by James R. Rogers, Roy B. Flemming and Jon R. Bond (eds). Charlottesville: University of Virginia Press, 2006. 320pp. Cloth. $60.00. ISBN: 0813925274.
Reviewed by Jeffrey K. Staton, Department of Political Science, Florida State University. Email: jstaton [at] fsu.edu.
INSTITUTIONAL GAMES AND THE U.S. SUPREME COURT, edited by James R. Rogers, Roy B. Flemming and Jon R. Bond, contains essays on familiar puzzles in the institutional analysis of law and courts. Why would a legislature construct an independent judiciary? Why does the “weakest branch” seem largely, but not always, to find compliance with its decisions? Why are lower courts in a hierarchy bound to the rules established by higher courts, yet higher courts are permitted to disregard their own past decisions? The answers to these questions and others provide examples of how game theory can be used to illuminate important substantive questions. Contributors also identify clear empirical implications of their arguments, and in some cases present tests. Thus, INSTITUTIONAL GAMES reflects the discipline’s increased interest in more tightly linking theoretical and empirical models.
While the empirical content is enlightening, the book’s most attractive feature is its attention to valid argumentation, which makes it an excellent resource for teaching how to construct theoretical explanations, whatever the substantive field of interest. Enhancing the ease of use in this regard, the editors have appended a game theory primer to the end of the volume, which while no substitute for an introductory textbook on the subject, provides accessible descriptions of theoretical concepts that emerge in the chapters. None of this is to say that the authors’ varied modeling choices are unassailable. Still, even when assumptions are questionable and seem to drive key theoretical claims, the choices are perfectly clear. Consequently, readers easily may consider the implications of altering these choices. In short, the clarity with which arguments are constructed in INSTITUTIONAL GAMES invites the sort of intellectual play so useful and fulfilling in the classroom.
The volume is divided in two substantive parts, one that addresses the Supreme Court’s inter-branch relationships and another that centers on questions of judicial hierarchy. Whatever the substantive focus, two theoretical issues lay at the core of INSTITUTIONAL GAMES. How do problems associated with potential non-compliance and informational asymmetries between actors in a hierarchy influence institutional design and performance? Conceptualized in this way, the volume’s essays do not merely address puzzles in law and courts, but speak to larger points of concern in the analysis of political rules.
Contributors address problems of compliance in a number of contexts. Hammond, Bonneau and Sheehan ask [*274] how a circuit court might successfully deviate from existing Supreme Court standards. The key insights, which depend on the logic of a modified agenda setter model, are that preference change at the level of the Supreme Court and the Court’s own need to craft a majority opinion create opportunities for lower courts to profitably disregard past decisions. In equilibrium, what might initially look like lower court non-compliance is translated at the Supreme Court into good, albeit new law. Continuing the theme of decision-making in a hierarchy, Lindquist and Haire consider the implications for circuit court decision-making when we conceive of the Congress as an additional principal (i.e. in addition to the Supreme Court). Their results suggest that, while the Supreme Court influences circuit court decisions, so does the Congress. Moreover, the impact of the Supreme Court is conditioned by the clarity of its decisions. These results suggest that agency models of circuit court behavior might consider the multiple hierarchies in which circuit court judges operate.
Papers by Vanberg and by Rogers and Carrubba ask what we should infer about judicial power from observing a court that is obeyed as a matter of course and defied only on occasion. Both essays reflect a key lesson in formal theories of institutions. Inferring power from compliance is a dangerous business, precisely because systematic compliance is consistent with powerful courts that would not be defied under any conditions and with weak courts that strategically avoid conflicts when non-compliance would be a highly probable result. Importantly, if we are to observe the indicia of institutional weakness that emerges when compliance is a problem, we do better to train our empirical eye on the decision-making process itself rather than the process of implementation.
Essays by Martin and Zorn do exactly that. These authors develop and test competing theoretical claims regarding the influence of congressional and presidential preferences on Supreme Court decision-making, many of which may be motivated by an underlying compliance problem. Zorn finds evidence that the Supreme Court is sensitive to drastic changes in the national political landscape, suggesting that independent courts do not necessarily serve the political interests of their designers. Even more striking, Martin’s results suggest that, while the Supreme Court seems unlikely to respond to the preferences of external actors in statutory interpretation cases, it is sensitive to the preferences of the president in constitutional cases. The logic behind this result is that the consequences of inter-branch conflict over constitutional questions are enormous relative to the consequences of conflict over statutory interpretation. While Congress can resolve the latter by amending relevant statutes, if majorities are insufficiently large, constitutional impasses implicate the non-compliance problem directly. Where the governing coalition is not large enough to amend legally an unfavorable constitutional decision, simply ignoring the resolution can solve the problem. On Martin’s account, if that outcome is extremely costly to the Court, it should be [*275] especially careful in constitutional cases. In so far as the debate in American politics over strategic judicial decision-making has largely assumed away the possibility for external influence in constitutional cases, this result, perhaps more than any other in the volume, has the capacity to turn a literature on its head.
