression or cases of early impression. Even when judges decide cases narrowly, path dependence in judge-made law likely generates rules that do not reflect a compromise between the different views of judges.
- Legal Evolution
Available at: http://works.bepress.com/anthony_niblett/1/