Turning to essays where information problems take center stage, Rogers seeks an explanation for deferential standards of judicial review, under which a judge, potentially better informed than any individual legislator, will nonetheless defer to the legislature’s wishes. The answer here lies in the power of institutions to aggregate information and not just preferences. As long as a judge is insufficiently certain of an empirical fact, she does better, in expectation at least, by deferring to the aggregated evaluations of many (potentially) flawed legislators.
Cameron and Kornhauser, in perhaps the most adventuresome theoretical exercise in the volume, address how the tiers of a judicial hierarchy might be designed to resolve uncertainty over the “right” legal or factual decision. The authors depart from standard assumptions about judicial behavior where judges primarily care about policy outcomes and certainly differ in preferences from other judges. In contrast, Cameron and Kornhauser assume that all judges in the hierarchy are identically concerned with minimizing errors produced in the entire judiciary, errors which would be possible to eliminate with the right information. In this sense, individual judges are members of a judicial team. They demonstrate that a three-tiered hierarchy, where designers minimize the chance of error at the top tier, can powerfully resolve the judiciary’s uncertainty problem. The logic is that strategic litigants, who become perfectly informed about the legal or factual truths that are of interest to the judiciary, are incentivized to police legal opponents through appeals. In the process, they reveal their private information.
Continuing the metaphor of a team, Bueno de Mesquita and Stevenson develop a model of decision-making in a hierarchy in which lower court judges sincerely attempt to implement higher court decisions, but are uncertain about how to do so precisely. In such a world, precedent serves to improve communication across tiers of a judicial hierarchy. The utility of a line of precedent is that it reduces the lower court judge’s uncertainty about an existing legal standard; however, this reduction in uncertainty is not costless to the higher court, especially if it wishes to alter the nature of the existing rule without explicitly breaking the line. The idea is that drafting such an opinion requires significant effort from the opinion writer. Consequently, the higher court must trade-off the ease of changing a rule by breaking a line of precedent for the reduction in lower court uncertainty over the existing rule. In summary, a flexible doctrine of stare decisis, at least as it concerns how the Supreme Court ought to treat its own decisions, is a direct consequence of using lines of precedent to improve communication.
Despite the overall quality of the essays, perhaps because of that quality, a [*276] number of questions remain. To be fair, the authors raise some of these questions themselves. Consider the Hammond, Bonneau and Sheehan model, in which it is possible for a circuit court to induce new legal rules at the Supreme Court level by strategically resolving its own cases. This result depends critically on the assumption that the majority opinion writer at the Supreme Court is able to make “take it or leave it” offers to the remainder of the Court, pitting a new legal state of affairs against the status quo. Under this assumption, we can observe equilibrium legal rules that do not reflect the preferences of the median justice. If we let the Court operate via an open amendment rule, which seems to be a better reflection of Supreme Court practice, it is unclear whether the circuit court’s influence would remain. Likewise, we might ask whether Cameron’s and Kornhauser’s striking result concerning the optimality of a three-tier judiciary for reducing errors in a judicial hierarchy is highly sensitive to their assumption that litigants become perfectly informed of the truth. Are four tiers really no better than three if this is not true? Moreover, as the authors themselves wonder, does it even make sense to think about an empirically “true” legal interpretation?
Returning to the compliance problem, both Rogers and Carrubba and Vanberg assume politicians pay some sort of exogenous cost for defying a constitutional court. Vanberg explicitly assumes that this cost is induced by something like the legitimacy of the high court. We might wonder in each model whether these costs are endogenous to the way that courts resolve their cases? Are they constant over time? If judicial legitimacy were itself a function of time, which is consistent with the empirical literature, then it would seem like these costs would vary temporally. But how? In answering that question, we may gain an understanding of how a weak court might evolve into a strong one.
That the book leaves many questions unanswered is a virtue, especially since answers to these questions seem neither obvious nor impossibly complicated. Consequently, INSTITUTIONAL GAMES contains nearly everything for which a scholar looks in an edited volume. There is a clear statement of purpose. Individual contributions actually manage to deliver on that purpose; and, readers are left with questions that beg for additional research.
© Copyright 2007 by the author, Jeffrey K. Staton.